On appeal from a Final Decision of the New Jersey State Board of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Albert Ziegler and the Board of Education of the City of Bayonne ("Bayonne Board") separately appeal from a Final Decision of the State Board of Education ("State Board") dated March 19, 2008, affirming a decision of the Commissioner of Education. In A-4199-07, the Bayonne Board appeals the determination that Ziegler is entitled to be rehired as a teacher. In A-4189-07, Ziegler appeals the State Board's computation of back pay, contending it is inadequate. We consolidate these appeals for purposes of this opinion. After reviewing the record in light of the contentions advanced on appeal, we affirm in both appeals.
This matter has an extensive history which is necessary to set forth in detail in order to properly analyze the issues that the parties have been litigating for more than ten years. In March 1981, Ziegler obtained a temporary certificate for teacher of skilled trades, with an endorsement for employment orientation. That temporary certificate expired in July 1981. In July 1982, he obtained a standard certificate for teacher of skilled trades, again with an endorsement in employment orientation. In 1984, Ziegler was hired by the Bayonne Board to teach employment orientation courses in the Bayonne school system. He originally taught these courses for a number of years in an alternate school program administered by the Bayonne Board. In 1994, this separate alternate program ended, and Ziegler was transferred to Bayonne High School where he continued to teach for a total of fourteen years. Ziegler was granted tenure in the Bayonne school system, and we can only infer from the record before us that his performance was satisfactory during his teaching career in Bayonne. Over those years, he taught a variety of courses at the high school, including Shop 9, Shop 10, Maintenance and Repair, and Industrial Technology. In 1996, he was subject to a reduction in force as a result of budget pressures but was reinstated the following year. In 1997, Ziegler received an additional certificate, as coordinator of cooperative industrial education.
In 1998, for reasons that are not apparent from the record before us, a question arose with respect to whether Ziegler held the appropriate certificate to teach the courses to which he was assigned, and the Bayonne superintendent sought guidance from the county superintendent. On September 29, 1998, the county superintendent advised the Bayonne superintendent that the Department of Education had discontinued issuing certificates for teacher of employment orientation in 1983 and that Ziegler's certificate was thus "obsolete."
Bayonne's superintendent then inquired of the State Department of Education whether Ziegler was authorized to teach the courses to which he had been assigned for a number of years. The Office of Licensing and Credentials responded that Ziegler held standard certifications as a teacher of employment orientation and as a teacher coordinator of cooperative industrial education. It noted that Ziegler had applied for a certificate as a teacher of skilled trades with an endorsement for plumbing and pipe-fitting but was unsuccessful in light of the fact that he did not have four years full-time experience working as a plumber. It also noted that Ziegler did not have a bachelor's degree from college but was very close to completing the requirements. It pointed out that he could obtain a teaching license if he were to complete his degree.
Based upon that letter, the Bayonne superintendent recommended to the Bayonne Board that Ziegler be terminated. N.J.S.A. 18A:27-2. A resolution to that effect was adopted by the Bayonne Board, effective January 25, 1999. Prior to that effective date, the county superintendent sent two further letters to Bayonne's superintendent, reiterating that an individual holding a certificate as a teacher coordinator of cooperative industrial education could not teach industrial arts courses such as graphic arts, drafting, woodworking, metal working and power mechanics.
In February 1999, Ziegler filed a petition with the Commissioner of Education contesting his termination and seeking his reinstatement. The matter was referred to the Office of Administrative Law as a contested matter. It was originally presented on cross-motions for summary decision, and the administrative law judge concluded that Ziegler had acquired tenure and thus had been improperly terminated; he ordered Ziegler's reinstatement. The administrative law judge based his determination that Ziegler had acquired tenure upon the fact that he had taught employment orientation courses, holding a certificate in employment orientation. He reasoned that Zielger's rights to tenure were not affected by the Department's subsequent decision to no longer issue such a certificate.
Both parties appealed to the Commissioner of Education, who affirmed in part and reversed in part and remanded for further proceedings. The Commissioner agreed with the administrative law judge that Ziegler had acquired tenure within the Bayonne school system but ruled that the remedy of reinstatement could not be ordered on a motion for summary decision. The Commissioner remanded the matter to the administrative law judge with directions for further fact-finding as necessary to determine (1) the actual duties of, and skills taught by, a teacher of Shop 9, Shop 10, Maintenance and Repair, and Industrial Technology within the Board's Industrial Arts Program; (2) whether petitioner's endorsement as a Teacher of Employment Orientation permits him to teach any or all of these courses; and (3) if petitioner is entitled to teach any or all of these courses, what back pay and emoluments are now due as a result of his improper termination.
The administrative law judge heard testimony from both parties as to the nature of these courses. He later issued his written opinion, in which he made the following factual findings:
[T]he actual duties of and skills taught by the teachers of Shop 9, Shop 10, Maintenance [and] Repair and Industrial Technology are, as presently constituted, no different than the skills Ziegler has acquired by virtue of his Employment Orientation Certification and actually teaching the courses. The skills required by an Employment Orientation Certification as issued twenty years ago encompassed the skills presently be [sic] exhibited by the teachers at Bayonne High School in that the various areas of basic skills has [sic] been narrowed but those areas still being taught at the high school are all encompassed in a[n] Employment Orientation Certificate.
The administrative law judge again concluded that Ziegler was entitled to reinstatement but that the record was insufficient to determine the amount of back pay to be awarded.
The Bayonne Board again appealed to the Commissioner, who reversed the decision of the administrative law judge. The Commissioner ruled that the courses were "beyond the scope of the limited certificate held by petitioner." The Commissioner's opinion continued in the following vein:
The courses petitioner now seeks to teach . . . do not differ from his former Employment Orientation classes merely in degree, as he claims, but in kind. Shop 9, Shop 10, Maintenance & Repair and Industrial Technology as they are presently taught at Bayonne High School may well be at the lower end of the vocational education spectrum in content level and student capacity, and may share overlapping elements with the third and culminating phase of Employment Orientation . . . . But that does not alter their fundamental nature as specific subject-area courses requiring appropriate subject-area certification, rather than as broad-based introductions to the world of work covered by a generalist endorsement expressly limited in its authorization to exploring the aptitudes and interests of special needs students, enhancing their overall work-readiness, and providing them with introductory exposure to a variety of trades so as to prepare them for entry into actual vocational education programs.
Ziegler appealed to the State Board of Education. The State Board reversed the Commissioner. It noted that the regulations in effect at the time Ziegler obtained his certificate did not include a list of authorized trades under the skilled trades endorsement. Thus, according to the State Board, the proper practice when Ziegler received his certificate would have been for the certificate simply to have stated, "skilled trades," without any reference to "employment orientation" because the regulations then-extant did not "authorize the issuance of an endorsement in a specific skilled trade." The State Board viewed the reference on Ziegler's certificate to "employment orientation" to be mere surplusage, and not ...