ROBERT JEANNETTE - v. BOARD OF EDUCATION OF THE WEST ESSEX REGIONAL SCHOOL DISTRICT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1013-09T31013-09T3

ROBERT JEANNETTE,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

WEST ESSEX REGIONAL SCHOOL

DISTRICT, ESSEX COUNTY,

Respondent-Respondent.

________________________________

 

Argued May 18, 2010 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from a Final Decision of the Commissioner of Education, No. 119-5/08.

Gregory T. Syrek argued the cause for appellant (Bucceri & Pincus, attorneys; Mr. Syrek, of counsel and on the brief).

Stephen R. Fogarty argued the cause for respondent Board of Education of the West Essex Regional School District (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 (Jennifer L. Campbell, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Robert Jeanette appeals from the September 16, 2009 final decision of the Commissioner of Education (Commissioner), dismissing his petition of appeal for lack of jurisdiction. We affirm.

Appellant was a non-tenured, full-time custodian in the school district of respondent Board of Education of the West Essex Regional School District (Board). The terms and conditions of his employment were governed by a collectively negotiated agreement between the Board and the West Essex Custodian/Maintenance Association (CNA).

Regarding sick leave, the CNA requires a custodian to provide a doctor's note "at the request of the Superintendent [of Schools]" verifying the illness. The CNA also requires a custodian to file a grievance if he or she "has suffered harm by the interpretation, application or violation of policies, agreements, and administrative decisions affecting the [CNA]."

Appellant began his employment on January 8, 2001, as an Assistant Supervisor of Buildings and Grounds. He was promoted to Supervisor of Buildings and Grounds but the Board subsequently terminated that position. On October 8, 2007, appellant was appointed as a full-time custodian. The next day, he went out on sick leave and never returned to work.

Despite the Superintendent's requests, appellant never provided a doctor's note verifying the nature and extent of his alleged illness. As a result, the Superintendent directed appellant to submit to a physical examination by the school doctor. Appellant appeared for the examination but refused to complete medical forms necessary for the doctor to examine him, and left without undergoing the examination.

Appellant was suspended without pay. The Superintendent then advised appellant that he would recommend that the Board terminate appellant's employment for insubordination based on his failure to verify his illness.

Appellant attended a hearing before the Board with a representative of his own choosing, and was provided the opportunity to present witnesses and evidence, and to cross-examine witnesses. Immediately after the hearing, the Board passed a resolution adopting the Superintendent's recommendation and terminating appellant's employment for cause based on insubordination. At the time of his termination, appellant had been on sick leave for five months, and he never verified the nature and extent of his alleged illness.

Appellant did not file a grievance, as required by the CBA. Instead, on May 1, 2008, he filed a petition with the Commissioner, seeking reinstatement, back pay, and benefits. He contended that the Superintendent lacked authority under N.J.S.A. 18A:16-2 to direct him to undergo a medical examination, and thus, his termination was arbitrary, capricious and unreasonable because it was based on an unsupported allegation of insubordination. The Board responded, in part, that the Commissioner lacked jurisdiction because the CBA, not N.J.S.A. 18A:16-2, governed the matter.

An Administrative Law Judge (ALJ) subsequently issued an initial decision agreeing with the Board. However, instead of dismissing the petition for lack of jurisdiction, the ALJ reached the merits of the dispute and concluded that appellant's refusal to submit to the examination without just cause constituted insubordination.

In a written decision, the Commissioner rejected the ALJ's initial decision and dismissed the petition for lack of jurisdiction, concluding, in part, that

N.J.S.A. 18A:16-2 does not apply in this matter and that resolution of the parties' dispute necessarily turns on the extent of their respective rights, and the propriety of their respective actions, as employer and employee under a collectively negotiated agreement -- determinations which the Commissioner of Education has no authority to make because such issues do not arise under the school laws notwithstanding that they occur in a school setting.

On appeal, appellant contends that the Commissioner has jurisdiction over this matter, that the Superintendent lacked authority to direct him to undergo a physical examination, and that his termination must be set aside.

Having considered these contentions in light of the record and applicable law, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the Commissioner in her written decision of September 16, 2009. R. 2:11-3(e)(1)(D).

 
Affirmed.

(continued)

(continued)

5

A-1013-09T3

June 4, 2010