October 22, 2012
DENZEL D. RANKINS, PETITIONER-APPELLANT,
BOARD OF EDUCATION OF THE CITY OF PLEASANTVILLE, ATLANTIC COUNTY, RESPONDENT-APPELLANT, AND JAMES RIEHMAN, STATE-APPOINTED MONITOR, OR SUCH OTHER MONITOR CURRENTLY ASSIGNED TO THE PLEASANTVILLE SCHOOL DISTRICT, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Commissioner of Education, Docket No. 276-10/09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012
Before Judges Messano, Espinosa and Kennedy.
Denzel Rankins was employed by the Board of Education of the City of Pleasantville (the Board) as a non-tenured high school security guard from June 2000 to June 2009. Rankins and the Board appeal from a final decision of the Acting Commissioner of the Department of Education (the Commissioner) that resulted in the non-renewal of his employment contract. The issue presented by this appeal is whether the Commissioner acted arbitrarily and capriciously in determining that a duly appointed State-appointed monitor had acted within the scope of his authority in overriding a decision by the Board to reinstate Rankins. We affirm.
In March 2007, the Commissioner of Education appointed a monitor to oversee the Board's business operations and personnel matters pursuant to the School District Fiscal Accountability Act, N.J.S.A. 18A:7A-55 to -60. A State-appointed monitor is empowered to:
(1) oversee the fiscal management and expenditures of school district funds, including, but not limited to, budget reallocations and reductions, approvals of purchase orders, budget transfers, and payment of bills and claims;
(2) oversee the operation and fiscal management of school district facilities, including the development and implementation of recommendations for redistricting and restructuring of schools;
(3) ensure development and implementation of an acceptable plan to address the circumstances set forth in subsection a. of this section which resulted in the appointment of the State monitor. The plan shall include measurable benchmarks and specific activities to address the deficiencies of the school district;
(4) oversee all district staffing, including the ability to hire, promote, and terminate employees;
(5) have authority to override a chief school administrator's action and a vote by the board of education on any of the matters set forth in this subsection, except that all actions of the State monitor shall be subject to the education, labor, and employment laws and regulations, including the "New Jersey Employer-Employee Relations Act," . . . and collective bargaining agreements entered into by the school district;
(6) attend all meetings of the board of education, including closed sessions; and
(7) meet with the board of education on at least a quarterly basis to discuss with the members of the board the past actions of the board which led to the appointment of the State monitor and to provide board members with education and training that address the deficiencies identified in board actions.
[N.J.S.A. 18A:7A-55(b)(1) to -55(b)(7) (emphasis added).] On December 9, 2008, T.J., a female student at Pleasantville High School, complained to the principal, Stephen L. Townsend, that Rankins made inappropriate comments about her physical appearance. She prepared a written statement, in which she stated she had experienced many problems with him, that he had been giving her "nasty comments and looks," and it was "getting seriously bad." She cited a recent example in which Rankins said, "what happened to you. In 8th grade prom picture you had a better body then [sic] you do now." On another occasion she confronted him about staring at her. He replied that he was not looking at her but at another female and that T.J. was "mad because she looks better and have [sic] a better body." T.J. stated she was uncomfortable around him and was "scared to walk through the halls by [herself] thinking he's going to pop out of nowhere."
Townsend met with Rankins to discuss these allegations, which Rankins denied. Townsend later wrote a memo to Rankins, dated December 22, 2008, in which he stated he had "completed a thorough investigation of the events of December 9, 2008," and that the witnesses he interviewed stated Rankins "did make inappropriate statements directed at" T.J. He then set forth his "expectations of security officers at Pleasantville High School":
It is imperative that you demonstrate a relationship of mutual respect with students, staff, and the community. Additionally, it is essential to display a courteous, but firm demeanor at all times. You need to demonstrate the ability to be polite and helpful when dealing with staff, students and the public. Plus, I would highly encourage you to handle (disrespect, verbal abuse, criticism, goading, and stress) with patience, calm, maturity, and professionalism.
Any repetition of this kind of behavior will not be in your professional best interest. In the future, please work with me in finding acceptable solutions in dealing with students who pose problems with you.
A few weeks later, a second student, A.V., reported that Rankins made inappropriate comments toward her on January 14, 2009. A.V. prepared a written statement, dated January 15, 2009, in which she said: He asked to see my phone and said who's that and I said thats [sic] my boo and said what grade is he in and I said he [sic] a baby[,] he's only in the 11th and then he said oh he a baby so you aint [sic] ready for no man you can't handle a challenge. I said watch your mouth thats [sic] still my boo and he was like yea yea I know you scared of a challenge.
Another security officer, Quana Barnes, witnessed this incident and prepared a written report: While at the front desk on Jan 14 at around 1:10 pm, I wittiness [sic] Officer Rankins approach [A.V.] from behind, saying to her you scared of a real man you want a boy, you scared of a real challenge yea you don't want a man. As I looked up I asked her to be sure of what I heard[,] what did he say[?] [A]fter confirming she stated that he has been saying things to her and what should she do[,] I told her that she needed to speak with her administrator as [sic] so she did. The next day I to [sic] went and spoke to Miss Medley about the situation also.
A.V. wrote a second statement on January 15, 2009 in which she said that she did not find the comments offensive. She stated she made the report because Ms. Barnes was standing close by and said if she did not report the incident, she would. Felicia Hyman-Medley, an assistant principal sent an email to Townsend on January 15, 2009, in which she described A.V.'s report to her: Mr. Rankins said to A.V., "Why are you messing with a young boy? You can't handle a man? What are you scared of a man?" The young lady said that she normally has a good rapport with Mr. Rankins and is afraid of how he may react to her reporting this incident. The student stated, "I don't want to get anyone in trouble." Rankins denied making any comments to A.V. He later testified that the allegations were "absolutely not true." He stated Barnes's report was false and that she had made up the allegations because she was jealous of the fact that he got a lot of overtime and a lot of work.
Rankins was suspended with pay while investigations were conducted by the Board and the Institutional Abuse Investigation Unit of the Department of Children and Families. On June 2, 2009, the Superintendent notified Rankins that he was recommending that the Board not renew his contract for the following school year. The Superintendent explained the reasons for the decision in a letter of that date, which stated, in part:
I have relied upon the following inefficiencies in taking this action:
- Repeatedly using inappropriate comments defined in the policy as, "Inappropriate comments" includes, but is not limited to, comments of a sexual nature, sexually oriented humor or language, inappropriate comments about a pupil's clothing or physical appearance, comments with sexual overtones, comments regarding a pupil's dating partner or comments about the staff member's personal life that are not relevant to the professional responsibility of the school staff member.
Repeatedly using inappropriate language (comments with sexual overtones) defined in the policy as, "Inappropriate language or expression" includes, but is not limited to, the use of any profanity, obscene language, public lewdness or the use of public lewdness, comments with sexual overtones, distribution and/or discussion of any pornography."
Pursuant to N.J.S.A. 18A:27-4.1(b), Rankins requested a Donaldson*fn1 hearing before the Board. He appeared with counsel in a closed session before the Board on July 14, 2009. The monitor, James Riehman, was present during the July 14 meeting. A motion to reinstate Rankins failed to pass at the July 14 meeting. On August 11, 2009, the Board met again and voted six-to-three to reinstate Rankins. On August 24, 2009, Riehman sent an email to his supervisor in which he advised her of his intention to override the Board's decision to reinstate Rankins, stating that the "employee should have been charged with sexual harrasement [sic] or sexual misconduct" because he repeatedly harassed "a middle school [sic] female student." The letter from the monitor advising the Board of his decision first discussed his decision to override the Board's decision to reinstate another employee, and then, as to Rankins, stated:
[T]he Department heard my recommendation to override the Board's decision to reinstate Mr. Rankin to his former position as Security Guard. A review of the complaint concerning his inappropriate comments to a middle school [sic] female student and the fact that the Superintendent did not recommend his reemployment, I act to override the Board's decision to reemploy him.
Rankins filed a verified petition of appeal with the Acting Commissioner, alleging that the monitor acted unlawfully in rejecting the Board's decision to rehire him. The Board and the monitor filed answers and the matter was transmitted to the Office of Administrative Law as a contested case. Prior to the hearing conducted by the Administrative Law Judge (ALJ), the parties entered into joint stipulations, which included a stipulation that "allegations of abuse were made against [Rankins] by two students in connection with two separate incidents. . . . It was alleged that [Rankins] made inappropriate comments of a sexual nature to the students. [Rankins] denied the allegations." Riehman, Rankins, Hyman- Medley and Barnes testified at the hearing. In addition, there was testimony from character witnesses for Rankins. The two students did not testify. Copies of their written statements were included in the record before the ALJ. Riehman testified that, prior to making the decision to override the Board's decision, he reviewed the Superintendent's letter, the written statements from the two students, Townsend's memo to Rankins, and Hyman-Medley's email report. He stated that, based upon his review, I felt as though the preponderance of evidence indicated . . . that there would be some issues in the future if Mr. Rankins were to be re-employed related to the students' safety, etcetera.
Also, there was some concern that if Mr. Rankins was to be reinstated, there's a potential for some legal liability issues that the board may have to address in the future.
Riehman explained his concern about potential liability for the board:
That should an incident after him being reinstated were to occur related to the similar incidents that had previously happened, that there's a potential liability on the board's part to rehire him.
He testified further that the concern regarding potential liability was secondary to his safety concerns. The ALJ issued an Initial Decision in which he reversed the monitor's decision to override the Board's decision to reinstate Rankins. The Initial Decision directed that Rankins be reinstated to his position and reimbursed for back pay. Among the ALJ's findings of fact were that "Rankins made some form of inappropriate statements to either T.J. or A.V." He also found that the monitor had overturned the Board's decision to reinstate Rankins "for reasons that were not connected to solving the district's fiscal or audit deficiencies. The monitor did not want Rankins reinstated for reasons exclusively related to Rankins' alleged conduct." The ALJ concluded that the monitor had exceeded his authority:
More importantly, none of Riehman's reasons relate to fiscal, audit, or similar matters contained in his contract or found in the monitor statute. For example, Riehman's reasons were not related to redistricting or restructuring non-tenured staff, reduction in force, sick-leave, retirement incentives or other fiscal areas.
. . . [I]t was a poor audit that triggered the appointment of the monitor. N.J.S.A. 18A:7A-55(a) and (b). And the criteria to invoke the monitor's statute and the criteria embodied within the powers granted to the monitor are almost universally geared towards correcting the (fiscal) problems identified in the annual audit of the district. In other words, the scope of the monitor's power is directly linked to the audit. And his chief responsibility is to correct the deficiencies identified in the audit.
. . . A non-renewal arising out of alleged improper behavior is not a fiscal matter envisioned under the monitor powers as proscribed in his contract or statute. Here Rankins was being non-renewed for alleged inappropriate conduct on the job. The monitor's contractual power to impact a non-tenured staff member's contractual employment is limited to redistricting or restructuring plan, reductions in force, and other similar actions that address the overall financial integrity of the district. I CONCLUDE that neither the monitor's contract or statute empowered him to overturn Rankins' reinstatement by the Board that was exercised at a Donaldson hearing.
[(Emphasis added) (internal citation omitted).] In a Final Decision, dated October 26, 2010, the Commissioner rejected the ALJ's Initial Decision and affirmed the monitor's decision not to renew plaintiff's employment. The Commissioner rejected the legal conclusions of the ALJ, and concluded that the monitor did not exceed his authority under N.J.S.A. 18A:7A-55, explaining:
Pursuant to the Fiscal Accountability Act, the Commissioner is authorized to appoint a state monitor to oversee the fiscal management and expenditures of school district funds when an independent audit reveals the existence of certain financial shortfalls that are delineated in the Act. N.J.S.A. 18A:7A-55(a) and (b). Additionally, there is no doubt that the state monitors have the power to make personnel decisions for non-tenured staff members, when those decisions are necessary to solve the district's fiscal or audit deficiencies. N.J.S.A. 18A:7A-55. Further, in order to achieve fiscal stability, state monitors have the authority to override a vote of the board of education. N.J.S.A. 18A:7A-55(b)(5).
In this case, the petitioner's employment was initially not renewed based on the fact that he made inappropriate comments toward female students. The Monitor testified that one of the reasons why he overrode the Board's decision to reinstate the petitioner was related to potential liability for the Board in connection with the reinstatement of the petitioner. The Monitor was concerned that there would be similar issues with the students in the future, and that the Board would then be at risk for legal liability for reinstating petitioner knowing that there was evidence of inapprop riate [sic] behavior in the past. Certainly, the exposure to potential legal liability for a school district that is plagued with financial shortcomings is a valid fiscal rationale for making a personnel decision regarding a non-tenured staff member. Therefore, . . . the Monitor's decision was related to the fiscal management of school funds, and thus falls within the statutory authority of a state monitor.
The Commissioner emphasized that the Final Decision did not "afford the state monitors more power than is statutorily provided by the Fiscal Accountability Act." Rather than having "unfettered power" to make decisions for the district, the Commissioner cautioned that "state monitors must continue to have fiscal or financial concerns or motivations in order to appropriately overturn a Board's decision." Rankins presents the following issues in his appeal from this decision:
THE ALJ'S FACTUAL DETERMINATIONS AND CREDIBILITY FINDINGS THAT THE MONITOR'S RATIONALE FOR OVERTURNING THE BOARD'S VOTE WAS BASED ON THE MONITOR'S OWN MISTAKEN PERSONAL ASSESSMENT OF RANKINS' CONDUCT, WAS OVERWHELMINGLY SUPPORTED BY THE RECORD
THE ALJ WAS CORRECT IN DETERMINING THAT THE MONITOR'S ACTION TO OVERTURN THE BOARD'S DECISION TO REHIRE RANKINS WAS NOT BASED ON ANY FINANCIAL OR FISCAL CRITERIA AND, THEREFORE, WAS OUTSIDE THE SCOPE OF HIS AUTHORITY
THE ACTING COMISSIONER OF EDUCATION ERRED IN REJECTING THE "FINDING OF FACTS" #6, PG. 10 (Pa10) AND CREDIBILITY ASSESSMENTS MADE BY THE ALJ BY SIFTING THROUGH THE FACTS AND REASSEMBLING THEM IN SUPPORT OF THE MONITOR WITHOUT DEMONSTRATING THAT THE ALJ'S DETERMINATION WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE OR NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE PURSUANT TO N.J.S.A. 52:14B-10(c), N.J.A.C. 1:1-18.6(c) AND ESTABLISHED CASE LAW
The Board presents the following issues:
THE DECISION OF THE ACTING COMISSIONER OF EDUCATION WAS ARBITRARY AND CAPRICIOUS
A. THE ACTING COMMISSIONER'S DECISION THAT THE MONITOR DID NOT EXCEED HIS AUTHORITY OFFENDS THE STATE CONSTITUTION
B. THE ACTING COMMISSIONER'S DECISION THAT THE MONITOR DID NOT EXCEED HIS AUTHORITY VIOLATES THE EXPRESS AND IMPLIED LEGISLATIVE INTENT OF STATUTE N.J.S.A. 18A:7A-55 AND OFFENDS THE STATE CONSTITUTION
C. THE ACTING COMMISSIONER'S RULING THAT THE MONITOR DID NOT EXCEED HIS AUTHORITY BY OVERTURNING THE BOARD'S DECISION TO REINSTATE RANKINS IS NOT SUPPORTED BY THE RECORD BELOW AND FAILS TO MEET THE LEGAL STANDARD REQUIRED BY N.J.S.A. 52:14B-10 (c); N.J.A.C. 1:1-18.6(c)
D. IN APPLYING THE LEGISLATIVE POLICIES TO THE FACTS, THE ACTING COMMISSIONER CLEARLY ERRED IN REACHING A CONCLUSION THAT THE MONITOR DID NOT EXCEED HIS AUTHORITY WHEN HE OVERRULED THE BOARD
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). This court may not reverse an agency's decision unless: "(1) it [is] arbitrary, capricious, or unreasonable; (2) it violate[s] express or implied legislative policies; (3) it offend[s] the State or Federal Constitution; or (4) the findings on which it [is] based [are] not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007).
Although Rankins and the Board both argue that the Commissioner erred in failing to give appropriate deference to the factual findings and credibility determinations of the ALJ, the Final Decision reveals no rejection of such findings. The Final Decision rejecting the ALJ's Initial Decision clearly rested upon a purely legal question, i.e., whether the monitor exceeded his authority under N.J.S.A. 18A:7A-55(b). The resulting question on appeal is whether the Final Decision is arbitrary and capricious because it rests upon a misinterpretation of the governing statute or because it violated express or implied policies underlying the statute.*fn2
This is purely a legal issue. Appellate courts are not "bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Statutory interpretation is primarily the role of the judiciary and is not an administrative function. Bd. of Educ. of N. Burlington Cnty. Reg'l Sch. Dist. v. N.J. State Bd. of Educ., 372 N.J. Super. 341, 348-49 (App. Div. 2004) (citing Mayflower, supra, 64 N.J. at 93). Thus, "if an agency's statutory interpretation is contrary to the statutory language, or if the agency's interpretation undermines the Legislature's intent, no deference is required." Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008) (quoting In re N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997)). However, we "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Accordingly, we afford an agency "great deference" in reviewing its "interpretation of statutes within its scope of authority[.]" N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008); see also Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div. 2010).
Both Rankins and the Board argue that the statutory authority given to the monitor does not include the action taken here. The Board argues that the statute does not give the monitor the authority to overrule the Board in any and all decisions a position explicitly rejected by the Commissioner. The Board contends that the monitor is not granted authority to predict potential litigation under the guise of fiscal monitoring, and suggests the prediction was erroneous because no Tort Claims*fn3 notices were filed regarding the incidents in question. The Board argues further that because the monitor's authority is "subject to the education, labor, and employment laws and regulations," the monitor may not override a decision the Board is allowed to make under N.J.S.A. 18A:27-4.1, i.e., to rehire and non-renew employees in a Donaldson hearing. Rankins argues that, because the basis for the appointment of a monitor is tied to a finding that certain enumerated fiscal/financial deficiencies as set forth in N.J.S.A. 18A:7A-55a.1-8 have occurred, the monitor's authority is limited to supervising fiscal/financial matters for which a school district has been deemed deficient. Rankins adopts the characterization used by the ALJ, that the non-renewal of Rankins's contract was a day to day personnel matter "and nothing more." We are not persuaded by these arguments.
"The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). "Words and phrases in a statute must be viewed within 'their context' and typically given 'their generally accepted meaning.'" Aronberg v. Tolbert, 207 N.J. 587, 598 (2011) (quoting N.J.S.A. 1:1-1). If the statute's plain language reveals the Legislature's intent, we need proceed no further. Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009). It is only "if there is ambiguity in the statutory language that leads to more than one plausible interpretation" that extrinsic evidence, such as "legislative history, committee reports, and contemporaneous construction[,]" is necessary to determine the legislative intent. DiProspero, supra, 183 N.J. at 492-93.
The Act authorizes the monitor to "oversee the fiscal management and expenditures of school district funds." N.J.S.A. 18A:7A-55(b)(1). The statute identifies the monitor's various responsibilities, including the obligation to ensure development and implementation of an acceptable plan to address the circumstances . . . which resulted in the appointment of the State monitor. . . . [N.J.S.A. 18A:7A-55(b)(3).]
However, nowhere does the statute limit the monitor's authority to actions that address the circumstances that resulted in the appointment of the monitor. The grounds for appointing a monitor identified in N.J.S.A. 18A:7A-55(a) are: the school district receives an adverse or a disclaimer of opinion by its independent auditor in the annual audit required pursuant to N.J.S. 18A:23-1; or any two or more of the following circumstances apply to the school district:
(1) the school district ends the fiscal year with a deficit balance as calculated for budgetary purposes in the general fund, special revenue fund, or capital projects fund, with the exception of a capital projects fund deficit caused by the issuance of bond anticipation notes;
(2) the school district receives a qualified opinion by its independent auditor in the annual audit required pursuant to N.J.S.[A.] 18A:23-1;
(3) the school district receives an adverse, disclaimer, or qualified opinion by its independent auditor under the single audit section for State or federal awards in the annual audit required pursuant to N.J.S.[A.] 18A:23-1;
(4) the school district receives any audit findings by its independent auditor identified as material weaknesses in internal controls;
(5) the school district fails to develop and implement a plan acceptable to the commissioner or his designee to address a potential or actual deficit balance in the general fund, special revenue fund, or capital projects fund, with the exception of a capital projects fund deficit caused by the issuance of bond anticipation notes;
(6) the school district fails to implement a plan from the prior year which causes any findings from the independent auditor to be repeated;
(7) the school district is required to return federal funds once it is determined that the school district's expenditures are not in compliance with the grant requirements; or
(8) the school district submits the annual audit after the submission date required pursuant to N.J.S.[A.] 18A:23-1.
There is no apparent nexus between these factors and areas of authority enumerated in the statute, which include the operation of school district facilities and oversight of all district staffing, let alone a basis in the statute to conclude that the exercise of specifically delegated authority was limited to these circumstances.
Rather, without reference to any of the circumstances that resulted in the monitor's appointment, N.J.S.A. 18A:7A-55(b)(4) authorizes the monitor to "oversee all district staffing, including the ability to hire, promote, and terminate employees[.]" As the Commissioner noted, within that grant of oversight authority, the Legislature explicitly granted the monitor the "authority to override . . . a vote by the board of education on any of the matters set forth in this subsection[.]" N.J.S.A. 18A:7A-55(b)(5). The plain language of the statute therefore reveals a legislative intent to give the monitor the ability to "hire, promote and terminate employees[,]" even overriding the authority of the Board, as part of his authority to "oversee all district staffing."
Still, it is argued that because N.J.S.A. 18A:27-4.1 establishes the procedure for boards of education to offer reemployment under these circumstances and the monitor's actions are subject to the education laws, N.J.S.A. 18A:7A-55(b)(5), the monitor's authority to override a board's decision cannot apply to its decision to renew an employee's contract following a Donaldson hearing. There is, however, nothing in either statute that supports the legal conclusion that this particular exercise of authority by the Board is exempt from the monitor's authority to "oversee all district staffing" and override a board's decision.
We are satisfied that the Commissioner's interpretation of the governing statute was reasonable and fairly reflected the Department's expertise and superior knowledge of a particular field. Moreover, the Commissioner was careful to note that the decision did not expand the authority of the monitor beyond that granted by the statute. The Commissioner cautioned that the monitor did not have unfettered discretion to override board decisions, but must make decisions "grounded in fiscal accountability" and "must continue to have fiscal or financial concerns or motivations in order to appropriately overturn a Board's decision." We are satisfied that, on this record, it was not arbitrary and capricious for the Commissioner to conclude that the "exposure to potential legal liability" provided "a valid fiscal rationale" for the action taken; that the monitor's decision was "related to the fiscal management of school funds, and thus falls within the statutory authority of a state monitor."