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Franco Cozzolino v. Board of Education of the Township of West Orange

September 12, 2012

FRANCO COZZOLINO, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE TOWNSHIP OF WEST ORANGE, ESSEX COUNTY, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Education, Docket No. 172-7/10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2012

Before Judges Reisner and Hayden.

Petitioner, Franco Cozzolino, appeals from the May 31, 2011 final decision of the Commissioner of Education denying his administrative appeal, which claimed that his layoff by the Board of Education of the Township of West Orange violated his seniority rights. Cozzolino, who taught physical education for six years in the West Orange school district, alleges that the retention of a physical education teacher with fewer years of teaching experience violated his tenure and seniority rights. On administrative appeal, the Commissioner of Education concluded that Cozzolino's teaching experience at the K-5 level was in the elementary category and that the other teacher's experience at a departmentalized sixth grade school fell under the secondary category. As such, the Commissioner found that the positions were not congruent, and that the layoff did not infringe on Cozzolino's seniority rights. Finding the Commissioner's interpretation of the statute and implementing regulation reasonable in the context of the statutory scheme, we affirm.

I.

The facts giving rise to this controversy are not in dispute. Cozzolino was employed by the Board as a Health and Physical Education teacher from September 1, 2004 until June 30, 2010. Cozzolino taught physical education at Redwood Elementary School, an exclusively K-5 school, and accrued six years of seniority under the "elementary" category, which N.J.A.C. 6A:32-2.1 defines as "kindergarten, grades one through six and grades seven and eight without departmental instruction." Due to a reduction in force, the Board terminated Cozzolino's position and concluded that Cozzolino did not have seniority rights to any other teaching position in the school district.

On July 21, 2010, Cozzolino filed an appeal with the Commissioner of Education, claiming that the Board violated his tenure and seniority rights by terminating his employment while continuing to employ other teachers in the district with fewer years of seniority. Among them, Cozzolino specifically named Bryan Azzato, a physical education teacher at Edison Middle School.*fn1 Edison is an exclusively grade six school, and all classes at Edison are departmentalized, meaning that students rotate classroom periods during the day based upon the subject being taught, rather than stay in one class for most subjects.

Cozzolino asserted that, since Azzato's tenure accrued in the "elementary" education category, he had seniority over Azzato for the physical education position at Edison. The Board denied Cozzolino's claims, alleging that Azzato's tenure at Edison accrued under the separate and distinct "secondary" education category pursuant to N.J.A.C. 6A:32-2.1, and thus, Cozzolino's termination was properly based upon his lack of seniority.

The matter was transferred to the Office of Administrative Law as a contested case. The parties stipulated to the facts and the case was heard by summary decision. The Administrative Law Judge (ALJ) issued his decision upholding Cozzolino's termination on April 15, 2011. The Commissioner of Education in a written decision on May 31, 2011, adopted the opinion of the ALJ and concluded that employment in a grade six departmentalized school fell under the secondary, rather than elementary, category. This appeal followed.

II.

We begin with a review of well-settled principles governing this matter. Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "We accord a strong presumption of reasonableness to such decisions and do not substitute our judgment for the wisdom of agency action if that action is statutorily authorized and not arbitrary and unreasonable." A.M.S. ex rel A.D.S. v. Bd. of Educ. of Margate, 409 N.J. Super. 149, 159 (App. Div. 2009). As long as an agency decision is contemplated under its enabling legislation, the action must be accorded a presumption of validity and regularity. Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 485 (2008).

However, we are not bound by the agency's interpretations "because it is the responsibility of a reviewing court to ensure that an agency's administrative actions do not exceed its legislatively conferred powers." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). Nonetheless, we must give "substantial deference" to an agency's interpretation of a statute it is charged with enforcing. Id. at 423 (quoting Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005)).

The matter at issue here concerns the reasonableness of the Commissioner's interpretation of N.J.A.C. 6A:32-2.1, which defines "secondary" and "elementary" for purposes of seniority. The regulation defines "elementary" as "kindergarten, grades one through six and grades seven and eight without departmental instruction." Ibid. The term "secondary," by contrast, encompasses "grades nine through twelve in all high schools, grades seven and eight in junior high schools, grades seven, eight and nine in middle schools and grades seven and eight in elementary schools having departmental instruction." Id. When a school district makes a "reduction in force," eliminating teaching positions for reasons of economy, it must be based on seniority. N.J.S.A. 18A:28-9 ...


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