On appeal from a Final Decision of the Commissioner of Education, No. 119-5/08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
Appellant Robert Jeanette appeals from the September 16, 2009 final decision of the Commissioner of Education (Commissioner), dismissing his petition of appeal for lack of jurisdiction. We affirm.
Appellant was a non-tenured, full-time custodian in the school district of respondent Board of Education of the West Essex Regional School District (Board). The terms and conditions of his employment were governed by a collectively negotiated agreement between the Board and the West Essex Custodian/Maintenance Association (CNA).
Regarding sick leave, the CNA requires a custodian to provide a doctor's note "at the request of the Superintendent [of Schools]" verifying the illness. The CNA also requires a custodian to file a grievance if he or she "has suffered harm by the interpretation, application or violation of policies, agreements, and administrative decisions affecting the [CNA]."
Appellant began his employment on January 8, 2001, as an Assistant Supervisor of Buildings and Grounds. He was promoted to Supervisor of Buildings and Grounds but the Board subsequently terminated that position. On October 8, 2007, appellant was appointed as a full-time custodian. The next day, he went out on sick leave and never returned to work.
Despite the Superintendent's requests, appellant never provided a doctor's note verifying the nature and extent of his alleged illness. As a result, the Superintendent directed appellant to submit to a physical examination by the school doctor. Appellant appeared for the examination but refused to complete medical forms necessary for the doctor to examine him, and left without undergoing the examination.
Appellant was suspended without pay. The Superintendent then advised appellant that he would recommend that the Board terminate appellant's employment for insubordination based on his failure to verify his illness.
Appellant attended a hearing before the Board with a representative of his own choosing, and was provided the opportunity to present witnesses and evidence, and to cross-examine witnesses. Immediately after the hearing, the Board passed a resolution adopting the Superintendent's recommendation and terminating appellant's employment for cause based on insubordination. At the time of his termination, appellant had been on sick leave for five months, and he never verified the nature and extent of his alleged illness.
Appellant did not file a grievance, as required by the CBA. Instead, on May 1, 2008, he filed a petition with the Commissioner, seeking reinstatement, back pay, and benefits. He contended that the Superintendent lacked authority under N.J.S.A. 18A:16-2 to direct him to undergo a medical examination, and thus, his termination was arbitrary, capricious and unreasonable because it was based on an unsupported allegation of insubordination. The Board responded, in part, that the Commissioner lacked jurisdiction because the CBA, not N.J.S.A. 18A:16-2, governed the matter.
An Administrative Law Judge (ALJ) subsequently issued an initial decision agreeing with the Board. However, instead of dismissing the petition for lack of jurisdiction, the ALJ reached the merits of the dispute and concluded that appellant's refusal to submit to the examination without just cause constituted insubordination.
In a written decision, the Commissioner rejected the ALJ's initial decision and dismissed the petition for lack of jurisdiction, concluding, in part, that N.J.S.A. 18A:16-2 does not apply in this matter and that resolution of the parties' dispute necessarily turns on the extent of their respective rights, and the propriety of their respective actions, as employer and employee under a collectively negotiated agreement ---- determinations which the Commissioner of Education has no ...