June 10, 2013
LINDA WHITE, Petitioner-Appellant,
BOARD OF EDUCATION OF THE BOROUGH OF GLASSBORO, GLOUCESTER COUNTY, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 5, 2013
On appeal from the Commissioner of Education, Docket No. 152-7/10.
Michael D. Capizola argued the cause for appellant (Capizola, Pancari, Lapham &
Fralinger, attorneys; Mr. Capizola, on the brief).
Stacy L. Moore, Jr., argued the cause for respondent Board of Education of the Borough of Glassboro, Gloucester County (Parker McCay, P.A., attorneys; Frank P. Cavallo, of counsel; Mr. Moore, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Caroline Jones, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Lihotz and Kennedy.
Petitioner Linda White appeals from a final agency decision of the Commissioner of Education (Commissioner), which adopted the initial decision of the Administrative Law Judge (ALJ), holding that petitioner had not acquired tenure rights in the position of a secretary, and that petitioner's termination due to a reduction in force (RIF) was not arbitrary, capricious, or unreasonable. On appeal, petitioner argues that she became a tenured secretary pursuant to N.J.S.A. 18A:17-2, and that she did not receive notice of a possible layoff from her position as required by the Open Public Meetings Act, N.J.S.A. 10:4-6 to —21 ("OPMA"). We affirm.
We derive the facts from the record.
Petitioner was employed by the Board of Education of the Borough of Glassboro (Board) for eleven and one-half years, during which she worked as a data processing technician or operator for six years, a secretary for one year, an aide for three years, and a data processor for almost two years.
On May 3, 2010, the Glassboro Superintendent of Schools sent a letter to petitioner advising her that her employment would be terminated as of June 30, 2010. On July 14, 2010, petitioner filed an appeal to the Commissioner. The matter was thereafter considered a contested case and referred to the Office of Administrative Law for hearings. On March 2, 2012, the ALJ affirmed the decision to terminate petitioner's employment. Thereafter, on April 16, 2012, the Commissioner rendered a final agency decision adopting the findings of fact determined by the ALJ, and dismissing petitioner's appeal. We set forth these findings at some length:
Petitioner . . . was hired as a data processing technician for the Glassboro High School on January 19, 1999, for the 1998-1999 school year. She continued in that capacity for the 1999-2000 and 2000-2001 school years. For the 2001-2002, 2002-2003, and 2003-2004 school years, her title was data processing operator.
She served as a secretary for the 2004-2005 school year. According to the New Jersey School Boards Association Manual for Development of Job Descriptions, the responsibilities of a secretary consist of: receiving and routing incoming calls and correspondence; performing usual office routines; typing correspondence, notices and reports; maintaining a well-organized up-to-date filing system; operating all business machines necessary to complete reports and clerical work required in the operation of the office; arranging meetings, preparing agendas and handling follow-up activities as necessary; assisting, logging-in, and directing visitors to the schools; and maintaining confidentiality as required and appropriate. The executed employment contract for the 2006-2007 school year indicates her position as an aide. The executed employment contract for the 2007-2008 school year indicates her position as aide-clerical. The Manual for Development of Job Descriptions indicates the responsibilities of a clerical aide as: performing clerical duties as assigned by the principal or principal's secretary including preparing inventories and materials; typing and duplicating material; maintaining files as directed by the principal or principal's secretary; answering telephone calls; distributing materials as needed; and assisting with general operation of school office. The executed employment contracts for the 2008-2009 and 2009-2010 school years, respectively, indicate her position as data processor.
. . . Superintendent of Schools Mark Silverstein advised petitioner that at its meeting of April 28, 2010, the Board of Education would be considering a recommendation of the administration to abolish certain administrative, teaching, and support staff positions effective June 30, 2010. The letter specifically indicated her position would be affected and her employment could be terminated or modified as of June 30, 2010. By letter dated May 3, 2010, Silverstein advised petitioner that at its meeting of April 28, 2010, the [Board] adopted a resolution abolishing certain teaching and staff positions in the school district because of economic and budgetary constraints. The letter specifically advised her that her position in the school district would be terminated as of June 30, 2010. . . .
Petitioner testified that during her entire career at Glassboro she performed data entry duties. . . .
During the 2004-2005 school year, she testified that her job classification was changed to secretary. She worked in the high school in the morning performing data processing duties and at the Bullock Elementary School in the afternoon where she answered telephones and signed children in and out of school. She testified that these duties comprised "basic clerical, secretarial work."
Petitioner continued data processing in the position of an aide at the high school. . . . When [Guidance Department] secretary Judy Pample retired, . . . [p]etitioner [kept] her data processing duties but would also help out in the Guidance Department. . . . During this time frame, her duties consisted of answering the telephone, sorting mail and filing. . . . She would greet anyone that came to the office and directed them to the appropriate individual to assist them. She also made calls to parents at the request of any of the four guidance counselors[, ] . . . scheduled appointments, . . . typed letters for any of the guidance counselors and mailed them . . . . At 9:30 a.m., she reported to the Career Resource Center where she performed data processing duties for the rest of the day. . . .
For the 2007-2008, 2008-2009 and 2009-2010 school years, respectively, her duties consisted of spending part of the time in the Guidance Department and data processing. [The Director of the Guidance Department, John LaPalomento, ] supervised her for four years and evaluated her as a "guidance aide." He testified that petitioner's duties were "varied[.]"
Petitioner testified that she was aware that a labor union covered secretaries and that she was never a member of that union or any union. She never complained to anyone that her employment contracts with the exception of the 2005-2006 year, did not indicate her position as a secretary. She acknowledged signing all of her employment contracts. She conceded that although the secretaries were not permitted to leave early on early dismissal days, she would leave early with the other aides unless she was specifically asked to stay later. . . . LaPalomento testified that petitioner "would make it clear" she was not bound by the ruling requiring secretaries remain behind until the principal authorized them to leave.
. . . Michael Gorman, Superintendent of Glassboro Schools during the relevant time period, testified that petitioner was not a secretary. He testified that while petitioner was working at Bullock Elementary School he encouraged her to apply for a secretarial position . . . . [However, her test scores placed her with a] group of applicants . . . not afforded an interview.
Gorman testified that [petitioner] never served as a secretary regardless what her employment contract for the school year 2004-2005 indicates. He understood her employment position as that of an aide.
Petitioner acknowledges being hand-delivered the Rice notice, dated April 22, 2010, and also receiving it by mail. She received the termination letter dated May 2, 2010, by hand-delivery and by mail.
. . . . Based upon a review of the executed contracts, [petitioner] served as a secretary for the 2004-2005 school year only. Petitioner conceded that she was aware a labor union existed for secretaries but never sought to join that union. She signed all of her respective employment contracts. Other than the 2004-2005 school year, petitioner served as a clerical aide and data processor as evidenced by the executed contracts, the duties as set forth for the position . . ., and the undisputed testimony as to the actual duties she performed. The fact that she sat at Margaret Dougherty's desk for several hours on a daily basis and performed duties is not evidence that she acted as a secretary during that time period. The district was clearly eliminating positions by attrition prior to this RIF in question. . . . Dividing the duties of the retiree amongst the remaining personnel in the Guidance Department does not change the job title of those employees. A comparison of the duties of a secretary and an aide does indicate overlap. But as an aide, petitioner did not have the . . . responsibilities of a secretary. She did not have access to confidential information that the Guidance Secretary had. She considered herself an hourly employee and left when other aides left unless she was specifically asked to stay later. Petitioner conceded that on early dismissal days, she left early with the other staff personnel while the secretaries remained at work until the principal authorized their respective departure. Based on the foregoing, petitioner did not have tenure as a secretary, and thus, no seniority rights to a secretarial position.
The Commissioner accepted the ALJ's findings and conclusions in the final decision in favor of the Board. The Commissioner concluded "both that the ALJ's factual and credibility findings were not arbitrary, capricious [or] unreasonable, and that the record supported her determinations that 1) petitioner had not earned tenure as a secretary and 2) respondent's termination of petitioner's employment pursuant to a RIF was not arbitrary, capricious or unreasonable." The Commissioner also "reject[ed] petitioner's allegation that [the Board] violated the Open Public Meetings Act."
This appeal followed.
On appeal, petitioner argues that she became a tenured secretary pursuant to N.J.S.A. 18A:17-2, and that the Board's decision to terminate her employment was arbitrary, capricious and unreasonable. Based on our review of the record and applicable law, we are not persuaded by any of petitioner's arguments and affirm substantially for the reasons articulated by the Commissioner and ALJ.
Our standard of review of administrative determinations is quite limited. In re Stallworth, 208 N.J. 182, 194 (2011); Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). In reviewing a final agency decision, "[a]ppellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (alteration in original)); accord In re Herrmann, 192 N.J. 19, 27-28 (2007). See also Bower v. Bd. of Educ., 149 N.J. 416, 437 (1997); Kaprow v. Bd. of Educ., 131 N.J. 572, 591 (1993). "When resolution of a legal question turns on factual issues within the special province of an administrative agency, those mixed questions of law and fact are to be resolved based on the agency's fact finding." Campbell, supra, 169 N.J. at 588.
Tenure is a statutory right, and N.J.S.A. 18A:17-2 sets forth with specificity the conditions under which an individual may achieve tenure as a school secretary. 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).
N.J.S.A. 18A:17-2 grants tenure to "[a]ny person holding any secretarial or clerical position" in a school district after "expiration of a period of employment of three consecutive calendar years in the district" or "[e]mployment for three consecutive academic years, together with employment at the beginning of the next succeeding academic year . . . ." While it is true that "[w]hen the duties of the position in which a teaching-staff member has acquired tenure are substantially identical to those of the position that the person seeks, a local school board may not sidestep an educator's tenure rights by simply renaming the position or tacking on additional meaningless requirements[, ]" Dennery v. Bd. of Educ. of the Passaic Cnty. Reg'l High Sch. Dist. #1, 131 N.J. 626, 639-40 (1993), the performance of some additional secretarial duties does not warrant classifying that employee as a secretary. See Quinlan v. Bd. of Educ. of N. Bergen, 73 N.J.Super. 40 (App. Div. 1962) (holding that the duties performed, rather than the title of the position held, controls whether or not a position is protected by tenure). Here, the Commissioner's finding that petitioner served as secretary for only one year, the 2004-2005 school year, and therefore, she did not have tenure as a secretary, was fully supported by credible evidence in the record and was not arbitrary, capricious or unreasonable.
Lastly, we find that petitioner's argument that the Board did not follow the notice procedures set forth in Rice v. Union City Regional High School Bd. of Educ., 155 N.J.Super. 64 (App. Div 1977) certif denied 76 N.J. 238 (1978) is without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(1)(E) Affirmed