DIANNE GIARDINA v. BOARD OF EDUCATION TOWNSHIP OF PEQUANNOCK, MORRIS COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0822-05T50822-05T5

DIANNE GIARDINA,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

TOWNSHIP OF PEQUANNOCK,

MORRIS COUNTY,

Respondent-Respondent.

_______________________________

 

Submitted May 22, 2006 - Decided June 19, 2006

Before Judges Parrillo and Gilroy.

On appeal from the State Board of Education.

Bucceri & Pincus, attorneys for petitioner (Gregory T. Syrek, of counsel and on the brief).

Lindabury, McCormick & Estabrook, attorneys for respondent Pequannock Township Board of Education (Anthony Sciarillo, of counsel; Greg K. Vitali, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent State Board of Education (Cynthia Ann Raymond, Deputy Attorney General, filed a statement in lieu of brief).

PER CURIAM

Appellant, Dianne Giardina (Giardina), appeals from the decision of the State Board of Education (State Board) entered on September 7, 2005, affirming the decision of the Commissioner of Education (Commissioner) denying her tenure in the clerical position as an office aide and in the position of a ten-month secretary with the respondent, Board of Education of the Borough of Moonachie (Board). We affirm.

We briefly state the undisputed facts and procedural history. Giardina was employed by the Board as an office aide for the period of September 1, 1998, through June 30, 1999, and continued in that position from July 1, 1999, through June 30, 2000. Giardina was re-employed by the Board for the 2000-2001, 2001-2002, and 2002-2003 school years. However, for these years, she was employed as a ten-month secretary. The Board did not renew her appointment to the position of a ten-month secretary for the 2003-2004 school year.

On July 10, 2003, Giardina filed a verified petition with the Commissioner, alleging that she had gained tenure pursuant to N.J.S.A. 18A:17-2, and that the Board violated her tenure rights when it failed to renew her employment for the 2003-2004 school year. Under the petition, Giardina sought reinstatement to the position of employment within the scope of her tenure status, along with back pay and benefits.

After the Board filed its answer on July 25, 2003, the Commissioner referred the matter to the Office of the Administrative Law (OAL) as a contested case for a hearing before an Administrative Law Judge (ALJ). The matter was submitted to the ALJ on cross-motions for summary decision. Giardina argued "that her employment as an Office Aide is tenure eligible as a clerical position . . . [and] that she should be able to apply the time she was employed in the position of Office Aide for [the] purpose[] of accruing tenure as a Secretary." Giardina contended "that she accrued tenure in the position of Secretary . . . on the first day of the 2001-2002 school year." Alternatively, she asserted "that she should be allowed to apply her time in the 'promoted to' Secretary position to the accrual of tenure in the 'promoted from' Office Aide position." The Board countered that the "positions of Office Aide and Secretary 'are two totally independent and separate positions and, in order to accrue tenure in either, an employee . . . must serve the requisite probationary period in each position.'" The Board also contended "that petitioner cannot combine or 'tack' the years she was employed as an Office Aide with the time she served as a Secretary for purposes of accruing tenure in either position."

Determining that "the bulk of [Giardina's] duties was clerical in nature," the ALJ concluded that "consistent with the aforesaid decisional law, [Giardina] held a 'clerical position' eligible for tenure pursuant to N.J.S.A. 18A:17-2 when she served as an Office Aide." In denying Giardina's motion for summary decision and granting the Board's motion, the ALJ concluded that:

[1] [Giardina] did not accrue tenure in either the position of Secretary or a clerical position since her service time does not satisfy the precise conditions of the statute[,] [N.J.S.A. 18A:17-2b];

[2] [Giardina] may not combine the time that she was employed in the position of Office Aide to the time she was employed as a ten[-]month Secretary for [the] purpose[] of accruing tenure in the position of Secretary; [and]

[3] Giardina may not tack the time she was employed as a ten[-]month Secretary to the time she was employed as an Office Aide for the purpose of accruing tenure in a clerical position.

After Giardina filed exceptions to the OAL decision, the Commissioner, after "a thorough and independent review of the record," issued a decision on April 1, 2005, "concur[ring] with the findings and conclusions in the [OAL decision]":

[T]he ALJ determined that [Giardina's] position as an office aide is tenure eligible, pursuant to N.J.S.A. 18A:17-2, but that [Giardina] did not accrue tenure in either the position of secretary or a clerical position since her service time does not satisfy the precise conditions of the statute. The Commissioner also emphasizes in reaching this conclusion his concurrence that [Giardina] may not combine the time she was employed in the position of office aide to the time she was employed as a ten-month secretary for purposes of accruing tenure in the position of secretary, nor may she tack the time that she was employed as a ten-month secretary to the time she was employed as an office aide for the purpose of accruing tenure in a clerical position.

On April 29, 2005, Giardina filed a notice of appeal to the State Board. On September 7, 2005, the State Board issued a decision affirming the determination of the Commissioner.

The judicial role in reviewing decisions of an administrative agency is limited. "[T]he appropriate standard of review to be applied by an appellate court reviewing the final decision of an administrative agency is for the court to examine the record to determine whether sufficient or substantial credible evidence exists therein to support the agency decision." Dore v. Bd. of Educ. of Bedminster, 185 N.J. Super. 447, 453 (App. Div. 1982). Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)).

The precise issue is "'whether the findings made could reasonably have been reached on sufficient[,] credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Furthermore, should there be substantial evidence in the record to support more than one result, it is the agency's choice which governs." Dore, supra, 185 N.J. Super. at 453. Although we must give deference to "an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001).

On appeal, Giardina raises the same issues for our consideration that she raised below. After analyzing the record in light of the arguments, we determine that they are devoid of merit, and conclude that the decision of the State Board is supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(D). We add the following comment.

Giardina's rights to tenure, in either the clerical position of an office aide or in the position of a ten-month secretary, are governed by N.J.S.A. 18A:17-2, which provides in pertinent part:

b. Any person holding any secretarial or clerical position or employment under a board of education of any school district or under any office thereof, after

1. The expiration of a period of employment of three consecutive calendar years in the district or such shorter period as may be fixed by the board or officer employing him [or her], or

2. Employment for three consecutive academic years, together with employment at the beginning of the next succeeding academic year, an academic year being the period between the time when school opens in the district after the general summer vacation and the beginning of the next succeeding summer vacation . . .

. . . .

shall hold his [or her] office, position or employment under tenure during good behavior and efficiency, and shall not be dismissed or suspended or reduced in compensation, except for neglect, misbehavior[,] or other offense[,] and only in the manner prescribed by subarticle B of article 2 of chapter 6 of this title.

Under the statute, the clerical position of an office aide and a ten-month secretary are separate positions that require separate and independent probationary periods of time in each position before an employee is entitled to tenure in either position. Accordingly, the statute does not permit an employee to tack his or her time employed in a clerical position to his or her time employed as a secretary for the purpose of accruing tenure as a secretary. Given v. Bd. of Educ. of E. Windsor Reg'l School Dist., 1 978 S.L.D. 43, 45 (Comm. Jan. 30, 1978), aff'd, 1 978 S.L.D. 46 (St. Bd. June 7, 1978), aff'd, 1 979 S.L.D. 832 (App. Div. May 18, 1979). Nor does the statute permit an individual to tack backwards the time employed in the position of a secretary to the time employed in the clerical position of an office aide for the purpose of accruing tenure in the prior position.

 
Here, Giardina was employed in the clerical position of an office aide only from September 1, 1998, through June 30, 1999, and July 1, 1999 through June 30, 2000. This time falls short of the "three consecutive calendar years" or "three consecutive academic years" required by the statute. N.J.S.A. 18A:17-2b1 and 2. Nor was she employed in the position of a ten-month secretary for the required time. She was only employed by the Board in the position of a ten-month secretary for three consecutive academic years, but was not in that position "at the beginning of the next succeeding academic year." N.J.S.A. 18A:17-2b2.

Affirmed.

(continued)

(continued)

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A-0822-05T5

June 19, 2006