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Lucy Kourtesis,*Fn1 v. Bergen County Special Services School District


November 19, 2012


On appeal from the New Jersey Department of Education, Agency Docket Nos. 669-11/10, 663-11/10, 627-11/10, 665-11/10, 671-11/10, 643-11/10, 662-11/10, 628-11/10, 702-12/10, 636-11/10, 644-11/10, 695-11/10, 661-11/10, 705-12/10, 629-11/10, 641-11/10 and 666-11/10.

Per curiam.


Submitted October 17, 2012

Before Judges Grall and Simonelli.

Appellants Mary Baglivi, Anne Celmer, Corina Drozdowski, Gwen Dubno, Maria Erickson, Priscilla A. Kaplan, Regina M. Karch, Susan B. Kent, Lucy Kourtesis, Ruth Leibowitz, Teri J. Lieberman, Michele Meyer, Dorothea Polifroni, Bella Poliner, Michele Saper, Adriana C. Self and Patricia Welle (collectively appellants) are tenured teachers and speech correction/language therapists employed on an hourly basis by respondent Board of Education of the Bergen County Special Services School District (Board). Appellants each filed a verified petition with the Department of Education, alleging that the Board's reduction of their work hours during the 2010-2011 school year constituted a reduction in force (RIF) pursuant to N.J.S.A. 18A:28-9, and a violation of their tenure and seniority rights and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. Appellants appeal from the December 5, 2011 final decision of the Acting Commissioner of Education (Commissioner), which affirmed the summary decision granted to the Board by Administrative Law Judge Carol Cohen (ALJ Cohen), and dismissed the petitions. We affirm.

The facts are undisputed. Appellants provide supplemental, auxiliary, or remedial educational and/or instructional services to eligible non-public school elementary and secondary school students pursuant a State-funded program established by N.J.S.A. 18A:46A-1 to -17 (the 192-193 Program). Unlike traditional teachers, appellants generally begin working the second week of September of each school year after the specific needs of the non-public host schools are determined; are paid on an hourly basis; have varying work hours throughout the school year and from year to year depending on such factors as the number of eligible students requiring services and the host school's needs; and work disparate hours based on the school to which they are assigned, the number of eligible students, and the types of services the host school requested.

Appellants are members of the Bergen County Special Services 192-193 Association (Association). Pursuant to their 2009-2012 Collective Bargaining Agreement (CBA), appellants' "work day shall be as established by the host school and shall be when pupils are available for instructional purposes except that such hours shall not be more than 6.75 consecutive hours unless with prior administrative approval." Appellants also signed a yearly employment contract, which specified their hourly rate and longevity stipend. Neither the CBA nor the employment contract guaranteed appellants a minimum number of work hours, or required appellants' work assignments to be based on seniority. The record indicates that appellants were never assigned work based on seniority.

The Board approved appellants' employment contracts, but Supervisor of Instruction, Ann Potvin (Potvin), assigned appellants' work hours and work assignments. Because three non-public schools in which appellants worked had closed, and the State reduced funding for the 192-193 Program by thirteen percent for that school year, Potvin decided to reduce hours across-the-board for the 2010-2011 school year "rather than terminat[e] employment in these difficult economic times." In August 2010, Potvin met with Association President Alan Weisberg (Weisberg), to discuss her proposal to implement an approximately ten percent across-the-board reduction in hours "in order to preserve jobs and not to cut the hours of any staff members who were receiving benefits below the 20 hours required in order to receive benefits." Weisberg did not object to the proposal.

In September 2010, Potvin met with Weisberg, Human Resources Director Tom Klemm (Klemm), Human Resources Manager Linda Theos (Theos), and New Jersey Education Association representative Ray Skorka (Skorka), and discussed the proposal and the reasons for the reduction in hours. No one objected to the proposal. Potvin notified appellants of their reduced hours. Appellants were not terminated, reassigned or transferred to another school.

Appellants then filed their petitions. Thereafter, six appellants had their hours restored or increased, four declined additional hours, and four remained slightly below the prior school year.

The parties filed motions for summary decision. In a September 6, 2011 initial decision, ALJ Cohen recognized that Klinger v. Board of Education of Cranbury, 190 N.J. Super. 354 (App. Div. 1982), certif. denied, 93 N.J. 277 (1983) held that a reduction in hours constitutes a RIF.*fn2 She found, however, that according to Alfieri v. Board of Education of Saddle Brook, 2003 WL 34609223 (N.J. Admin. 2003) (Edu. No. 11677-98 and 1161-99 (consolidated), final decision (Jan. 10, 2003)), certif. denied, 181 N.J. 547 (2004), there must be a minimum guarantee, through contract or otherwise, to a minimum number of hours of employment in order for an actual reduction in hours to constitute a RIF. She also found that Spiewak v. Board of Education of Rutherford, 90 N.J. 63 (1982) did not control because it concerned an unrelated issue -- whether part-time, non-tenured teachers could acquire tenure. Id. at 66.

ALJ Cohen concluded that the Board did not violate appellants' tenure and seniority rights because there was no reduction in compensation within the meaning of N.J.S.A. 18A:28-5, and no RIF within the meaning of N.J.S.A. 18A:28-9. She found that the Board did not guarantee appellants, by contract or otherwise, a minimum number of work hours; appellants' employment contracts only guaranteed them a rate of compensation and longevity stipend; appellants were remedial instructors who had acquired tenure by working on an hourly basis; appellants had flexible work schedules with fluctuating hours that varied from year to year based on the number of eligible students; the CBA limited appellants' hours to no more than 6.75 hours per day, and the Board did not reduce this number; appellants' positions were not abolished; there was no reduction in the number of staff; and no appellant was transferred, reassigned, or subjected to any other form of adverse action.

With respect to the claimed violation of the OPMA, ALJ Cohen found that the Board meetings in August 2009 and June 2010 did not pertain to the reduction in hours. She also found that Potvin, Weisberg, Klemm, Theos and Skorka, who had met in September 2010, were not part of any public body, including a board of education, and these individuals were neither organized under the laws of this State, nor empowered as a voting body. She, thus, concluded that the Board was not required to give notice of the September 2010 meeting, and there was no OPMA violation because a public body did not convene at that time.

In a December 5, 2011 written decision, the Commissioner affirmed ALJ Cohen's initial decision, and dismissed the petitions. The Commissioner concluded the Board did not violate the OPMA or appellants' tenure or seniority rights. He distinguished Klinger and Spiewak, and relied on Alfieri to find there was no RIF under N.J.S.A. 18A:28-9 because appellants' had no guarantee of a minimum number of work hours, appellants were not terminated, and they did not suffer a reduction in compensation given the nature of their employment, the fluctuating work hours from year to year, and the lack of a guarantee of a minimum number of hours. This appeal followed.

On appeal, appellants contend that the Commissioner's decision is unreasonable because they had tenure and seniority rights, which the Board violated by reducing work hours across-the-board. Appellants also contend that the Commissioner wrongly concluded that because no RIF occurred, notice pursuant to the OPMA was not necessary. We disagree with both contentions.

Our review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will affirm an agency decision only so long as it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result. Ibid. We will reverse an agency's decision if it is "'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In determining whether agency action is arbitrary, capricious or unreasonable, we must examine:

"(1) whether the agency's action violates expressed or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." [Ibid. (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]

The burden of proving that an agency action is arbitrary, capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs. of the Teachers' Pension and Annuity Fund, 422 N.J. Super. 227, 234 (App. Div. 2011).

"[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Accordingly, our function is not to merely rubberstamp an agency's decision, rather, our function is "to engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dept. of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

Further, we "should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999). However, we "are not bound by an agency interpretation of a strictly legal issue . . . when that interpretation is inaccurate or contrary to legislative objectives." Ibid. (citations omitted).

Applying the foregoing standards, we discern no reason to disturb the Commissioner's decision. We conclude there is sufficient credible evidence in the record as a whole supporting the Commissioner's decision. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons expressed by the Commissioner in his December 5, 2011 written decision, which affirmed ALJ Cohen's September 6, 2011 initial decision. We also conclude that appellants' arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).


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