July 25, 2008
CHARLOTTE KLUMB, PETITIONER-RESPONDENT,
BOARD OF EDUCATION OF THE MANALAPAN-ENGLISHTOWN REGIONAL HIGH SCHOOL DISTRICT, MONMOUTH COUNTY, RESPONDENT-APPELLANT.
CHARLOTTE KLUMB, PLAINTIFF-APPELLANT,
MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION, ITS AGENTS, SERVANTS, OR EMPLOYEES, DEFENDANT-RESPONDENT, AND JOSEPH F. SCOZZARI, SUPERINTENDENT OF SCHOOLS UP TO THE YEAR 2002; MAUREEN LALLY, SUPERINTENDENT OF SCHOOLS FOR THE YEAR 2002; MEMBERS OF THE MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION FOR THE YEARS 1998-1999; DOUGLAS OSBORNE, HELEN COOPER, MARYANNE TOTO, ALLISON ORFANIDIS; NINE (9) MEMBERS OF THE 1999-2000 MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION; WALTER BOGUSLAWSKI; NINE (9) MEMBERS OF THE 2000-2001 MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION; KENNETH K. ROBERGE, ANTHONY MUSICH, PAUL DE MARCO; NINE (9) MEMBERS OF THE 2001-2002 MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION; MICHELE STIPELMAN, MARTIN SPINDEL, LORI SEMEL, DIANE PADLO, ANTHONY MANISERO, MICHAEL CORVINO, LUCILLE BENEDETTI, DENNIS WALSH, JAMES MUMOLI; NINE (9) MEMBERS OF THE MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION FOR THE YEAR 2002-2003; JOSEPH F. PASSIMENT, JR., BOARD SECRETARY/BUSINESS ADMINISTRATOR; AND CARMEN J. DACCURSO, DEFENDANTS.
A-3039-05T1 on appeal from the Decisions of the State Board of Education and the Commissioner of Education, Docket Nos. EDU-2892-03, C215-05, SB30-05. A-0277-06T1 on appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2190-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2007
Before Judges Lintner, Graves and Sabatino.
These back-to-back appeals involve related issues pertaining to Charlotte Klumb (Klumb), who was employed by the Manalapan-Englishtown Regional Board of Education (Regional Board) as an elementary school teacher until she obtained a disability pension in 1988. We have therefore consolidated the appeals for purposes of this opinion. In appeal A-3039-05T1 we affirm the decision by the New Jersey State Board of Education (State Board), which determined Klumb was entitled to be reinstated to her former position "as of March 1, 1999, with back pay and emoluments." The second appeal (A-0277-06T1), which seeks appellate review of a Law Division order dated August 4, 2006, is dismissed because the appeal is from an interlocutory order.
Klumb taught elementary grades in the Manalapan-Englishtown School District (School District) from 1968 to 1988. She also worked in a summer program for migrant workers' children. After two leaves of absence to seek outside help so she could function properly in the classroom, the Superintendent of the School District informed Klumb on October 7, 1987, that she was suspended from her assignment with pay pending action by the Regional Board under N.J.S.A. 18A:6-10. On October 13, 1987, the Regional Board voted to suspend Klumb with pay and directed her to submit to a psychiatric and medical examination. After a psychiatric consultation on January 12, 1988, Dr. Robert Berkowitz, a board certified psychiatrist, diagnosed Klumb with "[o]rganic brain syndrome, minimal to mild." He concluded that Klumb had a long drinking history and "[i]n an actual living and working situation, this organic brain syndrome could cause extremely poor functioning." Berkowitz wrote that Klumb should not work as a teacher, but to clarify the extent of the organic brain syndrome, psychological testing should be undertaken.
On February 4, 1988, the Superintendent of the Regional Board charged Klumb with "written tenure charges" consisting of "'incapacity, excessive absenteeism which constitutes conduct unbecoming a teacher, and insubordination in performing [her] teaching duties.'" After Klumb's counsel advised the Regional Board that Klumb had filed for ordinary disability under her pension plan, the Regional Board agreed to amend Klumb's status to "voluntary sick leave disability." Klumb's disability pension was approved by the Board of Trustees of the Teachers' Pension and Annuity Fund (Board of Trustees) in 1988 and, as agreed, the Regional Board abandoned the tenure charges. According to Klumb, her initial request to be reinstated as a teacher was denied by the Board of Trustees on May 5, 1994. Subsequently, the Board of Trustees reconsidered Klumb's request and, in a letter dated October 2, 1998, the Secretary to the Board of Trustees advised the Regional Board as follows:
The Board of Trustees of the Teachers' Pension and Annuity Fund at its meeting of October 1, 1998 reconsidered Ms. Klumb's request for reinstatement.
Following their review of the medical documentation, the narrative report of an examination conducted by an independent physician appointed by the retirement system, and a recommendation by the State Medical Panel, the Board of Trustees reconsidered their original determination and has now found that Ms. Klumb's disability has disappeared or substantially diminished to the point that she may resume her former duties of teacher without restriction.
The Board, therefore, ordered that the Manalapan-Englishtown Regional Schools reinstate Ms. Klumb to her former duty or any other comparable duty which may be assigned to her. Under the provisions of N.J.S.A. 18A:66- she will not suffer the loss of benefits while she awaits restoration to active service. Enclosed please find an enrollment application which should be completed upon Charlotte Klumb's reinstatement to your payroll and forwarded to the Division of Pensions and Benefits.
Counsel for the Regional Board objected to this determination and requested a hearing before an Administrative Law Judge (ALJ) within the Office of Administrative Law.
On March 1, 1999, Klumb interviewed for a position in the School District as an elementary school teacher, but the school principal and assistant principal determined "she would require considerable retraining to be hired as a teacher." In a letter dated March 17, 1999, the Assistant Superintendent for Personnel for the School District informed Klumb she would not be recommended for the teaching position.
On April 29, 2002, Klumb filed a complaint in the Law Division, seeking reinstatement as a teacher in the School District. In April 2003, Klumb's complaint was transferred from the Law Division to the Commissioner of Education (Commissioner), and then to the Office of Administrative Law.
In December 2004, the ALJ issued an initial decision in favor of the Regional Board stating that Klumb was not entitled to be reinstated. But that decision was rejected by the Commissioner. In a decision dated June 16, 2005, the Commissioner stated: "The central issue in this matter is the question of a disabled employee's entitlement to reemployment under N.J.S.A. 18A:66-40, which is a question of law." The Commissioner determined the Regional "Board erred when it did not appoint [Klumb] to . . . the position of elementary teacher, for which [Klumb] was interviewed on March 1, 1999," and the Commissioner directed the Regional Board to reinstate Klumb to her former position as of March 1, 1999:
The Board is, therefore, ordered to reinstate [Klumb] to her former position as an elementary teacher as of March 1, 1999 . . . with all emoluments and back pay to which she is entitled, and to provide her with the support necessary to familiarize her with current methods and educational trends to assure [Klumb's] seamless reacclimation to her teaching duties and the provision of quality educational services to her students.
The Commissioner cited to the unpublished decision of Bublin v. Bd. of Educ. of Point Pleasant (Bublin I), OAL No. EDU 6846-92, initial decision by ALJ (Dec. 8, 1993), and the Commissioner of Education decision (Jan. 26, 1994) (Bublin II), as well as the published decision in Bublin v. Bd. of Educ. of Point Pleasant (Bublin III), 96 N.J.A.R.2d (EDU) 768 (1996), to support his decision that Klumb was entitled to reinstatement. The Commissioner also relied on In re Allen, 262 N.J. Super. 438, 444 (App. Div. 1993), and Bd. of Police Comm'rs v. Bd. of Trs., Police & Firemen's Ret. Sys. (Di Muzio),*fn1 No. A-2629-87 (App. Div. Feb. 27), certif. denied, 117 N.J. 664 (1989), to conclude that Klumb was entitled to reinstatement to her former position.
In a decision dated August 15, 2005, the Commissioner denied the Regional Board's motion to stay the implementation of his decision pending a final determination by the State Board. The Commissioner's reasons for denying the request for a stay included the following:
Upon a thorough review of the parties' submissions, I find that the [Regional] Board cannot establish irreparable harm. Initially, the [Regional] Board's claim that it will be irreparably harmed by placing [Klumb] into a classroom "where she is unqualified to be" is rejected. [Klumb] is a certified, tenured teacher and, thus, fully qualified to teach under the certifications she possesses. Although [Klumb] has been out of the classroom for a number of years, her situation is no different from that of a tenured teacher returning from an extended leave for illness or a maternity or other leave of shorter duration. In these situations, it is inevitable that there will be changes in the method of educational delivery, curriculum, etc., while teaching staff members are on such leaves. Whenever changes of this nature occur, it is the District's responsibility to provide the support necessary to assure a smooth transition for teachers returning to work to minimize the effect on its students.
The Commissioner's decision was affirmed by the State Board on January 4, 2006. The State Board's decision, in its entirey, reads as follows:
After a thorough review of the record, the State Board affirms the decision of the Commissioner of Education granting summary decision to [Klumb] and directing the Manalapan-Englishtown Regional Board to reinstate her as an elementary teacher as of March 1, 1999, with back pay and emoluments.
In doing so, we grant the motion filed by the Regional Board to suppress that portion of [Klumb's] answer brief in which she argues that the Commissioner erred in denying her request for interest and counsel fees. Since [Klumb] did not file a cross[-]appeal from the Commissioner's decision, the Commissioner's determination to deny [Klumb's] request for interest and counsel fees is not properly before us. Nonetheless, we agree with the Commissioner that [Klumb] has not demonstrated an entitlement to either pre- or post-judgment interest. N.J.A.C. 6A:3-1.17. Moreover, it is well established that "the absence of express statutory authority is fatal to the claim for counsel fees." Balsley v. North Hunterdon Bd. of Educ., 117 N.J. 434, 442 (1990).
In a verified complaint dated April 27, 2006, which supplemented her original Law Division complaint, Klumb confirmed she was rehired by the School District in September 2005. Nevertheless, she claimed she was entitled to receive back pay from March 1, 1999, until she was rehired and additional salary pursuant to the Teacher's Salary Guide:
Since summary judgment has been granted, I am entitled to reinstatement as an elementary teacher, with back pay and emoluments, and continued tenure. I had 18 years of tenure when I went out on ordinary disability and was denied an elementary teacher's position from March 1, 1999 to the date of my rehiring, but have not been paid as a tenured teacher as outlined in the Teacher's Salary Guide. I was never provided with a copy of the Salary Guide for 1998-1999, but was provided with the 1999 through 2006 Salary Guide. . . . I am due back pay for March 1, 1999 up to the date of my rehiring in September, 2005. In addition, I have not been paid on the proper scale for 2005-2006, which is $79,365 per year.
Thus, Klumb "ask[ed] the [c]court to levy sanctions against the Manalapan-Englishtown Board of Education and hold them in contempt, and compel them to pay [her] in accordance with the proper Teacher's Salary Guide, plus . . . the full back pay as required by both the Commissioner of Education and the State Board of Education."
On August 4, 2006, a Law Division judge entered an order granting the Regional Board's motion to stay Klumb's complaint pending the outcome of the Regional Board's appeal from the State Board's decision. In granting the stay, the motion judge reasoned that if Klumb was successful in the Regional Board's appeal then he could "make a decision with regard to the [remaining] issues." It is clear, therefore, that Klumb's appeal (A-0277-06T1) is interlocutory and it is dismissed on that basis. Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2008) ("A trial court order which retains jurisdiction is by definition not final.") (citing House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 531 (App. Div. 2005)).
On appeal in A-3039-05T1, the Regional Board asserts: (1) the plain language of N.J.S.A. 18A:66-40 does not require the Regional Board to rehire Klumb; (2) even if the Commissioner's legal determination is sustained, Klumb must show that the subject medical examination occurred within five years of her disability in order to be entitled to reinstatement; (3) the Legislature did not intend to grant unfettered rights to an employee to be rehired under N.J.S.A. 18A:66-40; (4) the Commissioner's decision in favor of Klumb's position was inappropriate because there are issues of disputed material facts that require a formal hearing; and (5) the Commissioner improperly rejected the ALJ's findings of fact and recommendations without setting forth reasons or making new or modified findings. After reviewing the record and applicable law in light of the arguments advanced by the parties, we conclude that all of the issues raised by the Regional Board are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).
The plain language of the applicable statute, N.J.S.A. 18A:66-40(a), as well as the long-standing practice of the Department of Education and other agencies interpreting similar statutory language, support an affirmance of the State Board's decision ordering the Regional Board to reinstate Klumb. See, e.g., In re Allen, supra, 262 N.J. Super. at 440-41 ("We hold that a public employee who returns from a disability retirement because his [or her] disability ceases should, to the extent possible, be reinstated to his [or her] former position and be given full credit for . . . prior service."); Di Muzio, supra, slip op. at 9 ("The thrust, however, is to reemploy an able- bodied [public employee], not to waste pension funds . . . .").
This reasoning is equally applicable here.
Accordingly, we affirm the State Board's decision in A- 3039-05T1, and we dismiss A-0277-06T1 as improperly filed.