July 8, 2013
RAYMOND RUIZ, Petitioner-Appellant,
BOARD OF EDUCATION OF THE BOROUGH OF FORT LEE, BERGEN COUNTY, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2013
On appeal from the Commissioner of the Department of Education, State of New Jersey, Docket No. 153-7/10.
Bucceri & Pincus, attorneys for appellant (Gregory T. Syrek, of counsel and on the brief).
Cleary, Giacobbe, Alfieri & Jacobs, LLC, attorneys for respondent, Board of Education of the Borough of Fort Lee, Bergen County (Yaacov Brisman, on the brief).
Respondent, Reina Sandouk, has not filed a brief.
Jeffrey S. Chiesa, Attorney General, attorney for respondent, Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Grall and Accurso.
Petitioner Raymond Ruiz appeals from a decision of the Commissioner of Education affirming the decision of respondent the Board of Education of the Borough of Fort Lee (the Board) to terminate Ruiz's employment as part of a reduction in force (RIF). Ruiz claims that he had achieved tenure as a substance awareness coordinator (SAC) and because he possessed a standard school psychologist endorsement to an educational services certificate, his tenure in the SAC position allowed him "bumping rights" to two school psychologist positions held by non-tenured employees. The Commissioner adopted the Administrative Law Judge's (ALJ) initial decision that Ruiz had not earned tenure at the time of the RIF, and thus could not "bump" non-tenured employees from the school psychologist positions. Because there is sufficient credible evidence in the record to support the Commissioner's decision that Ruiz had not become tenured in the SAC position, we affirm.
The facts are undisputed and can be briefly summarized. Ruiz has held a standard educational services certificate with a school psychologist endorsement since 2003. Although he did not have a SAC endorsement on his certificate, Ruiz possessed a certificate of eligibility (CE) allowing him to seek employment as a SAC. The CE states that "[t]he Provisional Certificate will be issued contingent upon evidence of employment in a district that agrees to provide an approved induction program, including required job support, performance evaluation and professional coursework." In 2006, Ruiz applied for and was accepted to fill a SAC position in respondent's district.
Ruiz thus became enrolled in a SAC residency program in Fort Lee through which the school district agreed to provide Ruiz with "appropriate professional experiences" and supervise his employment, and the Department of Education agreed to issue a provisional certificate to him for one year, effective September 1, 2006. The provisional certificate was issued to Ruiz in August 2007. Ruiz was reappointed by the Board as a SAC for the 2007-2012 school years, and his provisional certificate was renewed accordingly. It is undisputed that at no time during his employment with the Board did Ruiz obtain or hold a standard educational services certificate with the SAC endorsement. In April 2010, the Board advised Ruiz that his position was being eliminated in a RIF and he would not be reappointed for the 2010-2011 school year.
In her initial decision, ALJ Bass determined that Ruiz was employed in a position that required an educational services certificate issued by the State Board of Examiners, and that he had worked in Fort Lee for more than three years and a day, thus meeting two of three requirements for tenure under N.J.S.A. 18A:28-5. The judge concluded, however, that Ruiz could not meet the final requirement of the tenure statute because he never earned a standard educational certificate with a SAC endorsement while employed by the Board, and his provisional certificate could not be considered a "proper certificate" under the statute. The ALJ reasoned that Ruiz's provisional certificate is analogous to an emergency certificate because it lacks "permanency; carries with it uncertainty surrounding continued eligibility to serve in a professional capacity in a public school; and its holder has not fully satisfied current requirements for standard certification." She concluded that Ruiz's provisional certificate was a substandard certificate that allows its holder to pursue the requirements necessary to qualify for a standard certificate, but that only a standard certificate qualifies as the proper certification under the tenure law, N.J.S.A. 18A:28-5. Because Ruiz never earned tenure, it was unnecessary to address his argument that his tenure status entitled him to positions held by non-tenured school psychologists.
The Commissioner determined that the ALJ's likening of Ruiz's provisional certificate to an emergency certificate such as the one considered in Breitwieser v. State-Operated School Dist. of Jersey City, 286 N.J.Super. 633, 639-40 (App. Div. 1996), was appropriate. We held in Breitwieser that service under an emergency certificate may be counted toward the service needed for tenure only when the teacher obtains a permanent certificate in the same field as the emergency certificate before the termination of employment. Id. at 644-45.
The Commissioner noted that the State Board of Education had come to a similar conclusion with regard to service under a provisional certificate more than twenty years earlier in Anson v. Bridgeton Bd. of Educ., 1972 S.L.D. 638. There, the agency determined that tenure can be achieved through service under a provisional certificate only so long as the teacher satisfies the conditional requirements of the provisional certificate. The Commissioner determined that those holdings are in keeping with N.J.A.C. 6A:9-6.1 "which instructs that a standard certificate – the only permanent certificate – is issued only to candidates who have met all requirements for state certification." Because it was not possible to tell from the record whether Ruiz had satisfied all of the conditional requirements of his provisional certification before the RIF, the Commissioner remanded the case to the Office of Administrative Law for resolution of that factual issue.
On remand, ALJ Bass determined that Ruiz had not met the academic requirements for standard certification prior to his termination by the school district. Ruiz contended that he was unable to earn standard certification because the district was slow in formalizing his provisional certification. The ALJ acknowledged the district's dereliction in that regard, but noted that Ruiz admits that the district had advised as early as February 2008 that he might be short credits needed for standard certification. Ruiz then began a campaign to convince the Office of Licensure and Credentials that the twenty-one to twenty-seven credits he was short were encompassed in other course work he had completed. The ALJ found that "[r]ather than take the required courses, Ruiz continued to assert that they were unnecessary."
Ruiz finally appealed the issue of credits to the Board of Examiners which determined that he lacked sufficient credit for standard certification. Ruiz challenged that decision in Ruiz v. N.J. State Bd. of Exam'rs, EDU 12754-10, initial decision, (November 9, 2011) (http://njlaw.rutgers.edu/collections/oal/html/initial/edu12754-10_1.html). ALJ Bass had heard that matter as well. She there determined that the Board of Examiners was correct that Ruiz lacked sufficient credit for standard certification, a decision adopted by the Commissioner. In light of the decision in that matter and the record before her, Judge Bass determined that Ruiz did not timely complete the academic requirements for standard certification either prior to the termination of his employment in Fort Lee, or prior to the expiration of his provisional certificate, and again concluded that Ruiz never earned tenure in the district.
The Commissioner adopted ALJ Bass's initial decision on remand as the final decision in the case. The Commissioner found that Ruiz was ineligible for standard SAC endorsement because he failed to complete the academic requirements set forth in N.J.A.C. 6A:9-13.2(e)(2), requirements completely within his own control. The Commissioner concluded that
[n]either petitioner's lack of diligence in clarifying and, if necessary, supplementing his academic qualifications, nor any alleged delays on the part of the [Board of Examiners] can bestow upon respondent . . . the jurisdiction to determine that petitioner had satisfied all of the conditional requirements of his provisional certification so as to qualify for the standard SAC endorsement, which is a prerequisite to petitioner's achievement of tenure.
This appeal followed.
Our review of administrative agency actions is limited. In re Herrmann, 192 N.J. 19, 27 (2007). We will not upset an agency's final quasi-judicial decision absent a "clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. "In construing the meaning of a statute, our review is de novo." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The right to tenure was created and is controlled entirely by statute. Breitwieser, supra, 286 N.J.Super. at 637. The Legislature has delegated implementation of the school laws, including those relating to tenure, to the Commissioner of Education. Abbott ex rel. Abbott v. Burke, 170 N.J. 537, 541 n.1 (2002) (noting the Legislature's determination in 2001 that the Commissioner would be the final decision-maker in controversies arising under the school laws instead of the State Board of Education). The Commissioner's decision on tenure "should not be disturbed unless 'palpably arbitrary' or in violation of the law." Breitwieser, supra, 286 N.J.Super. at 637 (quoting Kletzkin v. Bd. of Educ. of Spotswood, 136 N.J. 275, 278 (1994)).
Applying those standards here, we are amply satisfied that the Commissioner's decision on Ruiz's tenure on this record was imminently sound, neither arbitrary nor capricious, and consistent with the tenure statute, the applicable regulations, and established case law. Ruiz's failure to complete the academic requirements necessary for a standard SAC endorsement was fully litigated in a separate proceeding. His inability to qualify for a standard SAC endorsement while employed by Fort Lee under a provisional certificate meant that he did not achieve tenure in his SAC position.