NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...