Unemployment is Not “Substituted Employment,” and Unemployment Benefits Are Not “Pay or Salary”

Ciripompa v. Bd. of Educ. of Borough of Bound Brook, ___ N.J. Super. ___ (App. Div. 2021). Judge Gummer well summarized her opinion for the Appellate Division today in its first paragraph:

” Plaintiff appeals the Commissioner of Education’s final administrative decision denying his claim for back pay for an unpaid suspension period that occurred before the resolution of tenure charges filed against him by the Board of Education of the Borough of Bound Brook, Somerset County. The Commissioner determined the Board could use unemployment benefits and payments from other employment plaintiff had received during the suspension period to offset outstanding back pay. We disagree that the Board could use unemployment benefits and reverse the Commissioner’s decision in that respect. We otherwise affirm.”

Though “the procedural history of this case is complicated,” as Judge Gummer rightly noted after describing it at length, today’s decision came down to a narrow issue of statutory interpretation. As relevant to the facts here, N.J.S.A. 18A:6-14, part of the Tenure Employees Hearing Law, states that “[s]hould [a] charge be dismissed at any stage of the process and the suspension be continued during an appeal therefrom, then the full pay or salary of such person shall continue until the determination of the appeal. However, the Board of Education shall deduct from said full pay or salary any sums received by such employee or officers by way of pay or salary from any substitute employment assumed during such period of suspension” (emphasis added).

Here, plaintiff received unemployment benefits, and the Commissioner’s decision ruled that the Board had authority to deduct those benefits under N.J.S.A. 18A:6-14. But the Commissioner did so, Judge Gummer observed, by replacing with an ellipsis the key language that limited the deduction power to “salary from any substitute employment.” The Commissioner thus quoted the statute as “plainly requir[ing] that ‘any sums received . . . during such period of suspension’ must be deducted from the back pay owed.”

But Judge Gummer stated that “this ignored the express language of the statute…. The Legislature did not authorize boards to deduct any sums received during the period of suspension –which is how the Commissioner applied the statutory language –but any sums the employee received ‘by way of pay or salary from any substituted employment assumed during such period of suspension.'” It was self-evident that “[u]nemployment is not ‘substituted employment’; it isn’t employment at all. Unemployment benefits are not ‘pay or salary'” either.

The standard of review of agency decisions is deferential, but no deference is given to decisions on legal issues. Moreover, Judge Gummer said, courts must “give effect to every word” of a statute. The panel’s decision did that.

Plaintiff also had substituted employments, the deduction of which he also challenged. But the same statutory language authorized that deduction, and the credible, undisputed evidence in the record supported the Commissioner’s decision as to that. Thus, in that respect, the Appellate Division affirmed the Commissioner’s ruling.