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                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3765-15T2

HILLSBOROUGH TOWNSHIP
BOARD OF EDUCATION,

        Petitioner-Respondent,

v.

HILLSBOROUGH TOWNSHIP
EDUCATION ASSOCIATION,

        Respondent-Appellant.

__________________________________

              Argued January 10, 2017 – Decided March 2, 2017

              Before Judges Fisher, Ostrer, and Leone.

              On appeal from     the New Jersey Public
              Employment Relations Commission, Docket No.
              SN-2015-079.

              Sanford R. Oxfeld argued the cause for
              appellant (Oxfeld Cohen, P.C., attorneys; Mr.
              Oxfeld and Randi Doner April, of counsel and
              on the brief).

              Vittorio S. LaPira argued the cause for
              respondent Hillsborough Township Board of
              Education (Fogarty & Hara, attorneys; Mr.
              LaPira, of counsel and on the brief; Nicholas
              A. Soto, on the brief).

              Don Horowitz, Senior Deputy General Counsel,
              argued the cause for respondent New Jersey
            Public Employment Relations Commission (Robin
            T. McMahon, General Counsel, attorney; Mr.
            Horowitz, on the statement in lieu of brief).

PER CURIAM

     Petitioner       Hillsborough        Township     Education      Association

(Association) requested arbitration when respondent Hillsborough

Township Board of Education (Board) denied tuition reimbursement

requests from several teachers.               The Board based its denial on

N.J.S.A. 18A:6-8.5(c), which allows tuition assistance only for

courses    related     to   the    employee's        current     or   future      job

responsibilities.       On March 31, 2016, the New Jersey Public

Employment Relations Commission (PERC) found N.J.S.A. 18A:6-8.5

preempted arbitration of that issue.             We affirm PERC's decision.

                                         I.

     In 2013, four employees in the Hillsborough Township school

system    submitted    forms      for    "Approval    of   Graduate     Study/CEU

Courses" seeking tuition reimbursement.               A Reading Specialist, a

Preschool Assistant, and an Instructional Aid submitted forms for

"Second Language Acquisition" courses at The College of New Jersey

(TCNJ).      The   Instructional        Aid   also   submitted    a   form    for    a

"Teaching English as a Second Language" course at TCNJ.                      Another

Instructional Assistant submitted a form for a "Clinical Seminar

in Special Education" course at Rowan University.                 Their requests

were denied.

                                          2                                  A-3765-15T2
      The   four    employees   submitted     a   grievance   form,   seeking

tuition reimbursement and movement on the salary guide based on

the courses.       On March 24, 2014, the Board denied the grievance,

finding "that the courses for which approval was sought do not

apply to the employee's current or future job responsibilities."

      The Association submitted a Request for Submission to a Panel

of   Arbitrators.       The   Board   filed   a   Petition    for    Scope    of

Negotiations Determination.       PERC's March 31, 2016 decision found

arbitration was preempted:

            [W]e hold that N.J.S.A. 18A:6-8.5 preempts
            arbitration.       The   statute    expressly,
            specifically, and comprehensively precludes a
            board from reimbursing an employee for
            coursework that does not meet each requirement
            set forth in the law. Here, the coursework
            was not approved by the Superintendent as it
            did not relate to the employee's current or
            future job responsibilities.

The Association appeals.

                                      II.

      We must hew to our standard of review.              Courts "apply a

deferential standard of review to determinations made by PERC."

City of Jersey City v. Jersey City Police Officers Benevolent

Ass'n, 154 N.J. 555, 567 (1998).            "The standard of review of a

PERC decision concerning the scope of negotiations is 'thoroughly

settled. The administrative determination will stand unless it is

clearly demonstrated to be arbitrary or capricious.'"               Id. at 568

                                       3                               A-3765-15T2
(quoting In re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J.

322, 329 (1989)).

     "PERC's interpretation of the [Employer-Employee Relations]

Act is entitled to substantial deference," N.J. Tpk. Auth. v. Am.

Fed'n of State, Cty. & Mun. Emps., Council 73, 150 N.J. 331, 352

(1997), but "no special deference is owed in an interpretation of

a statute outside the agency's charge," Township of Franklin v.

Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 378 (App. Div.

2012).   We are not "'bound by the agency's interpretation of a

statute or its determination of a strictly legal issue.'"    Bd. of

Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (citation

omitted).

                                  III.

     PERC found N.J.S.A. 18A:6-8.5 preempts arbitration of the

Board's denials.      N.J.S.A. 18A:6-8.5 provides:

            In order for a board of education to provide
            to   an  employee   tuition  assistance   for
            coursework taken at an institution of higher
            education or additional compensation upon the
            acquisition of additional academic credits or
            completion of a degree program at an
            institution of higher education:

                 a.    The institution shall be a duly
                       authorized    institution    of
                       higher education as defined in
                       section 3 of P.L. 1986, c. 87
                       (C.18A:3-15.3);



                                   4                        A-3765-15T2
                 b.   The   employee   shall  obtain
                      approval        from       the
                      superintendent    of   schools
                      prior to enrollment in any
                      course   for   which   tuition
                      assistance is sought. In the
                      event that the superintendent
                      denies   the   approval,   the
                      employee may appeal the denial
                      to the board of education.

                      . . . .

                 c.   The   tuition  assistance  or
                      additional compensation shall
                      be provided only for a course
                      or degree related to the
                      employee's current or future
                      job responsibilities.

     Here, the Board denied tuition assistance based on N.J.S.A.

18A:6-8.5(c).1   Thus, we must consider whether that subsection

falls within the scope of negotiation.

     As our Supreme Court recently reiterated,

          although "public employees have a legitimate
          interest in . . . collective negotiations" in
          respect of issues affecting the terms and
          conditions of their employment, "the scope of
          [such] negotiation[s] in the public sector is
          more limited than in the private sector."
          Unlike a private employer, a public employer,
          as government, has "the unique responsibility
          to make and implement public policy." Public
          policy . . . properly is determined through
          the political process, by which citizens hold

1
  Neither N.J.S.A. 18A:6-8.5(a) nor N.J.S.A. 18A:6-8.5(b) are at
issue in this appeal.    Thus, we have no need to consider the
validity of PERC's decision in Hainesport Twp. Bd. of Educ. v.
Hainesport Educ. Ass'n, P.E.R.C. No. 2015-41, 41 NJPER 274 (2014),
which held N.J.S.A. 18A:6-8.5(b) preempts arbitration.

                                  5                        A-3765-15T2
          government accountable,     and   not    through
          collective negotiation.

          [Borough of Keyport v. Int'l Union of
          Operating Eng'rs, 222 N.J. 314, 333 (2015)
          (quoting In re Local 195, 88 N.J. 393, 401-02
          (1982)).]

"The scope of arbitrability is generally coextensive with the

scope of negotiability."   Teaneck Bd. of Educ. v. Teaneck Teachers

Ass'n, 94 N.J. 9, 14 (1983).

     "[T]he scope of collective negotiations for public employers

and employees was addressed" in the "seminal case Local 195."

Keyport, supra, 222 N.J. at 332-33.

          [A] subject is negotiable between public
          employers and employees when (1) the item
          intimately and directly affects the work and
          welfare of public employees; (2) the subject
          has not been fully or partially preempted by
          statute or regulation; and (3) a negotiated
          agreement would not significantly interfere
          with the determination of governmental policy.

          [Local 195, supra, 88 N.J. at 404.]

     "A subject is preempted, and therefore non-negotiable under

the second factor, when a statute or regulation '"speak[s] in the

imperative and leave[s] nothing to the discretion of the public

employer."'"   Keyport, supra, 222 N.J. at 334 (quoting Local 195,

supra, 88 N.J. at 403-04).   "Negotiation is preempted only if the

[statute or] regulation fixes a term and condition of employment

expressly, specifically and comprehensively."     Id. at 337 (quoting


                                 6                            A-3765-15T2
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J.

38, 44 (1982)).     "When legislation or a regulation 'establishes a

specific term or condition of employment that leaves no room for

discretionary action, then negotiation on that term is fully

preempted."      Id. at 336-37 (quoting Local 195, supra, 88 N.J. at

403).      "[W]hen statutes or regulations set minimum or maximum

standards in respect of a subject, the subject is negotiable within

the limits of those standards."           Id. at 334.

      N.J.S.A.     18A:6-8.5(c)    sets     an    express,   specific,    and

comprehensive condition for tuition assistance and speaks in the

imperative by mandating that "[i]n order for a board of education

to provide . . . tuition assistance" it "shall be provided only

for a course or degree related to the employee's current or future

job     responsibilities."        (emphasis      added).     "Mandatory    or

imperative statutes ordinarily are those enactments which set up

a particular scheme which 'shall' be handled as directed."               State

v. State Supervisory Emps. Ass'n, 78 N.J. 54, 82 n.7, 84-86

(1978).2    The subsection expressly sets a specific limit on when



2
  Cf. Keyport, supra, 222 N.J. at 338-41 (holding a regulation
providing an authority "'may'" institute a temporary layoff does
"not impose a mandate as called for under Local 195's second prong
for preemption" (citation omitted)); Local 195, supra, 88 N.J. at
406 (holding a regulation providing an authority "'may'" lay off
does not preempt because it "grants considerable discretion" and
does not "speak[] in the imperative" (citation omitted)).

                                      7                             A-3765-15T2
tuition assistance may be available.      See Neptune Twp., supra, 144

N.J. at 25, 29 (holding that an education statute permitting "'a

one, two or three year salary policy'" preempted because it

"specifically provid[ed] in that statute for the prohibition of

increments beyond three years").

     The subsection gives the employer no discretion: if a course

is   related      to   the   employee's   current   or    future     job

responsibilities, the employee meets this condition for tuition

assistance.    See State Supervisory, supra, 78 N.J. at 80 (holding

that if statutory or regulatory provisions "speak in the imperative

and leave nothing to the discretion of the public employer," then

"negotiation over matters so set by statutes or regulations is not

permissible").3    Finally, the subsection is comprehensive, leaving

no collective issues for negotiations between the Board and the

Association, only particular issues relating to each individual,

namely whether the employee's proposed course relates to the

employee's current or future job responsibilities.       See id. at 86-

87 (holding "there is nothing upon which the parties could agree

concerning these matters, as they are comprehensively regulated").



3
  Cf. Hunterdon Cty., supra, 116 N.J. at 331 (holding statutes
providing that employers "may establish and maintain plans for
awards programs" did not preempt arbitration because they
authorize employers "to exercise discretion in choosing to
institute [such] programs").

                                   8                            A-3765-15T2
      Of   course,   determining    whether    a   particular   employee's

proposed course is related to that employee's current or future

job responsibilities may pose issues of fact.          However, the need

to determine an issue of fact does not give discretion to the

superintendent.

      In City of Newark v. PBA Local 3, 272 N.J. Super. 31, 39

(App. Div.), certif. denied, 137 N.J. 315 (1994), we addressed a

Newark ordinance providing "'[a]ll officers and employees of the

city . . . are hereby required as a condition of their continued

employment to have their place of abode in the city and to be bona

fide residents therein.'"       Whether an individual employee has a

place of abode in the city and is a bona fide resident obviously

poses issues of fact.     Nonetheless, we held the ordinance did not

give the public employer even a "limited area of discretion" and

that "[t]he matter of residency" was non-negotiable and preempted.

Id. at 39-40.

      The Association argues arbitration is not preempted based on

the   legislative    history   of   N.J.S.A.   18A:6-8.5(c),    which   was

enacted in the 214th Legislative Session by Senate Bill 826.              L.

2010, c. 13.    First, the Association cites the initial version of

an unenacted and markedly different Assembly bill in the 2008-2009

legislative session, Assembly Bill No. 3671.          That bill initially

provided: "The tuition assistance or additional compensation shall

                                     9                             A-3765-15T2
be provided only for a course or degree related to the employee's

current position or, at the discretion of the board of education

on   a   case-by-case          basis,        the     employee's       future         job

responsibilities."       Assemb. Bill No. 3671, 213th Leg. Sess., at 2

(Dec. 8, 2009); accord S. Bill No. 2127, 213th Leg. Sess., at 2

(Oct. 3, 2008).         However, a subsequent version of that bill

substituted     the    language     ultimately           enacted    by     the      next

Legislature in N.J.S.A. 18A:6-8.5(c).               See S. Bill No. 2127, 213th

Leg. Sess., at 2 (Jan. 12, 2010) (second reprint); Assemb. Educ.

Comm. Substitute for Assemb. Bill Nos. 3671 & 3228 (Jan. 4, 2010).

The Association argues the initial bill's mention of "discretion"

shows N.J.S.A. 18A:6-8.5(c) is discretionary.                    To the contrary,

the elimination of this limited grant of discretion from the final

version of the statute suggests the Legislature regarded the

subsection as mandatory rather than discretionary.

     Second, the Association argues N.J.S.A. 18A:6-8.5(c) cannot

preempt arbitration because the "thrust" of the legislation was

N.J.S.A. 18A:6-8.5(a), which ended the practice of teachers using

"diploma mills."       The Association cites the Governor's "Statement

Upon Signing Senate Bill No. 826," which states the "new law helps

ensure   that    our     teachers       are    educated         through    reputable

institutions    of    higher   education,          and   also   provides    a     small

positive step towards controlling the use and abuse of taxpayer

                                        10                                      A-3765-15T2
dollars."    Governor's Statement on Signing S. Bill No. 826 (May

6, 2010).     The Association stresses the first phrase, but the

second phrase's goal of "controlling the use and abuse of taxpayer

dollars" is also accomplished by requiring courses be related to

current or future job responsibilities.    That is made clear by the

Governor's explanation:

                 In our public schools, teachers can
            increase their salaries . . . by acquiring
            advanced credits or degrees. . . . Teachers,
            therefore, have a clear financial incentive
            to enroll in advanced courses of study,
            whether or not those advanced courses actually
            improve their classroom performance.
                 Yet, recent studies have shown that
            graduate   degrees   by  themselves   do   not
            necessarily translate into improved teacher
            quality or student achievement. . . . There
            is an exception: master’s degrees in math or
            science have been linked to improved student
            achievement in those areas.        Nationwide,
            however, ninety percent of graduate degrees
            are in education, and not in a subject-
            specific area.

                 . . . .

                 Therefore, the time is ripe to closely
            examine the current teacher compensation
            structure in New Jersey to ensure that these
            taxpayer dollars do, in fact, translate into
            improved teaching and student achievement.

            [Ibid. (emphasis added).]

     The goals of avoiding abuse of taxpayer dollars, and improving

a teacher's classroom performance and student achievement, are

served by providing tuition assistance or additional compensation

                                 11                          A-3765-15T2
"only for a course or degree related to the employee's current or

future job responsibilities."       N.J.S.A. 18A:6-8.5(c).     Thus, the

Governor's signing statement supports enforcing that requirement

rather than subjecting it to negotiation.         A governor's "action

upon a bill may . . . be considered in determining legislative

intent."     McGlynn v. N.J. Pub. Broad. Auth., 88 N.J. 112, 159

(1981).

     In any event, regardless of the "thrust" of the legislation,

we cannot ignore the provisions the Legislature ultimately enacted

in the statute, including the clear requirement in N.J.S.A. 18A:6-

8.5(c).    "If [a statute's] language is unclear, courts can turn

to extrinsic evidence for guidance, including a law's legislative

history," but courts "may not rewrite a statute." State v. Munafo,

222 N.J. 480, 488 (2015).

     The Association contrasts N.J.S.A. 18A:6-8.5 with N.J.S.A.

18A:6-8.6, which provides: "Nothing in this act shall be construed

to limit the authority of a board of education to establish more

stringent requirements for the provision of tuition assistance or

additional    compensation   than   the   requirements   set    forth    in

[N.J.S.A. 18A:6-8.5]."       The Association argues more stringent

requirements    can   only    be    established   through      collective

negotiations.    The Board concedes N.J.S.A. 18A:6-8.6 "may afford

some discretion to negotiate" for more stringent requirements, but

                                    12                            A-3765-15T2
argues that would not affect the outcome regarding N.J.S.A. 18A:6-

8.5(c).   We agree.   N.J.S.A. 18:6-8.5(c) sets a maximum on the

rights and benefits an employee can receive by providing that

tuition assistance is available "only" for a course related to an

employee's current or future job responsibilities. Ibid. "[W]here

a statute or regulation sets a maximum level of rights or benefits

for employees on a particular term and condition of employment,

no proposal to affect that maximum is negotiable nor would any

contractual provision purporting to do so be enforceable."     State

Supervisory, supra, 78 N.J. at 81-82; see, e.g., Maywood Bd. of

Educ. v. Maywood Educ. Ass'n, 168 N.J. Super. 45, 54-55 (App.

Div.) (reversing an order to negotiate where the "statute sets a

maximum level of rights"), certif. denied, 81 N.J. 292 (1979).4

     Under N.J.S.A. 34:13A-5.4(d), "PERC has been designated by

the Legislature as the forum for initial determination of scope

of negotiations matters because of its special expertise in this

area" and has "primary jurisdiction" over such disputes.     Bd. of

Educ. v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 316-17 (1979).



4
 See also Bethlehem Twp., supra, 91 N.J. at 47 (finding preemption
by regulations requiring actions "'no later than October 1'" and
"'within 10 working days after adoption'"); In re Hackensack Bd.
of Educ., 184 N.J. Super. 311, 317-18 (App. Div. 1982) (holding
that a statute allowing boards to grant more than the minimum-
required sick leave did not permit arbitration over the minimum
requirements for sick leave).

                               13                            A-3765-15T2
Moreover,      given   PERC's   "broad    experience"   in   "scope-of-

negotiations disputes," Newark Firemen's Mut. Benevolent Ass'n v.

City of Newark, 90 N.J. 44, 55 (1982), "'due weight should be

accorded thereto on judicial review,'" Hunterdon Cty., supra, 116

N.J. at 329 (citation omitted).          Here, PERC's decision was not

arbitrary or capricious.

     We reject the Association's argument that the reference to

N.J.S.A. 18A:6-8.5 in the parties' agreement somehow makes it

negotiable.5     "[S]pecific statutes or regulations which expressly

set particular terms and conditions of employment . . . . are

effectively incorporated by reference as terms of any collective

agreement," but "negotiation over matters so set by statutes or

regulations is not permissible."          State Supervisory, supra, 78

N.J. at 80; see Bethlehem Twp., supra, 91 N.J. at 44-45 (providing

that such incorporated statutes preempt negotiations).

     The Association argues preemption would leave employees no

avenue to challenge a superintendent's decision finding a course

is unrelated to their present or future job responsibilities.


5
   Provisions 18.1 and 24.5 in the "Agreement Between the
Hillsborough Education Association and the Board of Education of
the Township of Hillsborough" provided for tuition reimbursement
for teachers and instructional assistants. Provision 18.1.3 and
Provision 24.5.1 identically stated that "[t]he provisions in this
Article shall only be implemented to the extent permitted by
N.J.S.A. 18A:6-8.5, or any other statutory provision or
administrative regulation."

                                   14                           A-3765-15T2
However, N.J.S.A. 18A:6-8.5(b) provides: "In the event that the

superintendent denies the approval, the employee may appeal the

denial to the board of education."                          The Board concedes there is

the   same      right        of        appeal     to   a    board    of    education     of    a

superintendent's decision under N.J.S.A. 18A:6-8.5(c).                              Moreover,

"decisions by a board of education are reviewable in the first

instance by the State Commissioner of Education."                               Mount Holly

Twp. Bd. of Educ. v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319,

342 (2009) (citing N.J.S.A. 18A:6-9).                        "In turn, decisions of the

State Commissioner of Education are reviewed as of right by the

Appellate       Division."               Ibid.     (citing       N.J.S.A.    18A:6-9.1(a)).

Accordingly, employees have an avenue for recourse.

      The Association argues the instructors here sought tuition

assistance for courses related to the current and future job

responsibilities, which the Board denies.                            The Association also

argues     a        course        is     related       to    a    teacher's     future        job

responsibilities if it would enable him or her to teach a new

course or be a better teacher.                         The Board also determined that

"'current or future job responsibilities' . . . should [not] apply

to future responsibilities for which the employee is not presently

qualified to perform."                  The Board characterized the Association's

position       as    "too    broad,"        encompassing          "any    courses   that      are

tangentially          related          to   the    field     of     education,"     rendering

                                                  15                                   A-3765-15T2
N.J.S.A.   18A:6-8.5(c)   "largely    meaningless."   We   express    no

opinion on such disputes, which should be raised by appeal to the

Commissioner of Education.

     The Association's remaining arguments lack sufficient merit

to warrant discussion.    R. 2:11-3(e)(1)(E).

     Affirmed.




                                 16                            A-3765-15T2
