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


September 12, 2012


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

Per curiam.


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.


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.


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 to -10. However, seniority accrues by category, and "[a]ny person employed at the elementary level . . . shall acquire seniority only in the elementary category." N.J.A.C. 6A:32-5.1(l)(18)(ii).

Here, the distinction between "elementary" and "secondary" is critical. Although Cozzolino has more years of teaching experience than Azzato, it is necessary to determine whether their respective seniorities accrued within the same educational category. The regulation explicitly states that "elementary" encompasses "grades one through six," and the statutory definition of "secondary" does not refer to sixth grade at all. N.J.A.C. 6A:32-2.1. However, the regulation also expressly excludes seventh and eighth grades with "departmental instruction" from its definition of "elementary." Id. Hence, which category a departmentalized sixth grade program falls into appears to be somewhat ambiguous.

In this appeal, Cozzolino argues that the Commissioner erred in classifying teaching experience at Edison Middle School as "secondary," claiming that there was no statutory or regulatory support for this classification. We disagree.

When we interpret statutes and regulations, we will give substantial deference to the interpretation of an agency empowered to enforce the statute or regulation at issue. Matturri v. Bd. of Trs. of Judicial Ret. Sys., 173 N.J. 368, 381 (2002). The plain language of N.J.A.C. 6A:32-2.1 does not specifically categorize departmentalized sixth grade programs as either elementary or secondary, and is therefore capable of yielding different interpretations. Because of this ambiguity, we may look to the meaning ascribed to the regulation by the agency responsible for its implementation. See TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 541 (2010).

Generally, we will only reverse an administrative decision if it is arbitrary or capricious, not supported by evidence in the record, or violates legislative policies implied in the statutory scheme. Dore v. Bd. of Educ. of Bedminster, 185 N.J. Super. 447, 553 (App. Div. 1982) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). We conclude that Cozzolino has not demonstrated that the Commissioner's determination was arbitrary or unreasonable.

Under N.J.A.C. 6A:32-2.1, departmentalized seventh and eighth grade programs are treated differently from nondepartmentalized seventh and eighth grade programs. It appears entirely reasonable for the Commissioner to interpret the regulation to allow the sixth grade to be treated in the same fashion. A K-5 teacher has very different duties and responsibilities from a teacher in a departmentalized program. As such, there is ample reason to conclude that Azzato's teaching experience fell into a different category from Cozzolino's experience. See Dennery v. Bd. of Educ. of Passaic Cnty. Reg'l High Sch. Dist. #1, 131 N.J. 626, 641-42 (1993). Moreover, nothing in the record suggests that the Commissioner's determination contradicted the legislative intent behind the statute controlling seniority rights and its implementing regulations.

Because the Commissioner's interpretation of the regulations was reasonable, we affirm.

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