NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Carchman and Ashrafi.
Appellant Michel Salazar-Linden appeals from a final decision of the Commissioner of Education affirming the decision of an Administrative Law Judge (ALJ). The Commissioner concluded that her petition was time-barred by N.J.A.C. 6A:3-1.3(i), and we affirm.
The relevant facts are not in dispute. On June 23, 2004, appellant was appointed by respondent Holmdel Board of Education (Board), as a supervisor, effective August 2004. She was employed under a ten-month contract to a non-tenured teaching staff position. Although she claims that she began work as Supervisor of Humanities on July 16, 2004 and remained employed in the position through June 30, 2007, her contract term commenced on August 24, 2004. On April 27, 2007, in the eighth month of her third academic year, appellant was notified by the Board Superintendent that she would not be reappointed for the 2007-08 school year. One hundred and nine days later, on August 14, 2007, appellant filed a Petition of Appeal with the Commissioner alleging that she had accrued tenure pursuant to N.J.S.A. 18A:28-5*fn1 by completing the equivalent of three academic years during a four year period and her tenure rights were violated when the Board failed to rehire her after her termination effective June 30, 2007. Thereafter, respondent filed a motion to dismiss the petition, alleging it was untimely pursuant to N.J.A.C. 6A:3-1.3(i), which provides that the petition must be filed within ninety days of notice of the challenged board action.
After submission of the matter to the Office of Administrative Law, the ALJ rendered his decision concluding that the April 27, 2007 letter from the Board, advising appellant that she had not been reappointed for the 2007-08 school year, commenced the 90-day period. The ALJ rejected appellant's arguments that a compelling public interest or a novel constitutional issue existed to justify a relaxation of the 90-day rule. Appellant then filed an appeal with the Commissioner.
The Commissioner rendered a final decision adopting the ALJ's decision. The Commissioner found there is no unfairness in computing the appeal limitations period from April 27, 2007, the date on which appellant became aware that respondent had "taken action that was inconsistent with her attainment and enjoyment of tenure rights." This appeal followed.*fn2
On appeal, appellant asserts that her claim was timely filed within 90 days of when "she knew or should have known of the violation of her tenure rights" or in the alternative, the 90-day filing time should have been relaxed.
Appellant first contends that Nissman v. Bd. of Educ. of Twp. of Long Beach Island, 272 N.J. Super. 373 (App. Div. 1993), certif. denied, 137 N.J. 315 (1994), relied on by both the ALJ and the Commissioner, does not apply, as it inherently undermines her statutory tenure rights as recognized in Spiewak v. Bd. of Educ. of Rutherford, 90 N.J. 63 (1982). Appellant did not have tenure when she received the non-renewal notice in April 2007. She contends that the 34 calendar days, from July 16, 2004 through August 20, 2004, which she allegedly worked, "should count towards the accrual of the first ten-month time period necessary for purposes of determining completion of an 'academic year' under N.J.S.A. 18A:28-5(c)."*fn3 In relying on these extra days of work, appellant contends that she obtained tenure, by completing "the equivalent of three academic years within a four year period on May 27, 2007." Further, since she only became "aware that she may have tenure rights that would be violated by the board's termination of her employment effective June 30" upon consultation with an attorney the week of May 14, 2007, her August 14, 2007 petition was within the 90-day period. We reject her argument.
N.J.A.C. 6A:3-1.3(i) provides that a petitioner must file an appeal with the Commissioner within ninety days of obtaining notice of the final action of a district board of education. The regulation provides, in pertinent part, that:
The petitioner shall file a petition no later than the 90th day from the date of receipt of the notice of a final order, ruling or other action by the district board of education, individual party, or agency, which is the subject of the requested contested case hearing. [N.J.A.C. 6A:3-1.3(i)(emphasis added).]
The April 27, 2007 letter was the relevant non-renewal notice and was in compliance with N.J.S.A. 18A:27-10*fn4.
Consistent with both the Commissioner and ALJ's findings, we deem Nissman to be controlling. In Nissman, supra, the petitioner entered into a contract, for a principal position, with the Long Beach Board of Education on August 10, 1987. The contract was for a three year term, "commencing on September 1, 1987 and ending on August 31, 1990." 272 N.J. Super. at 374.
On April 27, 1990, Nissman received a resolution issued by the Long Beach Board of Education on April 23, 1990, that her employment contract would not be renewed when it expired on August 31, 1990, nor would she be offered a new contract or granted tenure. After receiving the notice, Nissman continued to work until the final day of her contract, August 31, 1990. On that day, her attorney advised the Board that Nissman had acquired tenure, by working for three full academic years and would report to work on September 4, 1990, to resume her duties. The ...