On appeal from the State Board of Education, 06164-03S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 27, 2007
Before Judges Kestin and Graves.
After petitioner, Ralph McCullough, received the benefit of administrative adjudications that he had been discharged from his position with respondent, Trenton Board of Education, in derogation of his rights as a tenured employee, and that a 120-day suspension should have been imposed instead, he filed the instant petition for back pay and loss of benefits. The matter was referred to the Office of Administrative Law, pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-9, -10, for handling as a contested case.
An administrative law judge (ALJ) ruled that petitioner's back-pay claim was governed by the obligation to mitigate damages. The matter continued with testimony, arguments from counsel, and the opportunity to file written submissions. Respondent had conceded that, based on its calculations, it owed petitioner $22,554. Petitioner contended that, even if respondent's position on mitigation prevailed, the calculations should have included amounts reflecting shift differentials, and that the amount due was at least $2,362.92 higher.
In making his findings and reaching his conclusions, the ALJ held that petitioner was bound by the duty to mitigate, and that the mitigation figure included the amount petitioner had received in unemployment compensation benefits. As respects the treatment to be accorded petitioner's earnings from various jobs he held while suspended, the ALJ applied, as a guide, a rule applied by the Merit System Board in its cases, N.J.A.C. 4A:2-2, "which rule," the ALJ held, "while not binding in this education case, is nevertheless a helpful guide." The rule, essentially, requires an award of back pay to "be reduced by the amount of money which was actually earned or could have been earned during the separation." The ALJ viewed "[t]he logic of its analysis of how to treat earnings [as] perfectly reasonable." His calculation of the amount due petitioner was informed by this standard, and he rendered his initial decision accordingly.
In discharging the agency head's responsibility, under the APA, to review the initial decision and accept, reject or modify it in rendering the final decision in the matter, see N.J.S.A. 52:14B-10(c), (d), the Commissioner of Education, adopted the initial decision's conclusions regarding the obligation to mitigate and, generally, the standards governing that obligation. The Commissioner, however, modified the initial decision's "calculation of damages actually due petitioner in this matter[.]" In addition to the amount of $22,554.79 previously paid to petitioner, respondent was ordered to remit a further sum of $2,639.55, less required employment deductions. On internal appeal, the State Board of Education affirmed the Commissioner's final decision "for the reasons expressed therein."
On appeal from the State Board Education's decision, petitioner argues that the decision on the duty to mitigate was barred by the doctrine of res judicata and the entire controversy doctrine by reason of the determinations in the earlier administrative appeals that petitioner was a tenured employee and ordering his reinstatement with back salary and benefits without addressing the issue of mitigation. He also argues that the ALJ's reliance--adopted by the Commissioner--on a Merit System Board rule to reach his decision was tantamount to the adoption of that rule in this matter arising from the Department of Education, thus violating the APA's requirements governing rulemakings. See N.J.S.A. 52:14B-4 to -4.3. Finally, petitioner argues that the State Board of Education lacked subject matter jurisdiction over this matter.
Our review of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses that the issues raised by petitioner are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D),(E). We are in substantial agreement with the reasons for decision set forth in the Commissioner's final decision as affirmed by the State Board of Education.
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