ALBERT ZIEGLER v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, HUDSON COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4189-07T34189-07T3

A-4199-07T3

ALBERT ZIEGLER,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE CITY

OF BAYONNE, HUDSON COUNTY,

Respondent-Respondent.

____________________________________

ALBERT ZIEGLER,

Petitioner-Respondent,

v.

BOARD OF EDUCATION OF THE CITY

OF BAYONNE, HUDSON COUNTY,

Respondent-Appellant.

____________________________________

 

Argued April 28, 2009 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from a Final Decision of the New

Jersey State Board of Education.

Gregory T. Syrek argued the cause for Albert

Ziegler (Bucceri & Pincus, attorneys; Mr.

Syrek, on the briefs).

Robert J. Merryman argued the cause for

Board of Education of the City of Bayonne

(Apruzzese, McDermott, Mastro & Murphy, attorneys;

Mr. Merryman, on the briefs).

Anne Milgram, Attorney General, attorney for

respondent State Board of Education filed

Statements in Lieu of Brief (Joyce D. Atkins,

Deputy Attorney General, on the Statements).

PER CURIAM

Albert Ziegler and the Board of Education of the City of Bayonne ("Bayonne Board") separately appeal from a Final Decision of the State Board of Education ("State Board") dated March 19, 2008, affirming a decision of the Commissioner of Education. In A-4199-07, the Bayonne Board appeals the determination that Ziegler is entitled to be rehired as a teacher. In A-4189-07, Ziegler appeals the State Board's computation of back pay, contending it is inadequate. We consolidate these appeals for purposes of this opinion. After reviewing the record in light of the contentions advanced on appeal, we affirm in both appeals.

This matter has an extensive history which is necessary to set forth in detail in order to properly analyze the issues that the parties have been litigating for more than ten years. In March 1981, Ziegler obtained a temporary certificate for teacher of skilled trades, with an endorsement for employment orientation. That temporary certificate expired in July 1981. In July 1982, he obtained a standard certificate for teacher of skilled trades, again with an endorsement in employment orientation. In 1984, Ziegler was hired by the Bayonne Board to teach employment orientation courses in the Bayonne school system. He originally taught these courses for a number of years in an alternate school program administered by the Bayonne Board. In 1994, this separate alternate program ended, and Ziegler was transferred to Bayonne High School where he continued to teach for a total of fourteen years. Ziegler was granted tenure in the Bayonne school system, and we can only infer from the record before us that his performance was satisfactory during his teaching career in Bayonne. Over those years, he taught a variety of courses at the high school, including Shop 9, Shop 10, Maintenance and Repair, and Industrial Technology. In 1996, he was subject to a reduction in force as a result of budget pressures but was reinstated the following year. In 1997, Ziegler received an additional certificate, as coordinator of cooperative industrial education.

In 1998, for reasons that are not apparent from the record before us, a question arose with respect to whether Ziegler held the appropriate certificate to teach the courses to which he was assigned, and the Bayonne superintendent sought guidance from the county superintendent. On September 29, 1998, the county superintendent advised the Bayonne superintendent that the Department of Education had discontinued issuing certificates for teacher of employment orientation in 1983 and that Ziegler's certificate was thus "obsolete."

Bayonne's superintendent then inquired of the State Department of Education whether Ziegler was authorized to teach the courses to which he had been assigned for a number of years. The Office of Licensing and Credentials responded that Ziegler held standard certifications as a teacher of employment orientation and as a teacher coordinator of cooperative industrial education. It noted that Ziegler had applied for a certificate as a teacher of skilled trades with an endorsement for plumbing and pipe-fitting but was unsuccessful in light of the fact that he did not have four years full-time experience working as a plumber. It also noted that Ziegler did not have a bachelor's degree from college but was very close to completing the requirements. It pointed out that he could obtain a teaching license if he were to complete his degree.

Based upon that letter, the Bayonne superintendent recommended to the Bayonne Board that Ziegler be terminated. N.J.S.A. 18A:27-2. A resolution to that effect was adopted by the Bayonne Board, effective January 25, 1999. Prior to that effective date, the county superintendent sent two further letters to Bayonne's superintendent, reiterating that an individual holding a certificate as a teacher coordinator of cooperative industrial education could not teach industrial arts courses such as graphic arts, drafting, woodworking, metal working and power mechanics.

In February 1999, Ziegler filed a petition with the Commissioner of Education contesting his termination and seeking his reinstatement. The matter was referred to the Office of Administrative Law as a contested matter. It was originally presented on cross-motions for summary decision, and the administrative law judge concluded that Ziegler had acquired tenure and thus had been improperly terminated; he ordered Ziegler's reinstatement. The administrative law judge based his determination that Ziegler had acquired tenure upon the fact that he had taught employment orientation courses, holding a certificate in employment orientation. He reasoned that Zielger's rights to tenure were not affected by the Department's subsequent decision to no longer issue such a certificate.

Both parties appealed to the Commissioner of Education, who affirmed in part and reversed in part and remanded for further proceedings. The Commissioner agreed with the administrative law judge that Ziegler had acquired tenure within the Bayonne school system but ruled that the remedy of reinstatement could not be ordered on a motion for summary decision. The Commissioner remanded the matter to the administrative law judge with directions

for further fact-finding as necessary to determine (1) the actual duties of, and skills taught by, a teacher of Shop 9, Shop 10, Maintenance and Repair, and Industrial Technology within the Board's Industrial Arts Program; (2) whether petitioner's endorsement as a Teacher of Employment Orientation permits him to teach any or all of these courses; and (3) if petitioner is entitled to teach any or all of these courses, what back pay and emoluments are now due as a result of his improper termination.

The administrative law judge heard testimony from both parties as to the nature of these courses. He later issued his written opinion, in which he made the following factual findings:

[T]he actual duties of and skills taught by the teachers of Shop 9, Shop 10, Maintenance [and] Repair and Industrial Technology are, as presently constituted, no different than the skills Ziegler has acquired by virtue of his Employment Orientation Certification and actually teaching the courses. The skills required by an Employment Orientation Certification as issued twenty years ago encompassed the skills presently be [sic] exhibited by the teachers at Bayonne High School in that the various areas of basic skills has [sic] been narrowed but those areas still being taught at the high school are all encompassed in a[n] Employment Orientation Certificate.

The administrative law judge again concluded that Ziegler was entitled to reinstatement but that the record was insufficient to determine the amount of back pay to be awarded.

The Bayonne Board again appealed to the Commissioner, who reversed the decision of the administrative law judge. The Commissioner ruled that the courses were "beyond the scope of the limited certificate held by petitioner." The Commissioner's opinion continued in the following vein:

The courses petitioner now seeks to teach . . . do not differ from his former Employment Orientation classes merely in degree, as he claims, but in kind. Shop 9, Shop 10, Maintenance & Repair and Industrial Technology as they are presently taught at Bayonne High School may well be at the lower end of the vocational education spectrum in content level and student capacity, and may share overlapping elements with the third and culminating phase of Employment Orientation . . . . But that does not alter their fundamental nature as specific subject-area courses requiring appropriate subject-area certification, rather than as broad-based introductions to the world of work covered by a generalist endorsement expressly limited in its authorization to exploring the aptitudes and interests of special needs students, enhancing their overall work-readiness, and providing them with introductory exposure to a variety of trades so as to prepare them for entry into actual vocational education programs.

Ziegler appealed to the State Board of Education. The State Board reversed the Commissioner. It noted that the regulations in effect at the time Ziegler obtained his certificate did not include a list of authorized trades under the skilled trades endorsement. Thus, according to the State Board, the proper practice when Ziegler received his certificate would have been for the certificate simply to have stated, "skilled trades," without any reference to "employment orientation" because the regulations then-extant did not "authorize the issuance of an endorsement in a specific skilled trade." The State Board viewed the reference on Ziegler's certificate to "employment orientation" to be mere surplusage, and not determinative of the area in which he was authorized to teach. Rather, the list of specific skilled trades was contained in a department handbook, a publication with no legal significance.

The State Board continued that at the time Ziegler applied for his certificate in skilled trades, he listed his six years of experience as a carpenter. This, the State Board observed, would have entitled Ziegler to teach carpentry courses under his certificate in skilled trades. It noted the basic skill level of the courses Ziegler had taught, with their emphasis on woodworking skills. The State Board concluded in the following fashion:

Since the courses at issue herein were basic skilled trades courses with an emphasis on carpentry, and since the record indicates that Maintenance and Repair, in particular, provided special needs students with an introduction to basic vocational skills, including carpentry, we conclude that the petitioner's skilled trades endorsement authorized him to teach those courses.

The State Board held that Ziegler had been improperly terminated and directed Bayonne to reinstate him with back pay, less mitigation, "to a teaching assignment within the scope of his skilled trades certification . . . ."

The matter then returned to the administrative law judge for a determination with respect to Ziegler's damages. After a hearing, the administrative law judge held that Ziegler was entitled to $187,762.24 in back pay, and the Bayonne Board again appealed to the Commissioner. After reviewing the record, the Commissioner determined that there was no job available to Ziegler in the Bayonne school system after the 2002-2003 school year, even under the parameters set by the State Board. The Commissioner found that as of June 2003, Ziegler would have been subject to another reduction in force. Ziegler would have received a position on a preferred eligibility list because the only positions within his certification were held by members having greater seniority than he. The Commissioner thus reduced Ziegler's back pay award to $140,167.24. Both parties again appealed to the State Board, which affirmed this decision of the Commissioner. Each has appealed to this court.

We turn first to the issues presented in A-4199-07, in which the Bayonne Board argues that the State Board erred when it ruled Ziegler was entitled to reinstatement. It presents the following arguments for our consideration.

POINT I THE STATE BOARD VIOLATED FUNDAMENTAL DUE PROCESS BY UNILATERALLY CHANGING THE UNDERLYING ISSUES AND FACTS WITHOUT GIVING EITHER PARTY A CHANCE TO ADDRESS THESE NEW ISSUES AND FACTS.

POINT II THE STATE BOARD WAS EQUITABLY ESTOPPED FROM ORDERING REINSTATEMENT AND BACK PAY AGAINST THE BAYONNE BOARD OF EDUCATION.

POINT III THE STATE BOARD'S RETROACTIVE AWARD OF A TEACHING CERTIFICATE TO PETITIONER IS WITHOUT LEGAL AND FACTUAL SUPPORT.

POINT IV THE STATE BOARD OF EDUCATION IGNORED MORE THAN THIRTY YEARS OF PRECEDENTIAL DECISIONS REGARDING TEACHING CERTIFICATION.

POINT V THE STATE BOARD ERRED IN REFUSING TO ALLOW THE RECORD TO BE SUPPLEMENTED TO ADDRESS A GLARING FACTUAL DISCREPANCY IN ITS FINDINGS AND IN THE EVIDENTIAL RECORD.

POINT VI THE STATE BOARD'S CONCLUSION THAT THE FOUR COURSES TAUGHT BY PETITIONER ARE CARPENTRY COURSES IS WITHOUT SUPPORT IN THE RECORD.

POINT VII THE BACK PAY AWARD SHOULD HAVE BEEN REDUCED BASED ON PETITIONER'S ADMITTED FAILURE TO MITIGATE HIS DAMAGES.

POINT VIII ANY BACK PAY AWARD SHOULD BE REDUCED BASED ON THE EXTENSIVE DELAY IN THE ISSUANCE OF THE INITIAL DECISION IN THIS MATTER.

Our analysis of these contentions is guided by the well-settled principles of appellate review of such administrative determinations.

In administrative law, the overarching informative principle guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system. See In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). Consistency with that principle demands that an appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence. See In re Herrmann, 192 N.J. 19, 28 (2007) (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)); see also Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

When, however, an agency's construction and application of its enabling legislation is part of the appellate challenge, a reviewing court is not "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). That is so because it is the responsibility of a reviewing court to ensure that an agency's administrative actions do not exceed its legislatively conferred powers. That said, the breadth of an agency's authority encompasses all express and implied powers necessary to fulfill the legislative scheme that the agency has been entrusted to administer. See Cammarata v. Essex County Park Comm'n., 26 N.J. 404, 411 (1958) ("'The grant of an express power is always attended by the incidental authority fairly and reasonably necessary or appropriate to make it effective. Authority delegated to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent.'). Thus, administrative agencies are allowed some leeway to permit them to fulfill their assigned responsibilities. In sum then, subject to acting as a check to ensure that an agency does not exceed its statutory authority, a reviewing court should strive to 'give substantial deference to the interpretation [the] agency gives to a statute that the agency is charged with enforcing.'" Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005).

[In re Virtua-W. Jersey Hosp. Voorhees, 194 N.J. 413, 422-23 (2008).]

The Bayonne Board argues that the State Board's ruling is incorrect because Ziegler could have obtained a skilled trades certificate with a carpentry endorsement when he received his initial certificate; it contends that the ruling of the State Board is, in effect, a retroactive grant to Ziegler of a skilled trades endorsement with a carpentry endorsement. In support of its position, it points to a 1976 publication of the State Board which lists carpentry as a skilled trade.

We agree with the State Board that this 1976 publication cannot supersede the administrative code as it existed in 1982, when Ziegler received his certificate. The code did not then list carpentry (or any other trade) as an endorsement to a skilled trades certificate. N.J.A.C. 6:11-6.3(a)(2) (1982).

The code provision in force in 1982 only listed "Skilled Trades" as an endorsement, with a reference to "See Subchapter 8." Ibid. Subchapter 8 provided that for skilled trades certificates, applicants could submit six years of experience in a skilled trade in lieu of a bachelor's degree. N.J.A.C. 6:11-8.4(b)(19) (1982); 16 N.J.R. 1664 (July 2, 1984).

The State Board thus reasonably determined that although it was possible in 1982 to obtain a general certificate in skilled trades based on having six years of experience in a skilled trade, it was not possible in 1982 to obtain a certificate endorsed for that particular skilled trade.

We disagree with the argument of the Bayonne Board that the result of the decision by the State Board flies in the face of established precedent that a teacher's qualifications to teach a course are determined by the county superintendent, the Department of Education or the terms of the individual's certificate. In support of this argument, the Bayonne Board points to the several communications from the Office of Licensing and Certification which we set forth earlier in this opinion. Those referred, however, to Ziegler being unqualified to teach "industrial arts." He has not asserted in this litigation that he is entitled to teach industrial arts. His qualification to teach should not turn upon the departmental classification the Bayonne Board awards to particular classes. That the Bayonne Board, for instance, places "Maintenance & Repair" within the industrial arts department of the high school does not mean that the substance of the course constitutes industrial arts.

The State Board's decision does not undermine the reliability of a teacher's certificate. The State Board's determination rests upon the permissible forms of certificates in 1982.

We reject the Bayonne Board's argument that Ziegler lacked the qualifications to teach the courses he was assigned to teach at the time of his termination. R. 2:11-3(e)(1)(D).

Similarly, we find no merit to its argument that the State Board is equitably estopped from ordering Ziegler's reinstatement and directing an award of back pay. The Bayonne Board rests its argument in this regard upon its contention that both the county superintendent of schools and the Office of Licensing and Certificates advised it that it had to terminate Ziegler.

"The doctrine of equitable estoppel prevents a party from repudiating prior conduct if such repudiation would not be responsive to the demands of justice and good conscience." State v. King, 340 N.J. Super. 390, 398-99 (App. Div. 2001). It should only be utilized in "compelling circumstances" and "is rarely invoked against a government entity. . . ." Id. at 399. To prevail on a claim of equitable estoppel, a party must demonstrate that the representation was intentionally made or that it was clear it would induce reliance. Miller v. Miller, 97 N.J. 154, 163 (1984). Further, the party must show that it relied on that representation to its detriment. Ibid.

This record does not support the Bayonne Board's claim of equitable estoppel. We note, for instance, that with respect to the statements of the county superintendent contained in the correspondence we have noted, the letters were sent in December 1998. The Bayonne Board, however, decided in November 1998 to terminate Zeigler, prior to receipt of those letters. The December 1998 letters, moreover, state that Zeigler was not qualified to teach industrial arts. That was not Zeigler's contention, however. He maintained that the courses he taught were not fairly characterized as industrial arts courses.

The Bayonne Board argues that it was unfairly denied the opportunity to supplement the record with an employment application Ziegler submitted to the Bayonne Board. That application stated that while he was in the military, he was in the "Special Forces (Green Berets)." This, the Bayonne Board contends, conflicts with Ziegler's application for a certificate in skilled trades which stated he had six years of carpentry experience in the military and two years in civilian life. The Bayonne Board, however, had this application from the outset and never sought to challenge Ziegler's initial entitlement to his certificate. The State Board correctly refused to permit it to do so at such a late date.

We thus affirm the determination of the State Board in A-4199-07 that Ziegler's termination was in derogation of his tenure rights and that he was entitled to reinstatement.

We turn now to A-4189-07 in which Ziegler contends that his award of back pay was erroneously reduced. We have reviewed this record in light of the contentions advanced by both parties. We are satisfied that the award finds support in the record and cannot fairly be characterized as arbitrary, capricious or unreasonable. We thus affirm it. R. 2:11-3(e)(1)(D).

Affirmed on both A-4199-07 and A-4189-07.

 

(continued)

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A-4189-07T3

August 4, 2009