On appeal from a Final Decision of the New Jersey State Board of Education.
Furman and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
[212 NJSuper Page 629] Petitioner, John Polaha, appeals from the State Board of Education's decision reversing an order of the Commissioner of
Education which reinstated appellant to his position as Community Education Director for the Buena Regional School District.
Appellant was hired by the School District in September 1979 to fill the position. As part of his duties, he directed an Adult High School Program which required a principal's certificate. This program required approximately 60 percent of his time. His remaining time was spent on the District's Community Enrichment Program. He was known as both the Director of Community Enrichment and the Principal of Adult Education although his official title was Community Education Director.
He was rehired each year until the District Board on March 8, 1983 eliminated the position and informed appellant of its action on March 11, 1983. On July 12, 1983 the District Board created a part-time position to supervise the Community Enrichment Program and reassigned certain duties of the former position among existing administrators. This part-time position was advertised at an hourly wage of $10. Direction of the Adult High School was assigned to the Superintendent of Schools. Appellant on July 23, 1983 requested appointment to the new part-time position which would supervise the Community Enrichment Program. He allegedly received no answer to his request and on September 26, 1983 again demanded the position with a pro-rated salary based upon his former rate. An October 17, 1983 letter was sent to appellant's attorney offering the position at the $10 hourly rate. Exchanges of correspondence until November 1, 1983 attempted to resolve the matter without success. Appellant filed his appeal with the Commissioner on November 9, 1983.
The District Board, unable to fill the part-time Supervisor of the Community Enrichment Program position, authorized the Superintendent to appoint the high school principal to the position at the extra $10 per hour. This appointment was made on October 4, 1983. Appellant was placed on a "preferred eligibility list" entitling him to his former position should it be reinstated.
Appellant's case was assigned to an Administrative Law Judge. The judge denied the District Board's motion to dismiss appellant's petition as time barred under N.J.A.C. 6:24-1.2, which provides:
(a) To initiate a contested case for the commissioner's determination of a controversy or dispute arising under the school laws, a petitioner shall serve a copy of a petition upon each respondent. The petitioner then shall file proof of service and the original of the petition with the commissioner. . . .
(b) 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 which is the subject of the requested contested case hearing.
In ruling in favor of appellant the Administrative Law Judge stated:
[I]t would appear that what Mr. Polaha did, instead of filing immediately a petition with the Commissioner of Education, was to initiate a dissertation with the Board's ...