On appeal from a Final Determination of The Department of Education on Rulemaking Petition.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and Yannotti.
Christine Gillespie appeals from a final determination of the Department of Education, which denied her petition for an amendment to an administrative rule which provides that a State district school superintendent may in certain circumstances determine whether there is probable cause to support charges against tenured employees of the district. For the reasons that follow, we affirm.
The regulation at issue provides in pertinent part that when charges are preferred against certain tenured employees of a district board of education or of a State-operated school district, for reasons other than inefficiency, the local school board or the State district superintendent shall file the written charges with the Commissioner of Education. N.J.A.C. 6A:3-5.1(a). The regulation requires that the charges and a sworn statement of supporting evidence be provided to the employee involved. N.J.A.C. 6A:3-5.1(b)(2). The regulation states that, after receipt of a written statement from the employee or the expiration of fifteen days:
[T]he district board of education shall determine by a majority vote of its full membership, or the State district superintendent shall determine, within 45 days whether there is probable cause to credit the evidence in support of the charges and whether such charges, if credited, are sufficient to warrant a dismissal or reduction of salary. [N.J.A.C. 6A:3-5.1(b)(4) (emphasis added).]
The regulation establishes similar procedures for charges of inefficiency by tenured employees when any such insufficiency may warrant dismissal or a reduction in salary. N.J.A.C. 6A:3-5.1(c).
Appellant is a tenured teacher in the Newark school system. Tenure charges were preferred against her. On April 4, 2006, appellant filed a petition seeking an amendment to N.J.A.C. 6A:3-5.1. Appellant maintained that the rule was inconsistent with N.J.S.A. 18A:6-11, because it permits the State district superintendent, rather than the local district board of education, to determine whether there is probable cause for the tenure charges filed against employees in State-operated school districts. Appellant also asserted that the rule was adopted without compliance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15 (APA).
The Department published notice of appellant's petition for rulemaking. 38 N.J.R. 2216(a) (May 15, 2006). The Department thereafter reviewed the matter and determined that "no amendments to the current rules are warranted." 38 N.J.R. 2890(a) (July 3, 2006). The Department determined that in districts under State control, State law "clearly and unequivocally" confers upon the State district superintendent "the power to act in the manner ordinarily assigned to local district boards of education throughout the school laws." The Department further found that rule had been adopted in "full compliance" with the APA. Ibid. This appeal followed.
We first consider appellant's contention that the regulation is inconsistent with N.J.S.A. 18A:6-11 because it provides that the State district superintendent may determine whether there is probable cause to support charges against tenured employees. Appellant argues that N.J.S.A. 18A:6-11 mandates that all such determinations be made by the local district board of education.
In considering whether the regulation is ultra vires, we are guided by the well-established principle that a regulation adopted by an administrative agency pursuant to authority granted by the Legislature is entitled to a presumption of validity. T.H. v. Div. of Dev. Disabilities, 189 N.J. 478, 490 (2007). "[Because] coordinate branches of government should not encroach upon each other's responsibilities," we are strongly inclined "to defer to agency action that is consistent with the legislative grant of power." Lower Main St. Assocs. v. N.J. Hous. & Mortgage, 114 N.J. 226, 236 (1989). We will set aside an administrative regulation "only in those ...