CHRISTOPHER CONCATO VS. BOARD OF EDUCATION OF THE RIVER DELL REGIONAL HIGH SCHOOL DISTRICT, BERGEN COUNTY (NEW JERSEY COMMISSIONER OF EDUCATION) ( 2018 )


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    APPROVAL OF THE APPELLATE DIVISION
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    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-3066-16T2
    CHRISTOPHER CONCATO,
    Petitioner-Appellant,
    v.
    BOARD OF EDUCATION OF THE
    RIVER DELL REGIONAL HIGH
    SCHOOL DISTRICT, BERGEN COUNTY,
    Respondent-Respondent.
    _________________________________
    Argued May 15, 2018 – Decided August 14, 2018
    Before Judges Sumners and Natali.
    On appeal from the New Jersey Commissioner of
    Education, Agency Docket No. 146-6/15.
    Alfred F. Maurice argued the cause for
    appellant (Springstead & Maurice, attorneys;
    Alfred F. Maurice and Lauren E. McGovern, on
    the briefs).
    Rodney T. Hara argued the cause for respondent
    Board Of Education of the River Dell Regional
    High   School   District   (Fogarty  &   Hara,
    attorneys; Rodney T. Hara, of counsel and on
    the brief).
    Nicole   T.  Castiglione,   Deputy   Attorney
    General, argued the cause for respondent New
    Jersey Department of Education (Gurbir S.
    Grewal, Attorney General, attorney; Nicole T.
    Castiglione,   on     the    statement       in   lieu   of
    brief).
    PER CURIAM
    Christopher Concato filed a petition of appeal with the Acting
    Commissioner of Education (Commissioner) claiming that his tenure
    and seniority rights under the New Jersey Tenure Act (the Tenure
    Act), N.J.S.A. 18A:28-1 to -18, were violated when the Board of
    Education of the River Dell Regional High School District (Board)
    reduced his full-time Teacher of Industrial Arts position to a
    part-time position due to a reduction in force (RIF) for reasons
    of economy, and he was not appointed to positions that were held
    by tenured teachers with less seniority and non-tenured teachers.
    He appeals from the Commissioner's final agency decision adopting
    the Administrative Law Judge's (ALJ) initial decision that the
    Board did not violate his rights because he did not hold the proper
    certification   at   the   time    the      RIF   took    effect.         We    affirm
    substantially for the reasons set forth in the Commissioner's
    Decision.
    Before addressing the relevant facts concerning Concato's
    claims, we briefly discuss our standard of review and the relevant
    law that governs his tenure and seniority rights.
    We limit our review "to a determination of whether the
    [Commissioner's] decision is 'unreasonable, unsupported by the
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    record or violative of the legislative will.'"                     D.L. v. Bd. of
    Educ.,    366   N.J.    Super.     269,    273    (App.     Div.   2004)   (quoting
    Capodilupo v. Bd. of Educ., 
    218 N.J. Super. 510
    , 515 (App. Div.
    1987)).     Regarding educational matters, the Supreme Court has
    cautioned that "the courts cannot supplant educators; they are not
    at   liberty    to     interfere    with       regulatory    and   administrative
    judgments of the professionals in the field of public education
    unless those judgments are palpably arbitrary or depart from
    governing law." Dennery v. Bd. of Educ., 
    131 N.J. 626
    , 643 (1993).
    Although we are not bound by an administrative agency's legal
    opinions, Levine v. State Dep't of Trans., 
    338 N.J. Super. 28
    , 32
    (App. Div. 2001) (citation omitted), the "'agency's interpretation
    of statutes and regulations within its implementing and enforcing
    responsibility is ordinarily entitled to our deference,'" Wnuck
    v. N.J. Div. of Motor Vehicles, 
    337 N.J. Super. 52
    , 56 (App. Div.
    2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.
    Super. 93, 102 (App. Div. 1997)).
    A RIF, "whether of tenured or nontenured teachers, if done
    for reasons of economy, is entirely within the authority of the
    board."    Jamison v. Bd. of Educ., 
    198 N.J. Super. 411
    , 414-15
    (App. Div. 1985).       However, where a tenured teacher is riffed, the
    Tenure Act protects the teacher by providing "a measure of security
    in the ranks they hold after years of service."                Viemeister v. Bd.
    3                                A-3066-16T2
    of Educ., 
    5 N.J. Super. 215
    , 218 (App. Div. 1949).        N.J.S.A.
    18A:28-9, provides:
    Nothing in this title or any other law
    relating to tenure of service shall be held
    to limit the right of any board of education
    to reduce the number of teaching staff
    members, employed in the district whenever,
    in the judgment of the board, it is advisable
    to abolish any such positions for reasons of
    economy or because of reduction in the number
    of pupils or of change in the administrative
    or supervisory organization of the district
    or for other good cause upon compliance with
    the provisions of this article.
    "Seniority is a by-product of tenure and comes into play only if
    tenure rights are reduced by way of dismissal or reduction in . .
    . benefits."   Carpenito v. Bd. of Educ., 
    322 N.J. Super. 522
    , 531
    (App. Div. 1999).
    A teacher's tenure and seniority rights are not unlimited.
    N.J.S.A. 18A:28-4, provides that "[n]o teaching staff member shall
    acquire tenure in any position in the public schools in any school
    district or under any board of education, who is not the holder
    of an appropriate certificate for . . . [the] position. . . ."    In
    a similar vein, N.J.S.A. 18A:28-12 provides:
    If any teaching staff member shall be
    dismissed as a result of . . . [a reduction
    in force], such person shall be and remain
    upon a preferred eligible list in the order
    of seniority for reemployment whenever a
    vacancy occurs in a position for which such
    person shall be qualified and he shall be
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    reemployed by the body causing dismissal, if
    and when such vacancy occurs. . . .
    [(Emphasis added).]
    Thus, a riffed teacher's right to exercise tenure and seniority
    rights is restricted to positions for which the teacher holds the
    appropriate certificate and endorsement during employment with the
    school district.          Francey v. Bd. of Educ., 
    286 N.J. Super. 354
    ,
    360 (App. Div. 1996).
    Turning to the undisputed facts of Concato's situation, in
    June 2015, his industrial arts position, in which he obtained
    tenure, was reduced by the Board effective for the 2015-2016 school
    year to a twenty-percent part-time position due to reasons of
    economy and efficiency.            At the effective date of the Board's
    action, Concato possessed a Standard Certificate for "Teacher of
    Industrial Arts"; a Standard Certificate with an endorsement of
    "Supervisor";       a    provisional   "Certificate     of   Eligibility     for
    Principal";     a       Standard   Certificate   with   an   endorsement       of
    "Elementary   School        Teacher    in   Grades   K-5";   and   a   Standard
    Certificate with an endorsement of "Elementary School with Subject
    Matter Specialization: Science in Grades 5-8".1              Employed by the
    Board prior to April 23, 2014, he was eligible for a Standard
    1
    Concato had never taught science in the District under his
    elementary school science grades 5-8 certificate.
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    Certification   with   Endorsement          of     Teacher   of   Technology       in
    accordance with N.J.A.C. 6A:9B-10.6, but he failed to apply to the
    State Board of Examiners to obtain the endorsement until several
    months after he was riffed and while his petition of appeal was
    pending.
    In his petition, Concato claimed that his tenure and seniority
    rights were violated because the Board continued to employ tenured
    and   non-tenured   teachers     with       less    seniority     in    twenty-two
    assignments   for   which   he   was        qualified.2       The      dispute   was
    transmitted as a contested matter to the Office of Administrative
    Law, which resulted in the ALJ's initial decision after the
    parties' submitted cross-motions for summary decision.                     The ALJ
    rejected Concato's claims on the basis that he had no bumping
    rights to any of the positions he was seeking.                The ALJ stated,
    [a]n    endorsement     titled    'Technology
    Education,'   found   at    N.J.A.C.   6A:9B-
    9.3(a)(8), authorizes the holder of this
    endorsement to teach, in all public schools,
    a variety of technical education courses, . .
    . but does not authorize the holder to teach
    2
    He claimed to have seniority in the positions of: Project and
    Performances; Research 4 Today; Robotics; Intro to Computer
    Science; Engineering your World; TV Production I; TV Production
    II; TV Production III; Advanced Media Project; Math Plus; Geometry
    Lab; Algebra II Lab; Digital Imaging; Animation; Digital Arts
    Major; Intro to Photography; Digital Illustration; Digital
    Commercial Design; Advanced Placement Photography; Advanced
    Photography; Painting and Printmaking; and World of Music and
    Music Technology.
    6                                   A-3066-16T2
    'career and technical education programs'
    listed in N.J.A.C. 6A:9B-9.4(a) and (c).
    By means of a special 'grandfather' provision
    found at N.J.A.C. 6A:9B-10.6(b) an endorsement
    in 'Technical Education' is available to
    holders of an Industrial Arts endorsement who
    have been employed by a school district before
    April 23, 2004. These individuals can obtain
    the Technology Education endorsement upon
    his/her application to the Board of Education.
    N.J.A.C. 6A:9B-10.[6](b).
    Because Concato failed to possess a Technology Endorsement at the
    time of the RIF, the ALJ ruled he was not entitled to use it
    thereafter to bump anyone employed in a position requiring that
    endorsement.        And since Concato never served in a position in
    which   he    had    to    possess     the       Standard    Certificate     with    an
    Endorsement     in        Elementary     Education          with   Subject     Matter
    Specification in Science grades 5-8, he had no rights to the
    positions requiring that endorsement.
    In adopting the ALJ's initial decision, the Commissioner
    reasoned:
    The   ALJ   thoroughly   and   comprehensively
    conducted an analysis of each course –
    examining the curriculum, the endorsements the
    Board states are required, as well as
    petitioner's arguments – prior to making a
    determination on each course as to the
    necessary endorsement and whether petitioner
    has the required credentials to teach the
    course.   As the ALJ found that petitioner
    lacked the certifications and endorsements to
    teach these twenty-two courses, there was no
    need for the ALJ to analyze the seniority of
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    those teachers who were assigned to teach
    them.
    On appeal, Concato argues the ALJ and Commissioner erred in
    finding that he not did not have tenure and seniority rights to
    other teaching positions at the time of the RIF based on his
    Industrial Arts endorsement and his eligibility to obtain his
    Technology Education endorsement.   We disagree.   Based upon our
    standard of review, we are convinced that the Commissioner's
    Decision – concurring with the ALJ's findings and conclusions and
    adopting his summary decision – was correct substantially for the
    reasons set forth therein.
    Affirmed.
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