JOSE R. NEGRON v. BOARD OF EDUCATION OF THE BOROUGH OF SOUTH PLAINFIELD MIDDLESEX COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4406-10T1

JOSE R. NEGRON,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

BOROUGH OF SOUTH PLAINFIELD,

MIDDLESEX COUNTY,

Respondent-Respondent.

___________________________________________

December 3, 2012

Submitted January 17, 2012 Decided

Before Judges A. A. Rodr guez and Ashrafi.

On appeal from the State Board of Education, Agency Docket No. 567-9/10.

Maria M. LePore, attorney for appellant (Ms. LePore, of counsel and on the brief).

Schenck, Price, Smith & King, attorneys for respondent Board of Education of the Borough of South Plainfield (Marc H. Zitomer, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Melissa H. Raksa, Assistant Attorney General, of counsel; Caroline Jones, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Jose Negron appeals from the final decision of the Acting Commissioner of Education concluding that the South Plainfield Board of Education (the Board) was not legally bound to renew his contract as district superintendent for three years and did not act to extend his existing contract for an additional one-year period. After Negron filed an appeal to the Commissioner of Education, the matter was submitted to an Administrative Law Judge (ALJ) on cross-motions for summary disposition. The Acting Commissioner adopted the ALJ's decision in favor of the Board with modification. We now affirm the Acting Commissioner's decision.

The facts are not disputed. The Board appointed Negron superintendent of South Plainfield public schools for a term commencing on October 1, 2007, and ending on June 30, 2011. At the time of Negron's appointment, N.J.S.A. 18A:17-20.1 entitled superintendents to one-year's notice before the end of their contract terms if the board of education did not intend to renew their contracts.1 Citing N.J.S.A. 18A:17-20.1, Negron's contract provided that his employment would be renewed for a new three-year term commencing on July 1, 2011, unless the Board provided notice to him at least one year earlier, that is, no later than June 30, 2010, that his employment would cease at the end of his contract term.

On June 29, 2010, the nine-member Board, all of whom were present, took action regarding potential renewal of Negron's employment at the expiration of his contract. The Board first voted on a resolution to offer a new four-year contract to Negron to run from July 1, 2011, to June 30, 2015. The vote was two ayes, four nays, and three abstentions. Both parties agree that the first resolution failed. The Board then voted on a second resolution to extend Negron's existing contract for an additional one-year period to June 30, 2012. The vote was four ayes, two nays, and three abstentions. The parties disagree as a question of law on whether the second resolution was thus adopted or failed.

The Board viewed the second resolution to have failed. It took the position that the affirmative vote of a majority of all members five votes was needed to adopt the resolution. The Board secretary issued a letter to Negron the same night, June 29, 2010, with the following notice:

As directed by the South Plainfield Board of Education, I regret to inform you that in accordance with New Jersey law, N.J.S.A. 18A:17-20.1, this correspondence shall serve as notice that you will not be offered a new employment contract upon expiration of your current contract at the conclusion of the 2010-2011 school year.

The following day, Negron submitted a letter to the Board upon advice of his attorney purporting to accept renewal of his contract for a new three-year term or, in the alternative, to accept a one-year extension of his existing contract.

In September 2010, the Board passed by the affirmative vote of five members two resolutions intended to remove any misunder-standing about its June 29 actions. On September 15, 2010, the Board adopted a resolution confirming that it had not extended Negron's contract for one year. After Negron filed his administrative appeal, the Board adopted a second resolution on September 30, 2010, stating that, if the four affirmative votes of June 29, 2010, were to be considered sufficient to pass the resolution extending Negron's contract, the Board was now rescinding that action. The September 30, 2010 resolution also stated: "the Board wishes to once again reaffirm its intent that the Superintendent's employment with the Board of Education will end June 30, 2011."

On Negron's appeal to this court, we consider two primary questions: (1) was the Board compelled to grant a renewal of Negron's contract for an additional term of three years because it failed to provide valid notice pursuant to N.J.S.A. 18A:17-20.1 that his contract would not be renewed; and (2) were four affirmative votes sufficient to adopt the June 29, 2010 resolution extending Negron's then-existing contract for one year. We answer both questions no. The Board gave legally valid notice to Negron that his contract would not be renewed, and the affirmative votes of five Board members were required to extend his contract.

Our standard of review on the issues raised is plenary because they are both questions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Although the quasi-judicial decisions of an administrative agency are typically entitled to deference on appeal and may be reversed only where they are arbitrary, capricious, or unreasonable, Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009), an appellate court is not bound by an agency's interpretation of a statute or its determination of strictly legal issues, Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). See also Bd. of Educ. of Twp. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (plenary standard of review applicable to Commissioner's interpretation of statutory and decisional law). We must determine without deference to the Acting Commissioner what the relevant statutes require and how they apply to the undisputed facts in this case.

N.J.S.A. 18A:17-15 provides that a board of education may appoint "for a term of not less than three nor more than five years and expiring July 1, a superintendent of schools by the recorded roll call majority vote of the full membership of the board." Negron does not dispute that a minimum of five affirmative votes of the Board were needed for his initial appointment as superintendent in 2007.

With respect to renewal of Negron's contract, N.J.S.A. 18A:17-20.1 provided in 2007:

At the conclusion of the term of the initial contract . . . the superintendent shall be deemed reappointed for another contracted term of the same duration as the previous contract unless either: a. the board by contract reappoints him for a different term which term shall be not less than three nor more than five years . . . or b. at least one year prior to the expiration of the first or any subsequent contract the board shall notify the superintendent in writing that he will not be reappointed at the end of the current term, in which event his employment shall cease at the expiration of that term.[2]

Here, the board secretary gave written notice to Negron on June 29, 2010, that his contract would not be renewed. That notice was delivered to Negron more than one year before the expiration of his contract term.3

Negron contends that the Board secretary's notification letter was ineffective because the two resolutions that the Board acted upon on June 29, 2010, did not specifically address giving him such a notice. He contends that the Board was required to take action by a separate vote to authorize the Board secretary to give the written notice. Because the Board took no such separate action or vote, contends Negron, the June 29, 2010 letter was not effective notice that the Board would not renew his contract. We disagree with Negron's contentions.

The Board acted on two proposed resolutions on June 29, 2010, to extend Negron's employment. Neither resolution received the affirmative votes of five Board members. The Board deemed both resolutions to have failed. It understood its decisions as having declined to continue Negron's employment beyond the termination date of his existing contract. Acting on that understanding, the Board secretary provided the required written notice to Negron that his employment would terminate at the end of his existing contract. Nothing in N.J.S.A. 18A:17-20.1 states that yet another resolution was needed to confirm the Board's decision not to rehire Negron. The statute requires notice to the superintendent, not formal Board action by any designated affirmative vote.

Negron cites N.J.S.A. 18A:11-1, which lists the general powers of a board of education, and argues that "the Board can only act when it votes to take that action." The Board responds that many actions of a board of education are taken without formal resolution or vote. The Board employs agents to act on its behalf within the scope of their authority. As an agent of the Board, its secretary was aware of the notice requirement of the law and Negron's contract, and he had witnessed the Board's actions on June 29, 2010, declining to renew or extend Negron's employment. The secretary had authority to issue the June 29, 2010 written notice to Negron informing him formally that the Board had decided not to renew his contract.

Even if we were persuaded by Negron's argument that separate formal action by the Board was required to authorize the written notice, the Board ratified its secretary's action by its formal adoption of the two September 2010 resolutions confirming its decision not to renew Negron's employment.

We conclude that the Board gave effective and timely written notice to Negron that he would not be offered a renewal contract at the termination of his existing contract. His employment did not continue by operation of law, or in accordance with his contract, for a renewed term of three years.

Negron contends in the alternative that the vote of four ayes and two nays for a one-year extension was effective to adopt the second resolution of June 29, 2010. He asserts that his immediate acceptance of the extension on the following day established his tenure rights to remain as superintendent through the extended contract term.

Negron cites N.J.S.A. 18A:11-11 as the statute applicable to an extension of a superintendent's contract. He contends that, because that statute is silent on whether the affirmative vote of a majority of the full board membership is required, common law principles must be applied requiring only a majority vote of the voting members. See Matawan Reg'l Teachers Ass'n v. Matawan-Aberdeen Reg'l Sch. Dist. Bd. of Educ., 223 N.J. Super. 504, 507-08 (App. Div. 1988). Negron argues that only the initial appointment of a superintendent requires a minimum of five affirmative votes. We disagree.

N.J.S.A. 18A:11-11 does not address the number of votes needed to grant an extension of a superintendent's contract. That statute is captioned: "Public notice required for alteration of contract terms of certain employees," and it states in relevant part:

A board of education shall not renegotiate, extend, amend, or otherwise alter the terms of a contract with a superintendent of schools . . . unless notice is provided to the public at least 30 days prior to the scheduled action by the board. The board shall also hold a public hearing and shall not take any action on the matter until the hearing has been held. The board shall provide the public with at least 10 days' notice of the public hearing.

This statute refers to the public notice and participation requirements for extending a superintendent's contract. It makes no reference to what type of formal action the Board must take or the number of votes needed to extend a superintendent's contract. In fact, the public notice and public participation requirements of the statute are an indication that an extension of a superintendent's contract, like the initial hiring of a new superintendent, "is one of the most vital and responsible duties that a board of education can perform." Thomas v. Bd. of Educ. of the Twp. of Morris, 89 N.J. Super. 327, 334 (App. Div. 1965), aff d, 46 N.J. 581 (1966).

Many statutes require a majority vote of the full board membership for its employment decisions. See, e.g., N.J.S.A. 18A:27-4.1 (certificated and non-certificated staff); N.J.S.A. 18A:17-5 (board secretary); N.J.S.A. 18A:17-13 (assistant secretary); N.J.S.A. 18A:17-14.1 (business administrator); N.J.S.A. 18A:17-16 (assistant superintendent); N.J.S.A. 18A:17-20.5 (administrative principal). Although these statutes, like the one applicable to a superintendent's contract, N.J.S.A. 18A:17-15, do not specifically address extensions of a contract, the Board argues persuasively that all these statutes must be read in pari materia, that is, "as a 'unitary and harmonious whole.'" Marino v. Marino, 200 N.J. 315, 330 (2009) (quoting St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005)). It would indeed be an anomaly in a board of education's powers if a superintendent's contract could be extended for one or two years without an affirmative vote of the full board membership when so many employment decisions require such a majority vote.

Moreover, in this case, the Board clarified any confusion about its June 29, 2010 vote and rescinded any potential action mistakenly deemed to have been taken as to a one-year extension. Negron cannot claim that he detrimentally relied on the Board's vote on the second June 29 resolution and believed the Board had granted him a one-year extension. The Board gave him formal notice the same night that his employment would terminate as of June 30, 2011.

Having reached these conclusions, we need not address a further issue argued on appeal whether the Board had authority to grant a one-year extension that would commence only after the end of the Board's term and during the term of a newly-constituted Board. See Gonzalez v. Bd. of Educ. of Elizabeth Sch. Dist., 325 N.J. Super. 244, 252 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000).

The Acting Commissioner correctly determined that the Board had given timely and effective written notice that Negron's contract would not be renewed and that the Board did not adopt a resolution to grant him a one-year extension of his existing contract.

A

1 A 2008 amendment of the statute reduced the time period for required notice to thirty days for each year of the contract. Footnote 2 of this opinion contains the specific amendment language.

2 The 2008 amendment of the statute deleted the words "at least one year prior to the expiration of the first or any subsequent contract," substituted "notifies" for "shall notify," and added "provided that such notification shall be given prior to the expiration of the first or any subsequent contract by a length of time equal to 30 days for each year in the term of the current contract." L. 2008, c. 106, 1, eff. Dec. 4, 2008.

3 The Acting Commissioner concluded that the Board was required to give 120 days' notice of its decision not to renew Negron's contract in accordance with the amended statute, and that the Board's September 2010 resolutions provided such timely notice in addition to the Board secretary's June 29, 2010 letter. Because Negron's contract required a full year's notice, we need not consider potential application of the amended statute in this case.