January 26, 2011
IN THE MATTER OF WALL TOWNSHIP BOARD OF EDUCATION, APPELLANT,
WALL TOWNSHIP INFORMATION TECHNOLOGY ASSOCIATION, RESPONDENT.
On appeal from the Public Employment Relations Commission, Docket No. CO-2007-055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically January 18, 2011
Decided January 26, 2011
Before Judges Reisner and Alvarez.
The Wall Township Board of Education appeals from a final determination of the Public Employee Relations Commission (PERC) decision denying the Board's motion for reconsideration. We affirm.
The underlying dispute involved Bonnie Murphy, a computer technician whom the Board hired in 1999. Murphy worked on a year-to-year contract basis, and the Board renewed her contract for 2006-07. Accordingly, on June 15, 2006, Murphy signed a contract covering July 1, 2006 to June 30, 2007. However, shortly after the Board renewed her contract, Murphy's supervisor gave her a negative evaluation dated June 23, 2006.
On July 12, 2006, Murphy wrote her supervisor a letter emphatically disagreeing with the evaluation and indicating her intent to file a grievance. The supervisor refused to accept a grievance from her, contending that the evaluation was not grievable. Also on July 12, 2006, Murphy's bargaining unit, the Wall Township Information Technology Association (Association), sent the supervisor a separate letter objecting to the requirement that Murphy prepare a formal improvement plan, on the grounds that the employer could not impose such a requirement without negotiating over it.*fn1 The supervisor responded that he would prepare an improvement plan for Murphy if she would not prepare one herself. By letter dated July 17, 2006, Murphy's union representative also requested a meeting with the Board's personnel committee to discuss Murphy's evaluation.
Instead of meeting with either the union or Murphy to discuss the situation, Murphy's supervisor sent her a memorandum on July 19, 2006, terminating her employment. The Board ratified the termination at its August 15, 2006 meeting. On August 24, 2006, the union filed an unfair practice complaint with PERC contending that Murphy was terminated in retaliation for "exercising protected rights" under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4a.
At an April 7, 2009 hearing before a PERC hearing examiner, the parties agreed to litigate on a stipulated record the issue of whether Murphy was engaged in protected activity when she attempted to challenge her evaluation. See N.J.A.C. 19:14-6.7 (parties may bypass an evidentiary hearing before a hearing examiner and present the case directly to PERC based on stipulated facts). As PERC later noted in its decision, rather than litigating its defense that "Murphy was terminated because of concerns about her job performance," the Board chose to litigate its alternate claim "that since Murphy was acting on her own behalf to challenge her evaluation, she was not engaged in protected activity." Therefore, the parties briefed that issue before PERC.*fn2
In a letter to the arbitrator dated April 7, 2009, the Board's attorney, James Schwerin, confirmed that the Board agreed to waive a testimonial hearing and have PERC decide the case based on stipulated facts. Significantly, Schwerin's letter noted a "cc" to the Superintendent of Schools.
In a decision issued on October 29, 2009, PERC found that Murphy was engaging in protected activity when she attempted to file a grievance and when her union asserted on her behalf the Board's obligation to negotiate over the requirement that non-teaching employees prepare professional improvement plans. PERC also found sufficient circumstantial evidence that Murphy was fired because of this protected activity and ordered the Board to reinstate her with back pay retroactive to her 2006 termination date. By letter dated October 30, 2009, Schwerin informed the Superintendent of the outcome, enclosing PERC's decision and stating his view that "PERC erred by ignoring much of the law we cited as to the lack of protected activity when complaining about one's own evaluation."
After receiving PERC's decision, the Board filed a motion for reconsideration on November 12, 2009, claiming that it had changed law firms "in the Spring of 2009" and that Schwerin was not authorized to waive a hearing. In support of the motion, the Board submitted certifications from the Board President and the Superintendent, attesting that Schwerin's law firm had not advised them of the pending PERC hearing and did not have the Board's authority to waive a testimonial hearing.
In his certification, the Superintendent asserted that Schwerin's firm had given him a status update describing the Murphy case as being without merit, but did not advise him that the case was scheduled for a hearing. The Superintendent also asserted that he "was not made aware, in the . . . report or by any other means" that Schwerin had waived a hearing. However, he did not specifically deny receiving his "cc" copy of Schwerin's April 7, 2009 letter waiving the hearing.
On March 25, 2010, PERC denied the Board's motion, finding that the Board failed to establish "extraordinary circumstances" for reconsideration, as required by N.J.A.C. 19:14-8.4. In its decision, PERC considered evidence that the Board did not appoint its new attorney until April 28, 2009, and that "at the time of our decision, the Board's former counsel was the counsel of record with the apparent authority to stipulate the facts and waive a hearing examiner's report." The Board also considered that the Superintendent was copied on Schwerin's letter to the hearing examiner waiving the hearing, and that letter was sent weeks before the Board appointed new counsel on April 28, 2009. PERC concluded that there were no extraordinary circumstances, noting that "the Board must direct any complaint it may have toward its former law firm." The Board's appeal is limited to challenging PERC's reconsideration decision.
On this appeal, our review of the Board's decision is limited to determining whether it is arbitrary and capricious. In re Taylor, 158 N.J. 644, 656-57 (1999). It is not our role to second-guess the agency. Id. at 657. Rather, we consider only whether its decision is supported by sufficient credible evidence and is consistent with applicable law. Id. at 656-57; see also N.J.S.A. 34:13A-5.4f. Further, we ordinarily review rulings on reconsideration motions for abuse of discretion. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Applying those highly deferential standards, we find no basis in this record to disturb the agency's decision.
According to the Board, it changed counsel shortly before the April 2009 proceeding at which its then-attorney entered into a stipulated record before the arbitrator. The Board claimed it was unaware that the case was going to hearing, did not consent to try the case on a stipulated record, and did not want Schwerin's firm to continue handling the case at all. However, the record evidence does not support those contentions. First, in e-mail correspondence with Schwerin's law firm, the Board indicated its intent to leave some, and possibly all, of the outstanding cases with his law firm. Second, the Board did not actually vote to change law firms until after the stipulation was entered. Third, the Board did not provide PERC with any legally competent evidence that this case was transferred to the new firm. The new firm did not appear in the case until after PERC rendered its October 2009 decision.
As PERC noted in its November decision, the Superintendent was copied on an April 7, 2009 letter from Schwerin waiving the right to a hearing in this case. The Superintendent took no action to repudiate this letter, and at the time, the Board had not yet voted to change law firms. Moreover, in its submission on the reconsideration motion, the Board produced no legally competent evidence that the Superintendent did not receive Schwerin's letter. While his certification generally alleged lack of knowledge, the Superintendent did not specifically deny receiving the letter.*fn3 Given our limited scope of review, we find no basis to overturn PERC's decision that the Board did not demonstrate extraordinary circumstances. See N.J.A.C. 19:14-8.4.
We also find no merit in the Board's argument that it was denied "due process" through the waiver of a hearing. To the contrary, based on a stipulated record the Board's former counsel vigorously and cogently argued a legal point which, if the Board accepted it, would have constituted a complete defense to the charges. The Board duly considered the argument and rejected it. The fact that the Board's new counsel takes a different view of the former counsel's litigation strategy does not warrant further delay in this case, in which the fired employee has been waiting over three years for a remedy.*fn4
The Board also argues, for the first time on this appeal, that PERC could not impose a remedy that stripped the Board of its right to decide whether to renew an employee's contract. See N.J.S.A. 18:27-4.1a. We ordinarily will not consider appellate arguments that were not presented to the agency. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). However, even if we were to consider the argument, PERC has authority to order that an employee, terminated in violation of the Public Employer-Employee Relations Act, be reinstated. See Galloway Twp. Bd. of Educ. v. Galloway Twp. Ass'n of Educ. Sec'ys, 78 N.J. 1, 10 (1978); In re Maywood Bd. of Educ., 168 N.J. Super. 45, 63 (App. Div. 1979). As PERC's attorney agreed at oral argument of this appeal, its decision does not grant Murphy tenure or insulate her from any future employer action taken for legitimate, non-retaliatory reasons.