JENNIFER JORDAN VS. BOARD OF EDUCATION OF THE NORTH HUNTERDON-VOORHEES REGIONAL HIGH SCHOOL DISTRICT(COMMISSIONER OF EDUCATION) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
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          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-4420-14T1
    
    
    JENNIFER JORDAN,
    
                  Petitioner-Appellant,
    
    v.
    
    BOARD OF EDUCATION OF THE
    NORTH HUNTERDON-VOORHEES
    REGIONAL HIGH SCHOOL DISTRICT,
    HUNTERDON COUNTY, RICHARD BERGACS,
    MICHAEL HUGHES, CHARLES SHADDOW
    AND PATRICIA RALEIGH,
    
              Respondents-Respondents.
    ________________________________________________
    
                  Argued December 13, 2016 – Decided July 21, 2017
    
                  Before Judges Messano, Suter, and Guadagno.
    
                  On appeal from the Commissioner of
                  Education, Docket No. 218-8/14.
    
                  John R. Lanza argued the cause for appellant
                  (Lanza & Lanza, LLP, attorneys; Kenneth W.
                  Thomas, on the briefs).
    
                  Robert M. Tosti argued the cause for
                  respondents (Purcell, Mulcahy, Hawkins,
                  Flanagan & Lawless, LLC, attorneys; Rita F.
                  Barone, on the brief).
    
                  Christopher S. Porrino, Attorney General,
                  attorney for respondent New Jersey
             Commissioner of Education (Geoffrey N.
             Stark, Deputy Attorney General, on the
             statement in lieu of brief).
    
    PER CURIAM
    
        Plaintiff, Jennifer Jordan, appeals from the May 20, 2015
    
    decision of the Commissioner of Education (Commissioner)
    
    adopting the recommendation of an administrative law judge
    
    (ALJ), finding that plaintiff's petition challenging the denial
    
    of her tenure is procedurally time-barred as it was filed after
    
    the ninety-day statute of limitations period set forth in
    
    N.J.A.C. 6A:3-1.3(i).     We affirm.
    
                                      I.
    
        Plaintiff was hired to work as a non-tenured guidance
    
    counselor for the North Hunterdon-Voorhees Regional High School
    
    (NHHS) in January 2011.    Plaintiff was recommended for a
    
    permanent position by the Supervisor of Guidance, Patricia
    
    Raleigh, and was reappointed for the 2011-2012, 2012-2013, and
    
    2013-2014 school years.    Plaintiff became eligible for tenure
    
    following the 2013-2014 school year.
    
        On May 8, 2014, plaintiff received a letter from JoAnn F.
    
    Keffer, Director of Human Resources for NHHS, informing her that
    
    at the meeting of the Board of Education (Board) scheduled for
    
    May 13, 2014, the Superintendent of Schools will recommend that
    
    the Board not renew plaintiff's employment for the 2014-2015
    
                                      2                          A-4420-14T1
    school year.    The letter further stated that plaintiff's
    
    employment would terminate effective June 30, 2014.
    
         On May 13, 2014, plaintiff appeared before the Board with
    
    her attorney and presented seven members of the public who spoke
    
    in support of her.   Plaintiff and her counsel addressed the
    
    Board and requested renewal of her contract.    District
    
    Superintendent Charles M. Shaddow provided his rationale for not
    
    recommending plaintiff for renewal, and NHHS Principal, Richard
    
    Bergacs, also addressed the Board regarding plaintiff's
    
    termination.1   After Shaddow and Bergacs spoke, the Board
    
    approved a personnel agenda that did not include the renewal of
    
    plaintiff's employment.
    
         On August 11, 2014, plaintiff filed a petition with the
    
    Commissioner alleging the Board violated her "constitutional
    
    right to due process; manufactured 'reasons' for the non-renewal
    
    of her contract; interfered with her protected property rights
    
    attendant to her education, work history and guidance counselor
    
    certification; failed to follow their own policy on non-renewal
    
    and issued a defective notice of the reasons for non-renewal."
    
    
    
    
    1
      These facts were elicited from the minutes of the meeting.       We
    were not provided with a transcript or summaries of the
    presentations to the Board.
    
                                     3                           A-4420-14T1
        The matter was transferred to the Office of Administrative
    
    Law as a contested case.   The Board moved to dismiss plaintiff's
    
    complaint as time-barred under N.J.A.C. 6A:3-1.3(i).   Plaintiff
    
    cross-moved for a finding that the Board's action of failing to
    
    renew her employment contract was improper.   An ALJ considered
    
    briefs by the parties and issued an initial decision on March 2,
    
    2015, recommending that the Commissioner dismiss the petition as
    
    time-barred.
    
        The ALJ rejected plaintiff's argument that the May 8, 2014
    
    letter was not a final action within the meaning of N.J.A.C.
    
    6A:3-1.3(i), and recommended the Commissioner grant defendant's
    
    motion to dismiss because plaintiff failed to file her petition
    
    within ninety days of receiving notice of her termination.      The
    
    Commissioner adopted the recommended decision of the ALJ, and
    
    dismissed plaintiff's petition on May 20, 2015.
    
        On appeal, plaintiff claims the Commissioner's decision
    
    constitutes an abuse of discretion and runs contrary to
    
    legislative intent.   Plaintiff urges us to exercise original
    
    jurisdiction and grant her tenure; in the alternative, she seeks
    
    a remand of the matter for a hearing.
    
                                   II.
    
        "[We] have 'a limited role' in the review of [agency]
    
    decisions." In re Stallworth, 
    208 N.J. 182
    , 194 (2011) (quoting
    
                                    4                         A-4420-14T1
    Henry v. Rahway State Prison, 
    81 N.J. 571
    , 579 (1980)).    "[A]
    
    'strong presumption of reasonableness attaches to [an agency
    
    decision].'" In re Carroll, 
    339 N.J. Super. 429
    , 437 (App. Div.)
    
    (quoting In re Vey, 
    272 N.J. Super. 199
    , 205 (App. Div. 1993),
    
    aff'd, 
    135 N.J. 306
     (1994)), certif. denied, 
    170 N.J. 85
     (2001).
    
    "In order to reverse an agency's judgment, [we] must find the
    
    agency's decision to be 'arbitrary, capricious, or unreasonable,
    
    or [] not supported by substantial credible evidence in the
    
    record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting
    
    Henry, supra, 81 N.J. at 580).   The burden of proving that an
    
    agency action is arbitrary, capricious, or unreasonable is on
    
    the challenger. Bueno v. Bd. of Trs. of the Teachers' Pension
    
    and Annuity Fund, 
    422 N.J. Super. 227
    , 234 (App. Div. 2011)
    
    (citing McGowan v. N.J. State Parole Bd., 
    347 N.J. Super. 544
    ,
    
    563 (App. Div. 2002)).
    
        We "may not substitute [our] own judgment for the agency's,
    
    even though [we] might have reached a different result."
    
    Stallworth, supra, 208 N.J. at 194 (quoting In re Carter, 
    191 N.J. 474
    , 483 (2007)).   "This is particularly true when the
    
    issue under review is directed to the agency's special
    
    'expertise and superior knowledge of a particular field.'" Id.
    
    at 195 (quoting In re Herrmann, 
    192 N.J. 19
    , 28 (2007)).
    
    Furthermore, "'[i]t is settled that [a]n administrative agency's
    
                                     5                         A-4420-14T1
    interpretation of statutes and regulations within its
    
    implementing and enforcing responsibility is ordinarily entitled
    
    to our deference.'" E.S v. Div. of Med. Assistance & Health
    
    Servs., 
    412 N.J. Super. 340
    , 355 (App. Div. 2010) (quoting Wnuck
    
    v. N.J. Div. of Motor Vehicles, 
    337 N.J. Super. 52
    , 56 (App.
    
    Div. 2001)).   "[W]e are not bound by the agency's legal
    
    opinions." A.B. v. Div. of Med. Assistance & Health Servs., 
    407 N.J. Super. 330
    , 340 (App. Div.) (quoting Levine v. State, Dep't
    
    of Transp., 
    338 N.J. Super. 28
    , 32 (App. Div. 2001)), certif.
    
    denied, 200 N.J. 210-11 (2009). "Statutory and regulatory
    
    construction is a purely legal issue subject to de novo review."
    
    Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 
    64 N.J. 85
    ,
    
    93 (1973)).
    
                                   III.
    
        N.J.A.C. 6A:3-1.3 addresses the initiation of a contested
    
    case before the Commissioner and provides in pertinent part:
    
             The petitioner shall file a petition no later
             than the 90th day from the date of receipt of
             the notice of a final order, ruling or other
             action by the district board of education,
             individual party, or agency, which is the
             subject of the requested contested case
             hearing. This rule shall not apply in
             instances where a specific statute, regulation
             or court order provides for a period of
             limitation shorter than 90 days for the filing
             of a particular type of appeal.
    
             [N.J.A.C. 6A:3-1.3(i) (emphasis added).]
    
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        Plaintiff argues that her August 11, 2014 petition was
    
    timely filed because the May 8, 2014 letter did not constitute a
    
    "final order" and therefore did not trigger the ninety-day
    
    filing period.   She maintains that the language of the letter
    
    suggests that the Superintendent merely intended to recommend
    
    non-renewal and "does not . . . tell [plaintiff] that she would
    
    not be reemployed, only that the Superintendent would recommend
    
    against it on a subsequent date upon which the Board would
    
    either accept or reject the recommendation."
    
        In Kaprow v. Board of Education of Berkeley Township, 
    131 N.J. 572
     (1993), our Supreme Court recognized the importance of
    
    the ninety-day limitation period to the ability of school
    
    districts to set their budgets:
    
             The limitation period gives school districts
             the security of knowing that administrative
             decisions regarding the operation of the
             school cannot be challenged after ninety days.
             Moreover, because local school boards operate
             on a cash basis, claims must be filed promptly
             so that the local board can anticipate any
             back-pay requirements.
    
             [Id. at 582.]
    
        N.J.S.A. 18A:27-10 provides:
    
                  On or before May 15 in each year, each
             nontenured teaching staff member continuously
             employed by a board of education since the
             preceding September 30 shall receive either
    
    
    
                                      7                         A-4420-14T1
                     a. A written offer of a contract for
                employment from the board of education for the
                next succeeding year providing for at least
                the same terms and conditions of employment
                but with such increases in salary as may be
                required by law or policies of the board of
                education, or
    
                     b. A written notice from the chief school
                administrator that such employment will not
                be offered.
    
        In Nissman v. Board of Education of the Township of Long
    
    Beach Island, Ocean County, 
    272 N.J. Super. 373
     (App. Div.),
    
    certif. denied, 
    137 N.J. 315
     (1994), we discussed the notice
    
    requirements of N.J.S.A. 18A:27-10, and concluded that the test
    
    was whether the employee "knew or should have known that [he or]
    
    she was not going to be offered a new contract for the following
    
    academic year." Id. at 379.
    
        The plain language of the May 8 letter simply does not
    
    support plaintiff's interpretation that the letter merely
    
    advised her of the possibility that she would not be offered a
    
    new contract.    The letter clearly qualifies as written notice
    
    that plaintiff's employment will be terminated and she will not
    
    be offered tenure.
    
        N.J.S.A. 18A:27-4.1(b) regulates the power of a board of
    
    education to renew the employment contract of a non-tenured
    
    employee.    It provides in pertinent part:
    
    
    
                                      8                          A-4420-14T1
             Notwithstanding the provisions of any law,
             rule or regulation to the contrary,
    
                  . . . .
    
             b.   A board of education shall renew the
             employment contract of a certificated or non-
             certificated officer or employee only upon the
             recommendation    of    the    chief     school
             administrator and by a recorded roll call
             majority vote of the full membership of the
             board.    The board shall not withhold its
             approval for arbitrary and capricious reasons.
             A nontenured officer or employee who is not
             recommended for renewal by the chief school
             administrator shall be deemed nonrenewed.
             Prior to notifying the officer or employee of
             the nonrenewal, the chief school administrator
             shall notify the board of the recommendation
             not to renew the officer’s or employee’s
             contract    and    the    reasons    for    the
             recommendation. An officer or employee whose
             employment contract is not renewed shall have
             the right to a written statement of reasons
             for nonrenewal . . . and to an informal
             appearance before the board. The purpose of
             the appearance shall be to permit the staff
             member to convince the members of the board
             to offer reemployment. The chief school
             administrator shall notify the officer or
             employee of the nonrenewal[.]
    
        By its terms, the statute provides, inter alia, that a
    
    board may renew an employee's contract "only" if the chief
    
    school administrator so recommends, and that it may decline to
    
    follow a chief school administrator's recommendation for renewal
    
    but may not do so arbitrarily and capriciously. Jackson Tp. Bd.
    
    of Educ. v. Jackson Educ. Ass'n ex rel. Scelba, 
    334 N.J. Super. 162
    , 168 (App. Div.) (citing N.J.S.A. 18A:27-4.1(b), certif.
    
                                   9                           A-4420-14T1
    denied, 
    165 N.J. 678
     (2000).   The May 8 letter clearly informed
    
    plaintiff that "the Superintendent will recommend against
    
    renewal of your employment" and "your employment will terminate
    
    effective June 30, 2014." (emphasis added).
    
        We reject plaintiff's argument that the May 8 notice was
    
    deficient because it was not signed by the superintendent.      The
    
    letter was written on the superintendent's letterhead and was
    
    signed by the district's director of human resources.      As we
    
    have stated, the purpose of the letter was to advise plaintiff
    
    that she would not be offered employment for the upcoming term.
    
        We also reject plaintiff's argument that the Board's
    
    decision constitutes an abuse of discretion.   In response to
    
    plaintiff's request for reasons why her employment was not being
    
    renewed, Patricia Raleigh provided a memo dated May 7, 2014
    
    providing:
    
                    Four families have demanded a counselor
                     change from Ms. Jordan's caseload this
                     year,   which  seems  to   indicate  an
                     unusually high level of dissatisfaction
                     in spite of the positive relationships
                     she seems to have with most of her
                     students.
    
                    Absences have been unusually numerous
                     over the past two years, in addition to
                     late arrivals.
    
                    Although the issues which have impacted
                     her performance at North Hunterdon have
    
    
                                    10                           A-4420-14T1
                    not seemed to rise to a level that would
                    compel intervention or censure, the
                    difficulty with which Ms. Jordan receives
                    any form of criticism has raised concerns
                    with regard to her long-term performance
                    as a counselor in this school.
    
           A school board has "broad discretionary authority in the
    
    granting of tenure" and the decision not to grant tenure "need
    
    not be grounded on unsatisfactory classroom or professional
    
    performance for there are many unrelated but nonetheless equally
    
    valid reasons why a board . . . may conclude that tenure should
    
    not be granted." Donaldson v. Bd. of Educ. of N. Wildwood, 
    65 N.J. 236
    , 241 (1974).    "An administrative agency's
    
    interpretation of statutes and regulations within its
    
    implementing and enforcing responsibility is ordinarily entitled
    
    to our deference." In re Appeal by Progressive Cas. Ins. Co.,
    
    
    307 N.J. Super. 93
    , 102 (App. Div. 1997).    In light of the
    
    budgetary implications of late-asserted claims, as explained in
    
    Kaprow, supra, we find the Commissioner's interpretation to be
    
    reasonable and that plaintiff has failed to demonstrate the
    
    Board's action was arbitrary, capricious, or unreasonable in any
    
    way.
    
           Finally, plaintiff argues that the Board violated its own
    
    Policy 3142, which required that teaching staff members who will
    
    not be offered renewal must be notified no later than April 24.
    
    
                                    11                          A-4420-14T1
    Because of this failure plaintiff argues she was already tenured
    
    when she received the letter of non-renewal on May 8, 2014.
    
            While the Board failed to comply with its own policy
    
    providing notice of re-employment by April 24, the Board's
    
    action remained in compliance with N.J.S.A. 18A:27-10, as
    
    plaintiff received notice prior to May 15.    In addition,
    
    plaintiff failed to meet the statutory requirements for tenure
    
    under N.J.S.A. 18A:28-5, which requires teaching staff employees
    
    to be employed for three consecutive calendar or school years to
    
    acquire tenure.    Plaintiff joined NHHS on January 26, 2011,
    
    therefore she had neither been employed in the district for
    
    three consecutive school years nor three consecutive calendar
    
    years when she received the notice of non-renewal on May 8,
    
    2014.    As a result, plaintiff cannot assert that she been
    
    automatically granted tenure as of April 24, 2014.
    
        Plaintiff's remaining arguments lack sufficient merit to
    
    warrant discussion in our opinion. R. 2:11-3(e)(1)(E).
    
        Affirmed.
    
    
    
    
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