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Donvito v. Board of Education of the Northern Valley Regional High

August 9, 2006

KATHLEEN DONVITO, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE NORTHERN VALLEY REGIONAL HIGH SCHOOL DISTRICT, BERGEN COUNTY, RESPONDENT-RESPONDENT, AND LOUISE RYAN, INTERVENOR-RESPONDENT.



On appeal from a Final Decision of theNew Jersey State Board of Education, No. 1-04.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 24, 2006

Before Judges Wefing, Wecker and Fuentes.

Kathleen Donvito was employed by the Northern Valley Regional High School District Board of Education ("Northern Valley" or "Board") from 1995 to 2002. In 2002, Northern Valley notified her it was not renewing her contract for the upcoming school year. Donvito filed a petition with the Commissioner of Education alleging that Northern Valley violated her tenure rights. The matter was referred to the Office of Administrative Law, and in July 2003, the administrative law judge granted summary judgment to Northern Valley, finding that Donvito had not achieved tenure status. The Commissioner of Education rejected the decision of the administrative law judge, reversed the grant of summary judgment to Northern Valley, granted summary judgment to Donvito, and ordered her reinstatement.

Northern Valley appealed to the State Board of Education. In a divided vote, the State Board ruled that Donvito's employment with Northern Valley did not afford her tenure rights. Donvito has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The matter was presented on stipulated facts. Donvito is certified as an elementary school teacher, as an English teacher, as a nursery school teacher, as a learning disabilities teacher consultant and as a teacher of the handicapped. In her first year with Northern Valley, 1995 to 1996, she worked as a per diem substitute teacher. Thereafter, she worked as a home instructor. The parties' stipulation of facts described her responsibilities as a home instructor in the following manner:

[P]roviding instruction for those students who were unable to attend classes in school because of physical illness or other reasons. Home Instructors [teach] course content based upon the program requirements for graduation. Home Instructors work at times that [vary] depending upon the number of students needing services. Since a student's absence is usually unpredictable, home instruction assignments are usually made with minimal advance notice.

As a home instructor, Ms. Donvito worked on an as-needed basis. She was paid an hourly rate, for the actual hours worked. The number of hours she worked, and the earnings she received, varied according to the need for her services. As a home instructor, she was not afforded the benefits provided for other teachers in the Northern Valley system.

Ms. Donvito also worked in other capacities in the Northern Valley system. Between 1998 and 2000, she worked as High School Proficiency Test and Special Review Assessment ("HSPT/SRA") tutor. For four months in 1999, she also worked as a Perkins Grant Counselor.*fn1

Because of her fluctuating hours, her earnings also varied. Her gross earnings in 1997 from Northern Valley were $26,112.50, in 1998, $15,091.75, and in 1999, $20,738.42. In 2000, she received a contract to work as a special education teacher for Northern Valley from February 18, 2000 through June 30, 2000; she was paid on a 2/5 basis for a salary of $23,103.60. She signed another contract for the 2001 to 2002 school year as special education teacher. This was a 4/5 contract, for which she was paid a salary of $50,282.40. The present dispute developed when she did not receive a contract for the 2002 to 2003 school year.

Resolution of this appeal revolves around the proper construction and interplay of several statutes. As such, it involves a question of law, and our review of the Board's decision is not confined to a determination as to whether the result reached by the Board is "arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." Watson v. City of E. Orange, 175 N.J. 442 (2003). This court is "'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue,' and we will intercede if the agency's action exceeds the bounds of its discretion." In re Distribution of ...


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