DOMENICK MALINCONICO - v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4015-09T3

DOMENICK MALINCONICO,

Petitioner-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT

OF THE CITY OF NEWARK, ESSEX

COUNTY,

Respondent-Respondent.

_____________________________________

December 10, 2010

Argued October 27, 2010 - Decided

Before Judges Fuentes and Nugent.

On appeal from the State Department of Education, Docket No. 260-9/09.

Domenick Malinconico, appellant, argued the cause pro se.

Bernard Mercado, Associate Counsel, argued the cause for respondent State Operated School District of Newark (Lisa J. Pollak, General Counsel, attorney; Mr. Mercado, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Department of Education, Commissioner of Education (Joyce D. Williams, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Domenick Malinconico appeals pro se from the final decision of the Commissioner of Education, adopting the initial decision of the Administrative Law Judge (ALJ) dismissing appellant's petition for lost wages and emotional distress. We affirm.

Appellant began substitute teaching for respondent State Operated School District for the City of Newark (the "District") in 1984. On June 9, 2008, the District sent appellant a letter of "Reasonable Assurance of Employment" informing him the District was "placing [him] on [the] active Per Diem list for the 2008 - 2009 school year" and that he would be contacted "for work when school commences on September 8, 2008 on an as needed basis." On January 21, 2009, appellant spoke with the substitute teacher placement administrator who told him Ron Hale, the District's risk manager, instructed her to place appellant on inactive status. The administrator could provide no explanation for the status change.

Seeking an explanation for his placement on inactive status, appellant had an attorney write to the Executive Director of the District's Human Resources Services on January 27, 2009. The attorney received no response. On May 4, 2009, the attorney again wrote to the Executive Director of the District's Human Resources Services. The attorney confirmed that "Mr. Ron Hale indicated that Mr. Malinconico would not be returned to the active list as a substitute teacher," and requested "a written explanation as to why [Mr. Malinconico] has been removed from the active list." Neither appellant nor the attorney received a response to the letters.

Receiving no response to the letters, appellant filed a complaint in Superior Court on July 30, 2009, seeking compensation for lost wages and damages for emotional distress. The complaint was dismissed for lack of subject matter jurisdiction on December 4, 2009.

While the Superior Court action was pending, appellant filed on September 25, 2009, a petition of appeal with the Department of Education, but did not serve it on the District. Appellant subsequently perfected service and filed a completed petition on October 5, 2009. In his petition, appellant claimed that he was entitled to lost wages as a result of improperly being placed on inactive status from January 21, 2009 through June 8, 2009.1 Appellant also claimed he was entitled to damages for emotional distress.

Appellant's petition was forwarded to the Office of Administrative Law on November 19, 2009. The ALJ conducted a pre-hearing telephone conference on December 7, 2009, set a briefing schedule for motions for summary decision, and scheduled a hearing for February 18, 2010. Appellant subsequently filed a petition for emergent relief which was denied.

The ALJ issued an initial decision on February 1, 2010, granting the District's motion for summary disposition, and dismissing the petition. The ALJ held that the petition was not filed within ninety days of appellant "first learn[ing] that he had been placed on 'inactive status' on January 21, 2009," as required by N.J.A.C. 6A:3-1.3(i). Acknowledging limited circumstances under which the "90-day rule" may be relaxed, the ALJ noted that "[t]he petitioner has not come forward with any argument that the right he is asserting, i.e., to be called as a substitute for work on a daily basis, has constitutional implications or promotes some wider public interest," and therefore found no basis to relax the 90-day rule.

The ALJ also addressed the substantive claims in the petition. The ALJ held that the June 2008 letter of "Reasonable Assurance of Employment" did not create a binding contract between the District and appellant and did not bind the District to call appellant for work. Concluding that appellant had no contractual or statutory right to be called to work as a substitute teacher, the ALJ ruled there was no statutory or regulatory authority that permitted the award of money damages to appellant.

Appellant filed exceptions to the ALJ's decision. On March 11, 2010, the Commissioner of Education in a written decision adopted the Initial Decision of the ALJ as the Final Decision in the case. The Commissioner explained:

In the Initial Decision on the merits, the Administrative Law Judge (ALJ) concluded that petitioner's appeal was untimely, in that it was filed past the 90 day period allowed by N.J.A.C. 6A:3-1.3(i). More specifically, the ALJ found that petitioner admittedly learned of his removal from the active substitute list on January 21, 2009, but did not file his petition until October 1, 2009. After reviewing the Initial Decision, the record, and the exceptions submitted by the parties, the Commissioner concurs with the ALJ for the reasons articulated in the Initial Decision that the petition was untimely.

...

The ALJ [also] found that the Commissioner has no jurisdiction over petitioner's claims because they are not grounded in school law. Upon review, the Commissioner agrees with the ALJ's conclusions. Petitioner was a substitute teacher, serving the respondent under a county substitute certificate authorizing nothing more than day-to-day substitution for regularly employed teaching staff members for limited periods of time. The only "employment relationship" petitioner had with respondent was inclusion on its list of qualified persons who could be called, on an "as-needed" basis, to fill in for absent teachers.

As an on-call, day-to-day substitute, petitioner was not a teaching staff member; rather, he was an occasional, non-contractual, "at-will" employee with no basis on which to claim entitlement to current, past or future employment. While petitioner may have enjoyed his work as a substitute teacher, and while he may believe that respondent's decision not to continue using him in that capacity was unwarranted, in the absence of factually supported allegations that respondent's action was taken in violation of a specific law, petitioner has no entitlement to a plenary hearing and there is no basis on which the Commissioner could order respondent to reverse its decision.

Finally, petitioner's objection, in his exceptions, to the ALJ's summary decision suggests a lack of understanding of the contested case process. As the Initial Decision explains, the absence of material disagreement between the parties concerning the factual basis of the controversy eliminated the need for a plenary hearing and allowed summary disposition based upon the applicable law. A review of the audio tape of the January 8, 2010 hearing concerning petitioner's application for emergent relief reveals that the ALJ advised petitioner on that occasion that the plenary hearing might be unnecessary. She clearly explained that she might issue a summary decision prior to the date that had been tentatively scheduled for a hearing.

Appellant filed this appeal on April 16, 2010. As he did before the ALJ and the Commissioner, appellant contends the District should have officially notified him of his placement on inactive status. He maintains the District had no reason to place him on inactive status, so he is entitled to be paid for the time he missed from work. Finally, he argues that the ALJ improperly decided his case by way of summary decision.

"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." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "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." Ibid. This standard includes appellate review of administrative decisions involving "disputes arising under school laws." Kaprow v. Board of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v. Board of Educ., 131 N.J. 626, 641 (1993); Dore v. Board of Educ., 185 N.J. Super. 447, 452 (App. Div. 1982)).

We have considered appellant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the ALJ and by the Commissioner. R. 2:11-3(e)(1)(D).

Affirmed.

1 In paragraph seven of his Superior Court complaint, appellant alleged he was called on June 8, 2009, to substitute from June 9 to June 26, 2009. However, he was told on June 25, 2009, he should not be working because he had not been removed from the inactive list and a computer error had resulted in his being called to work.