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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...