October 3, 2012
HELEN CHELOC, APPELLANT,
BOARD OF EDUCATION OF THE CITY OF ELIZABETH, UNION COUNTY, RESPONDENT.
On appeal from the New Jersey Department of Education, Docket No. 33-09/06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Reisner and Harris.
Appellant Helen Cheloc appeals from the Acting Commissioner of Education's November 23, 2011 order finding that: (1) Cheloc "failed to sustain her burden of establishing that she accrued tenure rights" and (2) "the [Board of Education of the City of Elizabeth (the BOE)]'s removal of [Cheloc] from her Director of Administration position in June 2006 did not violate any tenure rights, as she never possessed such protection." We affirm.
We derive the following facts from the hearings conducted by an Administrative Law Judge (ALJ). The only witnesses to testify were Cheloc and two BOE employees who worked with her.
Cheloc, previously a teacher and parochial school principal, was initially employed by the BOE in December 1985 with the job title "Assistant Secretary/Director of Administration." She testified that she was certified in 1989 as a "school business administrator."*fn1 In 1995, as part of a systemic restructuring, the BOE changed Cheloc's job title to Director of Administration only.*fn2 According to the BOE job description for the Director of Administration, it did not require a school business administrator endorsement, only a bachelor's degree and experience in educational administration or business administration. In her role as Director of Administration, Cheloc reported to the newly-created position of Comptroller, and the Comptroller, in turn, reported to the BOE Business Administrator.
Cheloc testified that during the hiring process in 1985, she was informed that she was applying for a tenured position. She also submitted that the April 12, 1984 BOE minutes listed her predecessor as having been tenured. Finally, she asserted that various BOE documents state that she had attained tenure by the end of 1988, including her computerized personnel record indicating: "TENURED DATE: 12/04/1988."
In her initial position, Cheloc supervised a number of departments: accounts payable, accounts receivable, accounting, purchasing, finance, insurance, and worker's compensation. She assumed responsibility over the worker's compensation department in 1988. She testified that she had been told by the Business Administrator that worker's compensation work required the school business administrator endorsement and she learned in her coursework that "it's part of the 18A statute that insurance and risk management is the absolute responsibility of the business administrator, that only a certificated person in New Jersey Administrative Code Title [Six] can perform this duty."
In 1995, when Cheloc's title was truncated to Director of Administration, many of her former supervisory duties were transferred to the newly-created Comptroller position. Instead of managing several departments, Cheloc came to supervise worker's compensation and insurance activities, in addition to the added areas of fixed-asset inventory and reproduction. Eighty percent of her time was now devoted to insurance, risk management, and worker's compensation. A former BOE Business Administrator supposedly told Cheloc that the Director of Administration position was tenurable, and Cheloc claimed that she performed her job with the understanding that she was a tenured employee of the BOE.
On April 24, 2006, the Comptroller sent a letter to the BOE Assistant Superintendent for Human Resources, recommending, among other things, the elimination of the position of Director of Administration. On June 19, 2006, that Assistant Superintendent, Aida C. Garcia, informed Cheloc in person, by handing her a letter, that she was being placed on paid administrative leave effective June 20, 2006, "pending a recommendation for the abolishment of [her] position." Cheloc was informed that she was "not allowed on any school or Board of Education property while on administrative leave," except "to return to [her] office in order to retrieve any personal effects [she] may have at that location." On June 21, 2006, the Acting Superintendent of Schools issued a memorandum listing "non-tenured personnel" slated for non-renewal of contracts for the 2006-07 school year "due to poor performance, attendance and/or budgetary reasons." Cheloc's name was on this list. On June 29, 2006, the BOE adopted a resolution abolishing Cheloc's position and placing her on administrative leave from June 20 to June 30.*fn3
In September 2006, Cheloc filed a petition of appeal with the Commissioner of Education. Cheloc claimed that the BOE failed to follow statutory procedures for bringing charges against her as a tenured employee, including failures: (1) to provide proper notice, (2) to adopt a resolution approving non-renewal and explaining reasons for it, and (3) to permit Cheloc to exercise her rights pursuant to N.J.S.A. 18A:28-11. She further asserted that the communications she received about her termination were not sent by employees authorized to act on the BOE's behalf. Additionally, she contended that she was placed on administrative leave without an explanation of any wrongdoing. Lastly, Cheloc claimed that her removal was "arbitrary, capricious, made in bad faith, and was not for purpose of economy." She sought to be reinstated with back pay, benefits, seniority, and counsel fees.
After the BOE filed its answer, the matter was transferred to the Office of Administrative Law on November 8, 2006, for disposition by an ALJ. The first hearing did not commence until July 2009, and after many adjournments, the second hearing concluded in July 2011.*fn4
On October 24, 2011, the ALJ rendered her initial decision, which recommended dismissing the petition because Cheloc was not tenured under either N.J.S.A. 18A:17-2 or N.J.S.A. 18A:28-5. She also held that the State Board of Education's 2002 decision did not conclude that Cheloc had tenure rights as Director of Administration.
The ALJ rejected Cheloc's contention that she had tenure rights as a "teaching staff member" under N.J.S.A. 18A:28-5.
While the statutory definition of a "teaching staff member" includes members of "professional staff of any district or regional board of education," the subset of such members considered to be "teaching staff members" are only those whose job requires them to "hold a valid and effective standard, provisional or emergency certificate, appropriate to his office, position or employment[.]" N.J.S.A. 18A:1-1. Furthermore, N.J.A.C. 6A:9-5.5(a) requires boards of education to assign position titles to teaching staff members based on a list of "approved job titles with corresponding certificates authorized for those job titles." If a board of education chooses to use a different title for its teaching staff members, N.J.A.C. 6A:9-5.5(b)(1) requires it to "submit to the county superintendent a written request for permission to use the proposed title" before a candidate is appointed to that position.
The ALJ found that Cheloc's position as Director of Administration did not require any certification, and, even if it did, it was not on the list of approved teaching staff member positions. The ALJ found that there was no evidence in the record indicating that the BOE had intended the title of Director of Administration to be one for a teaching staff member, or that it had sought appropriate approval under N.J.A.C. 6A:9-5.5(b) to use an alternative title for a teaching staff member not listed in the State Board of Education regulations. By contrast, the BOE's job description for its title of Business Administrator/Board Secretary required a school business administrator certificate and indicated that the position was tenurable.
The ALJ also rejected Cheloc's argument that her position as the Director of Administration, nevertheless, required a school business administrator's endorsement pursuant to N.J.S.A. 18A:17-14.2. The ALJ further found that this statute requiring certification applied, expressly, to full time school business administrators only, and that the related regulation requiring a school business administrator endorsement, N.J.A.C. 6A:9-12.3(d), applied only to "the chief financial officer of a district," which included -- as of 2006 when Cheloc's employment was terminated -- only (1) an assistant superintendent for business and (2) a school business administrator.
Because she found that Cheloc's post-1995 duties were mostly not that of a school business administrator, except for the "insurance work," the ALJ concluded that Cheloc was not required to have certification under N.J.S.A. 18A:17-14.2. Cheloc was not performing most or all of the duties of an assistant superintendent for business or school business administrator -- both akin to being a "chief financial officer of a district" -- and she simply was doing work that did not require the claimed certificate. N.J.A.C. 6A:9-12.3(d).
Additionally, the ALJ held that Cheloc had not shown that her original position as the Assistant Secretary/Director of Administration had required endorsement as a school business administrator and no evidence showed such requirement existed in her later stripped-down position as the Director of Administration.
The ALJ's final conclusion found that Cheloc's duties did not approximate those of a school business administrator on a full time basis to independently qualify her for tenure.*fn5 The ALJ wrote, "[a]lthough [Cheloc] dealt with insurance matters, an authorized function of a business administrator under N.J.A.C.
6A:9-12.3, the scope of her duties was far less encompassing and did not approach the full functions of a business administrator." The ALJ also noted that, by contrast to her normally limited duties, the only time Cheloc had performed the full duties of a school business administrator was during a one-year stint in the 1988-1989 school year; because Cheloc contemporaneously acted as the Assistant Secretary/Director of Administration, she was still not devoting herself full time to the duties of a school business administrator.
On November 23, 2011, the Acting Commissioner of Education issued a decision adopting the ALJ's initial decision as final and dismissed the petition. This appeal followed.
Cheloc presents two principal arguments on appeal. First, she claims that the Acting Commissioner erroneously concluded that she did not attain tenure in the position of Director of Administration. Second, she asserts that even if she did not have tenure, the BOE's "manner of termination was arbitrary and capricious." We do not find either argument persuasive.
Our role in reviewing agency decisions is quite limited. In re Stallworth, 208 N.J. 182, 194 (2011). "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 inalterably bound by an agency's interpretation of law "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 "should strive to '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 concerns the reasonableness of the Acting Commissioner's interpretations of N.J.S.A. 18A:17-2 and N.J.S.A. 18A:28-5. We observe nothing in this record that detracts from the Acting Commissioner's conclusions because the rationale he relied upon, that of the ALJ, is firmly rooted in the applicable statutory and regulatory language and comports with common sense and logic. These are hallmarks of reasonableness, which we are loathe to disturb.
Tenure is a statutory right, and N.J.S.A. 18A:17-2 defines with specificity the conditions under which an individual may achieve tenure as a school business administrator. See Spiewak v. Bd. of Educ. of Rutherford, 90 N.J. 63, 72 (1982). In order to obtain tenure, the precise statutory conditions must be met. Merlino v. Borough of Midland Park, 172 N.J. 1, 8 (2002). The burden of proving the right of tenure is on the employee, and that right must be clearly proved. See Canfield v. Bd. of Educ. of Pine Hill Borough, 51 N.J. 400 (1968).
While tenure laws have a remedial purpose and thus should be liberally construed, Dugan v. Stockton State College, 245 N.J. Super. 567, 573 (App. Div. 1991), in interpreting a statute, our goal "is to ascertain the intent of the Legislature with reasonable certainty." No Illegal Points v. Florio, 264 N.J. Super. 318, 323 (App. Div.), certif. denied, 134 N.J. 479 (1993). "[T]he starting point is the language of the statute itself. If the language is clear, 'the sole function of the courts is to enforce it according to its terms.'" Velazquez v. Jiminez, 172 N.J. 240, 256 (2002) (quoting Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392 (2001)). "All terms in a statute should be accorded their normal sense and significance."
Ibid. (citing Stryker Corp. v. Dir., Div. of Taxation, 168 N.J. 138, 156 (2001)). The Legislature "'is deemed to have intended what it wrote and the Court may not construe a contrary concept.'" Pine Belt Chevrolet, Inc. v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993) (quoting State v. Duva, 192 N.J. Super. 418, 421 (Law Div. 1983)).
Here, the statute is clear that to be tenure-eligible as a school business administrator, the employee must have "devoted [her] full time to the duties of [her] office and has or shall have served therein for three consecutive calendar years."
N.J.S.A. 18A:17-2(a). Because Cheloc never acted as a school business administrator on a full time basis, she does not meet the statutory prerequisites to qualify for tenure under this statute.
Cheloc's teaching staff theory under N.J.S.A. 18A:28-5 fares no better. Pursuant to the statutory scheme, "tenure is achieved in a specific 'position' and the scope of the tenured position is initially limited by the 'certificate' the teaching staff member must hold to satisfy the prerequisite of qualifications for his or her employment." Ellicott v. Bd. of Educ. of Frankford, 251 N.J. Super. 342, 348 (App. Div. 1991). Thus, no teaching staff member may acquire tenure in any position in the public schools if he or she is not, among other things, the holder of an appropriate certificate for such position. N.J.S.A. 18A:28-5; see also N.J.S.A. 18A:26-2;
N.J.S.A. 18A:28-4 ("[n]o teaching staff member shall acquire tenure in any position in the public schools . . . who is not the holder of an appropriate certificate for such position, issued by the State Board of Examiners, in full force and effect . . . ."); N.J.A.C. 6A:9-5.1(a)-(c); Spiewak, supra, 90 N.J. at 74.
Certificates are issued by the State Board of Examiners pursuant to regulations implemented by the State Board of Education. N.J.S.A. 18A:6-38. The regulations address, among other things, which certificates are required for which positions. N.J.A.C. 6A:9-1.1 to -18.3.*fn6
The State Board of Education has further designated endorsements under each type of certificate, which identify the specific area in which a certificate holder is authorized to serve. Employment in a specific assignment requires that the educator hold the appropriate endorsement. Nelson v. Bd. of Educ. of Old Bridge, 148 N.J. 358, 363 (1997).
While Cheloc's duties on insurance matters arguably may have triggered the need for a school business administrator's endorsement,*fn7 the Director of Administration was not a position that called for such certificated job credentials and was not specifically listed under N.J.A.C. 6A:9-5.5(a). The Acting Commissioner's conclusion -- based upon the ALJ's analysis -- that tenure was not achieved by the happenstance alignment of Cheloc's endorsement and her insurance tasks was neither arbitrary nor unreasonable.
Our review of the record further convinces us that Cheloc's claim that the BOE "acted arbitrarily and capriciously in Cheloc's termination" is wholly without merit. R. 2:11-3(e)(1)(E). None of the alleged procedural shortcomings committed by the BOE or its agents during the June 2006 reorganization were legally sufficient to warrant either Cheloc's reinstatement or the triggering of a proceeding where she could address her separation as an employee. Indeed, the scant evidence presented to the ALJ hardly touched on Cheloc's claims in this regard, notwithstanding the eleven sentences devoted to these putative grievances that were part of her 2006 petition.