Corey Gallagher v. Board of Education of the Township of Byram, Sussex County, 10/6/2023, (#302-23)

302-23
New Jersey Commissioner of Education
Decision
Corey Gallagher,
Petitioner,
v.
Board of Education of the Township
of Byram, Sussex County,
Respondent.
Synopsis
Petitioner, a tenured teacher in the respondent Board’s school district, challenged the Board’s
withholding of his pay for certain dates that the Board contends were unexcused absences and not
compensable. Petitioner, who also serves as an assistant basketball coach in the Lenape Valley School
District (Lenape Valley), was approved for a medical leave of absence from his teaching position in
Byram to undergo back surgery in September 2022; he returned to work in Byram on January 5, 2023.
During the time he was on approved medical leave, petitioner continued to attend Lenape Valley’s
basketball practices. The days on which petitioner attended practices at Lenape Valley while on medical
leave from Byram are at issue in this case. Petitioner alleged that Byram’s actions violated his tenure
rights because his salary was reduced without just cause and without the benefit of a hearing. The
parties filed cross motions for summary decision.
The ALJ found, inter alia, that: petitioner’s argument that his tenure rights were violated is without
merit as the withholding of his wages was a recoupment, rather than an arbitrary change to petitioner’s
pay and there was no evidence that his rate of pay changed; 	despite his claims that he was only a
spectator at the Lenape Valley basketball practices, petitioner’s attendance at Lenape Valley basketball
practices constituted “other gainful employment” under Board Policy 3432, which provides that no day
will be considered a sick leave day on which an employee has engaged in or prepared for other gainful
employment; therefore, the dates at issue must be considered as unexcused absences rather than sick
days. Accordingly, the ALJ granted the Board’s motion for summary decision, denied petitioner’s motion
for summary decision, and dismissed the petition.
Upon review, the Commissioner, inter alia, concurred with the ALJ that the Board’s action in withholding
petitioner’s pay for unexcused absences was not in violation of the tenure laws and that petitioner’s
attendance at Lenape Valley basketball practices constitutes other gainful employment while on sick
leave, which is prohibited under Board Policy 3432. However, the Commissioner finds that this
matter must be remanded for factual findings regarding the specific dates on which petitioner
attended Lenape Valley practices. 	Accordingly, the matter was remanded to the OAL for further
proceedings consistent with the Commissioner’s decision.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. 00264-23
Agency Dkt. No. 373-12/22
New Jersey Commissioner of Education
Final Decision
Corey Gallagher,
Petitioner,
v.
Board of Education of the Township of
Byram, Sussex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL), the
exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and the reply thereto by the Byram
Board of Education (Byram or Board), have been reviewed and considered.
Petitioner is a tenured teacher in Byram. He is additionally employed as an assistant
basketball coach in the Lenape Valley School District (Lenape Valley). On September 21, 2022,
petitioner requested a medical leave of absence from his duties in Byram because he needed to
undergo back surgery. Petitioner’s leave was approved, and he ultimately returned to work on
January 5, 2023. However, it came to Byram’s attention that petitioner continued to attend Lenape
Valley Basketball practices while he was on leave. On December 5, 2022, Byram’s Superintendent
informed petitioner that Byram therefore expected him to return to work. On December 6, 2022,
petitioner did not return to work, and Byram’s Superintendent advised petitioner that he would not
302-23

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be paid for the days that he was employed as a coach by Lenape Valley but failed to report to work
in Byram – November 21, 22, 23, 28, 29, and 30, and December 1, 2, 5, and 6, 2022.1
Petitioner appealed, alleging that Byram’s actions violated his tenure rights because his
salary was reduced without just cause and without the benefit of a hearing. Following cross
motions for summary decision, the Administrative Law Judge (ALJ) rejected petitioner’s argument,
concluding that the tenure laws prohibit arbitrary changes to an employee’s pay, not the
withholding of wages as a recoupment, and there was no evidence that petitioner’s rate of pay had
been changed. Despite petitioner’s claims that he was only a spectator at the Lenape Valley
basketball practices, the ALJ also concluded that petitioner’s attendance at Lenape Valley basketball
practices constituted “other gainful employment” under Board Policy 3432, which provides that no
day will be considered a sick leave day on which an employee has engaged in or prepared for other
gainful employment. Accordingly, the ALJ found that the dates at issue must be considered as
unexcused absences rather than sick days. The ALJ granted the Board’s motion for summary
decision, denied petitioner’s motion for summary decision, and dismissed the petition.
In his exceptions, petitioner argues that summary decision for the Board was not
appropriate because, although the ALJ indicated that petitioner did not dispute that he appeared at
Lenape Valley basketball practices on the dates at issue, petitioner does dispute those dates.
According to petitioner, the Board provided no support as to the dates of Lenape Valley practices
that it believes petitioner attended or what petitioner did at those practices. Petitioner contends
that it does not make sense to prohibit him from “using his eyes at a time when he would not have
been teaching in any case as it was after school.” Finally, petitioner argues that withholding his pay
is in contravention of tenure law.
1 It appears from the record that petitioner stopped attending Lenape Valley practices after receiving the
December 6, 2022 notice.

3
In reply, the Board argues that the dates at issue were listed in exhibits that were jointly
agreed to by the parties, and therefore there is no factual dispute. Distinguishing the cases cited by
petitioner, the Board contends that docking a teacher’s pay for an unexcused absence is consistent
with the sick leave laws and does not violate the tenure laws or require the Board to bring tenure
charges to effectuate the recoupment. Accordingly, the Board urges the Commissioner to adopt
the Initial Decision.
Upon review, the Commissioner concurs with the ALJ that the Board’s action in withholding
petitioner’s pay for unexcused absences was not in violation of the tenure laws. The Commissioner
has previously concluded that a board of education is not required to initiate tenure charges to
withhold an employee’s pay for an unexcused absence. Charles Weisberg v. Bd. of Educ. of the Twp.
of Riverside, Burlington Co., Commissioner Decision No. 126-07 (decided March 18, 2004).
Petitioner’s arguments to the contrary, which were already made as part of his motion for summary
decision and rejected by the ALJ, are not persuasive.
The Commissioner concludes that Board Policy 3432, which prohibits the use of sick leave
on a day when an employee has engaged in or prepared for other gainful employment, is not
arbitrary, capricious, or unreasonable. The Commissioner concurs with the ALJ that petitioner’s
attendance at Lenape Valley basketball practices constitutes other gainful employment. Petitioner
was contracted to perform the duties of an assistant basketball coach for Lenape Valley – duties
which surely include attendance at practices. By appearing at those practices, petitioner was
fulfilling the obligations of his employment contract, and therefore engaging in other gainful
employment.
However, the Commissioner finds that this matter must be remanded for factual findings
regarding the dates on which petitioner attended Lenape Valley practices. Throughout the case,

4
petitioner has repeatedly admitted that he attended practices in Lenape Valley while on medical
leave from Byram, but nothing in the record specifies which dates are included in that admission.2
Petitioner’s exceptions indicate that he has proof that he did not attend practice on
December 5, 2022, because he had an appointment with his therapist on that date.3 Also included
in the record is a February 1, 2023 letter from petitioner to the ALJ that alleges that the district
withheld petitioner’s salary for two days that he did not attend practice; it is not clear what the
second disputed date was. While the Board may withhold petitioner’s pay for any days on which he
engaged in other gainful employment by attending a Lenape Valley practice, it may not do so for
days on which he did not appear at practice.
Accordingly, this matter is remanded for further proceedings consistent with this decision.
IT IS SO ORDERED.
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
2 The Commissioner finds that petitioner’s stipulation to exhibit J-11, which recites the dates at issue, is not
tantamount to his agreement that he attended Lenape Valley practices on those dates.
3 In its reply to petitioner’s exceptions, the Board disagrees that the therapist’s note proves that petitioner did not
attend practice, because the time of the appointment is allegedly different than the time of practice. The
Commissioner does not make any factual findings regarding whether petitioner attended practice on
December 5, 2022, and leaves that issue for the ALJ to determine on remand.
October 6, 2023
October 11, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 00264-23
AGENCY REF. NO.: 373-12/22
COREY GALLAGHER,
Petitioner,
vs.
TOWNSHIP OF BYRAM BOARD OF
EDUCATION, SUSSEX COUNTY,
Respondent.
___________________________________________
Randi Doner April, Esq., for petitioner (Oxfeld, Cohen, P.C., attorneys)
Paul E. Griggs, Esq., for respondent (Cornell, Merlino, McKeever & Osborne,
LLC, attorneys)
Record Closed: June 13, 2023 	Decided: July 11, 2023
BEFORE: JOHN P. SCOLLO, ALJ:
STATEMENT OF THE CASE
On December 5, 2022 the BOE (i.e., Superintendent of Schools, John Fritzky)
advised Petitioner Gallagher (hereinafter “Gallagher”) by email that the Byram Board of
Education (hereinafter the “BOE”) learned that Gallagher was working as an assistant
basketball coach for Lenape Valley High School while on medical leave from his
teaching position with Byram BOE. Fritzky advised Gallagher to report to work on
December 6. When Gallagher did not report to work in Byram on December 6, Fritzky

OAL DKT. NO. EDU 00264-23
2
advised Gallagher by email that his pay would be docked for the dates of November 21,
22, 23, 28, 29, 30, December 1, 2, 5, and 6, 2023. Byram BOE withheld ten days of
Gallagher’s pay.
Petitioner, Corey Gallagher challenges Respondent, Byram BOE’s withholding
(“docking”) of his pay for the subject dates. The BOE contends that Gallagher’s failure
to report to work on the dates in question were unexcused absences and therefore not
compensable. 	Gallagher 	contends 	that, 	per 	his 	physician’s 	notes 	and 	the 	BOE’s
approval of the medical leave of absence based on the physician’s notes, he was
excused from work on the dates in question and should therefore be paid sick time
benefits for those dates.
Gallagher, noting that he is a tenured employee, contends, pursuant to N.J.S.A.
18A:28-1 et seq. (particularly N.J.S.A. 18A:28-5) and N.J.S.A. 18A:6-10, that his salary
was reduced without just cause and without the required benefit of a hearing.
The BOE contends that this is not a salary reduction case and that N.J.S.A.
18A:28-1, et seq. are inapplicable. The BOE also contends that this case is a sick leave
(a/k/a “medical leave”) case and that the applicable law governing this case is found in
the 	parties’ 	Collective 	Bargaining 	Agreement, 	the 	BOE’s 	Policy 	Number 	3432
(governing the granting of sick leave), and N.J.S.A. 18A: 30-1, et seq. (governing the
requirements for sick leave and the docking of the employee’s annual salary for days
taken in excess of the limits of sick leave).
PROCEDURAL HISTORY
After Byram BOE withheld Gallagher’s pay, Gallagher’s counsel filed a Petition of
Appeal with the Commissioner of the New Jersey Department of Education dated
December 20, 2022. Upon receipt of the matter by the Department of Education’s Office
of Controversies and Disputes on January 6, 2023, the matter was transmitted on
January 9, 2023 to the Office of Administrative Law, where it was filed on January 10,
2023 as a contested case pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1
to 13. 	On January 18, 2023, the matter was assigned to Administrative Law Judge,

OAL DKT. NO. EDU 00264-23
3
John P. Scollo. Judge Scollo held an Initial Telephone Conference with both counsel on
January 24, 2023 and issued a Pre-Hearing Order on January 26, 2023, which set forth
discovery obligations and set due dates and conference dates.
After discovery was completed, counsel for Petitioner-Gallagher filed a Motion for
Summary Decision, which was followed by Respondent-BOE filing its Cross-Motion for
Summary Decision. This writing is the Tribunal’s Initial Decision on the Motion and
Cross-Motion.
UNDISPUTED FACTS
From their submissions, the Parties are in agreement regarding the following
statements of fact.
(1) 	Gallagher has been a staff member (teacher) with the Township of Byram
(the District or BOE) since 2002.
(2) 	Gallagher is a tenured employee.
(3) 	Gallagher’s annual salary in Byram for the 2022-2023 school is $82,912.
(4) 	Starting in 2013 and continuing to the present time, Gallagher has signed
multiple contracts with the Lenape Valley School District to serve as an assistant
basketball coach in that school district. For the 2022-2023 school year (July 1,
2022 through June 30, 2023), Gallagher was compensated with a one-time
stipend on February 28, 2023 of $5,973 for his service as an assistant basketball
coach.
(5) 	On September 21, 2022, Gallagher requested a medical leave of absence
from his teaching job with Byram because he needed to undergo back surgery.
He presented a letter from his physician, Jay Chun, M.D. dated September 21,
2022 stating that Gallagher would undergo back surgery on October 12, 2022
and would not be able to return to work for four to eight weeks after the date of
the surgery.
(6) 	On October 26, 2022, The Byram BOE approved Gallagher’s medical
leave of absence based on Dr. Chun’s September 21, 2022 letter.

OAL DKT. NO. EDU 00264-23
4
(7) 	In a letter dated November 17, 2022, Dr. Chun reported that Gallagher
was still under his care and he requested that Gallagher be excused from work
until the completion of physical therapy in six weeks.
(8) 	On December 5, 2022, Byram’s Superintendent of Schools John Fritzky
(hereinafter “Fritzky”) sent an email to Gallagher stating that his absences were
permitted based on Dr. Chun’s request; he (Fritzky) learned that during the time
of Gallagher’s leave he continued to be employed as a coach with Lenape Valley
School District; and he quoted BOE Policy 3432, which provides, in applicable
part, “no day will be considered a sick leave day on which the employee is
engaged in or prepared for other gainful employment … or has engaged in any
activity that would raise doubts regarding the validity of the sick leave request.”
Fritzky’s email ended with his statement that he expected Gallagher to be
present on December 6, 2022 to carry out his teaching responsibilities. Fritzky
also warned Gallagher saying, “If you do not appear for work, you will not be paid
for days absent because they are unexcused and not sick days.”
(9) 	On December 6, 2022, Gallagher did not appear for work in Byram. 	On
December 6, 2022, Fritzky sent an email to Gallagher again quoting Board Policy
3432 and advised Gallagher that he would not be paid for the days he was
employed as a basketball coach at the Lenape Valley Regional School District
but failed to report to work in the Byram School District. He set forth the dates as:
November 21, 22, 23, 28, 29, and 30 and December 1, 2, 5, and 6, 2022.
(10) 	Gallagher does not dispute that he appeared at basketball practices at
Lenape Valley on November 21, 22, 23, 28, 29 and 30 and on December 1, 2,
5, 	and 6, 2022. 	However, Gallagher maintains that although he appeared at
Lenape Valley on the above dates, he was a mere spectator and was not
working.
(11) 	Gallagher returned to his work duties in Byram on January 5, 2023.

OAL DKT. NO. EDU 00264-23
5
DISCUSSION
Gallagher’s Position
Gallagher maintains that N.J.S.A. 18A:6-10 and N.J.S.A. 18A:28-5 constitute the
applicable 	law 	governing 	this 	matter. 	These 	statutes 	have 	been 	cited 	in 	the
APPLICABLE LAW section of this Initial Decision. Gallagher argues that he is a tenured
employee and thus comes under the protections afforded by these statutes. He argues
that no tenure charges have been brought against him and he was not afforded any
type of hearing before the Byram BOE unilaterally withheld ten days’ of his wages.
Gallagher argues that the Byram BOE, without good cause, and despite the
opinions expressed in his physician’s letters, arbitrarily concluded that he was not
eligible for sick leave. Gallagher argues that although Board Policy 3432 provides that
employees who engage in or prepare for other gainful employment are not eligible for
sick pay, he remained eligible for sick pay on the subject dates because he was not
engaged in or preparing for gainful employment when he merely appeared at Lenape
Valley basketball practices as an observer and not as an active participant in coaching
activities.
Byram BOE’s Position
Byram BOE maintains that this is not a matter about a reduction (diminution) of
someone’s 	rate 	of 	pay. 	Therefore 	N.J.S.A. 	18A:6-10 	and 	N.J.S.A. 	18A:28-5 	are
inapplicable. 	Byram BOE maintains that this is a sick (medical) leave policy matter.
Byram BOE maintains that the applicable principles of law governing this case are
found in N.J.S.A. 18A:30-1, et seq. This statute is cited in the APPLICABLE LAW
section of this Initial Decision. Byram BOE maintains that the BOE’s policies, specifically
Board Policy 3432 controls this matter. 	Byram BOE also maintains that the Collective
Bargaining Agreement dated June 10, 2022 controls this matter. Both Board Policy
3432 and the applicable sections of the Collective Bargaining Agreement are cited in
the APPLICABLE LAW section of this Initial Decision.

OAL DKT. NO. EDU 00264-23
6
Byram BOE relies upon the definition of “sick leave” set forth in N.J.S.A. 18A:30-
1. There it states that “sick leave” means “the absence from his or her post of duty, of
any person because of personal disability due to illness or injury, or because he or she
has been excluded from school by the school district’s medical authorities on account of
a contagious disease ….”
In the matter at bar, there is no doubt that Gallagher underwent a surgical
procedure to his back and thereafter underwent a course of physical therapy. 	There is
no doubt that his physician supplied notes to the Byram BOE explaining the need for a
period of sick leave for Gallagher to recover from his procedure. By way of background,
in 	addition 	to 	his 	employment 	as 	a 	schoolteacher 	in 	the 	Byram 	School 	District,
Gallagher is also employed as an Assistant Basketball Coach in the Lenape Valley
School District. This is a paid position. The problem presented in this matter arises out
of the fact that, while on sick leave from Byram, Gallagher appeared at high school
basketball practice sessions (and perhaps games) at Lenape Valley. Byram BOE
argues 	that 	Gallagher’s 	appearance 	at 	Lenape 	Valley 	was 	in 	furtherance 	of 	his
employment obligations with Lenape Valley and thus constituted engagement in or
preparation for “other gainful employment” while on sick leave, thus, in the BOE’s
judgment, making him ineligible to collect sick leave pay.
Byram BOE argues that it has never sought to reduce, nor has it reduced
Gallagher’s rate of pay. 	Byram argues that by withholding ten days’ of Gallagher’s pay
it was merely recouping money paid to Gallagher as sick pay for time when he was
ineligible to collect sick pay (i.e., on the aforesaid subject dates).
APPLICABLE LAW
The statutes under discussion in this matter are N.J.S.A. 18A:6-10 (Dismissal
and 	Reduction 	in 	Compensation 	of 	Persons 	Under 	Tenure 	in 	the 	Public 	School
System); N.J.S.A. 18A:28-5 (Requirements for Tenure); and N.J.S.A. 18A:30-1,et seq.
(Sick Leave).

OAL DKT. NO. EDU 00264-23
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N.J.S.A. 18A:6-10 reads as follows:
No person shall be dismissed or reduced in compensation,
(a) If he shall be under tenure of office, position or employment
during good behavior and efficiency in the public school
system of the state, or If he is or shall be under tenure of
office, position or employment during good behavior and
efficiency as a supervisor, teacher or in any other teaching
capacity in the Marie H. Katzenbach school for the deaf, or
in any other educational institution conducted under the
supervision of the commissioner;
except for inefficiency, incapacity, unbecoming conduct, or
other just cause, and then only after a hearing held pursuant
to 	this 	subarticle, 	by 	the 	commissioner, 	or 	a 	person
appointed by him to act in his behalf, after a written charge
or charges, of the cause or causes of complaint, shall have
been preferred against such person, signed by the person or
persons 	making 	the 	same, 	who 	may 	or 	may 	not 	be 	a
member or members of a board of education, and filed and
proceeded upon as in this subarticle provided.
Nothing in this section shall prevent the reduction of the
number of any such persons holding such offices, positions
or employments under the conditions and with the effect
provided by law.
N.J.S.A. 18A:28-5 (in applicable part) reads as follows:
(a) The services of all teaching staff members employed prior to
the effective date of P.L. 2012, c.26 (C.18A:6-117 et al.) in
the positions of teacher, principal, other than administrative
principal, 	assistant 	principal, 	vice-principal 	assistant
superintendent, and all school nurses … , shall be under
tenure during good behavior and efficiency and they shall
not be dismissed or reduced in compensation except for
inefficiency, 	incapacity, 	or 	conduct 	unbecoming 	such 	a
teaching staff member or other just cause and then only in
the manner prescribed by subarticle B of article 2 of chapter
6 of this Title. after employment in such district or by such
board for … (specified time periods).
The services of all teaching staff members employed on or
after the effective date of P.L. 2012, c.26 (C. 18A:6-117 et
al.) 	in 	the 	position 	of 	teacher, 	principal, 	other 	than
administrative 	principal, 	assistant 	principal, 	vice-principal,
assistant superintendent, and all school nurses …, shall be
under tenure during good behavior and efficiency and they

OAL DKT. NO. EDU 00264-23
8
shall not be dismissed or reduced in compensation except
for inefficiency, incapacity, or conduct unbecoming such a
teaching staff member or other just cause and then only in
the manner prescribed by subarticle B of article 2 of chapter
6 of this Title, after employment in such district or by such
board for… (specified time periods). (Section (b) continues
with criteria which a teacher must meet in order to gain
tenure, including the successful completion of a mentorship
program. 	(Section 	(c) 	provides 	that 	tenure 	in 	an
administrative or supervisory position shall accrue only by
employment in that administrative or supervisory position.
N.J.S.A. 18A:30-1 through 13 governs all aspects of sick leave policy. For the matter at
bar the applicable sections are: 18A:30-1(Definition of Sick Leave); 18A:30-2 (Sick
Leave 	Allowable); 	18A:30-3 	(Accumulated 	Sick 	Leave); 	18A:30-4 	(Physician’s
Certificate Required for Sick Leave); and 18A:30-6 (Prolonged Absence Beyond Sick
Leave Period). The text of each of the aforementioned sections follow.
N.J.S.A. 18A:30-1 reads as follows:
Sick leave is hereby defined to mean the absence from his
or her post of duty, of any person because of personal
disability due to illness or injury, or because he or she has
been excluded from school by the school district’s medical
authorities on account of a contagious disease or being
quarantined for such a disease in his or her immediate
household.
N.J.S.A. 18A:30-2 reads as follows:
All persons holding any office, position, or employment in all
Local school districts or county vocational schools of the
state who are steadily employed by the board of education
or who are protected by tenure in their office, position, or
employment under the provisions of this or any other law,
except persons in the classified service of the civil service
under Title 11, Civil Service, of the Revised Statutes, shall
be allowed sick leave with full pay for a minimum of 10
school days in any school year.
N.J.S.A. 18A:30-3 reads as follows:
If any such person requires in any school year less than the
specified number of days of sick leave with pay allowed, all
days of such minimum sick leave not utilized that year shall

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9
be accumulative to be used for additional sick leave as
needed in subsequent years.
N.J.S.A. 18A:30-4 reads as follows:
In case of sick leave claimed, a board of education may
require a physician’s certificate to be fled with the secretary
of the board of education in order to obtain sick leave.
N.J.S.A. 18A:30-6 reads as follows:
When 	absence, 	under 	the 	circumstances 	described 	in
section 18A:30-1 of this article, exceeds the annual sick
leave 	and 	the 	accumulated 	sick 	leave, 	the 	board 	of
education may pay any such person each day’s salary less
the pay of a substitute, if a substitute is employed or the
estimate cost of the employment of a substitute if none is
employed, for such length of time as may be determined by
the board of education in each individual case. A day’s
salary is defined as 1/200 of the annual salary.
Article 13 of the Collective Bargaining Agreement dated June 10, 2022 between
the Byram Township Board of Education and the Byram Education Association, tracks
the provisions of N.J.S.A. 18A:30-1, et seq. 	Section ‘A’ provides that teachers are
entitled to ten sick leave days per school year and that unused sick leave time shall be
accumulated from year to year with no maximum limit. 	Section ‘C’ allows the BOE to
require a physician’s certificate in order to obtain credit for sick leave. 	Under Section
‘D’, the BOE may, in its sole discretion, grant extended paid leave of absence to a
teacher who has exhausted his or her accumulated sick leave due to a lengthy illness,
in accordance with N.J.A.C. 18A:30-6.
The Byram BOE’s Sick Leave Policy is set forth in District Policy number 3432.
In applicable part, District Policy 3432 provides as follows:
The Board of Education shall grant sick leave, in accordance
with 	law, 	to 	teaching 	staff 	members 	absent 	from 	work
because of personal disability or quarantine. Each steadily
employed employee eligible for sick leave will be entitled
annually to the number of paid sick leave days negotiated
with the employee’s majority representative or provided in
this policy or in an individual contract with the Board.

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10
The Board reserves the right to require of any employee who
claims sick leave, sufficient proof, including a physician’s
certification, of the employee’s illness or disability. 	As a
minimum, no day will be considered to be a sick leave day
on which the employee has engaged in or prepared for other
gainful employment, has participated in a work stoppage, or
has 	engaged 	in 	any 	activity 	that 	would 	raise 	doubts
regarding the validity of the sick leave request.
ISSUES
(1) 	Did Byram BOE reduce Gallagher’s salary?
(2) 	Was 	Gallagher 	working 	when 	he 	attended 	Lenape 	Valley 	basketball
practices or games?
(3) 	Was there sufficient justification for Byram to withhold ten days’ pay from
Gallagher?
LEGAL ANALYSIS AND CONCLUSIONS
Analysis of Issue Number One
It has been stipulated that Gallagher’s rate of pay in Byram Township for the
school year 2022-2023 was $82,912. Gallagher’s argument is that Byram’s withholding
of his pay is not a recoupment of wages improvidently paid as sick leave, but is a
reduction of his salary without just cause and without a hearing. The statutes upon
which Gallagher bases his reduction claim, N.J.S.A. 18A:6-10 and N.J.S.A. 18A:28-5,
prohibit arbitrary changes to an employee’s rate of pay without just cause and without a
hearing. They do not contemplate whether an employer’s withholding of wages in order
to recoup wages improvidently or mistakenly paid to an employee as sick leave is a
reduction of that employee’s rate of pay. There is no evidence in this matter that
demonstrates that Gallagher’s rate of pay has been changed. 	There is abundant
evidence that what occurred in this matter was that Byram BOE paid sick leave benefits
to Gallagher, but later came to learn that Gallagher was not eligible to receive sick leave
pay for the subject dates. There has been no disagreement about the amounts paid /

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11
received. 	The only dispute is whether this is a matter of recoupment or of reduction of
Gallagher’s rate of pay. Moreover, there is no dispute that if Gallagher or any other
employee were absent without being excused, the Byram BOE would not be obliged to
pay for unexcused absences. I CONCLUDE that there has been no evidence adduced
in this matter, which proves that the Byram BOE reduced Gallagher’s rate of pay.
Analysis of Issue Number Two
Policy 3432 says “…no day will be considered to be a sick leave day on which an
employee has engaged in or prepared for other gainful employment” If Gallagher, while
at Lenape Valley stepped onto the basketball court, picked up a note pad, drew
diagrams, picked up a clip board, made notes, spoke with a player or other coaches
about the subject of basketball, or simply picked up a basketball, a towel, or other
equipment, 	then it would be clear that he “engaged in” coaching, which is a “gainful
employment”. 	Board Policy 3432 also says “… no day will be considered a sick leave
day on which the employee ‘prepared for’ other gainful employment.” Gallagher claims
that he did not engage in basketball coaching activities on the days that he appeared at
Lenape Valley. 	He claims that he was only a spectator at the team’s practice. 	If he
were not under contract with Lenape Valley and were to observe the team during its
practice session, he would be like any other spectator. He could not be construed to be
‘preparing for’ other gainful employment. 	However, Gallagher was under contract with
Lenape Valley as an assistant basketball coach on the subject dates when he appeared
at Lenape Valley to watch his team. 	It is beyond dispute that he would remember his
observations of his team when he returned to work. Those observations could, and
likely would, serve as insights into the performance of individual players and into the
performance of the team as a whole unit. The observations that Gallagher made of his
team during practice sessions on the subject dates could, and likely would, aid him
when he returned to active coaching. It follows that these observations can and should
be deemed to be “preparations for” his job at Lenape Valley, which, of course, is “other
gainful employment”. 	Therefore, I CONCLUDE that Gallagher’s attendance at Lenape
Valley basketball practices constitutes “other gainful employment” under Board Policy
3432.

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Analysis of Issue Number Three
Under Board Policy 3432, days on which the employee either engages in or
prepares for other gainful employment cannot be considered as sick leave days. If an
employee fails to report to work without being excused from his work duties by his
employer, he has no right to demand payment and the employer has the right to
withhold wages for any unexcused absences. 	Having concluded that Gallagher was
engaged in or preparing for “other gainful employment” while attending Lenape Valley
basketball practice, I CONCLUDE that Byram BOE was correct when it decided that the
subject dates should not be considered as sick leave days.
Since Gallagher was absent and did not perform his work duties for Byram BOE
on the subject days, I CONCLUDE that the subject dates must be considered as
unexcused absences.
Since Byram BOE had already paid sick leave pay to Gallagher for the subject
dates, and since it was later realized that Gallagher was neither entitled to receive sick
leave pay nor any pay for unexcused absences, I CONCLUDE that Byram BOE was
justified in withholding ten days of Gallagher’s wages in order to recoup the monies
which Gallagher had already received from Byram BOE.
ORDER
It is hereby ORDERED that the Byram BOE’s motion for SUMMARY DECISION
is GRANTED, and it is further ORDERED that Gallagher‘s motion for SUMMARY
DECISION is DENIED and his Petition is DISMISSED in its entirety.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of

OAL DKT. NO. EDU 00264-23
13
Education does not adopt, modify, or reject this decision within forty-five days and
unless such time limit is otherwise extended, this recommended decision shall become
a final decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
July 11, 2023
DATE 	JOHN P. SCOLLO, ALJ
Date Received at Agency:
Date Mailed to Parties:
db