                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION


                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1611-17T1

MOSHE ROZENBLIT, and
WON KYU RIM,
                                         APPROVED FOR PUBLICATION
      Plaintiffs-Appellants/
                                               August 21, 2019
      Cross-Respondents,
                                            APPELLATE DIVISION
v.

MARCIA V. LYLES, in her
official capacity as Superintendent
of the Jersey City Board of Education;
VIDYA GANGADIN, in her official
capacity as President of the
Jersey City Board of Education; and
JERSEY CITY PUBLIC SCHOOLS
OF THE CITY OF JERSEY CITY,

      Defendants,

and

JERSEY CITY BOARD OF
EDUCATION, and JERSEY CITY
EDUCATION ASSOCIATION, INC.,

     Defendants-Respondents/
     Cross-Appellants.
________________________________

            Argued March 27, 2019 – Decided August 21, 2019

            Before Judges Fuentes, Vernoia, and Moynihan.
           On appeal from the Superior Court of New Jersey,
           Chancery Division, Hudson County, Docket No. C-
           000002-17.

           Jonathan     Riches     (Scharf-Norton     Center     for
           Constitutional Litigation at the Goldwater Institute) of
           the Arizona bar, admitted pro hac vice, argued the cause
           for appellants/cross-respondents (Law Offices of G.
           Martin Meyers, PC, and Jonathan Riches, attorneys;
           Justin A. Meyers, Aditya Dynar (Scharf-Norton Center
           for Constitutional Litigation at the Goldwater Institute)
           of the Arizona bar, admitted pro hac vice, and Jonathan
           Riches, on the briefs).

           Kenneth I. Nowak argued the cause for respondent/
           cross-appellant Jersey City Education Association, Inc.
           (Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
           attorneys; Richard A. Friedman and Flavio L.
           Komuves, on the briefs).

           David I. Solomon argued the cause for respondent/
           cross-appellant Jersey City Board of Education (Florio
           Perrucci Steinhardt & Capelli, LLC, attorneys, join in
           the brief of respondent/cross-appellant Jersey City
           Education Association, Inc.).

           Mark Miller argued the cause for amicus curiae Pacific
           Legal Foundation (Mark Miller and Deborah J. LaFetra
           (Pacific Legal Foundation) of the California bar,
           admitted pro hac vice, attorneys; Mark Miller and
           Deborah J. LaFetra, on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.




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      This appeal challenges the legality of a section in the collective bargaining

agreement (CBA) entered into between the Jersey City Board of Education

(Board) and the Jersey City Education Association, Inc., (JCEA) for the period

covering September 1, 2013 to August 31, 2017. Specifically, as construed by

the JCEA and the Board, Article 7, Section 7-2.3 of the CBA denoted

"Association Rights," requires the Board to pay the salaries and benefits of two

teachers selected by the members of the JCEA to serve as "president . . . and his

/her designee," and to allow them to devote all of their work-time to the business

and affairs of the JCEA. The Board must also continue to grant the president of

the JCEA "adequate office and parking facilities."

      Section 7-2.3 does not on its face address whether the president of the

JCEA and his or her designee are entitled to receive their full salaries and

benefits as teachers during the time they exclusively serve the needs of the

JCEA. It is undisputed, however, that the two teachers selected by the members

of the JCEA to serve in this capacity received their full salaries and benefits

from the Board during the three-year term of this CBA. Moreover, the Board

conceded during oral argument before this court that this practice predates the

term of this particular CBA.




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      We now hold this practice is not sanctioned by Title 18A and declare this

Section of the CBA unenforceable as against public policy.

                                        I

      Plaintiff Moshe Rozenblit is a resident of Jersey City who pays real estate

taxes to the City. Plaintiff Won Kyu Rim1 is a resident of this State who pays

New Jersey income tax. Plaintiffs argue this contractual arrangement by the

Board violates Article VIII, § 3, ¶ 3 of the New Jersey Constitution, which

provides: "No donation of land or appropriation of money shall be made by the

State or any county or municipal corporation to or for the use of any society,

association or corporation whatever." They also argue that N.J.S.A. 18A:30-7,

which permits the Board to pay the salary of an employee in cases of absence

not constituting sick leave, does not authorize the Board to reassign two teachers

to devote their entire professional time as the "exclusive and sole bargaining

representative[s] for all certificated personnel, attendance counselors, and

teacher assistants" employed in this school district.

      Amicus Curiae Pacific Legal Foundation's legal argument echoes

plaintiffs' constitutional argument. Amicus also argues that the General Equity


1
  Plaintiffs' standing to bring this action is unchallenged.     See Stubaus v.
Whitman, 339 N.J. Super. 38, 48-51 (App. Div. 2001).


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Judge's finding that the Board "receives a substantial benefit from employing

the [release] employees in the form of facilitating labor peace" is not supported

by the record. Amicus notes that on March 16, 2018, JCEA members went on

strike as a negotiating tactic, in defiance of our State's long-established common

law principle denying all public employees, including school district employees,

the right to strike. See In re Block, 50 N.J. 494, 499-500 (1967).

      Relying on Roe v. Kervick, 42 N.J. 191 (1964), the JCEA argues plaintiffs

have not presented sufficient grounds to impugn the constitutionality of this

contractual arrangement on its face.         The Board did not submit its own

independent brief in this appeal, opting instead to adopt the JCEA's position.

The Chancery Division, General Equity Part rejected plaintiffs' argument. The

judge applied the Court's holding in Roe and found "that these release time

provisions serve the dual public purposes of facilitating the collective

negotiations process and keeping labor peace in the Jersey City Public Schools."

                                        II

      We start our analysis guided by the long-settled jurisprudential principle

that admonishes judges to "strive to avoid reaching constitutional questions

unless required to do so."    In re Plan for the Abolition of the Council on

Affordable Hous., 214 N.J. 444, 461 (2013) (quoting Comm. to Recall


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                                        5
Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79, 95 (2010)).

Here, we are satisfied there are sufficient statutory grounds to definitively

decide this appeal.   We thus decline to reach the constitutional arguments

advanced by plaintiffs and amicus.

      As a creature of the State, a local board of education "may exercise only

those powers granted to them by the Legislature -- either expressly or by

necessary or fair implication." Fair Lawn Educ. Ass'n v. Fair Lawn Bd. of Educ.,

79 N.J. 574, 579 (1979); see also Edmondson v. Bd. of Educ. of Elmer, 424 N.J.

Super. 256, 261 (App. Div. 2012). We are satisfied that in adopting N.J.S.A.

18A:30-7, the Legislature did not expressly or implicitly intend to authorize the

Board to enter into the contractual arrangement reflected in Article 7, Section 7-

2.3 of the CBA.

      N.J.S.A. 18A:30-7 provides:

            Nothing in this chapter shall affect the right of the board
            of education to fix either by rule or by individual
            consideration, the payment of salary in cases of absence
            not constituting sick leave, or to grant sick leave over
            and above the minimum sick leave as defined in this
            chapter or allowing days to accumulate over and above
            those provided for in section [N.J.S.A.] 18A:30-2,
            except that no person shall be allowed to increase his
            total accumulation by more than 15 days in any one
            year.

            [(Emphasis added).]

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      The Legislature adopted this statute effective January 11, 1968. Fifty-one

years later, our research has revealed only one reported opinion from this court

that tangentially addressed the issues raised in this appeal.          In Board of

Education of Piscataway Township v. Piscataway Maintenance & Custodial

Association, this court addressed the legality of a provision for extended total

disability benefits contained in a contract between the Board of Education of the

Township of Piscataway and the Piscataway Maintenance & Custodial

Association and whether it exceeded the board of education's authority under

Title 18A. 152 N.J. Super. 235, 238 (App. Div. 1977). The legal question in

Piscataway concerned whether an agreement to pay the salary of an employee,

in whole or in part, for prolonged absence beyond the allowable annual and

accumulated sick leave in N.J.S.A. 18A:30-6 violated the school board's

managerial prerogative. Id. at 246. We held that "[b]y granting its employees

extended total disability leave benefits as a matter of right, the board in this case

surrendered its statutory obligation to deal with each case on an individual

basis." Ibid.

      N.J.S.A. 18A: 30-7 to -13 addresses additional sick leave and other forms

of leaves of absence such as "accrued vacation and sick leave bank." For

example, N.J.S.A. 18A:30-8 provides:


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            Any school district employee who qualifies as a
            member of the United States team for athletic
            competition on the world, Pan American or Olympic
            level, in a sport contested in either Pan American or
            Olympic competitions, shall be granted a leave of
            absence with pay and without loss of rights, privileges
            and benefits and without interruption of membership in
            any retirement system for the purpose of preparing for
            and engaging in the competition. The paid leave
            granted pursuant to this act shall be no more than 90
            calendar days in 1 year or the combined days of the
            official training camp and competition, whichever is
            less.

            Any school district which grants employees leaves of
            absence pursuant to the provisions of this act shall be
            reimbursed by the State, for the full amount of the
            actual cost of employing substitutes for said employees.

            [(Emphasis added).]

      N.J.S.A. 18A:30-9 and N.J.S.A. 18A:30-9.1 limit the accumulation of

unused vacation time. N.J.S.A. 18A:30-10 sanctions the establishment of a "sick

leave bank" to permit employees to voluntarily donate "sick leave days or any

other leave time" to a colleague in need. The establishment of a sick leave bank

must be "agreed upon by the board and the majority representative." Sick leave

banks are administered by a six-member committee comprised of three

representatives from the board of education and three representatives "selected

by the majority representative or majority representatives of those employees of

the board who are eligible to participate in the sick leave bank." N.J.S.A.

                                                                        A-1611-17T1
                                       8
18A:30-11. The Legislature also made clear that the benefits provided through

and by the sick leave bank did not authorize boards of education to reduce or

negatively affect more favorable sick leave, disability pay or other benefits

obtained through collective bargaining agreements, or prohibit future

negotiations to enhance these benefits.      N.J.S.A. 18A:30-12.      Finally, the

Legislature directed how these statutory provisions should be construed:

            No provision of this act [N.J.S.A. 18A:30-10 et seq.]
            shall be construed as limiting the authority of a board
            of education to provide an employee with additional
            days of salary pursuant to [N.J.S.A] 18A:30-6 after all
            sick leave available to the employee, including days
            provided under this act, has been used.

            [N.J.S.A. 18A:30-13.]

      "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). Furthermore, "words and phrases

shall be read and construed with their context, and shall, unless inconsistent with

the manifest intent of the legislature or unless another or different meaning is

expressly indicated, be given their generally accepted meaning, according to the

approved usage of the language." N.J.S.A. 1:1-1. Courts must also construe the

words in a statute "in context with related provisions so as to give sense to the

legislation as a whole." Garden State Check Cashing Serv. v. State Dep't of

                                                                           A-1611-17T1
                                        9
Banking & Ins., 237 N.J. 482, 489 (2019) (quoting Spade v. Select Comfort

Corp., 232 N.J. 504, 515 (2018)).

      Mindful of the principles of statutory construction, we conclude that

N.J.S.A. 18A:30-7 does not empower the Board in this case to continue to pay

the salaries and benefits of the president of the JCEA and his or her designee,

while they devote their entire work-time to the business and affairs of the union.

A plain reading of the operative language in N.J.S.A. 18A:30-7 shows the

Legislature authorized the Board:

            to fix either by rule or by individual consideration, the
            payment of salary in cases of absence not constituting
            sick leave, or to grant sick leave over and above the
            minimum sick leave as defined in this chapter or
            allowing days to accumulate over and above those
            provided for in section [N.J.S.A.] 18A:30-2 . . . .

      The employees who fall within this class must be absent from work for

reasons unrelated to sick leave. Here, the two teachers who serve the JCEA as

president and designee were not absent. They reported to work every day to an

office located on property provided by the school district to attend to the affairs

of the JCEA. Jersey City is our State's second largest city. Its school district

operates a vast, educationally diverse school system. As of May 2019, the

district employed 2,993 instructional staff, 1,317 non-instructional personnel,



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                                       10
and 151 administrators, and enrolled 26,993 students.2 Its brick and mortar

educational    infrastructure   consists    of   fourteen   elementary     schools

accommodating children from pre-kindergarten to the fifth grade; thirteen

grammar schools accommodating children from pre-kindergarten to eighth

grade; four middle schools accommodating children from sixth to eighth grade;

six high schools; one secondary school accommodating children from sixth to

twelfth grade; one Alternative Program, accommodating children from sixth to

twelfth grade; and three Early Childhood Centers. 3

      The two teachers selected by the members of the JCEA to serve as

president and designee, are required to travel throughout the school district to

attend meetings, participate in disciplinary matters to advocate the interests of

JCEA members, attend to the affairs of the union, and negotiate the terms of the

next CBA. These two teachers, who are paid their fulltime salaries, do not report

to any school administrator or school district official, and are not subject to any

administrative oversight. In short, while serving as president and designee of


2
 See Quick Links, Vital Facts, JCBOE.ORG,
www.jcboe.org/boe2015/index.php?option=com_content&view=article&id=16
6&Itemid=650 (last visited Aug. 13, 2019).
3
 See Schools, JCBOE.ORG,
www.jcboe.org/boe2015/index.php?option=com_content&view=article&id=44
9&Itemid=1090 (last visited Aug. 13, 2019).
                                                                           A-1611-17T1
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the JCEA, these two teachers act exclusively as labor leaders. Despite this, their

salaries and benefits are commensurate to the teachers who serve the day-to-day

educational needs of the students of the district.

      N.J.S.A. 18A:30-7, which is the only authority the Board and the JCEA

cite in support of their position, does not authorize the Board to disburse public

funds in this fashion. However, the CBA at issue here contains several sections

that exemplify the proper exercise of the Board's statutory authority to grant

leaves of absence for various reasons unrelated to sick leave. Under Article 31,

denoted "Other Absences" when there is a death in the teacher's family, "the

teacher shall be excused without loss of pay or accumulated leave for death

related absences taken within seven (7) calendar days of the date of death." This

Section also allows the faculty of an entire school, or if not practical a

representative number of the faculty, a paid half-day off to attend the funeral

services of an active colleague. The Board may also authorize paid absence to

an employee who is quarantined as ordered by an official action. Article 31 also

provides for paid absence in response to a court order.

      Article 33, denoted "Sabbatical Leave for Study or for Rest and

Recuperation," authorizes the Board to grant a leave of absence for rest and

recuperation. However, a teacher on leave of absence for rest and recuperation


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receives only one-half of his or her "monthly salary for each month during the

continuance of such leave."      A leave of absence for study or for rest and

recuperation must begin on September 1st and is limited to twelve months.

Teachers seeking a leave of absence for rest and recuperation must submit their

application to the Superintendent "at least three (3) months before the beginning

of the desired leave."

      Article 33 also allows a teacher to apply for a leave of absence to study.

This application should be presented to the Superintendent four months in

advance. A teacher granted this academic leave of absence must also "sign a

contract to serve in the public schools of the District for at least two (2) years

after the expiration of a leave." If the teacher is unable to honor this contractual

obligation, "the teacher shall reimburse the School District in direct proportion

to the unfilled time except in case of death or permanent disability." (Emphasis

added).

      Finally, teachers who are granted a leave of absence for rest and

recuperation or for study, must refrain from engaging in any remunerative

occupation during the continuance of the leave of absence. Teachers on leave

to study must present to the Superintendent documentation attesting to their

attendance and successful completion of the course of study offered by these


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academic institutions. Violations of these requirements will be considered by

the Board to constitute evidence of conduct unbecoming a teacher. A maximum

of fifteen "teaching staff members" are permitted to take a sabbatical or leave

for rest and recuperation.

      The public policy underpinning these leaves of absence is reflected in the

reasonableness of the underlying bases for the requests and in the reciprocal

benefits they confer. Both the Board and the teacher benefit from these hiatuses

of limited-duration. They serve to relieve the teacher from the pressures and

emotional exhaustion experienced throughout a lengthy career. The teacher is

given the opportunity to separate from his or her day-to-day activities without

risk of being unemployed; the Board gives a valuable and experienced teacher

the opportunity to "refresh" and return to the profession with a renewed sense

of commitment. By contrast, the contractual arrangement which permits the two

teachers to devote their entire professional time to exclusive service of the

interests of the JCEA confers no reciprocal benefit to the school district. In

fulfilling their duties to the JCEA, the teachers' role is to advocate the interests

of the JCEA, even when such interests may conflict with the educational and

administrative polices of the Board. The JCEA does not cite to any statutory

authority permitting the Board to pay the salaries of teachers whose job duties


                                                                            A-1611-17T1
                                        14
are exclusively devoted to the service of another organization, in this case the

JCEA.

      Article 7, denoted "Association Rights" aptly and candidly describes its

only purpose – to assure and promote the interests of the JCEA. Article 7

contains a total of eleven sections. We limit our recitation to the four sections

most germane to the issue raised here:

            Section 7-1: The [JCEA] shall have the right to
            distribute, through the use of the teachers' mailboxes,
            material dealing with the proper and legitimate business
            of the [JCEA].

            Section 7-2: The principal and/or his/her designee
            shall be notified prior to the distribution of such
            materials.

            Section 7-2.1: Representatives of JCEA, NJEA, and
            NEA shall have the right to enter the schools to meet
            with teachers during their preparation periods or lunch
            periods or after school to carry our appropriate [JCEA]
            business.

            Section 7-2.2: The president or his [or her] designee
            shall have the right to enter the school and meet with
            teachers at any time. This right shall not be abused.

             Section 7-2.3: The president of the JCEA and his/her
            designee, shall be permitted to devote all of his/her time
            to the [JCEA] business and affairs. The President shall
            continue to be granted adequate office and parking
            facilities.



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            Section 7-2.4: The president's designee shall carry out
            appropriate [JCEA] business, provided that the
            aforesaid business shall not disrupt the educational
            process. The designee shall notify the Superintendent
            or his/her designee as to where and when he/she is
            carrying out such [JCEA] business during school time.

            [(Emphasis added).]

      We emphasize Section 7-2.3 to show the absence of any language

obligating the Board to pay the salaries and benefits of the two teachers ser ving

in this capacity for the JCEA. Inexplicably, the Board does not dispute that the

language in Section 7-2.3 implicitly requires the Board to pay these two teachers

their full salaries and benefits. We find no textual support in the CBA for this

conclusion and no legal authority in Title 18A for the Board to sanction this

disbursement of public funds.

      In N.J.S.A. 18A:30-8, the Legislature clearly stated that a school district

employee who qualifies as a member of the United States team for athletic

competition on the world level "shall be granted a leave of absence with pay and

without loss of rights, privileges and benefits and without interruption of

membership in any retirement system for the purpose of preparing for and

engaging in the competition."       The Legislature made equally clear the

limitations of this public generosity: "paid leave granted pursuant to this act



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                                       16
shall be no more than 90 calendar days in 1 year or the combined days of the

official training camp and competition, whichever is less." Ibid.

      The intent of the Legislature in N.J.S.A. 18A:30-7 was also made clear by

the conspicuous omission of language similar to N.J.S.A. 18A:30-8. We thus

hold Section 7-2.3 of the CBA covering the period from September 1, 2013 to

August 31, 2017, is against public policy and unenforceable. The actions taken

by the Board that caused the disbursement of public funds pursuant to Section

7-2.3 were ultra vires.

      Reversed.




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