(Merit System Board, decided February 25, 2004)

IMO Military Service Credit for State Teachers, Department of Corrections, Department of Human Services, and Juvenile Justice Commission DOP Docket No. 2004-641 (Merit System Board, decided February 25, 2004) The Communications Workers of America (CWA), AFL-CIO, represented by Rosemarie Cipparulo, Esq., appeals the attached decision of the Assistant Commissioner, State and Local Operations, stating that teachers employed by the State of New Jersey at the Department of Corrections (DOC), the Department of Human Services (DHS), and the Juvenile Justice Commission (JJC), are not entitled to military service credit for compensation purposes pursuant to N.J.S.A. 18A:29-11. By way of background, N.J.S.A. 18A:29-11 provides in part that with respect to teachers, every member who... has served... or shall serve, in the active military or naval service shall receive up to four years of equivalent years of employment credit for such service. In a letter dated January 12, 2001, W. Stanley Nunn, a former Administrator of the South Woods State Prison, advised Charles Johnson, a Teacher 1 and a CWA member, that the DOC was in agreement that N.J.S.A. 18A:29-11 applied to teachers employed by the DOC. However, Nunn indicated that the method of processing Johnson s compensation would have to be determined by the Department of Personnel (DOP) and the Department of the Treasury. Subsequently, the CWA contacted the DOP with regard to the issue. On June 22, 2001, the former Assistant Commissioner, State and Local Operations, advised the CWA that the matter of whether N.J.S.A. 18A:29-11 applied to State teachers would be reviewed by the Attorney General s Office. Following consultation with the Attorney General s Office, on July 30, 2003, the current Assistant Commissioner advised the CWA that N.J.S.A. 18A:29-11 was intended only to apply to teachers in local school districts. Moreover, the Assistant Commissioner stated that State teachers compensation was governed by the State Compensation Plan. On appeal to the Merit System Board (Board), the CWA argued that the legislative histories of N.J.S.A. 18A:29-11 and a related statute, N.J.S.A. 18A:28-11.1, clearly indicate that State teachers are entitled to receive military service credit for compensation purposes. N.J.S.A. 18A:28-11.1 provides in part that every teaching staff member who served or shall serve in the active military or naval service shall receive up to four years of equivalent years of employment or seniority credit. CWA noted that the Commissioner of Education has already declared that N.J.S.A. 18A:28-11.1 applies to State teachers. See Sparacio v. N.J. Dept. of Corrections, 95 N.J.A.R. 2d 364 (Commr. of Ed. 1995). The CWA asserted that N.J.S.A. 18A:28-11.1 is virtually identical to N.J.S.A. 18A:29-11 and that the latter

should also apply to State teachers. Moreover, it indicated that the Introductory Statement which accompanies N.J.S.A. 18A:28-11.1 specifically states that the objective of N.J.S.A. 18A:28-11.1 is the same as N.J.S.A. 18A:29-11. The Introductory Statement provides in part that [t]his bill would provide the same four years of credit for military service for seniority purposes as provided in the military service credit for salary purposes pursuant to N.J.S. 18A:29-11. Introductory Statement, L. 1985, c. 217. Further, the CWA requested that the Board declare that N.J.S.A. 18A:28-11.1 applies to State teachers, as did the Commissioner of Education. Additionally, CWA contended that the State Compensation Plan does not prevent the DOP from applying military service credit to State teachers. It indicated that the compensation plan takes into consideration an employee s experience and education and is arranged in steps within a salary range. As an example, the CWA submitted that under the compensation plan, a newly appointed State teacher who has no experience would begin on the first step of the applicable salary range. If N.J.S.A. 18A:29-11 were applied and the State teacher had two years of military service, the teacher s salary would begin on step three. Moreover, the CWA indicated that pursuant to N.J.A.C. 4A:3-4.1(d)2, [e]ach employee in the career and unclassified services shall be paid within the salary range or at the pay rate assigned to the employee s job title and pay shall be adjusted in accordance with this subchapter, except as otherwise provided by law, rule or action of the Commissioner. The CWA maintained that N.J.S.A. 18A:29-11 is the law that permits the increase in pay rate. After the CWA appealed to the Board, it subsequently filed a petition with the Commissioner of Education, on behalf of 10 teachers, seeking a declaratory decision regarding the application of N.J.S.A. 18A:29-11. Thereafter, it requested that the Board hold the instant matter in abeyance until the Commissioner of Education rendered a decision. The CWA argued that since the statute at issue falls under the school laws and the Commissioner of Education has the broad power to interpret Title 18A pursuant to N.J.S.A 18A:6-9, the Board is without jurisdiction to make the determination as to whether N.J.S.A. 18A:29-11 applies to State teachers. Further, it asserted that it never asked the DOP to determine whether N.J.S.A. 18A:29-11 applied to State teachers since the DOC at the time agreed that the statute did. 1 Rather, the CWA claimed that the only reason it contacted the DOP was to determine the method in which N.J.S.A. 18A:29-11 was to be applied. Moreover, it stated that there was no reason to go to the Department of Education until the DOP decided that the statute did not apply in July 2003. Additionally, it indicated that it appealed the Assistant Commissioner s decision to the Board only to preserve its appeal rights. 1 It is noted that the former Assistant Commissioner advised the CWA as early as June 22, 2001 that the Attorney General s Office would be reviewing the issue of whether N.J.S.A. 18A:29-11 applied to State teachers.

CONCLUSION Initially, the Board rejects the CWA s argument that the Commissioner of Education has the exclusive jurisdiction under the school laws to interpret N.J.S.A. 18A:29-11. N.J.S.A. 11A:3-7 provides the DOP with the jurisdiction to review issues concerning a State employee s compensation. Moreover, in connection with appeals properly before the Board, the Board has the right and duty to interpret and apply statutes, including those outside the Civil Service Act, to resolve the dispute before it. See Matter of Allen, 262 N.J. Super. 438, 444 (App. Div. 1993); In the Matter of Michael Giannetta (MSB, decided May 23, 2000). It is well established that the Board has the authority to render final administrative decisions on appeals. See N.J.A.C. 4A:1-3.3(a)2; see also N.J.S.A. 11A:2-6. Such appeals include issues of compensation arising under N.J.S.A. 11A:3-7. Accordingly, the Board has the authority to review the instant matter. Pursuant to the State Facilities Education Act of 1979, N.J.S.A. 18A:7B-1 et seq., the State provides education to children in State facilities. N.J.S.A. 18A:29-11 does not state whether it applies to teachers employed by the State for this purpose. The statute simply provides, with regard to teaching staff members: Every member who... has served... in the active military or naval service... shall be entitled to receive equivalent years of employment credit for such service as if he had been employed for the same period of time in some publicly owned and operated college, school or institution of learning in this or any other state or territory of the United States, except that the period of such service shall not be credited toward more than four employment or adjustment increments. When a statute is silent, it must be interpreted in light of the Legislature s intent. Burns v. Belafsky, 166 N.J. 466, 473 (2001). The legislative history is a critical factor in ascertaining the Legislature s purpose. Ibid. Accordingly, it is appropriate to examine the legislative history of N.J.S.A. 18A:29-11 to determine whether the statute was intended to apply to State teachers. The legislative history shows that the military service salary credit was first enacted in 1954, as part of an Act to provide for a schedule of minimum salaries and increments for certain persons holding office, position, or employment under any district or regional board of education, or any board of education of a county vocational school.... L. 1954, c. 249. Thus, the title of the statute states that it applies exclusively to local teachers. The title s focus on local schoolteachers is carried out in the statutory sections. The statute provided the military service

credit to teacher[s], who were defined as members of the professional staff of district or regional boards of education or county vocational schools. L. 1954, c. 249, 1. The statute also established a minimum salary schedule for teachers, 2, and provided that Boards of education had the power to increase the salary levels contained therein. 7. See Bd. of Ed. of Tp. of Neptune v. Neptune Tp. Ed., 144 N.J. 16, 32 (1996) (describing L. 1954, c. 249 as the statute governing minimum salary and increments payable by boards of education). The language of N.J.S.A. 18A:29-11 has not been revised since its enactment as part of the 1954 law establishing local teacher salary requirements. In addition, amendments to other sections of the 1954 legislation have continued to relate exclusively to local school districts. In 1985, the Legislature repealed several sections of the 1954 statute, relating to salary schedules and increments, as part of the Teacher Quality Employment Act. L. 1985, c. 321. The Act established a minimum starting teacher salary. See Bd. of Ed. of Tp. of Neptune v. Neptune Tp. Ed., supra. The 1985 statute expressly stated that the minimum salary applied to salary schedules adopted by any board of education or educational services commission. N.J.S.A. 18A:29-5.3. See also Sponsor s Statement to Assembly No. 634 (under this statute, salaries above the $18,500 level would be established by local districts under the provisions of the New Jersey Employer-Employee Relations Act ). Thus, the Legislature has consistently indicated that the compensation scheme of N.J.S.A. 18A:29-1 et seq., is applicable solely to local teachers. N.J.S.A. 18A:29-11, as part of this statutory scheme, therefore must be construed in the same fashion. The Legislature has never suggested an intent to differentiate this section from the other parts of the statute and make it applicable to State teachers. This conclusion is confirmed by the separate legislative treatment of the compensation of State teachers. The statute governing these teachers does not reference the compensation requirements governing local teachers found in N.J.S.A. 18A:29-1 et seq. The State Facilities Education Act of 1979 first established teachers in the State s institutions and correctional facilities. N.J.S.A. 18A:7B-1 et seq. This statute specifically provides that [s]alary schedules for teaching staff members and administrators [employed in State facilities] shall be comparable to similar positions in the Department of Education and the Marie H. Katzenbach School for the Deaf. N.J.S.A. 18A:7B-6. The Department of Education and the Katzenbach School are State agencies. The Katzenbach School is supervised by the Commissioner of Education, who appoints and removes its teachers and employees and makes rules for its management. N.J.S.A. 18A:61-2. See also CWA v. N.J. Dept. of Ed., Katzenbach School, 92 N.J.A.R. 2d 326 (State Bd. of Ed. 1992) (holding that Katzenbach is not a local district). Teachers and administrators in the Department of Education and the Katzenbach School are State employees and are

therefore paid pursuant to the State Compensation Plan. N.J.S.A. 11A:3-7; N.J.S.A. 11A:3-4e (State teachers are unclassified State employees). The Legislature s linkage of State facilities teachers with other State teachers for salary purposes is quite significant. Plainly, the Legislature determined that State teacher salary levels and requirements should be subject to the State Compensation Plan. The State Compensation Plan regulates the topics covered by N.J.S.A. 18A:29-1 et seq., such as salary schedules, increments and salary adjustments. Since there is no military service credit in the State Compensation Plan, it is evident that the Legislature did not intend to confer this benefit upon State teachers. The Commissioner of Education s construction of Title 18A further supports this interpretation of N.J.S.A. 18A:29-11. In Sparacio, supra, the Commissioner of Education held that N.J.S.A. 18A:28-11.1 applies to both State and local teachers. This statute provides that teachers with prior military service shall receive additional years of seniority, for purposes of determining length of service under the tenure laws. The Commissioner of Education reviewed the legislative history of N.J.S.A. 18A:28-11.1 and determined that the Legislature did not intend to limit it to local teachers, but rather to apply the requirement to all teaching staff members covered by any tenure provision of Title 18A. Id. at 366. This conclusion was reached by analysis of L. 1985, c. 217, the statute which established the military service seniority credit. This legislation consisted of two sections. The Commissioner noted that the first section, concerning the military service credit, was not placed by the Legislature within chapter 28 of Title 18A, which deals with tenure rights of local teachers. 2 In contrast, the second section, dealing with the reemployment rights of laid off tenured teachers, specifically amended N.J.S.A. 18A:28-12. The Commissioner of Education found that this differential legislative treatment of the two sections demonstrated the intent to apply section 2 only to local teachers and section 1 to all teachers. Ibid. As discussed above, a similar analysis of the statutory history of N.J.S.A. 18A:29-11 reveals a contrary legislative purpose. N.J.S.A. 18A:29-11 was enacted as part of a statute aimed at the compensation of teachers employed in local school districts. Application of the Commissioner of Education s rationale in Sparacio again demonstrates that this statute was not intended to apply to all teachers. The Legislature s limitation of the military service compensation credit to local teachers contrasts with its intent to ensure that all teachers, including State teachers, receive equivalent protections under the education tenure laws. See 2 The Commissioner of Education properly noted that allocation of L. 1985, c. 217, 1 to chapter 28, as part of the arrangement of the Revised Statutes, is not entitled to any implication or presumption of a legislative construction.... N.J.S.A. 1:1-5.

Sheffield v. Ancora Psychiatric Hospital, 96 N.J.A.R. 2d 839 (State Bd. of Ed. 1996) (State teachers are treated essentially the same as local teachers for purposes of tenure provisions). See also N.J.S.A. 18A:28-16 (when a State agency takes over the operation of a local school, all tenure rights of teaching staff members shall be preserved). In contrast, as discussed above, no such policy exists with regard to teachers compensation. The compensation requirements set forth in chapter 29 of Title 18A are exclusively directed at local boards of education, while the compensation of State teachers is governed solely by the State Compensation Plan. Therefore, the Board finds that N.J.S.A. 18A:29-11 applies exclusively to teachers employed by local school districts. Accordingly, teachers employed by the State are not eligible for the military service credit provided by the statute. Regarding N.J.S.A. 18A:28-11.1, the Commissioner of Education has determined that this statute applies to State teachers. The Board finds no reason to address this issue. Therefore, the determination of the Commissioner of Education stands. If the appointing authorities have not already done so, by copy of the instant decision, the DOC, the DHS, and the JJC are directed to implement the Commissioner s decision in Sparacio, supra. ORDER Therefore, it is ordered that the appeal be denied.