KATE ROMEO VS. BOARD OF EDUCATION OF THE HIGH POINT REGIONAL HIGH SCHOOL DISTRICT, SUSSEX COUNTY (NEW JERSEY COMMISSIONER OF EDUCATION) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
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-2602-18T4
KATE ROMEO,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF
THE HIGH POINT REGIONAL
HIGH SCHOOL DISTRICT,
SUSSEX COUNTY,
Respondent-Respondent.
_____________________________
Submitted May 14, 2020 – Decided July 23, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the New Jersey Commissioner of
Education, Docket No. 100-5/17.
Oxfeld Cohen, PC, attorneys for appellant (Sanford R.
Oxfeld, of counsel; Jesse M. Humphries, on the briefs).
Methfessel & Werbel, attorneys for respondent Board
of Education of the High Point Regional High School
District (Brent R. Pohlman, of counsel and on the brief;
Scott Ketterer, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Jaclyn M.
Frey, Deputy Attorney General, on the statement in lieu
of brief).
PER CURIAM
Petitioner Kate Romeo appeals from the January 29, 2019 final agency
decision of the Commissioner, Department of Education (Commissioner)
rejecting her challenge to the termination of her employment through a reduction
in force. We affirm.
I.
The following facts are derived from the record. From 2008 to 2017,
Romeo was employed by respondent Board of Education of the High Point
Regional High School District (Board) as a student assistance coordinator
(SAC). In the position of SAC, Romeo provided support to students and staff
who were in crisis, counseled students with addiction issues, and participated in
assessing student suicide risk. She held certificates as a SAC and as a teacher
of psychology.
For the 2017-2018 school year, the Board instituted a reduction in force
(RIF) due to a drop in enrollment and financial constraints. Romeo's SAC
position was eliminated effective June 30, 2017. The Board reassigned Romeo's
duties to several remaining staff members, none of whom worked exclusively as
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a SAC. The work performed by those employees was within their respective
certificates.
Romeo filed a petition of appeal with the Commissioner challenging her
termination. She sought reinstatement and back pay, alleging the Board violated
N.J.S.A. 18A:40A-18 when it reassigned her duties. She argued the statute
requires that all SAC-related services be provided by an employee who serves
only in the role of SAC. In addition, she argued she was entitled to reinstatement
as a teacher of psychology because she provided instruction to students under
her certificate to teach psychology during the 2011-2012 and 2012-2013 school
years. She argued that reinstatement in a teaching position was required either
because she obtained tenure as a teacher of psychology or because she had more
seniority than another non-tenured teacher of psychology who remained after
the RIF.
The Commissioner referred the matter to the Office of Administrative Law
for a hearing. After taking testimony, Administrative Law Judge (ALJ) Ellen S.
Bass issued a detailed written initial decision rejecting Romeo's claims. ALJ
Bass concluded the Board instituted the RIF in accordance with N.J.S.A.
18A:28-9, which permits a board of education
to reduce the number of teaching staff members,
employed in the district whenever, in the judgment of
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the board, it is advisable to abolish any such positions
for reasons of economy or because of reduction in the
number of pupils . . . or for other good cause . . . .
The ALJ noted that Romeo did not allege that the RIF was undertaken in bad
faith or that the Board continued to employ a SAC with less seniority in the
school district than Romeo. Rather, she argued that the Board's redistribution
of her duties violated N.J.S.A. 18A:40A-18.
That statute, enacted in 1987 to establish a pilot project for the
introduction of SAC services in local school districts, provides:
[t]he Commissioner of Education, in consultation with
the Commissioner of Health, shall develop and
administer a program which provides for the
employment of student assistance coordinators in
certain school districts.
a. [T]he Commissioner of Education shall forward to
each local school board a request for a proposal for the
employment of a student assistance coordinator. A
board which wants to participate in the program shall
submit a proposal to the commissioner which outlines
the district's plan to provide substance abuse
prevention, intervention, and treatment referral services
to students through the employment of a student
assistance coordinator. . . . In addition to all other State
aid to which the local district is entitled under the
provisions of . . . pertinent statutes, each board of
education participating in the program shall receive
from the State, for a three-year period, the amount
necessary to pay the salary of its student assistance
coordinator.
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b. The position of student assistance coordinator shall
be separate and distinct from any other employment
position in the district, including, but not limited to
district guidance counselors, school social workers, and
school psychologists.
[N.J.S.A. 18A:40A-18.]
ALJ Bass concluded the Board is under no obligation to employ a SAC
because "[t]he statute nowhere precludes a district from providing student-
assistance services by using other properly certificated staff." The statute
merely provides that if a district elected to participate in the 1987 pilot program,
the position of SAC, which was to be funded by the State for three years, had to
be separate and distinct from other employment positions.
The ALJ also found that Romeo was not entitled to reinstatement as a
teacher of psychology. As the judge explained, "[t]he record reveals that
[Romeo] did not deliver instruction to students using her instructional certificate
during the" 2011-2012 and 2012-2013 school years. Instead, she provided
"push-in" services one period per week in a self-contained, alternative, special-
education program for students at risk of dropping out. Those services included
life-skills instruction and transitional resources. The ALJ noted that offering a
psychology class to students would have required a formal, approved
curriculum, which Romeo did not have. Although Romeo argued that she
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provided the students with instruction, she acknowledged that her work in the
program was in an unstructured environment and that she was unaware of the
individual education plans of any of the special-needs students in the program.
ALJ Bass determined that "the work performed by Romeo in the alternative
program was under her SAC certification and constituted group counseling
rather than curriculum-based instruction in psychology."
Thus, ALJ Bass concluded, Romeo could not have earned tenure under
her certificate to teach psychology. Moreover, the ALJ concluded, even
assuming for the sake of argument that Romeo did teach psychology in the
alternative program, "she simply did not serve long enough in that role to earn
tenure." After being transferred from a teaching position to another position,
tenure is obtained after "employment for two academic years in the new position
together with employment in the new position at the beginning of the next
succeeding academic year . . . ." See N.J.S.A. 18A:28-6(a)(2). Because Romeo
was not in the alternative, special education program position at the start of the
2013-2014 school year, she could not have obtained tenure in that position. ALJ
Bass, therefore, recommended that Romeo's petition be dismissed. Romeo filed
exceptions to the ALJ's initial decision with the Commissioner.
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The Commissioner adopted the ALJ's initial decision in full. The
Commissioner explained, that "[a]s the ALJ found, the relevant statutory and
regulatory provisions require school districts to provide prevention, intervention
and treatment programs and services, but do not require all districts to employ a
SAC." "The statutory language requiring that school districts employ a SAC,
separate and distinct from other district positions, derived from an optional pilot
program . . . to introduce SAC services to local school districts." Noting the
economic reasons behind the RIF and the fact that the district employees
performing Romeo's prior duties were doing so under their respective non-SAC
certificates, the Commissioner concluded that "the Board's decision to abolish
the petitioner's SAC position . . . and to reassign her duties to existing
employees, was not a violation of the statutory and regulatory provisions" on
which Romeo relies.
With respect to Romeo's second argument, the Commissioner stated that
he was "in accord with the ALJ's determination that the petitioner has no right
to reinstatement to a teacher of psychology position." The Commissioner
explained that "the ALJ properly found that the work performed by the petitioner
in the alternative program was actually under her SAC certificate and constituted
group counseling rather than curriculum-based instruction in psychology."
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Moreover, the Commissioner concluded, "[e]ven assuming arguendo, that
[Romeo] did work in the District under her psychology certificate, her argument
that she has a right to a teacher of psychology position is completely inconsistent
with the tenets of seniority." The Commissioner concluded "seniority rights are
not triggered until tenure is acquired, and the petitioner admits that she does not
have tenure as a teacher of psychology. Therefore, the petitioner has no right to
reinstatement as a teacher of psychology."
This appeal followed. Romeo reiterates the arguments she made before
the ALJ and Commissioner.
II.
"Judicial review of agency determinations is limited." Allstars Auto Grp.,
Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018). "An
administrative agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." Ibid. (quoting Russo v. Bd. of Trs., Police
& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). In reviewing the agency's
decision, we consider:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
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(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
[Ibid. (quoting In re Stallworth, 208 N.J. 182, 194
(2011)).]
We "must be mindful of, and deferential to, the agency's expertise and
superior knowledge of a particular field." Id. at 158 (quoting Circus Liquors,
Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)). "A
reviewing court 'may not substitute its own judgment for the agency's, even
though the court might have reached a different result.'" Stallworth, 208 N.J. at
194 (quoting In re Carter, 191 N.J. 474, 483 (2007)). "Deference to an agency
decision is particularly appropriate where interpretation of the [a]gency's own
regulation is in issue." R.S. v. Div. of Med. Assistance & Health Servs., 434
N.J. Super. 250, 261 (App. Div. 2014) (quoting I.L. v. Div. of Med. Assistance
& Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006)). "However, a
reviewing court is 'in no way bound by [an] agency's interpretation of a statute
or its determination of a strictly legal issue.'" Allstars Auto Grp., 234 N.J. at
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158 (alteration in original) (quoting Div. of Youth & Family Servs. v. T.B., 207
N.J. 294, 302 (2011)).
Having reviewed the record in light of these principles, we affirm the
Commissioner's final agency decision for the reasons stated in his written
decision adopting the comprehensive findings and analysis of ALJ Bass. There
is sufficient credible evidence in the record as a whole supporting the
Commissioner's determination that: (1) the Board implemented its RIF in
accordance with law; (2) redistribution of Romeo's duties to other Board
employees within their respective certificates was authorized by statute; and (3)
Romeo did not have a statutory right to reinstatement to a position as a teacher
of psychology. R. 2:11-3(e)(1)(D). We see no support in the law for Romeo's
argument that a school district is required to employ a SAC dedicated only to
meeting the district's statutory student services requirements.
Affirmed.
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