David DiPisa v. Board of Education of the Township of Nutley, Essex County, 3/24/25 (#105-25)

105-25
OAL Dkt. No. EDU 15253-24
Agency Dkt. No. 302-9/24
New Jersey Commissioner of Education
Final Decision
David DiPisa,
Petitioner,
v.
Board of Education of the Township of Nutley, Essex
County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge (ALJ), for the reasons
stated in the Initial Decision, that petitioner did not acquire tenure in the position of school business
administrator pursuant to N.J.S.A. 18A:17-2.
Accordingly, the Initial Decision is adopted as the final decision in this matter, and the petition of
appeal is hereby dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	March 24, 2025
Date of Mailing: 	March 26, 2025
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1. Under
N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date of mailing
of this decision.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 15253-24
AGENCY DKT. NO. 302-9/24
DAVID DIPISA,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF NUTLEY,
Respondent.
__________________________________
Paul Griggs, Esq., for petitioner
Dennis 	McKeever, 	Esq., 	for 	respondent 	(Chasan 	Lamparello 	Mallon 	&
Cappuzzio, attorneys)
Record Closed: January 21, 2025 	Decided: February 7, 2025
BEFORE ANDREA PERRY VILLANI, ALJ:
STATEMENT OF THE CASE
David DiPisa was the Business Administrator for the Nutley Board of Education for
twenty-eight months, then he served as Assistant Superintendent for twenty months. Did
DiPisa acquire tenure in his former position as Business Administrator during the time he
worked in his new position as Assistant Superintendent? 	No. 	School business

OAL DKT. NO. EDU 15253-24
2
administrators may not use employment in a new position to acquire tenure in a former
position. See DiNapoli v. Bd. of Educ. of Twp. of Verona, 434 N.J. Super. 233, 240-41
(App. Div. 2014).
PROCEDURAL HISTORY
On September 13, 2024, DiPisa filed a Petition of Appeal with the Commissioner
of Education asserting tenure rights and seeking to return to the position of Business
Administrator/Board Secretary for the Board of Education of the Township of Nutley
(Board).
On October 21, 2024, the Board filed a Notice of Motion to Dismiss in Lieu of an
Answer.
On October 22, 2024, the Department of Education transmitted the matter to the
Office of Administrative Law (OAL) as a contested case under the Administrative
Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act establishing the OAL, N.J.S.A.
52:14F-1 to -23.
On November 19, 2024, I held a prehearing telephone conference. 	During the
conference, the parties agreed that no issues of material fact exist, and DiPisa would file
a cross-motion for summary decision. 	Toward this end, the parties further agreed that
they would submit a joint stipulation of facts so I could render a decision as a matter of
law.
On December 20, 2024, the parties submitted their Joint Stipulation of Facts,
together with Joint Exhibits, and DiPisa filed his Cross-Motion for Summary Decision.
On January 21, 2025, the Board filed its Reply to the Cross-Motion for Summary
Decision, and I closed the record.

OAL DKT. NO. EDU 15253-24
3
FINDINGS OF FACTS
Counsel submitted the following Joint Stipulation of Facts, which I FIND as FACT:
1. 	Nutley is a public school district with grades preschool through the
12 th grade.
2. 	DiPisa 	possesses 	a 	standard 	administrative 	certificate 	with 	an
endorsement as School Business Administrator issued in June 2012.
3. 	DiPisa was employed by the Board in the position of School Business
Administrator/Board Secretary for the following periods:
a. 	July 1, 2020 through June 30, 2021
b. 	July 1, 2021 through June 30, 2022
c. 	July 1, 2022 through October 17, 2022
4. 	DiPisa was employed by the Board in the position of Assistant
Superintendent 	of 	Business/Board 	Secretary 	for 	the 	following
periods:
a. 	October 18, 2022 through June 30, 2023
b. 	July 1, 2023 through June 29, 2024
5. 	On April 29, 2024, DiPisa submitted a written notice of resignation
from the position of Assistant Superintendent of Business/Board
Secretary effective June 29, 2024.
6. 	On May 7, 2024, the Board accepted DiPisa’s written notice of
resignation.
7. 	On May 20, 2024, the Board approved the abolishment of the
position of Assistant Superintendent of Business/Board Secretary.
8. 	On 	October 	10, 	2024, 	the 	Division 	of 	Pensions 	and 	Benefits
approved 	DiPisa’s 	application 	for 	Service 	Retirement 	effective
August 1, 2024.

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4
CONCLUSIONS OF LAW
Summary Decision
Summary decision may be rendered if the papers and discovery, which have been
filed, together with any affidavits, show that no genuine issue of material fact exists, and
the moving party is entitled to prevail as a matter of law. N.J.A.C. 1:1-12.5(b).
In this case, no genuine issue of material fact exists. 	The material facts are that
DiPisa was employed as Business Administrator for two years, three months, and
seventeen days. He then served as Assistant Superintendent for one year, eight months,
and thirteen days. He then resigned from his employment with the Board. As I discussed
below, these facts demonstrate that DiPisa did not acquire tenure, so the Board is not
required to return him to his position as Business Administrator, and the Board is entitled
to summary decision as a matter of law.
Tenure
Tenure rights are statutory and not contractual. 	Zimmerman v. Newark Bd. of
Educ., 38 N.J. 65, 72 (1962). The objective of tenure statutes is to protect competent and
qualified employees after a probationary period from being removed for "unfounded,
flimsy, or political reasons." 	Id. at 71. 	To acquire the security of tenure, the precise
conditions enunciated in the applicable statute must be met. See Picogna v. Bd. of Educ.
of Twp. of Cherry Hill, 143 N.J. 391, 400 (1996). Tenure “arises only by the passage of
time fixed by the statute." 	Canfield v. Bd. of Educ. of Pine Hill Borough, 97 N.J. Super.
483, 490 (App. Div. 1967). 	The employee shoulders the burden of establishing
entitlement to tenure protection, which ordinarily must be clearly proven. Id. at 493.
N.J.S.A. 18A:17-2 governs tenure for school business administrators. 	It confers
tenure on “[a]ny secretary, assistant secretary, school business administrator or business
manager of a board of education” who has served for three years. Id. In this case, DiPisa

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served as Business Administrator for two years, three months, and seventeen days.
Thus, he did not acquire tenure while he was employed as Business Administrator.
N.J.S.A. 18A:28-5 governs tenure for assistant superintendents. It confers tenure
on “teaching staff members…in the positions of teacher, principal…assistant principal,
vice principal, assistant superintendent…” after four years. Id. DiPisa served as Assistant
Superintendent for one year, eight months, and thirteen days. Thus, he did not acquire
tenure while serving as Assistant Superintendent either.
DiPisa argues that he acquired tenure because his total term in both positions was
four years. 	In support of his argument, DiPisa cites N.J.S.A. 18A:28-6b, which states,
“the period of employment in [a] new position shall be included in determining the tenure
and seniority rights in the former position…and in the event the employment in such new
position is terminated before tenure is obtained therein, if he then has tenure in the
district…[he] shall be returned to his former position…” Accordingly, DiPisa argues that
the term of his recent employment as Assistant Superintendent should be included when
calculating the term of his previous employment as Business Administrator.
DiPisa’s argument, however, ignores the language of N.J.S.A. 18A:28-6b that
limits its application to certain positions. 	More specifically, N.J.S.A. 18A:28-6b only
applies to teaching staff members that are “eligible to obtain tenure under this chapter,”
and who are “transferred or promoted…to another position covered by this chapter”
(emphasis added). Chapter 18A:28 covers teachers, principals, assistant principals, vice
principals, and assistant superintendents, among others. N.J.S.A. 18A:28-5. It does not
cover school business administrators.
Chapter 18A:17 covers school business administrators, but it does not contain a
tenure retention provision like the one included in Chapter 18A:28. 	N.J.S.A. 18A:17-2.
The tenure retention provision in Chapter 18A:28 represents the Legislature's intent to
preserve tenure for teaching staff members who transfer or are promoted to a different
position prior to achieving tenure in that position. DiNapoli v. Bd. of Educ. of Twp. of
Verona, 434 N.J. Super. 233, 240-41 (App. Div. 2014). 	The omission of this provision
from Chapter 18A:17 reflects the Legislature's decision not to afford such rights to school

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6
secretaries, business administrators, and business managers. 	See id. 	"When the
Legislature has carefully employed a term in one place and excluded it in another, it
should not be implied where excluded." Id. (quoting In re Plan for the Abolition of the
Council on Affordable Housing, 214 N.J. 444, 470 (2013)).
In this case, DiPisa served as a school business administrator under Chapter
18A:17, which does not contain a tenure retention provision. 	Therefore, his later
employment as Assistant Superintendent may not be included in determining his tenure
rights as Business Administrator.
Moreover, an employee who resigns and leaves a district, no matter what the
length of time between resignation and re-employment, relinquishes tenure. Commins v.
Bd. Of Woodbridge, 1967 S.L.D. 11; Solomon v. Board of Ed. of Princeton Regional
School District, 1977 S.L.D. 650, affirmed by the State Board 1977 S.L.D. 657.
In this case, DiPisa resigned. 	The Board accepted DiPisa’s resignation, and
DiPisa also applied for retirement, which the Division of Pensions and Benefits approved.
Therefore, even if DiPisa was a tenured Business Administrator – which he was not – he
relinquished his tenure when he resigned from his employment with the district.
For all of the foregoing reasons, I CONCLUDE that DiPisa was not a tenured
Business Administrator, and he is not entitled to return to that position.
ORDER
Given my findings of fact and conclusions of law, I ORDER that the Board’s Motion
to Dismiss is GRANTED and DiPisa’s Petition of Appeal is DISMISSED.
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 is authorized by law

OAL DKT. NO. EDU 15253-24
7
to make a final decision in this case. If the Commissioner of the Department of 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
under 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.
February 7, 2025
DATE 	ANDREA PERRY VILLANI, ALJ
Date Received at Agency 	February 7, 2025
Date Mailed to Parties 	February 7, 2025
sej