On certification to the Superior Court, Appellate Division, whose opinion is reported at 255 N.J. Super. 76 (1992).
Garibaldi, Wilentz, Clifford, Handler, Pollock, O'Hern, Stein
The opinion of the court was delivered by
Effective June 30, 1981, Maurice Kaprow's employment as tenured assistant superintendent was terminated by the Berkeley Township Board of Education (the "Local Board") as a result of a reduction in force ("RIF") pursuant to N.J.S.A. 18A:28-9. The primary question presented in this appeal is whether Kaprow's petition to the Commissioner of Education (the "Commissioner") for reinstatement is time-barred by N.J.A.C. 6:24-1.2(c). That regulation requires that such petitions be filed "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 . . . [that] is the subject of the requested contested case hearing."
The Local Board failed to notify Kaprow of his post-RIF rights to certain positions in the school district despite its statutory duty to do so. Five months after learning of that failure, Kaprow petitioned the Commissioner seeking to be reinstated with back pay to one of several positions in the school district. The State Board of Education (the "State Board") dismissed his petition as untimely pursuant to N.J.A.C. 6:24-1.2, and the Appellate Division affirmed. 255 N.J. Super. 76 (1992). We granted Kaprow's petition for certification, 130 N.J. 16 (1992), and now affirm. We hold that N.J.A.C 6:24-1.2(c) applies and bars Kaprow's petition for reinstatement.
Kaprow was hired by the Local Board in 1976 as an Assistant Superintendent in Charge of Curriculum. On October 5, 1979, Kaprow acquired tenure in the position of assistant superintendent. For approximately seven months in 1980, Kaprow served as Acting Superintendent of Schools, Chief Administrator for the district. During the summers of 1977 through 1980, he served as principal of the summer school.
On February 5, 1980, the Local Board changed Kaprow's job title to Assistant Superintendent. Effective June 31, 1981, the Local Board terminated Kaprow's employment pursuant to N.J.S.A. 18A:28-9. That statute grants local boards of education the right "to reduce the number of teaching staff members * * * for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization * * * or for other good cause." At the time of his termination, Kaprow was the only tenured assistant superintendent in the school district. N.J.S.A. 18A:28-12 provides, in pertinent part:
If any teaching staff member shall be dismissed as a result of such reduction, 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.
In response to Kaprow's written request, the Local Board's counsel, in a letter dated September 22, 1981, informed him:
You ask what seniority rights you retained in the Berkeley Township School District. As you were the only Assistant Superintendent at the time of the abolishment of the position, it is clear that you would have the right to that position in the event of its being reestablished. With respect to your being notified of the recreation of the position of Assistant Superintendent or of a position of same responsibility, but perhaps by a different title, the Board Secretary would write to your last address on record. For the moment, we consider your August 31, 1981, letter setting forth your address as PO Box 173, Maitland, Florida 32751, as your present address.
Due to the Local Board's failure to keep a list of RIFed employees, Kaprow received no notice from the Local Board of any eligible positions until he requested that information in February 1988.
On February 23, 1988, Kaprow asked the Local Board's secretary, Elaine M. Clay, whether any positions for which he held tenure rights had been established subsequent to his termination. On the same day, Ms. Clay wrote to Kaprow on note paper headed, "From the desk of Elaine M. Clay, Board Secretary," informing him that on September 9, 1986, Robert Ciliento had been appointed Assistant Superintendent of Administrative Services, and that on July 1, 1987, Sheila McGuckin had been appointed District Supervisor of Elementary Schools.
In a February 28, 1988, letter to the Local Board, Kaprow asserted his right to both those positions. He wrote:
I have recently become aware that the position of Assistant Superintendent, to which I retain tenure rights, was reinstated as late as September 1986, if not before. Additionally, the duties which I performed as Assistant Superintendent have been transferred to a new position entitled District Supervisor of Elementary Education.
Kaprow requested that the Local Board reinstate him retroactively with full back pay and benefits in compliance with N.J.S.A. 18A:28-12. The Local Board did not reply. Kaprow sent a second letter on April 25, 1988, stating that he wished to resolve the dispute amicably and that he would appreciate a response by May 16, 1988.
When the Local Board's attorney finally responded to Kaprow's letters on June 14, 1988, he acknowledged in his letter that two positions had been created and filled; however, he asserted that those positions called for substantially different duties from those that Kaprow had previously performed. In addition, the attorney pointed out that Robert Ciliento had subsequently been appointed Superintendent. The attorney noted that since that appointment no one had been appointed to the "temporary position of Assistant Superintendent for Administrative Services." Because the position that Kaprow had formerly held had no functional equivalents, the attorney concluded that Kaprow's RIF rights did not attach and that no basis existed for his reinstatement.
On August 1, 1988, Kaprow filed a verified petition with the Commissioner asserting his claim to the position of Assistant superintendent of Administrative Services and/or District Supervisor. The matter was referred to the Office of Administrative Law. On December 16, 1988, Kaprow amended his petition, alleging for the first time that the 1981 RIF was improper and made in bad faith. He also asserted his right to various other positions that the Local Board had filled with nontenured people during the seven-year period. Because of Kaprow's claim to their positions, Ciliento, McGuckin, a principal, and thirty-one elementary teaching staff members intervened in the matter.
The Administrative Law Judge ("ALJ") granted partial summary judgment in favor of the intervenors on the grounds that Kaprow had not acquired any tenure or seniority rights to the positions of teacher, principal, and/or superintendent. The ALJ also dismissed the bad-faith claim for insufficient evidence. He did, however, find that Kaprow had acquired tenure and seniority status in the position of Assistant Superintendent in Charge of Curriculum, but that a factual issue existed concerning Kaprow's right to the positions he had ...