Before Judges Havey, Keefe and A.A. Rodr¡guez.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 1999
On appeal from a Final Decision of the State Board of Education.
The central issue raised by this appeal is whether a local school board is empowered to appoint a superintendent whose term would begin during the term of office of the succeeding board. Petitioner and amicus curiae, New Jersey Association of School Administrators, argue that a school board's authority to make such an appointment is found in N.J.S.A. 18A:17-20.1, which requires a local school board to notify its superintendent that he or she will not be appointed at least one year before the expiration of the superintendent's term. Petitioner and amicus reason that, by enacting N.J.S.A. 18A:17-20.1, the Legislature intended to authorize a school board to appoint a new superintendent at the time of such notification, with the term of the newly-appointed superintendent beginning upon expiration of the incumbent's term. The State Board of Education concluded that such an appointment is "void ab initio." We agree with the State Board of Education and affirm.
On June 29, 1994, respondent Board of Education of the Elizabeth School District (Board), notified Thomas Dunn, the Superintendent of Schools, that his contract, expiring on June 30, 1996, would not be renewed. Dunn was relieved of his duties. However, the Commissioner of Education ruled that the local board could not ignore Dunn's statutory entitlement to the position of superintendent for the duration of his contract. Thus, the Board could relieve Dunn of his duties, but no "vacancy" would occur in his position until the expiration of his contract. *fn1
On July 13, 1994, petitioner, then an assistant superintendent, was appointed acting superintendent, effective immediately. By resolution of February 8, 1995, the Board appointed petitioner superintendent for three years, beginning July 1, 1996, when Dunn's contract expired. On February 22, 1995, the Board approved an employment contract with petitioner for the three-year term.
On May 1, 1996, after the annual school board election, the newly constituted Board directed that Dunn resume his duties as superintendent, and returned petitioner to his prior position as assistant superintendent. On June 6, 1996, the Board appointed Dunn to a five-year term as superintendent, beginning July 1, 1996.
Petitioner filed a petition with the Commissioner of Education, claiming that the Board's actions breached his contract and were arbitrary, capricious and unreasonable. Petitioner demanded restoration to the position of superintendent and retroactive adjustment of his salary.
Administrative Law Judge Lucchi-McCloud, to whom the matter was assigned as a contested case, granted summary judgment to the Board. She determined that, although Dunn had been relieved of his duties as superintendent, that office was not vacant until his contract expired on June 30, 1996, since he had a statutory entitlement to the position for the duration of his contract. The ALJ reasoned that the February 1995 Board "had no authority to reach forward beyond its own official life and into the term of its successor to make a decision not due until July 1, 1996." She therefore concluded that petitioner's contract was "null and void ab initio" and that no "illegal reduction of compensation occurred . . . ."
The Commissioner modified the initial decision of the ALJ. He agreed with petitioner that N.J.S.A. 18A:17-20.1 "appears to contemplate, indeed, compel, that local boards will anticipate vacancies by notifying superintendents of their decisions not to reappoint them 'at least one year prior to the expiration' of their contracts." However, the Commissioner declined to allow a local board "unfettered power to bind future boards."
Instead, the Commissioner holds that the appropriate balance between the well-established stricture against binding future boards and the clear demands of N.J.S.A. 18A:17-20.1 may be struck by a reading which permits, apart from a current board, only that the board constituted immediately prior to twelve months before the expiration of its superintendent's contract to appoint a successor. Such a reading recognizes both a board's obligation to notify its superintendent of its intentions well in advance, while still not binding future boards unnecessarily or beyond the express prescription of the statute.
Applying this interpretation, the Commissioner held that the Board "acted beyond the scope of its lawful authority" when it appointed petitioner superintendent as of July 1, 1996, by "binding both the April 1995 Board and the April 1996 Board."
The State Board rejected the "compromise" fashioned by the Commissioner, that "apart from the current board, only that board constituted immediately prior to twelve months before the expiration of its superintendent's contract [may] appoint a successor." The State Board agreed with the ALJ that the February 1995 contract, effective July 1996, was "void ab initio" and held that it could not be ratified by later conduct of the Board. It thereupon affirmed the Commissioner's ...