LINDA AIELLO v. BOARD OF EDUCATION OF WESTWOOD REGIONAL SCHOOL DISTRICT, BERGEN COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5896-07T15896-07T1

LINDA AIELLO,

Appellant,

v.

BOARD OF EDUCATION OF

WESTWOOD REGIONAL SCHOOL

DISTRICT, BERGEN COUNTY,

Respondent.

__________________________

 

Argued March 17, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from the State Board of Education.

Sanford R. Oxfeld argued the cause for appellant (Oxfeld Cohen, PC, attorneys; Mr. Oxfeld, on the brief).

Rodney T. Hara argued the cause for respondent Westwood Regional Board of Education (Fogarty & Hara, attorneys; Mr. Hara, of counsel; Mr. Hara and Janet L. Parmelee, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey State Board of Education (Bryant Lawrence Horsley, Jr., Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Linda Aiello appeals from the June 25, 2008 final decision of the State Board of Education (Board), affirming the decision of the Commissioner of Education (Commissioner) denying petitioner's claim that she was entitled to be placed in a non-tenured teaching position upon the elimination of her position as a school social worker in the Westwood Regional School District (District). For the reasons that follow, we affirm.

Petitioner became employed by the District as a school social worker on November 1, 1995; she acquired tenure in that title three years later. Petitioner was never employed as a teacher in the District.

Petitioner's social worker position was terminated at the end of the 2006-2007 school year. She thereupon applied for a teaching position in kindergarten through eighth grade. The District did not hire her as a teacher and continued to employ other teachers in those grades who were not tenured.

Petitioner filed an appeal to the Commissioner claiming that she was entitled to a teaching position. The matter was referred to the Office of Administrative Law, and on February 6, 2008, an administrative law judge (ALJ) rendered a decision based upon stipulated facts, including the following:

[Petitioner] was employed by the Board as a school social worker for the District since November 1, 1995. She possesses a school social worker certificate which was required for the position of school social worker. [Petitioner] continued employment as a school social worker for the District until June 30, 2007. . . .

As a result of her employment with the Board, [petitioner] acquired tenure as a school social worker in the District.

[Petitioner] possesses an elementary school teacher certificate which she held at the time she was first employed by the Board. She was, however, never employed as an elementary teacher by the Board.

. . . .

By letter, dated May 11, 2007, . . . the Superintendent of Schools/Board Secretary for the District . . . notified [petitioner] of the Board's decision to abolish a school social worker position and create an additional learning disabilities teacher-consultant position as part of the reorganization of the special services department and, as the least senior social worker, that [petitioner's] employment with the Board w[ould] be terminated at the end of the 2006-2007 school year . . . .

. . . .

[Petitioner] submitted a letter to the Superintendent, dated June 4, 2007, wherein she applied for a kindergarten through eighth grade teaching position in the District and included a copy of her certificate . . . . In addition, [petitioner] requested that she be considered for the [substance awareness coordinator (SAC)] position available within the District . . . .

The Superintendent noted in [a] letter [to petitioner] that although [petitioner] had expressed an interest in the SAC position, she did not possess a substance awareness coordinator endorsement pursuant to N.J.A.C. 6:9-13.2 . . . .

[Petitioner] does not possess a substance awareness coordinator endorsement on her educational services certificate . . . .

The Board did not hire [petitioner] as a substance awareness coordinator or an elementary teacher for the 2007-2008 school year. . . .

For the 2007-2008 school year, the Board has employed elementary teachers who are not tenured. In addition, the person hired as the substance abuse awareness coordinator is not tenured.

Based upon the stipulated facts, the ALJ found that petitioner had acquired tenure in the District under her school social worker certificate, and not under her elementary school teacher certificate. As petitioner herself was "forced to acknowledge[,]" the ALJ noted that petitioner "does not have any tenure rights in the teaching position to which she applied because her tenure was under her educational services certificate, not her instructional certificate."

The ALJ concluded that petitioner "does not have any seniority or priority rights to positions available under different certificates, namely the instructional certificate, as tenure does not apply across certificates." Therefore, the ALJ found that

petitioner, despite her tenure status under an educational services certificate, does not have rights over a non-tenured applicant to a teaching position simply because the petitioner is also certified and endorsed to teach that subject. Since neither tenure nor seniority applies across certificates, the petitioner's claim in this regard is without merit.

Finally, the ALJ rejected petitioner's argument "that the positions of social worker and learning disabilities teacher are fungible." The ALJ found that this

is certainly not the case. The services of a school social worker . . . and learning disabilities teacher-consultant are distinct from one another. The fact that they may all serve on a child study team does not make their positions interchangeable. . . . [A] social worker cannot perform the duties of a learning disabilities teacher.

On March 20, 2008, the Commissioner adopted the Initial Decision of the ALJ, and similarly concluded that "[p]etitioner is not a tenured teacher, but rather is tenured exclusively as a school social worker under an educational services certificate. Any tenure rights that she possesses are restricted to other positions in that certification." On June 25, 2008, the Board affirmed the Commissioner's decision "for the reasons stated therein."

At the outset, we note that the scope of our review of a final decision by a state administrative agency is deferential and strictly limited. Univ. Cottage Club v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007).

We will not reverse an agency's decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record.

[Ibid.]

On appeal, petitioner contends that she "can make a claim to a non-tenured [e]lementary [s]chool [t]eacher position . . . , despite the fact that she never was employed as an [e]lementary [s]chool [t]eacher in th[e] District, by virtue of her coming into the District already possessing [an] [e]lementary [s]chool [t]eacher certification." Petitioner supports this contention with the same cases she cited before the ALJ and the Commissioner, both of whom found such cases to be factually distinguishable from petitioner's situation, a conclusion with which we concur.

For example, in Capodilupo v. Bd. of Educ., 218 N.J. Super. 510 (App. Div.), certif. denied, 109 N.J. 514 (1987), and in Bednar v. Westwood Bd. of Educ., 221 N.J. Super. 239 (App. Div. 1987), certif. denied, 110 N.J. 512 (1988), the petitioners each had tenure under the certificates required for the new positions sought. In Capodilupo, supra, 218 N.J. Super. at 513, petitioner "had been employed by the Board for five consecutive school years teaching secondary school physical education classes. He held the required State-issued teaching certificate endorsed in both elementary and secondary physical education and had acquired tenure." In those circumstances, we upheld the Board's decision that "a tenured teacher seeking reinstatement within the endorsements on his or her certificate is entitled to preference in a RIF [reduction in force] as against a non-tenured applicant with the same certification." Id. at 515.

In Bednar, supra, 221 N.J. Super. at 240, the petitioner was "a tenured teacher holding an instructional certificate with a comprehensive subject field endorsement in art. He worked as a full-time elementary art teacher in the Westwood school system for 17 years . . . ." When the petitioner's position as an elementary art teacher was reduced to part-time, he appealed to the Commissioner asserting that the reduction in his hours violated his tenure and seniority rights; the Commissioner denied his appeal and the Board affirmed. Ibid. We reversed, finding merit in the petitioner's argument that "his tenure as an art teacher g[ave] him the right to avoid a RIF by claiming the secondary school job of a non-tenured art teacher with experience in the specific category of secondary art." Id. at 241.

Considering these significant factual discrepancies, we are satisfied that petitioner's claim here that "[t]he posture of the Bednar case is identical to the posture in the instant matter[,]" is without merit.

Similarly, in Ellicott v. Bd. of Educ., 251 N.J. Super. 342, 346 (App. Div. 1991), upon which petitioner also relies, the petitioner held an educational services certificate with endorsements as a speech language specialist and a learning disabilities teacher-consultant (LDTC). She had acquired "tenure in all positions for which her educational services certificate qualified her, including the LDTC position . . . ." Id. at 345. When the defendant created a full-time LDTC position, the petitioner claimed entitlement to that position by virtue of her tenure status; however, a non-tenured teaching staff member was hired to fill the position. Id. at 346. On appeal, the Board found that the "petitioner's tenure was achieved by virtue of service under the educational services certificate . . . ." Ibid.

In affirming, we noted:

The State Department of Education regulations provide for three types of regular certifications: instructional; administrative, and educational services. N.J.A.C. 6:11-2.3. The Board of Examiners may issue for each teaching, administrative or educational services position a "special endorsement" under the appropriate certificate. Id. Under each certification there are numerous "special endorsements" required for teaching staff member assignments in specific fields. . . . A teaching staff member holding an educational services certificate is qualified to serve in any assignment under that certificate for which he or she holds the requisite endorsement. Also, teachers holding an instructional certificate are authorized and qualified for service under the certificate for which the member possesses the appropriate endorsement. N.J.A.C. 6:11-6.1 to -8.7. Thus, . . . the regulations enumerate endorsements under the certificates which, if acquired, qualify the teaching staff member to be assigned to the endorsement position.

[Id. at 348-49.]

Because the petitioner "ha[d] experience in the LDTC field under her LDTC endorsement and, as a speech correctionist for the last nine years, [and] . . . had continued involvement with the LDTCs within the school district as part of its child study team operations and in her other duties[,]" id. at 351-52, we determined that the petitioner, "by virtue of a reduction in force, . . . was entitled to the LDTC position over that of a nontenured teaching staff member." Id. at 345.

Finally, in Dennery v. Bd. of Educ., 131 N.J. 626, 638 (1993), the Supreme Court noted that "tenure accrues to a teaching staff member under a certificate only if he or she has also served in a position under that same certificate for a requisite period of time." The Court reinforced the "definitive requirement that a teacher actually perform duties under the relevant certificate in order to obtain tenure under that certificate." Id. at 639 (citing Spiewak v. Bd. of Educ., 90 N.J. 63, 74 (1982)).

As all of these cases make clear, petitioner's acquisition of tenure under her educational services certificate did not afford her any seniority or priority rights to positions, made available by virtue of a RIF, that required an instructional certificate.

Based on the foregoing, we affirm substantially for the reasons set forth in the Initial Decision of the ALJ, as adopted by the Commissioner and affirmed by the Board.

Affirmed.

 

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A-5896-07T1

June 25, 2009