Alexander Cardillo v. Board of Education of the City of Paterson, Passaic County, 5/15/2024, (#192-24)

192-24
New Jersey Commissioner of Education
Final Decision
Alexander Cardillo,
Petitioner,
v.
Board of Education of the City of Paterson,
Passaic County,
Respondent.
Synopsis
Petitioner, formerly employed as a nontenured library media specialist with the Board, was non-renewed
prior to the 2019-2020 school year due to a reduction in force (RIF). Petitioner discovered in 2022 that the
Board had hired another person as a librarian and contended that because of the RIF, he should have been
subject to recall based on his seniority. Petitioner asserted that the Board should have offered him the
librarian position before it hired another individual. The Board filed a motion to dismiss, contending that
petitioner failed to state a claim upon which relief can be granted since nontenured employees do not have
recall rights under New Jersey law.
The ALJ found, inter alia, that: reemployment following a RIF is governed by N.J.S.A. 18A:28-12, which by
its terms applies only to tenured employees; petitioner’s contention that the Paterson Board of Education
Policy 3146 includes recall rights for employees terminated as the result a RIF is without merit, as that
policy is consistent with state law and affords recall rights and seniority only to tenured staff members; and
petitioner does not have a cause of action since neither state law nor board policy provide recall rights to
nontenured employees. Accordingly, the ALJ granted the Board’s motion to dismiss the petition for failure
to state a claim.
The Commissioner concurred with the ALJ’s findings and conclusions and adopted the comprehensive Initial
Decision of the OAL as the final decision in this matter. 	Accordingly, the Board’s motion to dismiss the
petition for failure to state a claim was granted.
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.

192-24
OAL Dkt. No. EDU 10182-22
Agency Dkt. No. 290-10/22
New Jersey Commissioner of Education
Final Decision
Alexander Cardillo,
Petitioner,
v.
Board of Education of the City of Paterson,
Passaic 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 Board’s reply thereto, have been
reviewed and considered.
Petitioner was formerly employed as a nontenured library media specialist with the Board.
On May 13, 2019, the Board informed him that his employment would not be renewed due to a
reduction in force (RIF). According to petitioner, Board meeting minutes from September 2022
reflect that the Board subsequently hired a librarian. He asserts that because of the RIF in 2019, he
should have been subject to recall based upon his seniority and that the Board should have offered
him the librarian position before hiring another individual. The Board moved to dismiss the petition
on grounds that it failed to state a claim upon which relief can be granted because nontenured
employees do not have recall rights under New Jersey law.

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Upon review, the Administrative Law Judge (ALJ) granted the Board’s motion to dismiss the
petition for failure to state a claim. The ALJ reasoned that “[e]ven accepting all of petitioner’s alleged
facts as true, the petitioner does not have a cause of action” because “neither state law nor board
policy provide recall rights to nontenured employees.” Initial Decision, at 9. The ALJ concluded that
N.J.S.A. 18A:28-12, which addresses reemployment based on seniority after a RIF, is not applicable
to nontenured employees. The ALJ further concluded that Board Policy 3146 “is consistent with state
law, affording recall rights and seniority only to tenured staff members.” Initial Decision, at 10.
Accordingly, the ALJ granted the Board’s motion to dismiss the petition for failure to state a claim.
In his exceptions, petitioner argues that the ALJ did not apply the correct standard of review
when he dismissed the petition. Petitioner contends that he alleged sufficient facts to support a
cause of action which the ALJ should have accepted as true. Petitioner claims that if the action had
been permitted to move forward, he would have presented proofs to establish that the Board has
previously recalled nontenured faculty after their separation from the district, thereby applying its
RIF policy to both tenured and nontenured faculty.1
In reply, the Board argues that the Initial Decision should be adopted by the Commissioner.
The Board asserts that the ALJ applied the correct standard of review when dismissing the petition
for failure to state a claim. It further contends that the ALJ correctly concluded that nontenured staff
members whose employment is not renewed do not have recall rights under either state law or Board
Policy 3146.
1 Petitioner also contends that the ALJ should have held oral argument on the motion to dismiss the petition because
he requested same. However, he was not entitled to oral argument at the OAL. The Uniform Administrative
Procedure Rules, at N.J.A.C. 1:1-12.2(d), provide that “[a]ll motions in writing shall be decided on the papers unless
oral argument is directed by the judge.” Thus, “it was within the ALJ’s discretion to decide the written motion
without oral argument.” R.P. v. Bd. of Educ. of Hunterdon Centr. Reg’l High Sch. Dist., Hunterdon Cnty.,
Commissioner Decision No. 188-20 at 4 (Aug. 27, 2020).

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Upon review, the Commissioner adopts the comprehensive Initial Decision as the final
decision in this matter. Petitions are subject to dismissal by the Commissioner “on the grounds that
the petitioner has advanced no cause of action even if the petitioner’s factual allegations are
accepted as true.” N.J.A.C. 6A:3-1.10. This standard also appears in New Jersey Court Rule 4:6-2(e),
which permits a motion for judgment on the pleadings for failure to state a claim upon which relief
can be granted. See Jonathan Wadley v. N.J. Dep’t of Educ., Office of Student Prot., OAL Dkt. No.
EDU 09223-22, Initial Decision at 4-5 (Mar. 10, 2023), adopted, Commissioner Decision No. 110-23
(Apr. 11, 2023) (assessing respondent’s motion to dismiss pursuant to N.J.A.C. 6A:3-1.10 under the
standards used by courts when analyzing Rule 4:6-2 motions). Such motions “must be evaluated in
light of the legal sufficiency of the facts alleged” in the petition. Sickles v. Cabot Corp., 379 N.J. Super.
100, 106 (App. Div. 2005) (quoting Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005)).
While petitioner is not expected to prove his case at the pleadings stage, the petition must contain
factual “allegations, which, if proven, would constitute a valid cause of action.” Ibid. (quoting Leon v.
Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)). Ultimately, a petition must be dismissed
for failure to state a claim “if it has failed to articulate a legal basis entitling [petitioner] to relief.”
Ibid.
The Commissioner concurs with the ALJ that N.J.S.A. 18A:28-12, “Reemployment in order of
seniority,” is not applicable to nontenured employees. “The Legislature’s intent is the paramount
goal when interpreting a statute, and, generally, the best indicator of that intent is the statutory
language.” DiProspero v. Penn, 183 N.J. 477, 492 (2005). Statutory language should be read “in
context with related provisions so as to give sense to the legislation as a whole.” Ibid. Accordingly,
it is important to recognize that N.J.S.A. 18A:28-12 is codified in Title 18A, Chapter 28 (“Tenure”),
Article 3, which is titled “Effect of Reduction of Force Upon Persons Under Tenure.” Nontenured

4
employees are not referenced within Chapter 28. Provisions related to employment of nontenured
employees are codified within Chapter 27. See, e.g., N.J.S.A. 18A:27-10 (mandating requirements for
notice of continued employment to nontenured teaching staff members).
Moreover, New Jersey’s courts have consistently held that Title 18A, Chapter 28 “does not
purport to create employment rights for nontenured employees.” Kaprow v. Bd. of Educ. of Berkeley
Twp., 131 N.J. 572, 585 (1993) (quoting Bednar v. Westwood Bd. of Educ., 221 N.J. Super. 239, 242
(App. Div. 1987)). “[N]ontenured teachers whose contracts are not renewed by reason of a RIF are
not entitled to the reemployment rights conferred by Chapter 28.” Bednar, 221 N.J. Super. at 242.
See Union Cnty. Reg’l High Sch. Bd. of Educ. v. Union Cnty. Reg’l High Sch. Tchrs. Ass’n, 145 N.J. Super.
435, 437 (App. Div. 1976) (“[N]ontenured teachers whose contracts of employment are not renewed
by reason of a reduction in force plainly are denied any reemployment rights whatever . . . .”); Bd. of
Educ. of Englewood v. Englewood Tchrs’ Ass’n, 150 N.J. Super. 265, 270 (App. Div. 1977) (“The
determination not to renew the contract of a nontenured teacher is a discretionary matter for the
local board, and where it results from a reduction in force there exists no right of reemployment.”).
Additionally, “[s]eniority is a by-product of tenure and comes into play only if tenure rights are
reduced by way of dismissal or reduction in tangible employment benefits.” Carpenito v. Bd. of Educ.
of Borough of Rumson, 322 N.J. Super. 522, 531 (App. Div. 1999). Therefore, employees who have
not acquired tenure “have no right to seniority nor to a place on the preferred eligibility list” for
purposes of reemployment following a RIF. Kaprow, 131 N.J. at 586.
Notably, petitioner’s exceptions neither address the significance of the plain language within
Title 18A, Chapter 28, nor related controlling case law. Instead, petitioner relies primarily upon Board
Policy 3146 in support of his contentions. With respect to Board Policy 3146, which cites Title 18A,
Chapter 28, the Commissioner concurs with the ALJ that it affords recall rights and seniority only to

5
tenured staff members. Boards of education are not empowered to adopt policies or otherwise act
in a manner inconsistent with the laws codified in Title 18. N.J.S.A. 18A:11-1(c). See Atl. City Educ.
Ass’n v. Bd. of Educ. of Atl. City, 299 N.J. Super. 649, 654 (App. Div. 1997) (“A local Board is a creature
of the State and may exercise only those powers granted to it by the Legislature either expressly or
by necessity or fair implication.”). As a matter of law, Board Policy 3146 cannot extend reemployment
rights to nontenured faculty as petitioner alleges. See Bednar, 221 N.J. Super. at 242 (“[N]ontenured
teachers whose contracts are not renewed by reason of a RIF are not entitled to the reemployment
rights conferred by Chapter 28.”). Neither the Board nor the Commissioner may “erode[] tenure
rights which appear plain on the face of the statute, [and] which . . . can be removed only by the
Legislature.” Id. at 243. Even assuming the facts alleged by petitioner are true—i.e., that the Board
has extended reemployment rights to nontenured staff in the past based upon Board Policy 3146—
that fact cannot provide a legal basis for petitioner’s claims. Therefore, petitioner has failed to state
a claim upon which relief can be granted.
Accordingly, the Board’s motion to dismiss the petition for failure to state a claim is granted.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: May 15, 2024
Date of Mailing: May 16, 2024
2 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
INITIAL DECISION
MOTION TO DISMISS
OAL DKT. NO. EDU 10182-22
AGENCY DKT. 290-10/22
ALEXANDER CARDILLO,
Petitioner,
v.
CITY OF PATERSON BOARD OF EDUCATION,
PASSAIC COUNTY,
Respondent.
______
Juan C. Fernandez, Esq., for Petitioner (Fernandez Garcia, LLC, attorneys)
Kyle J. Trent, Esq., for Respondents (Apruzzese, McDermott, Mastro & Murphy,
PC, attorneys)
Record Closed: February 5, 2024 	Decided: April 10, 2024
BEFORE THOMAS R. BETANCOURT, ALJ:

OAL DKT. NO. EDU 10182-22
2
STATEMENT OF THE CASE
Petitioner, a former nontenured staff member at Paterson Public Schools was let
go during a reduction in force and alleges that when the respondent later hired another
employee to a similar position, he should have been recalled or offered the job. 	The
matter at issue is whether nontenured staff members at Paterson Public Schools have a
recall right following a reduction in force.
STATEMENT OF THE FACTS
Alexander Cardillo, the petitioner, was a nontenured library media specialist at
Paterson Public Schools. 	The petitioner was months away from receiving tenure when
on May 13, 2019, he was informed that his employment would end on June 30, 2019, due
to a reduction in force (RIF). 	Cardillo asserts that he was the most senior nontenured
library media specialist in the District. The petitioner asserts that because of the RIF that
occurred in 2019, the District had a callback list based on seniority. 	He asserts that by
January 2023, the District had hired more than 149 teachers from 2022-2023. He asserts
that September 2022 Board minutes show the District hired a librarian and did not offer
the position to him first. The petitioner asserts that because of the RIF in 2019, he should
have been subject to recall and been offered the position before others could have
received it. The petitioner asserts that respondent violated law and policy when it did not
recall him or offer him the position prior to hiring another individual.
PROCEDURAL HISTORY
On or around October 18, 2022, the petitioner filed a petition with the Department
of Education alleging that the Paterson Board of Education violated policy and practice
when it did not call him back to work following a reduction in force. On or about November
8, 2022, respondent, the Paterson Board of Education, filed a motion to dismiss the
petition in lieu of an answer. 	On or about November 14, 2022, the Department of
Education transmitted the petition as well as the motion to the Office of Administrative
Law. 	A hearing was held on the matter on November 15, 2023, where the filing of an

OAL DKT. NO. EDU 10182-22
3
amended petition was discussed. The petitioner filed an amended petition on December
29, 2023. 	On January 18, 2024, the respondent filed a motion to dismiss the amended
petition in lieu of answer. 	On February 1, 2024, the petitioner filed an opposition to the
motion to dismiss the amended petition. And on February 5, the respondent filed a reply.
On or about March 13, 2024, the matter was transferred from the Hon. Elissa Testa
to the Honorable Thomas R. Betancourt.
MOTION TO DISMISS
I. 	Respondent’s Arguments for Dismissal
Respondent argues in its motion to dismiss the amended petition that the petitioner
has failed to state a claim where relief may be granted. 	Respondent states that “as a
non-tenured former employee whose employment ended contemporaneous to a RIF,
Cardillo was and is not entitled to any seniority, recall, or reemployment rights under the
law or District Policy.” Resp’t Mot. to Dismiss 6. Respondent points to N.J.S.A. 18A:28-
12 and N.J.A.C. 6A:32-5.1 and says that under the law seniority and reemployment rights
only apply to those with tenure. Respondent cites to Lichtman v. Board of Education, 93
N.J. 362, 368 n. 4 (1983) where the New Jersey Supreme Court stated, “Seniority, on the
other hand, provides a mechanism for ranking all tenured teaching staff members so that
reductions in force and reemployment can be effected in an equitable fashion and in
accord 	with 	sound 	educational 	policies” 	(signaling 	to 	N.J.S.A. 18A:28-10 	to 	-12).
Respondent points out that the reduction in force laws under New Jersey Statute are
titled, “Article 3. Effect of Reduction of Force Upon Persons Under Tenure (§§ 18A:28-9
— 18A:28-14).” Respondent quotes from the Superior Court, Appellate Division, stating,
“The determination not to renew the contract of a nontenured teacher is a discretionary
matter for the local board, and where it results from a reduction in force there exists no
right of reemployment.” 	Board of Education v. Englewood Teachers' Ass’n, 150 N.J.
Super. 265, 270 (App. Div. 1977) (signaling to Union County Regional High School Board
of Education v. Union County Regional High School Teachers Ass’n, 145 N.J. Super. 435
(App. Div. 1976), certif. den. 74 N.J. 248 (1977)).

OAL DKT. NO. EDU 10182-22
4
The respondent disputes that Paterson Board of Education policy provides the
petitioner with any callback rights, explaining that Board Policy 3146 which addresses
reduction in force “expressly implements the law and does not extend additional rights . .
. ” Resp’t Mot. to Dismiss 8. Furthermore, respondent states that the policy itself never
mentions providing nontenured employees with any type of seniority or recall rights. And
furthermore, respondent states that petitioner’s deposition testimony exhibits (which
come from a superior court case between the same parties) omit the testimony which
contradicts 	the 	petitioner’s 	assertions, 	and 	that 	the 	full 	deposition 	testimony 	of
respondent’s officials shows that nontenured employees do not have seniority or callback
rights.
II. 	Petitioner’s Arguments Against Dismissal
Petitioner argues that the undersigned should deny the respondent’s motion to
dismiss because the Commissioner did not grant the dismissal prior to transmittal.
Petitioner cites to N.J.A.C. 6A:3-1.10 to support this argument.1 	Petitioner responds to
respondent’s arguments for dismissal by stating:
Despite BOE policy and testimony that non-tenured teachers
have rights to be recalled as a result of a Reduction of Force
(“RIF”), the BOE argues that such rights do not exist for non-
tenured teachers. 	In support of this assertion, the BOE
utilizes extraneous and disputed testimony to attack the
veracity of the allegations made by Mr. Cardillo. This is simply
impermissible 	and 	contrary 	to 	the 	standard 	of 	review
articulated in Rule 6A:3-1.10 and case law.
[Pet’r Opp’n Mot. 2-3]
1 N.J.A.C. 6A:3-1.10 states:
Dismissal or transfer of petition
At any time prior to transmittal of the pleadings to the OAL, in the
Commissioner's discretion or upon motion to dismiss filed in lieu of
answer, the Commissioner may dismiss the petition on the grounds that
the petitioner has advanced no cause of action even if the petitioner's
factual allegations are accepted as true or for lack of jurisdiction, failure to
prosecute or other good reason.

OAL DKT. NO. EDU 10182-22
5
Petitioner says “that the BOE is compelled by law to determine and create guidelines for
the hiring of all staff (the Amended Petition, ¶ 3), and that law and BOE Policy determine
staff hiring and recall rights. (See Amended Petition, ¶¶ 4 and 6).” Pet’r Opp’n Mot. 3.
Petitioner says that “testimony from the very top School Administrators – including the
school district’s own Superintendent – confirm that Policy 3146, the conduct of the RIF,
and recall of faculty apply to both tenured and non-tenured staff. (See Shafer T80:1-10,
T80:11-18; T81:7-14; Rojas T42:1-19; Moody-Stephens T49:3-15).” Pet’r Opp’n Mot. 6-
7. Petitioner claims “that there are sufficient facts at issue regarding non-tenured staff
rights and their recall rights when they are subject to a RIF” and that therefore this case
should not be dismissed. Pet’r Opp’n Mot. 4-5. 	The petitioner says that there needs to
be a hearing to determine the factual issue of whether nontenured teachers have recall
rights. 	Furthermore, petitioner requests oral argument if the respondent’s motion is
entertained.
III. 	Respondent’s Reply to Petitioner’s Opposition
In response, Respondent points to N.J.A.C. 6A:3-1.5(g) which states in part
regarding motions to dismiss in lieu of answer, “Briefing on such motions shall be in the
manner and within the time fixed by the Commissioner, or by the ALJ if the motion is to
be briefed following transmittal to the OAL.” 	Respondent says that that this shows the
ALJ can rule on a motion to dismiss. Furthermore, respondent points out that the motion
to dismiss was filed after transmittal given the filing of the amended petition. Respondent
also states that it was within its rights to provide the remaining parts of the deposition
testimony petitioner had originally provided, since the remaining parts show petitioner’s
arguments to be incorrect. To that end, respondent relies on R. 4:16-1(d) which states,
“If only part of a deposition is offered in evidence by a party, an adverse party may require
the offering party to introduce any other part which ought in fairness be considered with
the part introduced, and any party may offer any other parts.” Furthermore, respondent
states that any claim from when the reduction in force occurred in 2019 would be time
barred pursuant to N.J.A.C. 6A:3-1.3(i).

OAL DKT. NO. EDU 10182-22
6
Legal Discussion
I. 	Standards for a Motion to Dismiss
Upon the filing of a petition before the Commissioner of Education, a respondent can
file a motion to dismiss in lieu of an answer. N.J.A.C. 6A:3-1.5(g). 	The Commissioner
can grant a motion to dismiss in lieu of answer “on the grounds that the petitioner has
advanced no cause of action even if the petitioner's factual allegations are accepted as
true or for lack of jurisdiction, failure to prosecute or other good reason.” N.J.A.C. 6A:3-
1.10. “[T]he test for determining the adequacy of a pleading: whether a cause of action
is ‘suggested’ by the facts.” Printing-Mart Morristown v. Sharp Electronics Corp., 116 N.J.
739, 746 (citing to Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). And
the “inquiry is limited to examining the legal sufficiency of the facts alleged on the face of
the complaint.” Ibid. (citing Rieder v. Department of Transportation, 221 N.J.Super. 547,
552 (App.Div.1987)). Furthermore, “On a motion to dismiss a complaint for failure to state
a claim upon which relief can be granted, all facts alleged in the complaint and the
legitimate inferences drawn therefrom are deemed admitted.” Smith v. Newark, 136 N.J.
Super. 107, 112 (1975). (citing Heavner v. Uniroyal, Inc., 63 N.J. 130, 133 (1973); J.H.
Becker, Inc. v. Marlboro Tp., 82 N.J. Super. 519, 524 (App. Div. 1964)). When “reviewing
a motion under Rule 4:6-2(e), a court may consider documents referred to in the
complaint, matters of public record, or documents explicitly relied on in the complaint,
without converting the motion to dismiss into one for summary judgment.” 	New Jersey
Department of Environmental Protection v. Occidental Chemical Corp., 2012 N.J. Super.
Unpub. LEXIS 899, *41 (App. Div. 2012) (signaling N.J. Citizen Action, Inc. v. County of
Bergen, 391 N.J. Super. 596, 605 (App. Div.), certif. denied, 192 N.J. 597, (2007); New
Jersey Sports Productions, Inc. v. Bobby Bostick Promotions, L.L.C., 405 N.J. Super.
173, 178, (Ch. Div. 2007); Acevedo v. Monsignor Donovan High School, 420 F. Supp. 2d
337, 340 (D.N.J. 2006)).

OAL DKT. NO. EDU 10182-22
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II. 	Relevant Law
Reemployment following a RIF is governed by N.J.S.A. 18A:28-12, which by its terms
applies only to tenured employees: “Effect of Reduction of Force Upon Persons Under
Tenure (§§ 18A:28-9 — 18A:28-14).” N.J.S.A. § 18A:28-12 states in part:
Reemployment in order of seniority
If any teaching staff member shall be dismissed as a result of
such reduction, such person shall be and remain upon a
preferred eligible list in the order of seniority for reemployment
whenever a vacancy occurs in a position for which such
person shall be qualified and he shall be reemployed by the
body causing dismissal, if and when such vacancy occurs and
in determining seniority, and in computing length of service for
reemployment, full recognition shall be given to previous
years of service, and the time of service by any such person
in or with the military or naval forces of the United States or of
this State . . .
[N.J.S.A. § 18A:28-12]
N.J.A.C. 6A:32-5.1 provides the “[s]tandards for determining seniority.” 	And under the
New Jersey Administrative Code, “Each district board of education or private agency that
provides educational services by means of public funds shall determine guidelines for the
hiring of all staff.” N.J.A.C. § 6A:32-4.1.
Paterson Board of Education Policy 3146 states:
CONDUCT OF REDUCTION IN FORCE
When teaching staff member positions have been abolished,
in accordance with Board Policy No. 3112, the Board of
Education will transfer and/or dismiss affected teaching staff
members as required by law.
No tenured teaching staff member will be transferred or
dismissed in a reduction in force affecting a category of
employment in which a nontenured teaching staff member is
employed. 	When two or more nontenured teaching staff
members are employed within the category affected by a
reduction in force, the nontenured teaching staff member(s)
shall be retained in that category who has demonstrated
greater competence.

OAL DKT. NO. EDU 10182-22
8
Tenure and seniority entitlements will govern the transfer and
dismissal of tenured teaching staff members affected by a
reduction in force, except that, when two or more tenured
teaching staff members within the same employment category
affected by a reduction in force possess an identical seniority
entitlement to that category, the teaching staff member(s)
shall be retained in that category who possesses the greater
scope of certification.
The Superintendent shall collect and maintain the information
requisite to the calculation of each tenured teaching staff
member's seniority status. The Superintendent shall develop
and maintain district seniority lists and shall recommend
dismissals and transfers in a reduction in force in accordance
with those lists. No seniority list shall be a public document or
published 	in 	the 	absence 	of 	a 	reduction 	in 	force 	or
reemployment from a preferred eligible list.
Teaching staff members affected by a reduction in force will
be informed of their seniority status and of the effect of the
reduction 	in 	force 	on 	their 	employment, 	as 	promptly 	as
possible 	after 	the 	Board's 	action 	to 	abolish 	positions.
Wherever possible, the Board will give sixty days notice of a
pending dismissal. If notice cannot be given a full sixty days
before the end of the employee's service, salary in lieu of
notice will be given for the remaining notice period beyond the
end of service.
N.J.S.A. 18A:28-1; 18A:28-9 et seq.
N.J.A.C. 6A:32-5.1
Cross reference: Policy Guide Nos. 0166, 3122
Adopted: 31 October 2002
Revised: 19 March 2008
[Paterson Board of Education Policy 3146]
Additionally, Paterson Board of Education Policy Regulation 3146 implements Policy
3146 (see Appendix).
III. 	Analysis
A. Petitioner’s sole claim that he should have been recalled is dismissed
I am not persuaded by respondent’s argument that petitioner’s claims are time barred.
The argument might be meritorious if petitioner was seeking a remedy for the events that

OAL DKT. NO. EDU 10182-22
9
occurred in 2019 with the reduction in force. 	But here, petitioner is asserting that he
should have been recalled in 2022 and is not bringing any claim specific to what occurred
in 2019. 	Furthermore, it has not been shown to the undersigned that petitioner filed
beyond the permitted 90-day time period of when he knew or should have known
regarding another individual being hired instead of him being recalled. Rather, based on
the facts as alleged by the petitioner, Board minutes from September 2022 show the
hiring of a librarian and the petitioner then filed the following the month. 	Therefore, the
undersigned must examine the relevant law related to recall rights following reduction in
force.
Even accepting all of petitioner’s alleged facts as true, the petitioner does not have a
cause of action. 	To have a cause of action in regard to not being recalled, law and/or
policy would need to provide recall rights for that specific individual. Upon review of the
relevant law and policy, it is evident that petitioner did not have any type of recall right
following the reduction in force in 2019. 	Petitioner was a nontenured library media
specialist and neither state law nor board policy provide recall rights to nontenured
employees.
1. 	State Law
N.J.S.A. 18A:28-12, which describes reemployment based on seniority after a
reduction in force, is not applicable to nontenured employees. 	It is specifically found in
chapter 28 which addresses tenure and within Article 3 which is named, “Effect of
Reduction of Force Upon Persons Under Tenure (§§ 18A:28-9 — 18A:28-14).” Nor does
N.J.A.C. § 6A:32-5.1, which provides the “[s]tandards for determining seniority,” afford
recall rights to nontenured staff members. 	Furthermore, respondent correctly cites to
Lichtman v. Board of Education, 93 N.J. 362, 368 n. 4 (1983) where the New Jersey
Supreme Court states, “Seniority, on the other hand, provides a mechanism for ranking
all tenured teaching staff members so that reductions in force and reemployment can be
effected in an equitable fashion and in accord with sound educational policies” (signaling
to 	N.J.S.A. 18A:28-10 to -12). 	Seniority only applies to tenured staff members. As the
Superior Court, Appellate Division, states, “The determination not to renew the contract
of a nontenured teacher is a discretionary matter for the local board, and where it results

OAL DKT. NO. EDU 10182-22
10
from a reduction in force there exists no right of reemployment.” Board of Education v.
Englewood Teachers' Ass’n, 150 N.J. Super. 265, 270 (App. Div. 1977) (signaling to
Union County Regional High School Board of Education v. Union County Regional High
School Teachers Ass’n, 145 N.J. Super. 435 (App. Div. 1976), certif. den. 74 N.J. 248
(1977)).
2. 	Board Policy
A review of the language of Paterson Board of Education Policy 3146 shows that
it is consistent with state law, affording recall rights and seniority only to tenured staff
members. The first sentence of the policy states, “When teaching staff member positions
have been abolished… the Board of Education will transfer and/or dismiss affected
teaching staff members as required by law.” 	Thus, at the outset, the reduction in force
policy establishes state law as its guiding post. 	And furthermore, at the bottom of the
policy, it references 18A:28-9 et seq. (Effect of Reduction of Force Upon Persons Under
Tenure). Also, the policy only references nontenured staff members twice. 	In the first
instance, the policy addresses the situation in which 	a decision needs to be made
between two nontenured staff members. Instead of using seniority - which is connected
to recall rights - the policy dictates that “the nontenured teaching staff member(s) shall be
retained in that category who has demonstrated greater competence.” 	The only other
time the policy references nontenured staff is to show that a tenured employee has priority
over a nontenured employee. Regulation 3146 also does not show seniority or recall
rights for nontenured employees (see appendix).
Nothing 	in 	the 	deposition 	testimony 	of 	respondent’s 	senior 	staff 	members
undermines respondent’s position that recall rights only apply to tenured staff members.
For example, when asked “Do you have an understanding that once an individual is RIF’d
from Paterson, there is a policy callback that individual if the position becomes available?”
Assistant Superintendent Luis M. Rojas who works in human resources responded, “If
they’re tenured, yes. If they are nontenured, no.” (Trent Cert., Ex. 1, Rojas Dep Transcript
33-14 to -19). When questioned about the language of Policy 3146, he also notes that
the policy references the relevant statutes and code. He also stated, “I can only tell you,
in practice, what I have done since 2006 has been what I’ve already testified to.” (Trent

OAL DKT. NO. EDU 10182-22
11
Cert., Ex. 1, Rojas Dep Transcript 37-22 to -24). 	And former Superintendent Eileen
Shafer said, “Non-tenured don’t have seniority.” (Trent Cert., Ex. 2 79-17 to -20.). Other
questions posed during deposition about specific language in the policy, seem to parse
the language out of context and, in any event, do not support a finding that Board policy
affords recall rights to nontenured staff.
The undersigned finds that neither state law nor board policy provide for the
recall/callback rights of nontenured staff members in Paterson Public Schools.
IV. 	Conclusion
For the reasons set forth above, the petitioner as a former nontenured staff member
does not have recall/callback rights, and therefore does not have a cause of action. The
respondent’s motion is GRANTED and the case is DISMISSED.
ORDER
The respondent’s motion to dismiss the petition is hereby GRANTED.
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
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. 	Exceptions 	may 	be 	filed 	by 	email 	to

OAL DKT. NO. EDU 10182-22
12
ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies
and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500. A copy of any exceptions must be sent to the judge and to the other parties.
April 10, 2024______ 	_
DATE 	THOMAS R. BETANCOURT, ALJ
Date Received at Agency:
Date Mailed to Parties:
bs/db