On appeal from the New Jersey Department of Education, Docket No. 291-10/07.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
Appellant Melissa Van Pelt appeals from the May 29, 2009 final decision of the Commissioner of Education that suspended her State teaching certificate for one year after appellant resigned from her teaching position at the Gray Charter School (the school) in Newark. The appeal requires us to address the correctness of the Commissioner's determination that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 equally apply to teaching staff members of charter schools as they do to teaching staff members of public schools. We conclude that the Commissioner correctly decided the applicability of the two statutes and affirm.
The school employed appellant as a non-tenured eighth-grade teacher during the 2006-2007 school year. On May 4, 2007, appellant signed an employment contract (the contract) agreeing to teach eighth grade at the school during the 2007-2008 school year. The contract contained the following provision: "Termination Upon Agreement[.] Upon the written agreement of both employee and the School (which agreement may be made by the Executive Director), this agreement shall immediately terminate." Verna Gray, the school's executive director, executed the contract on behalf of the school.
On August 13, 2007, two days prior to staff training at the school and eight days prior to the opening of the school for the 2007-2008 school year, appellant submitted a letter to Gray resigning from her teaching position explaining, "[d]ue to circumstances, I have decided to pursue other career opportunities." To the contrary, appellant resigned to accept a teaching position in the Woodbridge Township school district.
In September 2007, the school filed a written request with the Department of Education seeking an order to show cause (OTSC) compelling appellant to explain why the Commissioner should not suspend appellant's teaching certificate "for unprofessional conduct pursuant to N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8." The request was supported by Gray's affidavit of September 20, 2007, in which she stated in relevant part: "[B]ecause of the number of resignations without the required notice, Gray Charter School was not able to open as scheduled on August 21, 2007. In addition, staff training scheduled for August 15, [2007,] had to be rescheduled at additional expense to the school." Lastly, Gray stated that appellant's resignation caused disruption in the students' academic programs.
The school filed applications for, and the Commissioner issued, OTSCs against seven other teachers who had resigned from their teaching positions at the school immediately prior to commencement of the 2007-2008 school year, directing them to show cause why their teaching certificates should not be suspended pursuant to the same two statutes as appellant. Six of the other teachers contested the OTSCs.
After appellant and the six other teachers filed answers, the OTSCs were transferred to the Office of Administrative Law (OAL) as contested cases. Appellant and the six other teachers argued that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 did not apply to charter school teachers. Additionally, appellant and several of the other teachers argued that N.J.S.A. 18A:28-8 did not apply to non-tenured teachers. Because of the similarity of the defenses, the Administrative Law Judge (ALJ) consolidated the cases for the limited purposes of deciding whether the two statutes applied to charter school teachers and whether N.J.S.A. 18A:28-8 applied to non-tenured teachers.
On June 6, 2008, the ALJ entered an order determining that the two statutes apply to charter schools, but that N.J.S.A. 18A:28-8 only applies to tenured teachers. Accordingly, the ALJ dismissed those parts of the OTSCs based on alleged violations of N.J.S.A. 18A:28-8 as to five non-tenured teachers, including appellant. On July 9, 2008, on interlocutory review granted, N.J.A.C. 1:1-14.10, the Commissioner adopted the ALJ's determinations. On August 14, 2008, the ALJ entered an order deconsolidating the seven cases for separate hearings on the merits.
On January 27, 2009, the school filed a motion for summary decision, arguing that the untimeliness of appellant's resignation from her teaching position at the school violated N.J.S.A. 18A:26-10. On April 14, 2009, the ALJ issued his initial decision concluding "that [appellant] ceased to perform her duties before the expiration of the term of her employment," contrary to the statute. Finding that the "timing of [appellant's] resignation was particularly problematic in that it occurred one week before the beginning of the school year[, and that appellant] offered no mitigating circumstances with respect to the length of the suspension," the ALJ determined that appellant's teaching certificate should be suspended for one year. On May 29, 2009, the Commissioner issued a final decision adopting the ALJ's initial decision.
On appeal, appellant argues the Commissioner erred in determining that she wrongfully resigned from her teaching position, contending her contract did not contain a 60-day notice of termination provision preventing her from resigning when she did. Appellant also argues that the Commissioner erred in determining that the circumstances warranted the maximum sanction of a one-year suspension of her teaching certificate. Underpinning the Commissioner's final decision is her July 9, 2008 decision adopting the ALJ's June 6, 2008 decision that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 apply to charter schools, but that the latter statute does not apply to non-tenured ...