October 7, 2009
DEBORAH PERRI, PETITIONER-APPELLANT,
BOARD OF EDUCATION OF THE TOWNSHIP OF BELLEVILLE, ESSEX COUNTY, RESPONDENT-RESPONDENT.
On appeal from a Final Agency Decision of the Commissioner of Education, Docket No. 416-11/06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2009
Before Judges Parrillo and Ashrafi.
Appellant Deborah Perri appeals from a September 10, 2008 final decision of the Commissioner of Education (Commissioner) dismissing her petition and concluding that appellant had not acquired tenure in the position of Director of Student Services and did not possess the requisite certification for the position of Supervisor of Pupil Personnel Services, to which she had been reassigned. We affirm.
The facts are essentially not in dispute. Perri has been employed by the Township of Belleville Board of Education (Board) since 1977, first as a physical and health education teacher and then from 1988 through the 1997-98 school year as a substance awareness coordinator. On November 18, 1997, application was made on Perri's behalf to the New Jersey Department of Education (Department) for a Director of Student Personnel Services endorsement, the predecessor to the Director of School Counseling endorsement. One of the functions of the Director of Student Personnel Services position was the district-wide supervision of guidance counselors. In December 1997, the Department responded to Perri, listing the following requirements she needed to fulfill to be eligible for a Director of Student Personnel Services endorsement:
(1) a regular New Jersey Student Personnel Services endorsement;
(2) official evidence of three years successful experience in school personnel work;
(3) eighteen additional semester hour credits in guidance.
All agree that to date, Perri has not satisfied these requirements.
On July 27, 1998, the Board approved a job description under the title of Director of Student Services, a title unrecognized by the Department. One of the responsibilities detailed was the supervision of all the district's guidance counselors. Among other listed qualifications for the position was a "Principal or Administrator's Certification." By letter of September 1, 1998, the Board's acting Superintendent of Schools, Joseph Ciccone, notified Perri of her appointment to the Director of Student Services position. At the time of her appointment, Perri held a Principal/Supervisor endorsement. She did not then, and never has, held a Director of Student Personnel Services endorsement or a Director of School Counseling endorsement.*fn1
At the time of the creation of the unrecognized position, the Board also employed Dr. Richard Benninger as Director of Pupil Personnel Services, an approved position. For a few months, both Perri and Dr. Benninger were responsible for district-wide supervision of guidance counselors. Soon after, Dr. Benninger retired, and was not replaced. Perri continued to supervise guidance counselors district-wide and continued in the position until October 16, 2006.
In September 2006, the Essex County Superintendent of Schools, Anthony Marino, advised Dr. Edward Kliszus, the Board's Superintendent of Schools, that the Director of Student Services was an unauthorized title that would not be recognized by the Department. Kliszus was further advised that as the responsibilities of the Director of Student Services position included supervision of the Guidance Department, the Department would not approve the use of the title. The required certificates for an individual with district-wide supervisory responsibility of the Guidance Department are Director of Student Personnel Services or Director of School Counseling Services, both of which would allow the use of a recognized title, but neither of which Perri held.
As directed, the Board abolished the Director of Student Services position and, as of October 17, 2006, employed Perri as Supervisor of Pupil Personnel Services/Guidance, a title in which Perri was thought qualified to serve by virtue of her current certifications of principal/supervisor/school administrator, despite the fact that the duties of the newly created supervisor position were identical to the duties she had performed as a Director. Her compensation for the position was calculated in accordance with the supervisor's salary guide and Perri's length of service, resulting in a reduction of her base salary by $5,850.
Consequently, via a petition of appeal to the Commissioner, Perri challenged her reassignment and reduction in salary, asserting that she acquired tenure as a director while serving as a director of an unrecognized title. The matter was transferred to the Office of Administrative Law (OAL), where a hearing was held. At the conclusion of evidence, the administrative law judge (ALJ) denied Perri's petition, holding that since she did not hold the requisite endorsement to serve in a recognized position with district-wide supervision of counseling or guidance, she did not acquire tenure by having served in such an unauthorized title.
The Commissioner affirmed the ALJ's determinations that:
(1) the title of Director of Student Services was not a recognized title, (2) the title of Director was not separately tenurable and, (3) Perri did not hold the requisite certification or endorsement to serve in a director position with district wide guidance supervisory responsibilities, and thus had not accrued tenure in the unrecognized position. Additionally, the Commissioner found that Perri could not hold the title of Supervisor of Pupil Personnel Services/Guidance, the position in which she had been re-assigned in October 2006 upon elimination of the unrecognized Director position. The Commissioner concluded that whether the title was called Supervisor or Director, it continued to fall "substantially within the scope of the Director of School Counseling Services endorsement," and that the duties of the position could not be performed absent the requisite certification.
At issue on this appeal is whether the Commissioner properly determined that pursuant to applicable statutes, regulations and case law limiting tenure protection to those who hold the proper certifications or endorsements, Perri did not acquire tenure during her term as Director of Student Services. On this score, it is settled that the right to tenure is "governed entirely by statute." Breitwieser v. State-Operated Sch. Dist. of Jersey City, 286 N.J. Super. 633, 637 (App. Div. 1996). N.J.S.A. 18A:28-5, which establishes the requirements for tenure, provides in pertinent part:
The services of all teaching staff members employed in the positions of teacher, principal... vice principal, assistant superintendent... and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners... excepting those who are not the holders of proper certificates in full force and effect... shall be under tenure during good behavior. [emphasis added.]
Pursuant to the statutory scheme, "tenure is achieved in a specific 'position' and the scope of the tenured position is initially limited by the 'certificate' the teaching staff member must hold to satisfy the prerequisite of qualifications for his or her employment." Ellicott v. Frankford Twp. Bd. of Educ., 251 N.J. Super. 342, 348 (App. Div. 1991). Thus, no teaching staff member may acquire tenure in any position in the public schools if he or she is not, among other things, the holder of an appropriate certificate for such position.*fn2 N.J.S.A. 18A:28-5; see also N.J.S.A. 18A:26-2; N.J.S.A. 18A:28-4 ("[n]o teaching staff member shall acquire tenure in any position in the public schools... who is not the holder of an appropriate certificate for such position, issued by the State Board of Examiners, in full force and effect...."); N.J.A.C. 6A:9-5.1(a)-(c); Spiewak v. Rutherford Bd. of Educ., 90 N.J. 63, 74 (1982).
Certificates are issued by the State Board of Examiners pursuant to regulations implemented by the State Board of Education. N.J.S.A. 18A:6-38. The regulations address, among other things, which certificates are required for which positions. N.J.A.C. 6A:9-1.1 to -18.3. Accordingly, there are three education certifications issued by the State Board of Examiners: instructional, educational services, and administrative certificates. N.J.A.C. 6A:9-5.2(a).
The State Board has further designated endorsements under each type of certificate, which identify the specific area in which a certificate holder is authorized to serve. Employment in a specific assignment requires that the educator hold the appropriate endorsement. Nelson v. Old Bridge Twp. Bd. of Educ., 148 N.J. 358, 363 (1997). Thus, included in the educational services certificate is the "director of school counseling services" endorsement, which authorizes a holder to "serve as a director, administrator or supervisor of school counseling services, including the supervision of educational activities in areas related to and within the counseling program in grades preschool through 12." N.J.A.C. 6A:9-13.7(a).*fn3 To be eligible for the standard educational services certificate with director of school counseling services endorsement, a candidate shall hold master's or higher degree from a regionally accredited college or university, hold a standard New Jersey school counsel or student personnel services certificate or an equivalent out-of-state certificate and complete three years of successful experience as a school counselor on grades preschool through 12. In addition, the candidate shall complete one of the following:
1. A Department-approved program in Director of School Counseling; or
2. A three-credit graduate level course in each of the following required areas:
i. Administration: This group includes such courses as school law, organization and administration of elementary and secondary school;
ii. Staff supervision: This group includes such courses as supervision and evaluation of instructional staff and supervision of school counseling services; and
iii. Curriculum development: This group includes such courses as principle of general curriculum development, elementary and secondary curriculum development, and extracurricular activities.
As Perri did not possess an educational services certification or a director of school counseling endorsement, she was statutorily unqualified to perform a portion of her job responsibilities, and was thus ineligible for tenure in her position. Furthermore, Perri was statutorily unable to acquire tenure in any other position - even one for which she was qualified-during her employment as Director of Student Services:
For the purposes of this chapter, tenure in any of the administrative or supervisory positions enumerated herein shall accrue only by employment in that administrative or supervisory position. Tenure so accrued shall not extend to any other administrative or supervisory position.... [N.J.S.A. 18A:28-5.]
See also Elliott v. Franklin Twp. Bd. of Educ., supra, 251 N.J. Super. at 348.
While Perri concedes that under N.J.A.C. 6A:9-13.7, the Director of Student Personnel Services endorsement "authorizes" the "holder to serve as a director, administrator or supervisor of guidance and student personnel services," she nevertheless argues that such an endorsement is not the exclusive means of qualification and that the school administrator and principal endorsements on her administrative certificate suffice to qualify her to serve in such a capacity. Simply stated, we find no support for appellant's position in either the statutory or regulatory scheme. Nothing in the law suggests that the function of district-wide supervision of guidance services or counseling falls within the purview of any of the endorsements Perri presently holds. On the contrary, this function falls within the purview of the director of school counseling services endorsement, which is explicitly addressed in N.J.A.C. 6A:9-13.7, and formerly in N.J.A.C. 6:11-11.10.
We reiterate that not only was Perri's director position (Director of Student Services) an unauthorized title not recognized by the Department, she did not possess the requisite certification or endorsements (formerly Director of Student Personnel Services and now Director of School Counseling Services) to hold a director-level position with district-wide supervision over guidance counselors, which would have allowed use of the recognized title of Director of Student Personnel Services/Guidance. Lacking the requisite credentials, Perri did not accrue tenure status in her former positions of director or supervisor.*fn4 As to the latter, since Perri was not qualified to serve as director of student services, the Commissioner properly found that she was also not qualified to serve as supervisor of pupil personnel services/guidance because the duties of the two titles were identical.*fn5
To the extent appellant argues that her oversight of guidance counselors was an insignificant part of her job and overshadowed by other responsibilities (just as it is for a school principal, who is not required to have the educational services certificate or the director of school counseling services endorsement), suffice it to say, both the ALJ's and Commissioner's analysis of Perri's job functions in the unrecognized title Director of Student Services revealed responsibility for district-wide supervision of guidance counselors, requiring her to have the Director of School Counseling endorsement to fulfill the responsibilities of her position. Indeed, implicit is such a finding is the further determination that the oversight of guidance counselors district-wide was a material and meaningful part of appellant's job responsibilities. We, of course, defer to such agency fact-finding. In re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We also afford great weight to the Commissioner's interpretation of the licensing scheme, including her determination of when and/or whether particular credentials are necessary for certain positions. As the Court stated in Nelson v. Old Bridge Twp. Bd. of Education, supra:
The interpretation of a statute by the administrative agency charged with its enforcement is entitled to great weight. "The ultimate administrative decision-maker in reviewing... school matters is the State Board, whose final decision will not be upset unless unreasonable, unsupported by the record or violative of the legislative will." As this Court noted in Dennery:
The Legislature intended that the State Board "promulgate specifications concerning categories of certification' and that courts not intervene 'unless the State Board' decision is palpably arbitrary.' Agency regulations are accorded substantial deference based on the recognition that 'certain subjects are within the peculiar competence of the agency."
"The delegation of regulatory and administrative responsibility over tenure to the State Board is based on the complexity and specialized nature of the subject of teacher tenure." [Id. at 364-65 (internal citations omitted).]
Measured against this standard, we are satisfied that the Commissioner's decision as to Perri's ineligibility - regardless of the title under which she was working - for a position involving district-wide supervision of guidance counselors, is neither arbitrary, capricious, nor unreasonable.
Lastly, appellant argues that it is unfair not to grant her tenure as she satisfied the requirements of the Director of Student Services position published by the Board. However, there is no evidence that the Board made any misrepresentations to Perri as to whether she would or would not accrue tenure by virtue of her employment in the position. Perri had been working as a public school teacher for over twenty years and presumably was cognizant of the rules and regulations governing tenure. In fact, she knew enough to apply for a Director of Pupil Personnel Services endorsement, and the record reveals that she was informed of her ineligibility for that endorsement prior to her accepting the position of Director of Student Services. We discern no unfairness in the Commissioner's decision or violation of any of the legislative policies expressed or implied in the statutory scheme administered by the Department. In re Taylor, supra, 158 N.J. at 56.