BEATRIZ ASHE v. THE STATE OPERATED SCHOOL DISTRICT OF THE CITY OF PATERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1307-11T3

BEATRIZ ASHE,

Petitioner-Appellant,

v.

THE STATE OPERATED SCHOOL

DISTRICT OF THE CITY OF

PATERSON, PASSAIC COUNTY,

Respondent-Respondent.

December 26, 2012

Submitted December 3, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Department of Education, Docket No. 411-8/10.

Bucceri & Pincus, attorneys for appellant (Louis P. Bucceri, of counsel; Albert J. Leonardo, on the brief).

Schenck, Price, Smith & King, attorneys for respondent State Operated School District of the City of Paterson, Passaic County (Sidney A. Sayovitz, of counsel and on the brief; Joseph L. Roselle, on the brief).

Jeffrey S. Chiesa, Attorney General,attorney for respondent Commissioner of Education (Geoffrey N. Stark, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Beatriz Ashe appeals from the October 14, 2011 decision of the Commissioner of Education (Commissioner) denying her motion to reinstate her petition of appeal challenging her placement on the school district's seniority list, which she had previously withdrawn with prejudice. We affirm.

Some background is in order. Appellant was a tenured Spanish teacher in the State-operated school district of the City of Paterson (District). In May 2010, pursuant to a reduction in force (RIF) implemented in the 2010-2011 school year, the District eliminated hundreds of teaching positions, including appellant's, based on their level of seniority as reflected on a list developed by the District. Appellant, along with approximately ninety other affected tenured teachers, filed petitions of appeal with the Commissioner challenging their termination and alleging that their placement on the seniority list was incorrect.

The matters were transmitted to the Office of Administrative Law (OAL), where they were consolidated. Extensive discovery ensued. Over the course of the next eleven months, the parties reviewed multiple drafts of an evolving seniority list, based on employment records produced by the District and other information provided by the petitioners. On August 1, 2011, the parties agreed that the finalized seniority list for each position affected by the RIF was accurate and, through counsel, represented their agreement to the Administrative Law Judge (ALJ) hearing the petitions. In reliance upon the completed seniority list, the District budgeted the approximate amount of $500,000 for settlement of any claims that had merit, since it became evident that the tenure rights of some of the petitioners had been violated.

In further reliance, counsel for petitioners notified those clients who had no valid claim to any position based on their placement level on the agreed-upon seniority list and sought their consent to withdraw their petitions of appeal. Because she was so low on the list, appellant and her counsel concluded that she had no valid claim and consequently withdrew her petition with prejudice prior to the administrative hearing. In an August 15, 2011 letter to the ALJ, appellant's counsel informed:

As a result of the course of discovery and the finalization of the corrected 2010 seniority lists by the Paterson School District, my client and I have concluded that there is no basis for a claim to relief in her case for the 2010-11 school year. Accordingly, pursuant to N.J.A.C. 1:1-19.2, the petition in this matter is hereby withdrawn with prejudice as to any claim for the 2010-11 school year. This withdrawal is without prejudice to any and all tenure, seniority and/or recall rights which my client may have as to future school years and those rights are not waived by this withdrawal.

Based on this request, appellant's petition was withdrawn with prejudice, effective August 15, 2011.

Thereafter, appellant's counsel was told by another of his clients that the seniority list as it pertained to District Spanish teachers may be incorrect based on employment history information contained in questionnaires prepared by the Paterson Education Association (PEA) and filled out by petitioners in advance of their filing their petitions of appeal. Apparently, the completed questionnaires had not previously been shared between the affected teachers and their counsel nor had the PEA provided them to the District until ordered to do so by the ALJ on September 15, 2011. Consequently, on September 7, 2011, appellant moved before the Commissioner to vacate her withdrawal and reinstate her petition pursuant to N.J.A.C. 1:1-19.2(c).

In a letter opinion of October 14, 2011, the Commissioner denied the motion, reasoning:

The petitioner's voluntary withdrawal occurred after several months of discovery during which the District had produced its employment records and multiple versions of the evolving seniority list. Certainly, the petitioner was not required to accept the District's final seniority list as accurate nor was she prohibited from continuing to pursue her claims through the contested case process at the Office of Administrative Law (OAL). But instead, petitioner and her counsel concluded that there was no valid basis for her claim and she freely opted to withdraw her petition prior to a hearing at the OAL. More importantly, petitioner voluntarily withdrew her petition with respect to any claims related to the 2010-2011 school year with prejudice. A withdrawal with prejudice amounts to a final disposition on the matter and effectively bars any subsequent litigation of the same claim. See generally, Feinsod v. Noon, 261 N.J. Super. 82, 84 (App. Div. 1992) (citations omitted). Therefore, reopening the petition at this juncture without any valid justification for such relief would be prejudicial to the District.

On appeal, appellant raises the following issues:

I. THE INEQUITIES OF THE SITUATION PRESENTED IN PETITIONER ASHE'S CASE SHOULD HAVE RESULTED IN THE USE OF THE AGENCY'S INHERENT POWER TO REOPEN ASHE'S PETITION.

A) AN ADMINISTRATIVE AGENCY HAS THE INHERENT POWER TO REOPEN ITS DECISIONS.

B) ASHE'S UNIQUE CIRCUMSTANCES REQUIRED SUCH A REOPENING.

II. THE COMMISSIONER'S DECISION SHOULD BE REVERSED BECAUSE IT LACKED SUFFICIENT REFERENCE TO AND ANALYSIS OF THE RELEVANT FACTS.

Our review of an administrative agency decision is limited. We will only reverse a decision of an administrative agency if it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997). "If the original findings are supported by substantial credible evidence in the record as a whole, we must accept them." Outland v. Bd. of Trustees of the Teachers' Pension & Annuity Fund, 326 N.J. Super. 395, 400 (App. Div. 1999).

Although we must "defer to an agency's expertise and superior knowledge of a particular field[,]" ibid., we "need not defer to an agency's determination of a question of law not inextricably related to the agency's expertise[,]" Steinmann v. State, Dep't of Treasury, 116 N.J. 564, 576 (1989). Moreover, "[w]hen an agency's decision is manifestly mistaken . . . the interests of justice authorize a reviewing court to shed its traditional deference to agency decisions." P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 530 (1995). Governed by this standard, we discern no error, must less "manifest mistake[]," in the Commissioner's denial of appellant's motion to rescind her withdrawal and to reinstate her petition.

"In the absence of some legislative restriction, administrative agencies have the inherent power to reopen or to modify and to rehear orders that have been entered." Burlington Cnty. Evergreen Park Mental Hosp. v. Cooper, 56 N.J. 579, 600 (1970). This power to reopen proceedings may be invoked by administrative agencies upon a showing of "good cause[.]" In re Van Orden, 383 N.J. Super. 410, 419 (App. Div. 2006). "Good cause may be established by showing that reopening proceedings would 'serve the ends of essential justice and the policy of the law[.]'" Id. at 421 (quoting Handlon v. Belleville, 4 N.J. 99, 107 (1950)).

Here, appellant has simply failed to establish "good cause" for reopening of the dismissal. In the first place, she withdrew her petition with prejudice. A dismissal with prejudice "constitutes an adjudication on the merits as 'fully and completely as if the order had been entered after a trial.'" Velasquez v. Franz, 123 N.J. 498, 507 (1991) (quoting Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972)). Indeed, the "with prejudice" feature of the dismissal connotes finality, affirmatively foreclosing the right to maintain an action on the same cause or claim. See Black's Law Dictionary, 1603 (6th ed. 1990).

Moreover, appellant freely and knowingly withdrew her petition after consultation with counsel and a nearly year-long period of extensive discovery, wherein she had the opportunity to review the District's employment records as well as multiple drafts before the mutually-developed and agreed upon seniority list was finalized. The so-called "newly-discovered" employment history information, by which she belatedly seeks to challenge that list, was compiled and available prior to the filing of appellant's petition of appeal and presumably could have been readily obtained from the PEA as well as other petitioners. Despite such access, appellant and her counsel only reviewed the information in the questionnaires after the seniority list was finalized and her petition was withdrawn with prejudice. By the same token, the information was not provided to the District in a timely manner and only after the ALJ's order compelled the discovery. Consequently, no claim is made against the District for fraud, inadvertence or mistake.

Furthermore, the District asserted, and the Commissioner found, that reinstatement would be materially detrimental to the District's interests. According to its counsel, the District relied upon appellant's withdrawal action, along with the finalized seniority list, "to make employment decisions for additional individuals and to set aside a specific amount of District funds to cover anticipated settlements." In opposition to appellant's and fellow petitioners' motions to reopen their matters, the District asserted:

Allowing the reinstatement of the Petitions at this time would result in the District potentially being made to pay additional settlements or judgments above and beyond the amount already budgeted, which would result in prejudice not only to the District, but to taxpayers throughout the City of Paterson and the State of New Jersey, who ultimately fund the District and its operations. Moreover, certain employees were rehired or recalled due, in part, to Petitioners' withdrawals of their Petitions. If the Petitions were reinstated and Petitioners' claims found to have merit, the previously rehired individuals may then be able to claim violations of their own tenure and seniority rights if Petitioners or other individuals are placed into those positions, resulting in an expense to the District.

The District may also be required to expend additional funds to remove those teachers from their positions and replace them with different recalled teachers. Finally, allowing Petitioners to rescind their withdrawal of their positions, consequently continues to prevent the District from affirmatively establishing a seniority list in the District, despite one having been agreed-upon by Petitioners. Failure to establish a conclusive list would only affect District operations because of its inability to confidently hire and assign teachers to various positions as it sees fit, but may allow for additional claims by these and other Petitioners at any point in the future should additional information regarding an employee's history in the District be discovered.

We consider these claims of District prejudice legitimate, as did the Commissioner, and sufficiently strong to counterbalance any justification advanced by appellant to reopen the matter. We are satisfied that, under the circumstances, the equities simply do not warrant the relief requested by appellant and therefore we discern no error in the Commissioner's final decision denying the motion to reinstate. Contrary to appellant's claim on appeal, that decision was both adequately explained and fully supported in the record.

Affirmed.