SHARON FRANCIN v. MAYWOOD BOARD OF EDUCATION BERGEN COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0450-09T30450-09T3

SHARON FRANCIN,

Petitioner-Appellant,

v.

MAYWOOD BOARD OF EDUCATION,

BERGEN COUNTY,

Respondent-Respondent.

_______________________________

 

Argued April 20, 2010 - Decided

Before Judges Grall and Messano.

On appeal from the Commissioner of

Education, Docket No. 179-6/08.

Louis P. Bucceri argued the cause for

appellant (Bucceri & Pincus, attorneys;

Mr. Bucceri, of counsel and on the brief).

Stephen R. Fogarty argued the cause for

respondent Maywood Board of Education

(Fogarty & Hara, attorneys; Mr. Fogarty,

of counsel and on the brief; Cameron R.

Morgan, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent Commissioner of Education

(Bryant Lawrence Horsley, Jr., Deputy

Attorney General, on the statement in

lieu of brief).

PER CURIAM

Sharon Francin is a certified physical education teacher but is not certified to teach health. She was formerly employed in the position of teacher of physical education by the Maywood Board of Education. Francin appeals from a final decision of the Commissioner of Education dismissing her challenge to the Board's adoption of a resolution abolishing the position of teacher of physical education and creating instead the position of health and physical education teacher. The resolution left Francin without the necessary qualifications for a position available in the district and resulted in her termination.

On appeal Francin contends the Commissioner erred in concluding: that the Board's resolution was authorized by N.J.S.A. 18A:28-9; that she was not deprived of tenure and seniority rights in violation of either N.J.S.A. 18A:28-5 or N.J.A.C. 6A:32-5.1; and that she was not entitled to reinstatement due to the Board's failure to adopt a resolution removing her in accordance with N.J.S.A. 18A:27-4.1(a). Substantially for the reasons stated in the Commissioner's comprehensive written decision of August 20, 2009, we reject these claims and affirm.

The parties stipulated to the pertinent facts. Francin was hired for the position of teacher of physical education commencing in September 2000. Between September 2000 and June 2006 her assignments for each school year were mixed: she taught classes in physical education and health, or classes in physical education and family life, or classes in physical education, health and family life. In August 2006, the State Department of Education advised the Board that Francin lacked the certification required to teach health.

Francin, who had earned tenure, was encouraged to obtain the additional endorsement, and teaching schedules in the district were rearranged so that she taught no classes other than those she was qualified to teach physical education. That was her assignment between September 2006 and June 2008.

On April 28, 2008, the Board adopted a resolution abolishing the district's physical education teacher positions and creating positions for teachers of health and physical education. The resolution states the Board's purpose as follows: "to achieve greater efficiency through having a multidisciplinary teaching position and greater economy through employing a single teacher for both health and physical education."

On May 8, 2008, Francin, who had not obtained the additional endorsement required to teach health, was notified that her employment in the district would cease on June 30, 2008. After Francin's departure, teachers serving in the newly-created position had the necessary qualifications. Two did not have tenure, including one hired for the 2008-2009 school year. Of the two tenured teachers retained, one had less and one more seniority than Francin. Between September 2008 and February 2009, the tenured teacher with less seniority than Francin was not assigned to teach health.

Upon receipt of Francin's challenge to the Board's action, the Commissioner referred the contested case to the Office of Administrative Law. An Administrative Law Judge (ALJ) entertained cross-motions for summary disposition submitted on stipulated facts. The ALJ recommended that the Commissioner enter a decision in favor of the Board and dismiss Francin's position with prejudice. After considering and addressing Francin's exceptions, the Commissioner issued a written decision adopting the ALJ's decision and dismissing Francin's challenge.

Courts disturb an agency determination only when: "(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." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). In recognition of the Commissioner's "superior knowledge" of the field, courts afford special deference to the Commissioner's expertise in matters of school administration and education. D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 16 (App. Div.) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)), certif. denied, 196 N.J. 346, cert. denied, ___ U.S. ___, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). Moreover, although courts are "'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue,'" they "[g]enerally . . . afford substantial deference to an agency's interpretation of a statute that it is charged with enforcing." Univ. Cottage Club, supra, 191 N.J. at 48-49 (quoting In re Taylor, 158 N.J. 644, 658 (1999)). Consequently, if the head of an agency has interpreted a statute in a manner that is "reasonably debatable," courts should accept it. Borough of N. Haledon v. Bd. of Educ. of Manchester Reg'l High Sch. Dist., 305 N.J. Super. 19, 27 (App. Div. 1997), certif. denied, 152 N.J. 363 (1998).

With those standards in mind, we reject Francin's claim that the Commissioner's interpretation and application of the statutes and regulations at issue is erroneous.

N.J.S.A. 18A:28-9 provides:

Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article.

Assessing the stipulated facts, the Commissioner determined that the Board's resolution was reasonable and adopted with the goal of reducing teaching staff by providing greater flexibility in assigning teachers of classes in health and physical education. Reasoning that N.J.S.A. 18A:28-9 does not require immmediate achievement of the desired reduction in staff, the Commissioner rejected Francin's claim that the statute did not apply because a teacher of health and physical education was hired after she left the district. The assessment of the immediacy with which a staff reduction must be accomplished in order to comply with N.J.S.A. 18A:28-9 is a matter best addressed by one with the Commissioner's special knowledge and expertise. In our view, the Commissioner's determination that the Board's action was within the authority granted by N.J.S.A. 18A:28-9 is not in conflict with the express terms of the statute and is sufficiently consistent with the apparent purpose to warrant deference under our standard of review. We stress that the stipulated facts did not require the Commissioner to conclude that the Board's action was arbitrary, capricious or taken in bad faith.

Francin's claim that the Commissioner erred in finding no violation of her tenure and seniority rights is fully addressed in the Commissioner's decision, with which we agree. The Commissioner deemed Francin's lack of the essential qualifications to be determinative of these claims. In the Commissioner's view, because Francin was not qualified for any available position in the district, her tenure and seniority were immaterial. The decisions upon which Francin relies, as noted by the Commissioner, are distinguishable on the ground that Francin was not qualified for any position in the district.

Francin also argues that the Commissioner erred in rejecting her claim of entitlement to be reinstated because the Board did not adopt a resolution specifically terminating her employment. Francin relies upon N.J.S.A. 18A:27-4.1(a), which permits removal of an employee upon the recommendation of the chief school administrator and the Board's adoption of a resolution accepting that recommendation. This case, however, involves a teacher who was employed in a position eliminated by a resolution of the Board. Francin's objection to the Commissioner's conclusion that compliance with N.J.S.A. 18A:27-4.1(a) was not essential in this circumstance does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

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A-0450-09T3

May 10, 2010