IN THE MATTER OF THE TENURE HEARING OF CEMRAN BIRICIK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE TENURE

HEARING OF CEMRAN BIRICIK,

SCHOOL DISTRICT OF JERSEY CITY,

HUDSON COUNTY.

______________________________________________________

November 7, 2014

Argued September 23, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from the Commissioner of Education, Docket No. 43-3/13.

Donald R. Moran argued the cause for appellant Cemran Biricik (Feintuch, Porwich & Feintuch, attorneys; Mr. Moran, on the brief).

Alvaro Hasani argued the cause for respondent, School District of the City of Jersey City (Florio, Perrucci, Steinhardt, & Fader LLC, attorneys; Jennifer Shaw, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Lauren A. Jensen on the brief).

PER CURIAM

Cemran Biricik appeals from the final agency decision of the Department of Education denying her motion to vacate its prior order dismissing her from her tenured teacher position. For the reasons that follow, we affirm.

Biricik was a school teacher at respondent Jersey City school district since 1997. She sustained two serious injuries while at school that resulted in her missing a substantial amount of time from work. The first injury occurred on May 8, 2008, as the result of a fall. Biricik returned to work in 2010, but was reinjured in February 2011 after intervening to stop an altercation between students. After March 22, 2011, Biricik did not return to work.

After the 2011 injury, two different doctors evaluated Biricik's ability to perform her duties. Dr. William Oppenheim performed a functional evaluation in July 2011 and concluded that Biricik lacked "the physical capabilities necessary to allow her to perform the critical job demands of a teacher." During the evaluation, Biricik told the doctor that she felt unable to perform her job functions due to her injuries.

Later in July, Dr. David Rubinfeld evaluated Biricik. Dr. Rubinfeld concluded that Biricik had reached her maximum level of improvement for her injuries, but that she could return to pre-accident levels of activity with accommodations on the amount of weight to be lifted or carried.

In August 2011, Dr. Oppenheim evaluated Biricik again and determined that her issues with balance and her tremors made a return to the classroom unsafe. He also concluded that she had reached the maximum medical benefit from her treatment.

On September 28, 2012, the school district filed an application for involuntary disability with the Division of Pensions and Benefits. While that application was pending, on January 4, 2013, the school district filed tenure charges against Biricik, alleging incapacity, neglect of duty, and abandonment of position. On January 17, 2013, Biricik's attorney responded by letter, disputing the charges and claiming that they were filed prematurely and should be dismissed. On March 4, 2013, the school district certified all the charges to the Department of Education.

The Department received the charges and immediately notified Biricik and her attorney that she had fifteen days to file a response. The March 4, 2012 notice specified that

Pursuant to N.J.A.C. 6A:3-5.3 and 6A:3-5.4 an individual against whom tenure charges are certified shall have 15 days from the date such charges are filed with the Commissioner to file a written response to the charges with the Commissioner. Upon written application by the charged party, submitted within the 15-day answer period and served on the charging entity, the Commissioner may extend the answer period for good cause shown. Failure to answer within the prescribed period where no extension has been applied for and granted, or submission by the charged employee of a responsive filing indicating that s/he does not contest the charges, will result in the charges being deemed admitted by the charged employee.

Biricik failed to respond by either addressing the charges or asking for an adjournment. On April 16, 2013, the Commissioner deemed the charges admitted and issued a decision dismissing Biricik from her tenured teaching position. In the agency's decision, the Commissioner underscored that Biricik's failure to respond had the effect of admitting the charges against her. The Commissioner concluded that the charges warranted Biricik's dismissal, in particular her extended absences of 124 days before the February 2011 injury and her failure to work since that time.

On August 2, 2013, the Teacher's Pension and Annuity Fund Board denied the application for accidental disability. After receiving this denial, Biricik moved before the Department to vacate the April 16 order. She certified, "I chose not to challenge the charges predicated upon the application of accidental disability." She added that another reason for not challenging the charges was that "the school district itself prohibited me from returning to school."

On September 17, 2013, the Commissioner denied Biricik's motion to vacate the April 16 order. Noting that no administrative regulations governed vacating a prior decision, the Commissioner looked for guidance to Rule 4:50-1.1 In denying the motion, the Commissioner concluded

[Biricik] concedes that she chose not to respond to the tenure charges. Thus, her failure to preserve her rights in the tenure proceeding did not flow from a mistake, inadvertence, surprise, or excusable neglect. There is no offer of newly discovered evidence that could not have been unearthed when the tenure charges were filed. No evidence of fraud or express misrepresentation is discernible in the record. Nor do the circumstances recited by respondent meet the remaining criteria for grants of relief from judgments.

This appeal followed. On appeal, Biricik contends that the default judgment entered against her should have been vacated pursuant to Rule 4:50-1.

We begin by stating our standard of review. Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We will intervene "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." In re Musick, 143 N.J. 206, 216 (1996). The reviewing court "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." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008) (citing In re Herrmann, 192 N.J. 19, 28 (2007)). The party challenging the agency's action has the burden of proving that the action was arbitrary, capricious, or unreasonable. DiNapoli v. Bd. of Educ. of Twp. of Verona, 434 N.J. Super. 233, 236 (App. Div.) (citing In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006)), certif. denied, 217 N.J. 589 (2014).

It is well-settled that an administrative agency has the inherent power, absent statutory restriction, to reopen or modify previously-entered orders for good cause. In re Van Orden, 383 N.J. Super. 410, 419 (App. Div. 2006); In re Adamar of N.J., 222 N.J. Super. 464, 474 (App. Div. 1988); see also Lee v. W.S. Steel Warehousing, 205 N.J. Super. 153, 157-58 (1985). Nevertheless, the agency must only exercise that power reasonably "and only where the applicant acted with reasonable diligence." Adamar, supra, 222 N.J. Super. at 474 (citing Duvin v. State, Dep't. of Treasury, Pub. Empls. Ret. Sys., 76 N.J. 203, 207 (1978)); see also Steinman v. State, Dep't of Treasury, Div. of Pensions, Teachers' Pension & Annuity Fund, 116 N.J. 564, 573 (1989) (noting that an agency should reopen a prior decision upon a showing of good cause, reasonable grounds, and reasonable diligence).

In the current case, Biricik has not demonstrated good cause to vacate the Department's prior order. She certified that she "chose not to challenge the charges" against her. Biricik also claims that the school board's decision to keep her from working supports her application to vacate the prior order. However, neither proffered reason manifests good cause for her failure to timely respond to the tenure charges against her, especially since the charges unambiguously informed her that failure to respond would be deemed an admission of the charges. Under these circumstances, it was simply not reasonable for Biricik to assume that the tenure charges would not proceed. Her failure to move immediately to reopen when she received the Commissioner's April 16, 2013 order dismissing her from her tenured position further highlights her lack of reasonable diligence.

Courts have on occasion utilized Rule 4:50-1 to determine the suitability of vacating a final agency order. Lee, supra, 205 N.J. Super. at 157-58 (citing Camp v. Lockheed Elecs., Inc., 178 N.J. Super. 535, 545 (App. Div.), certif. denied, 87 N.J. 415 (1981)). We are mindful that the Rule was "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)) (internal quotations omitted). Under a Rule 4:50-1 analysis, Biricik's appeal is also without merit.

Biricik's arguments generally pertain to Rule 4:50-1 (a) and (f). Rule 4:50-1(a) permits relief from judgment on the grounds of mistake, inadvertence, surprise or excusable neglect. Rule 4:50-1(f) permits relief from judgment for "any other reason justifying relief from the operation of the judgment or order."

To set aside a judgment on the basis of excusable neglect under subsection (a), a moving party must establish both excusable neglect and a meritorious defense. U.S. Bank, supra, 209 N.J. at 468. Excusable neglect exists if negligence can be "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Ibid. (quoting Mancini, supra, 132 N.J. at 335) (internal quotations omitted). Biricik's deliberate decision not to respond to the charges, while failing to apply for an extension, is not excusable neglect. A flawed legal strategy is not excusable neglect. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). Additionally, Biricik has not demonstrated a meritorious defense to the charges.

Finally, Biricik contends that equity demands that the order be reopened. While subsection (f) is "as expansive as the need to achieve equity and justice," Hous. Auth. of Morristown v. Little, 135 N.J. 274, 290 (1994) (quoting Palko v. Palko, 73 N.J. 395, 398 (1977)) (internal quotations omitted), relief is only available in "truly exceptional circumstances," due to the importance in preserving the finality of judgments. Baumann v. Marinaro, 95 N.J. 380, 395 (1984). Biricik does not point to any exceptional circumstances and we discern none in the record. If relief is provided in circumstances such as the current case where an employee makes a knowing choice to ignore tenure charges, then the stability of final judgments will be significantly undermined. Thus, Biricik has not established grounds for vacating the decision under subsection (f).

In sum, as the Department's decision properly follows the law, is sufficiently supported by the record, and is clearly reasonable, we discern no reason to disturb it.

Affirmed.

1 The Commissioner cited N.J.A.C. 1:1-1.3(a), which applies to all administrative agencies and provides in pertinent part: "This chapter shall be construed to achieve just results, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. In the absence of a rule, a judge may proceed in accordance with the New Jersey Court Rules, provided the rules are compatible with these purposes."