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Miller v. State-Operated School District of City of Newark

Superior Court of New Jersey, Appellate Division

November 4, 2019

BRENDA MILLER, Petitioner-Appellant,

          Argued February 5, 2018

          On appeal from the Commissioner of Education, Agency Docket No. 301-10/14.

          William P. Hannan argued the cause for appellant (Oxfeld Cohen, PC, attorneys; William P. Hannan, of counsel and on the brief).

          Shana T. Don argued the cause for respondent Newark Public School District (Scarinci & Hollenbeck, LLC, attorneys; Ramon E. Rivera, of counsel; Jason T. Mushnick and Shana T. Don, on the brief).

          Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Commissioner of Education (Nicole T. Castiglione, Deputy Attorney General, on the statement in lieu of brief).

          Before Judges Vernoia and DeAlmeida.


          VERNOIA, J.A.D.

         Petitioner Brenda Miller appeals from the New Jersey Commissioner of Education's final agency decisions dismissing her claims that her employment with the State Operated School District of the City of Newark (the District) was terminated in violation of her tenure rights under N.J.S.A. 18A:17-2, and the termination was void because it was effectuated without the proper delegation of authority by the District's superintendent. Because we conclude the termination of petitioner's employment violated her tenure rights under N.J.S.A. 18A:17-2, we reverse.


         The relevant facts are not disputed. Petitioner was hired by the District on May 4, 1998, and held various provisional titles until her permanent appointment to the title of Senior Clerk on April 1, 2004. She held that position until her transfer to the title of Secretarial Assistant, Typing on July 23, 2007. Effective June 16, 2012, her title was renamed Secretarial Assistant. The parties agree that all of the foregoing positions were classified titles under the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to 12-6.

         Effective July 2012, the District reclassified petitioner's position to the unclassified title of Confidential Assistant. In a letter to petitioner sent almost seventeen months later, the District confirmed petitioner's July 2, 2012 reassignment to the Confidential Assistant position, and advised the new position was "unaffiliated" and therefore no longer governed by the Act. The letter explained that petitioner's employment record would reflect she resigned from her Civil Service title effective June 30, 2012, and would "no longer be afforded Civil Service rights." The letter further informed petitioner she could "request consideration for reemployment in [her] prior Civil Service title" with the District "by indicating [her] availability within three (3) years of the date of [her] resignation." Petitioner did not appeal her transfer to the unclassified position, or the District's confirmation of her resignation from the classified position, to the Civil Service Commission.

         More than two years later, on August 15, 2014, the District's Chief Talent Officer, Vanessa Rodriguez, sent petitioner a letter terminating her employment. Petitioner appealed to the Civil Service Commission, arguing the termination violated the Act because she was entitled to return to the permanent classified position she held prior to the 2012 transfer. The Civil Service Commission dismissed her appeal, finding petitioner acquiesced to the 2012 transfer and effectively resigned from her classified position at that time. The Commission concluded petitioner was terminated from her classified position in 2012, and had no right to challenge the 2014 termination from her unclassified position under the Act. There is no record showing petitioner appealed the Commission's decision.

         Petitioner also appealed her termination to the Commissioner of Education. She alleged her termination was unlawful because she had tenure under N.J.S.A. 18A:17-2 in her position as a Confidential Assistant, and Rodriguez lacked the authority to terminate her. In a December 9, 2015 decision, an Administrative Law Judge (ALJ) granted summary disposition in petitioner's favor finding petitioner had tenure under N.J.S.A. 18A:17-2 because she had been employed by the District in secretarial positions for more than three consecutive years. The ALJ concluded petitioner's termination violated her tenure rights under N.J.S.A. 18A:17-2, and recommended petitioner's reinstatement.

         The District filed exceptions to the ALJ's decision, and the Commissioner rejected the ALJ's recommended decision. The Commissioner determined petitioner did not earn tenure under N.J.S.A. 18A:17-2 while she served in classified positions under the Act because N.J.S.A. 18A:28-2 provides that "[n]o person, who is in the classified service of the civil service of the state pursuant to Title 11, Civil Service . . ., shall be affected by any provisions of this chapter."[1] The Commissioner concluded petitioner accrued credit toward tenure under N.J.S.A. 18A:17-2 only during the period following her 2012 transfer to the unclassified position, and that because she had not served in that position for three consecutive years prior to her termination, she did not have tenure rights under the statute. The Commissioner dismissed petitioner's claim that her termination violated her tenure rights under N.J.S.A. 18A:17-2, and remanded for the ALJ to consider petitioner's remaining claim - that Rodriguez lacked the authority to terminate her employment.

         On remand before the ALJ, the parties relied solely on written submissions. The ALJ considered a certification from Larisa Shambaugh, who stated she was "fully familiar with the facts and circumstances associated with [petitioner's] case," and was appointed the District's Interim Chief Talent Officer following Rodriguez's resignation in January 2016. Shambaugh stated the State-appointed Superintendent has responsibility for the hiring and firing of District employees and "delegates to the Chief Talent Officer the responsibility to communicate with District employees regarding their employment." Attached to Shambaugh's certification is a job description for the District Chief Talent Officer, the position Rodriguez held when she sent the August 2014 letter terminating petitioner's employment.

         The District also submitted a certification from Christopher Cerf, who replaced Cami Anderson as the District Superintendent in July 2016. Cerf stated that Anderson delegated the authority to hire and fire the District's "non-civil service employees" to Rodriguez, and that upon his appointment as Superintendent, he continued that delegation of authority to Rodriguez and, following her resignation, to Shambaugh.

         The ALJ found the certifications convincing. He determined N.J.S.A. 18A:7A-42(b) authorized the Superintendent to "delegate to subordinate officers or employees in the district any of his powers or duties as he may deem desirable to be exercised under his supervision and direction," and concluded the certifications and Chief Talent Officer's job description established Rodriguez had the delegated authority to terminate petitioner's employment in 2014. The ALJ also found it "inconceivable" that in a District "consist[ing] of seventy-four schools serving 39, 440 students," the Superintendent "would micro-manage every personnel decision," and "logical" that decisions concerning the duty to hire and fire unclassified employees would be delegated to the Chief Talent Officer whose job description required "leadership in all matters related to talent management."

         The ALJ also found petitioner had the burden of establishing by a preponderance of the evidence that Rodriguez lacked the requisite delegated authority, and she failed to sustain her burden because she offered nothing more than "a bald assertion that the State-Appointed Superintendent did not delegate the authority" to Rodriguez. The ALJ noted that petitioner failed to present any evidence refuting the Shambaugh and Cerf certifications, and concluded the "unrefuted evidence supports [a finding] of proper delegation of ...

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