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Kelly v. Board of Education of the Middlesex County Vocational Technical School Dist.


March 28, 2008


On appeal from a final decision of the State Board of Education, Docket No. SB #45-06.

Per curiam.


Argued March 4, 2008

Before Judges Parrillo and Baxter.

Petitioner Eileen Kelly appeals from a May 4, 2007 final agency decision of the State Board of Education (Board) in which the Board affirmed a determination rendered by the Commissioner of Education on November 9, 2006. The Board concluded that Kelly's employer, the Board of Education of the Middlesex County Vocational Technical School District (the District), properly calculated Kelly's seniority during a legitimate reduction in force (RIF). In so doing, the Board rejected Kelly's contention that she had accumulated more seniority as an instructor of Licensed Practical Nursing (LPN) than the employee whom the District retained. We affirm.


Kelly was hired by the District on January 2, 1992, as an instructor of nursing assistants (NA) through the Joint Training Partnership Act (JTPA), a federally-funded program. Shortly after she was hired, Kelly obtained an emergency certificate as a teacher of Production, Personnel and Service Occupations: Nursing Assistant (NA).

In September 1992, during the next school term, Kelly signed a second written contract with the District for employment as a NA instructor. Shortly after the beginning of that school year, the District learned that a change in the federal regulations governing the JTPA program had added additional requirements for NA instructors. In particular, such instructors were required to possess training or experience in geriatrics in order to obtain a permanent certificate as a NA instructor. Accordingly, the Assistant Superintendent of Schools, Joseph C. Colombo, arranged for Kelly and one other NA instructor to swap positions with two LPN instructors, so that Kelly and the other NA instructor could gain the required experience in geriatrics. Accordingly, two LPN instructors were transferred to the NA program while Kelly and the other NA instructor were transferred to the LPN program. Kelly began as an instructor in the LPN program in October 1992. At the time she began the temporary assignment in the LPN program in October 1992, there were no vacant teaching positions available in the LPN program.

When Kelly began her teaching responsibilities in the LPN program in October 1992, she still did not possess either a provisional or emergency certificate as a LPN teacher, and instead continued to rely upon her K-12 substitute teacher certificate, which she had renewed on October 30, 1992. Before beginning her work as a full-time LPN instructor in mid-October 1992, Kelly asked Colombo and the Director of Health Occupations, Betty Moore, whether her credentials were satisfactory for her to serve in the capacity of teacher of LPN, and both assured her that she was properly credentialed.

Although Kelly's transfer into the LPN program in October 1992 was intended to be temporary in nature consistent with the "swap" of positions we have described, a permanent full-time position became available in the LPN program in November 1992 due to a retirement. On November 11, 1992, Kelly applied for that position. On December 8, 1992, Colombo recommended that Kelly be appointed to the position of instructor in the LPN program to replace the retiree. The District hired her and she executed a formal written contract of employment for the position of LPN instructor, effective December 14, 1992. At the same time, the District hired Rosemary Simmons-Sestito as a LPN instructor, but awarded Simmons-Sestito a retroactive start date of December 1, 1992. For a reason that is not explained in the record, Kelly received the later start date of December 14, 1992, even though both were hired during the December 10, 1992 meeting of the District's board of education.

In April 1996, the human resources department submitted a work history data sheet to all of the District's employees for purposes of verifying the calculation of seniority. Kelly made a clerical change on that data sheet, but did not object to or revise the entry that showed she was employed in the capacity of a NA instructor from the date of her initial employment in January 1992 through December 14, 1992, at which time she became employed as an instructor in the LPN program.

By the end of December 1992, Kelly had completed all course requirements for attainment of a standard instructional certificate as a teacher of NA and LPN. She received her standard certificate as a teacher of NA in March 1993 and received her standard certificate as a teacher of LPN two months later in May 1993. She continued to work as an instructor of LPN from December 14, 1992, until May 9, 2001. On May 9, 2001, she received a notice of reduction in force and her position was abolished. The District determined that Simmons-Sestito had more seniority than Kelly. Accordingly, the District retained Simmons-Sestito but terminated Kelly as a result of the RIF. The District based the seniority calculation on Simmons-Sestito's earlier start date and on Kelly's use of forty-three workdays for health and bereavement purposes, which reduced her seniority as a LPN instructor accordingly.

In an effort to mitigate her damages, Kelly accepted a position as an adjunct nursing instructor that began at some point between mid-September and December 2001. When the next school year began in September 2002, Kelly accepted a one-year full-time position at the University of Medicine and Dentistry of New Jersey (UMDNJ) as a nursing instructor.

During that school year, on November 13, 2002, the District notified Kelly that she was being recalled to commence employment because a vacancy had recently occurred. Kelly notified the District on November 15, 2002, that she was under contractual obligation with UMDNJ and was unable to leave immediately. On November 20, 2002, the District advised Kelly that it was offering the position to the next individual on the seniority list because she had declined its offer of employment.

On June 25, 2001, prior to receiving the recall notice in November 2002, Kelly filed a verified petition with the Commissioner in which she challenged the determination of seniority and alleged that she had more seniority than Simmons-Sestito. After the District filed an answer, the matter was transferred to the Office of Administrative Law (OAL) as a contested case, where hearings were held in the spring of 2005. An administrative law judge issued a decision in Kelly's favor, to which the District filed exceptions. On November 9, 2006, the Commissioner issued a decision that rejected the ALJ's conclusion that "fundamental fairness" barred the District from awarding Kelly less seniority than Simmons-Sestito. Kelly appealed to the State Board of Education, which affirmed the decision of the Commissioner.

On appeal, Kelly argues that: the decision of the Commissioner is not based upon substantial and credible evidence in the record; the Commissioner's calculation of seniority was erroneous as a matter of law; the District was equitably estopped from terminating her; and she had a legal obligation to mitigate her damages by finding new employment and should not have been penalized for declining to leave her new position when the District later offered her a position.


"The scope of appellate review of a final agency decision is limited, and [an appellate court does] not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191 N.J. 474, 482 (2007). "Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Beattystown Cmty. Council v. Dep't of Envtl. Prot., 313 N.J. Super. 236, 248 (App. Div. 1998)(quoting Worthington v. Fauver, 88 N.J. 183, 204-05 (1982)).

This court's role in review of an agency decision is generally limited to determining:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

The same deference that is owed to final agency decisions is extended to decisions of the State Board of Education, which is the agency charged by the Legislature with implementing the school laws. Accordingly, a Board decision is entitled to considerable weight. Breitwieser v. Sch. Dist. of Jersey City, 286 N.J. Super. 633, 637 (App. Div. 1996). Indeed, a "decision of the State Board . . . should not be disturbed unless 'palpably arbitrary' or in violation of the law, or if unsupported by substantial credible evidence in the record." Ibid.


In point I, Kelly argues that the calculation of her seniority should not have started as late as December 14, 1992, the date of her contract. Instead, she argues that she should have begun accumulating seniority in October 1992 when she first began teaching as a LPN instructor.

Local school districts have the right to abolish tenured teaching positions for reasons of economy. N.J.S.A. 18A:28-10. A reduction in force, however, must be based on seniority. N.J.S.A. 18A:28-10. "Seniority . . . provides a mechanism for ranking all tenured teaching staff members so that reductions in force and reemployment can be effected in an equitable fashion and in accord with sound educational policies." Lichtman v. Ridgewood Bd. of Educ., 93 N.J. 362, 368 n.4 (1983). We proceed to a discussion of the criteria a school district must use to determine seniority in the event of a RIF.

"[A]ny person employed as a teaching staff member by a district board of education shall hold a valid and appropriate certificate." N.J.A.C. 6A:9-5.1. Two types of teaching certificates are pertinent to this appeal, standard and emergency. N.J.A.C. 6A:9-5.2.

A standard certificate is a "permanent certificate issued to candidates who have met all requirements for State certification." N.J.A.C. 6A:9-6.1. An emergency certificate is a "substandard certificate issued only to educational services certificate candidates who meet the requirements specified for each endorsement." N.J.A.C. 6A:9-6.3(a). A county superintendent is prohibited from approving an application for an emergency certificate unless the district board of education can demonstrate its inability to locate a suitable certified candidate due to unforeseen shortages or other extenuating circumstances." N.J.A.C. 6A:9-6.3(b).

The holder of an emergency certificate is not entitled to seniority rights unless and until the individual becomes a holder of a standard certificate. N.J.A.C. 6A:32-5.1(e). Upon acquisition of a standard certificate, "the years of employment under the emergency certificate shall count toward seniority under the standard certificate." Ibid.

In addition to the standard and emergency types of certifications, an instructor may also obtain a credential under N.J.A.C. 6A:9-6.5, which entitles the instructor to teach as a substitute. A substitute credential "is intended only for persons acting temporarily in replacement of a fully certified and regularly employed classroom teacher when the supply of properly certified teachers is inadequate to staff the school." N.J.A.C. 6A:9-6.5(a). The holder of a substitute credential "may serve for no more than a total of 20 instructional days in the same position in one school district during the school year. Upon written application . . . the county superintendent may extend the service in a single position to a total of 40 instructional days." N.J.A.C. 6A:9-6.5(c).

An instructor cannot accrue seniority under a substitute credential because substitute teachers are not entitled to the statutory and contractual benefits available to regular teaching staff members, including accumulation of tenure credit, paid sick leave, paid public holidays and membership in the Teacher's Pension and Annuity Fund. Sayreville Educ. Ass'n v. Bd. of Educ. of Sayreville, 193 N.J. Super. 424, 427 (App. Div. 1984).

The principal or chief school administrator of a school district is responsible for requiring each newly-employed or reassigned teaching staff member to exhibit an appropriate certificate before the teacher assumes any teaching responsibility. N.J.A.C. 6A:9-5.2(b). Indeed, that regulation specifies that it "shall be the chief school administrator's responsibility to ensure that the certificate is valid." Ibid.

With these principles in mind, we turn to a review of Kelly's circumstances. In October 1992, Kelly had an emergency certification as a NA instructor and a substitute credential as a K-12 nurse. She did not have any certification to teach as a LPN instructor.

We begin by analyzing her emergency NA certification, which she held from October to December 1992 when she was "swapped" into the LPN program. That certification did not entitle her to accrue seniority as a LPN instructor because her emergency certification was in NA, not in LPN. A period of service under an emergency certificate only counts toward seniority upon the acquisition of a standard certificate in that endorsement. See N.J.A.C. 6A:9-6.3(a); 6A:32-5.1(e). Thus, although Kelly ultimately obtained standard certifications in NA and LPN, she can only "tack on" seniority rights earned under the corresponding emergency certificate. Kelly can "tack on" to her standard certificate in NA those periods she served as a NA instructor under the NA emergency certificate. Kelly, however, never possessed an emergency certificate in LPN; accordingly she cannot accrue seniority rights in LPN for the period she served as a LPN instructor prior to acquisition of her standard certificate in LPN.

Kelly's reliance upon her substitute K-12 credential is equally unavailing because (1) her students were not in kindergarten through twelfth grade, (2) she taught more than the 20 days allowed under N.J.A.C. 6A:9-6.5(c), and (3) an instructor cannot accrue seniority under a substitute credential, see Sayreville, supra, 193 N.J. Super. at 427.

We accordingly agree with the Board's conclusion that not until May 1993, when Kelly received a permanent certificate in LPN, did she begin to accrue any seniority in that position. We note, as did the Board, that the District gratuitously permitted Kelly to begin to accrue seniority on December 14, 1992, when she was formally hired into the LPN position. That decision does not, however, change the fact that neither her emergency NA certification nor her substitute K-12 certification entitled her to accrue seniority in LPN between mid-October and December 14, 1992. Accordingly, because Simmons-Sestito was credited with seniority in LPN on December 1, 1992, and Kelly was not credited with seniority in LPN until December 14, 1992, the Board properly concluded that the District acted appropriately when it retained Simmons-Sestito and dismissed Kelly once the RIF occurred.


Kelly further argues that she should have accrued seniority for her teaching time in LPN under her K-12 substitute credential based on N.J.S.A. 18A:16-1.1 and its interpretation in Benson v. Rockaway Bd. of Educ., 92 N.J.A.C. 2d (EDU) 15 (1991).

N.J.S.A. 18:16-1.1 provides the following: In each district the board of education may designate some person to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee . . . .

[N]o person so acting shall acquire tenure in the office or employment in which he acts pursuant to this section when so acting.

As is evident from the plain language of this statute, the board of education in a district has the authority to designate a replacement of an officer or employee who is absent, disabled or disqualified, but the replacement cannot acquire tenure while acting in this position. Although the statute provides that a replacement instructor cannot use such time to acquire tenure, there is nothing in this statute that addresses the calculation of seniority and whether an individual with a substitute credential can acquire seniority.

Kelly's reliance on Benson is further misplaced. According to Benson, N.J.S.A. 18A:16-1.1 "acts as a limitation on the accrual of seniority. However, seniority is proper where N.J.S.A. 18A:16-1.1 is not applicable; that is, where a given teacher was serving as a 'permanent substitute' or filling in a vacancy as opposed to replacing a temporarily absent teaching staff member." Benson, supra, 92 N.J.A.C. 2d (EDU) at 24-25. A substitute credential is intended to replace "a temporarily absent teaching staff member" and not to fill a vacancy. Ibid.

Furthermore, Sayreville holds that N.J.S.A. 18A:16-1.1 applies to substitute teachers and that teachers employed under this statute are "not entitled to the status and the consequent benefits of teaching staff membership," which includes tenure. 193 N.J. Super. at 427-28.


In Point III, Kelly argues that the District was equitably estopped from terminating her, and the Commissioner and Board erred when they concluded otherwise. Specifically, Kelly argues that Colombo and Moore assured her that she was properly certified, and that had she not relied on their assurances, she would have obtained an emergency certificate in LPN, thereby avoiding the loss of seniority during the two months in question. According to Kelly, her reliance was reasonable because, under N.J.A.C. 6A:9-5.2(b), a chief school administrator is obligated to ensure than an instructor has a valid certificate before reassigning that staff member to a different teaching position. In support of this argument, Kelly relies on McGavin v. Hoboken Bd. of Educ., OAL Dkt. No. EDU 9836-97, Initial Decision (September 3, 1998), rev'd, Comm'r (October 26, 1998) .

The Board argues that there was no vacancy into which she could have transferred, and a vacancy is required in order to obtain an emergency certification. Thus, because Kelly could not have obtained an emergency certification, she suffered no detriment.

In response, Kelly argues that the record does not support the Board's conclusion that her transfer to the LPN position was only temporary and therefore there was no vacancy. Specifically, Kelly contends that the "swap" was not intended to be temporary because (1) "the swap arrangement was made to 'sure up' the District's continued receipt of JTPA funding in the NA program rather than to bring [her] 'up to speed' in geriatric training;" and (2) she never received any geriatric training.

With these arguments in mind, we review the principles of equitable estoppel. To establish a claim of equitable estoppel, the party who raises the defense must show that the alleged "conduct was done, or representation was made, intentionally or under such circumstances that it was both natural and probable that it would induce action. Further, the conduct must be relied on, and the relying party must act as to change his or her position to his or her detriment." Scibek v. Longette, 339 N.J. Super. 72, 84 (App. Div. 2001)(quoting Miller v. Miller, 97 N.J. 154, 163 (1984)).

Here, Kelly could not have obtained an emergency certification in LPN in October 1992 because there was no vacancy in the department at that time. An emergency certificate can only be issued when a district board of education can demonstrate "its inability to locate a suitable certified candidate due to unforeseen shortages or other extenuating circumstances." N.J.A.C. 6A:9-6.3(b). The District had a suitable candidate for the position, but "swapped" that candidate with Kelly for Kelly's benefit. Kelly was transferred to the LPN position to help her accrue the geriatric experience she needed for her NA certification. Had she not been transferred, the District would have been required to terminate her under the new JTPA regulations. Because there was a suitable candidate for the LPN position, Kelly would not have been issued an emergency certificate in LPN. We accordingly conclude that Kelly's reliance on Colombo and Moore's assurances was not to her detriment because she could not have obtained an emergency certification in LPN.

Our conclusion is consistent with the ALJ and the Board's factual findings based on Colombo's testimony that the "swap" was merely temporary. We do not second-guess the factual findings of an agency where there is substantial evidence in the record to support those findings. Breitwieser v. State-Operated Sch. Dist. of Jersey City, supra, 286 N.J. Super. 633, 637 (App. Div. 1996).

We likewise conclude that Kelly's reliance on McGavin is unavailing. The Commissioner in McGavin found that the teacher suffered a detriment because she relied on the school district's assurances that she was properly credentialed. Because we hold that Kelly has suffered no detriment, McGavin is inapposite here.


In Point IV, Kelly argues that because she had a legal obligation to mitigate her damages, the District erred when it penalized her for fulfilling that obligation. She asserts that the Board therefore wrongly declined to order that she be reinstated. In particular, she argues that she "was put in an untenable legal position:

On the one hand, she was obligated to mitigate her damages by finding like employment, and so she did . . . . By doing so, when faced with the recall [by the District], only one month into her new contract, she was told, in essence, that if she did not violate her employment contract with UMDNJ, she would lose her recall rights with [the District].

She maintains that she made the choice that "most would feel obligated to do, namely, live up to her current contract."

Kelly further argues that in the circumstances presented, the District should have hired a temporary teaching assistant to finish out that contract year, thereby enabling Kelly to resume teaching at the District in the fall. She argues that "to ask her to violate one contract in order to protect her employment rights under another, should not be legally countenanced."

The Commissioner concluded that Kelly forfeited her tenure and seniority rights when she declined the position offered by the District in November 2002. We agree.

"Tenure and reemployment rights may be voluntarily relinquished." O'Toole v. Forestal, 211 N.J. Super. 394, 402 (App. Div. 1986). "[T]he refusal of reemployment by a tenured teacher, dismissed because of a reduction in force, constitutes a relinquishment of tenure and a waiver of rights to future employment." Ibid. In O'Toole, the petitioner had been terminated because of a reduction in force. Ibid. When a vacancy occurred, she refused the offer because she was reluctant to relocate from her residency in Vermont to New Jersey and because it would have affected her claim "for systemwide tenure." Ibid. This court found that the petitioner's refusal of reemployment constituted a waiver of her rights to future employment. Ibid.

We conclude that the reasoning of O'Toole is applicable here. Kelly has failed to provide any meritorious explanation as to why she could not simply have left UMDNJ's employment and return to the position that she claims to have wanted and continues now to seek. We accordingly conclude that the Board properly determined that she forfeited her right to the position as a LPN instructor when she rejected the District's offer of employment in November 2002.



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