P.E.R.C. No. 2000-1, Montclair B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MONTCLAIR BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-99-68 MONTCLAIR SUPERVISORS ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, DeMaria Ellis & Bauch, L.L.C., attorneys (Richard H. Bauch, of counsel and on the brief; Davin Paul Cellura, on the brief) ¶

For the Respondent, Bucceri & Pincus, attorneys ¶

(Gregory T. Syrek, on the brief) ¶

DECISION ¶

On March 15, 1999, the Montclair Board of Education petitioned for a scope of negotiations determination. The petition seeks a restraint of binding arbitration of a grievance filed by the Montclair Supervisors Association. The grievance alleges that the Board lacked just cause to withhold the athletic director's salary increment for the 1997-98 school year. ¶

The parties have filed briefs and exhibits. These facts appear. ¶

The Association represents high school department chairpersons and the athletic director. The Board and the ¶

Association are parties to a collective negotiations agreement effective from July 1, 1997 to June 30, 1998. The grievance procedure ends in binding arbitration. ¶

Winthrop McGriff is the athletic director and department chairperson for physical education at Montclair High School. His job description sets as the job goal: "Provide for all aspects of the physical education program; organization of the athletic program and in general charge of all athletic related matters." The first two performance responsibilities listed are: ¶

1. Act as the administrative head of the athletic program and physical education department. ¶

2. Coordinate, supervise and direct all resources and activities pertaining to this function and to maintain and improve the educational program. ¶

In addition, the job description lists as a duty responsibility for the athletic budget. ¶

Two Board policies address the handling of school funds by all district employees. Policy 3450 provides: ¶

Monies collected by school district employees and by student treasurers shall be handled with good and prudent business procedures. ¶

All monies collected shall be receipted and accounted for and directed without delay to the proper location of deposit. ¶

In no case shall monies be left overnight in schools except in safes provided for safekeeping of valuables. All school banks shall provide for making bank deposits after regular banking hours in order to avoid leaving money in school overnight. ¶

Policy 3293 provides: ¶

Depository ¶

The board of education shall designate a bank or banks qualified according to law to serve as depository(ies) for school funds. ¶

Payments into Depositories ¶

Any person having, receiving or collecting any money belonging to the school district shall promptly, and at least monthly, deposit such money in a designated depository. ¶

School Accounts in Depositories ¶

A depository shall maintain an accurate and complete set of accounts for each school district fund on deposit, as provided by law. No withdrawal may be made in excess of the amount on deposit in the fund. ¶

In addition, N.J.S.A . 18A:19-14 states: "All funds derived from athletic events or other activities of pupil organizations shall be administered, expended and accounted for pursuant to the rules of the state board." ¶

On January 16, 1997, a parent of a wrestling team member complained that attendance fees collected at home wrestling matches were no longer being split with the booster club. The parent alleged that at the beginning of the 1995-1996 school year, McGriff told the parents they could collect and keep one-half of the gate receipts for the booster club and the other half would go to McGriff for the athletic department. That practice continued until the first wrestling meet during the 1996-1997 school year. ¶

James Patterson, the district's personnel administrator, investigated this complaint. He interviewed McGriff, several parents, the wrestling coach, and other witnesses. McGriff said he did not receive any of the funds collected during the 1995-1996 wrestling meets. While he gave the parents issuing tickets a cash box with $50 of his own money for making change and they returned the cash box and the $50 to him after each meet, no other funds were returned in that box. No accounts were kept. ¶

On March 14, 1997, Patterson wrote a memorandum summarizing the information he received and the conclusions he reached. He determined that no funds were deposited in the school account. He did not determine whether the parents taking tickets had given the booster club 50% or 100% of the funds collected, but he noted that McGriff had decided to have parents collect and keep funds in violation of school procedures for collecting and depositing funds. The last paragraph of the memorandum stated: "In my opinion, I feel the improprieties have sufficient credibility that should cause them to be reviewed by the Board Attorney for possible legal or disciplinary action." ¶

On June 20, 1997, McGriff was advised that at its June 23 meeting, the Board would consider the withholding of his increment for the next school year. The letter stated: ¶

The reason for the withholding of your increment is for failure to follow proper administrative procedures and practices as evidenced in police charges brought against you. ¶

On June 26, 1997, Patterson advised McGriff that the Board had voted to withhold his increment for 1997 "for failure to follow correct administrative procedures regarding the collection of gate receipts." 1/ ¶

On July 31, 1997, the Association filed a grievance. It stated: ¶

On June 27, 1997, the Montclair Board of Education notified Winthrop McGriff that they had denied his increment for the 1997/98 school year based on administrative procedures. It is not clear to us what administrative procedures the district is referring to. Thus, the Association deems this action a disciplinary action rather than a performance decision and therefore, it is without just cause. The Association is seeking a hearing on this matter as soon as possible. ¶

On June 3, 1998, a grievance hearing was held. The Association sought restoration of the increment because the criminal investigation had not resulted in any charges against McGriff. Patterson responded that the reason for the withholding was not a criminal one, but an administrative concern given the failure to follow proper procedures for collecting funds. The Board denied the restoration of McGriff's increment, stating: ¶

The board feels that your failure to follow the correct administrative procedures in this instance caused the legal problem faced by you and the district regarding wrestling funds, and that this failure was a violation of the law ¶

Note1/ The Board has submitted several memoranda and evaluations from earlier years criticizing McGriff's alleged problems in keeping budgets, accounting for funds, and controlling expenditures. Since these documents were not referenced in the letters specifying the reason for the withholding, we do not detail their contents. ¶

and policy. Had the proper procedures been followed by you as Athletic Director, none of what transpired last spring would have occurred. ¶

On June 26, 1998, the Association demanded arbitration. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J . 144 (1978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. [ Id. at 154] ¶

Thus, we do not consider the contractual merits of the grievance or any contractual defenses the Board may have. ¶

Under N.J.S.A. 34:13A-26 et seq ., all increment withholdings of teaching staff members may be submitted to binding arbitration except those based predominately on the evaluation of teaching performance. Edison Tp. Bd. of Ed. v. Edison Tp. Principals and Supervisors Ass'n , 304 N.J. Super. 459 (App. Div. 1997), aff'g P.E.R.C. No. 97-40, 22 NJPER 390 (¶27211 1996). Under N.J.S.A . 34:13A-27d, if the reason for a withholding is related predominately to the evaluation of teaching performance, any appeal shall be filed with the Commissioner of Education. If there is a dispute over whether the reason for a withholding is predominately disciplinary, as defined by N.J.S.A . 34:13A-22, or related predominately to the evaluation of teaching performance, we must make that determination. N.J.S.A . 34:13A-27a. Our jurisdiction is limited to determining the appropriate forum for resolving a withholding dispute. We do not and cannot consider whether a withholding was with or without just cause. ¶

In Scotch Plains-Fanwood Bd. of Ed., P.E.R.C. No. 91-67, 17 NJPER 144 (¶22057 1991), we articulated our approach to determining the appropriate forum. We stated: ¶

The fact that an increment withholding is disciplinary does not guarantee arbitral review. Nor does the fact that a teacher's action may affect students automatically preclude arbitral review. Most everything a teacher does has some effect, direct or indirect, on students. But according to the Sponsor's Statement and the Assembly Labor Committee's Statement to the amendments, only the "withholding of a teaching staff member's increment based on the actual teaching performance would still be appealable to the Commissioner of Education." As in Holland Tp. Bd. of Ed., P.E.R.C. No. 87-43, 12 NJPER 824 (¶17316 1986), aff'd [NJPER Supp .2d 183 (¶161 App. Div. 1987)], we will review the facts of each case. We will then balance the competing factors and determine if the withholding predominately involves an evaluation of teaching performance. If not, then the disciplinary aspects of the withholding predominate and we will not restrain binding arbitration. [17 NJPER at 146] ¶

In Middletown Tp. Bd. of Ed ., P.E.R.C. No. 92-54, 18 NJPER 32 (¶23010 1991), we recognized that the "teaching staff members" covered by N.J.S.A. 18A:29-14 and N.J.S.A. 34:13A-27 include administrators who do not teach classes. We concluded that the "teaching performance" standards set by N.J.S.A . 34:13A-27 had to be applied flexibly in light of these employees' broader responsibilities for overseeing the educational system and ensuring that students are educated properly. In Middletown , we considered a withholding involving a principal and concluded that the appropriate inquiry for purposes of N.J.S.A . 34:13A-27 was to ask whether the basis for the withholding "relates predominately to an evaluation of the quality of the principal's performance as an educational leader and manager." Id . at 34. We restrained arbitration in that case because the reasons given -- inappropriate leadership and judgment in responding to a student-staff altercation, failure to train the staff and oversee the building's budget, and effective leadership and training of assistant principals -- centered, overall, on the employee's leadership, judgment, and management as a principal. Id. at 34. ¶

We have considered other cases involving teaching staff members who do not teach classes. See, e.g., Franklin Bor. Bd. of Ed ., P.E.R.C. No. 99-2, 24 NJPER 407 (¶29186 1998)(school nurse who allegedly gave out medication samples improperly, failed to keep medication records, and improperly decided a student was ill); Parsippany-Troy Hills Bd. of Ed., P.E.R.C. No. 98-153, 24 NJPER 339 (¶29160 1998)(school psychologist and child study team member who allegedly hurt team's educational effectiveness by failing to submit reports on time); West Essex Reg. Bd. of Ed., ¶

P.E.R.C. No. 98-42, 23 NJPER 565 (¶28282 1997)(assistant principal who allegedly failed to evaluate professional staff or improve curriculum); Parsippany-Troy Hills Bd. of Ed., P.E.R.C. No. 96-52, 22 NJPER 65 (¶27029 1996)(learning disabilities teaching consultant whose performance allegedly impaired effectiveness of child study team); Butler Bd. of Ed., P.E.R.C. No. 96-24, 21 NJPER 358 (¶26222 1995)(assistant principal who allegedly failed to communicate with principal about school operations); Brigantine Bd. of Ed., P.E.R.C. No. 95-54, 21 NJPER 110 (¶26067 1995)(principal who allegedly permitted ineligible students to participate in extracurricular activities); Paterson School Dist., P.E.R.C. No. 95-39, 21 NJPER 36 (¶26023 1994)(vice-principal who allegedly failed to provide leadership and adequate instructional supervision); Readington Tp. Bd. of Ed., P.E.R.C. No. 95-38, 21 NJPER 34 (¶26022 1994)(school psychologist whose lack of organization allegedly hurt morale and effectiveness of child study team). This is our first case involving an athletic director. We will apply this standard: does the basis for the withholding predominately relate to an evaluation of the athletic director's performance in overseeing the delivery of educational services to students through the district's sports program? ¶

Applying this standard, we conclude that the basis for this withholding does not predominately relate to an evaluation of McGriff's performance in overseeing the delivery of educational services. Consistent with our case law, we focus on the reasons cited by the Board in informing an employee of a withholding. Boonton Tp. Bd. of Ed., P.E.R.C. No. 99-101, 25 NJPER 288 (¶30121 1999). The only reason cited was McGriff's alleged failure to follow proper administrative procedures regarding the collection of gate receipts at wrestling meets. That reason does not involve interactions with students or the quality of the education they are receiving through the district's sports program. Contrast Brigantine (principal allowed ineligible students to participate in extracurricular activities). Nor does it involve an alleged failure to deliver an educational program because funds have not been properly budgeted or have been unwisely spent. Nor does it involve any issue of educational expertise requiring review by the Commissioner of Education. Compare Morris Hills Reg. Dist. Bd. of Ed ., P.E.R.C. No. 92-69, 18 NJPER 59 (¶23025 1991)(no educational expertise required to know that hitting a student is wrong). Instead, the reason alleges a violation of administrative rules and policies applicable to all employees and has its genesis in an accusation of improprieties warranting possible criminal charges or disciplinary action. Alleged violations of such generally applicable policies have been held to implicate disciplinary rather than teaching performance reasons. See, e.g., Willingboro Bd. of Ed ., P.E.R.C. No. 98-51, 23 NJPER 607 (¶28298 1997)(teachers, acting as administrators and proctors, allegedly did not follow administrative directive concerning security procedures for testing); Greater Egg Harbor Reg. Bd. of Ed ., P.E.R.C. No. 92-9, 17 NJPER 384 (¶22181 1991)(alleged violation of telephone and expense reporting requirements). We accordingly decline to restrain arbitration. ¶

OrderORDER ¶

The request of the Montclair Board of Education for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶