FRANKIE M. NICHOLSON v. BOARD OF EDUCATION OF THE CITY OF ASBURY PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANKIE M. NICHOLSON,

Petitioner-Appellant/

Cross-Respondent,

and

SONDRA MINUSKIN and

ANNA MARIE GRAF,

Petitioners,

v.

BOARD OF EDUCATION OF THE

CITY OF ASBURY PARK,

MONMOUTH COUNTY,

Respondent-Respondent/

Cross-Appellant.

___________________________________

November 3, 2014

 

Before Judges Haas and Higbee.

On appeal from the Department of Education, Docket No. 161-7/10.

Robert M. Schwartz argued the cause for appellant/cross-respondent.

Daniel R. Roberts argued the cause for respondent/cross-appellant (Kenney, Gross, Kovats & Parton, attorneys; Michael J. Gross, of counsel; Mr. Roberts, on the brief).

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

PER CURIAM

Petitioner Frankie Nicholson appeals from the September 16, 2013 final decision of the Assistant Commissioner of Education (the Commissioner), finding that she was not qualified for the position of "Assistant Director of Curriculum and Instruction" with respondent Asbury Park Board of Education. Respondent has filed a cross-appeal from the portion of the Commissioner's decision that held that a "school administrator/principal certificate" was not required for the Assistant Director position and that the position should be retitled as a "Supervisor" position. We affirm.

Petitioner and seven of her colleagues worked for respondent as "Supervisors of Curriculum" for various subjects taught in the Asbury Park public school system. In 2010, petitioner held the tenured title of "Supervisor of Library Media, Technology Grades K-12 and Social Studies K-12." The only requirement for this "Supervisor" position was that petitioner "possess a 'certificate in supervision and/or administration.'" Petitioner held that certificate, and she also possessed a "Standard Certificate as a Teacher of General [B]usiness Studies"; a "Standard Certificate as a Secondary Teacher of Secretarial Studies"; and a "Standard Certificate as a Teacher of Typewriting." Petitioner did not have a "Principal/Supervisor" or "School Administrator" certificate.

In early 2010, respondent's new superintendent of schools decided to reorganize the existing structure of curriculum supervisors in the school district. The superintendent testified that having eight supervisors spread across the entire district was unwieldy and costly. She decided to replace the eight "supervisors" with three "Assistant Director of Curriculum and Instruction" positions. The Assistant Directors would each be responsible for the entire curriculum for specific grade levels, rather than for specific subject matter areas for all grade levels. One Assistant Director would be responsible for preschool through third grade; the next would handle grades four through eight; and the third would cover the high school, grades nine through twelve. The Assistant Directors would be located in the school where their grade levels were housed.

In order to ensure that the school principals followed the direction of the Assistant Directors, the superintendent further proposed that applicants for the new positions be required to hold a "school administrator/principal endorsement." This would enable the Assistant Directors to supervise the building principals and require them to implement the curriculum the Assistant Directors developed for each school.

The superintendent also determined that additional, content-related certifications should be required for applicants seeking one of the three new Assistant Director positions. The superintendent stated that "the content certification" was required to ensure that the applicants had actual experience teaching a core subject in the schools where they would be responsible for curriculum development. The superintendent explained this would make the Assistant Directors "more focused as opposed to just [requiring a] broad[-]based K-12" certificate. Thus, for example, the Assistant Director for grades nine through twelve had to hold a "secondary or K-12 certification in English or Mathematics;" the Assistant Director for grades four through eight was required to possess "at least one of the following: Elementary Teacher, Teacher of Reading, or one of the Middle School teaching certificates;" and the pre-school through grade three Assistant Director needed a "Teacher of Pre-K-3, Elementary Teacher or a comparable certificate."

In April 2010, respondent implemented a "reduction in force (RIF)" and abolished the Supervisor of Curriculum positions held by petitioner and her seven colleagues. Effective July 1, 2010, respondent filled the three new Assistant Director positions with candidates who held the required certificates.

Petitioner and two other former Supervisors, Minuskin and Graf, filed a joint petition challenging their removal from their titles, and they sought to be appointed to one of the new Assistant Director positions. The matter was transmitted to the Office of Administrative Law (OAL) for a contested case hearing before an Administrative Law Judge (ALJ).

Respondent is overseen by a State Monitor, who is responsible for supervising "all of the personnel and financial operations of the school district." While the State Monitor was supportive of respondent's decision to reduce the number of Supervisor of Curriculum positions from eight to three, and to require that the three new supervisors hold content-specific certificates that focused on "core areas such as mathematics and reading[,]" he consistently opposed the requirement that the Assistant Directors hold "school administrator/principal" certificates. The State Monitor explained that he "objected . . . from day one" to having the Assistant Directors supervise and evaluate the building principals, a responsibility he believed should be undertaken solely by the superintendent. The State Monitor testified he repeatedly told the superintendent he would not approve this part of the job description and, in August 2010, he made clear that this was his final decision.

At the OAL hearing, a former principal at the high school testified the new Assistant Directors never supervised or evaluated him. The current elementary school principal testified that, after the creation of the Assistant Director positions, she continued to be evaluated by the superintendent, rather than by an Assistant Director. For the 2011-2012 school year, however, the principal stated that an Assistant Director evaluated her. The superintendent explained that she asked the Assistant Directors to evaluate the principals on her behalf. However, the superintendent conceded that she was responsible for signing off on each evaluation.

Petitioner testified as to the teaching certificates she held. She did not possess any of the certificates required for any of the new Assistant Director positions.

In a detailed Initial Decision, the ALJ found that, once the State Monitor refused to approve this portion of the job description, the Assistant Directors were not permitted to supervise the building principals. Moreover, based on the testimony of the superintendent and the two principals, "that responsibility was never officially implemented." Therefore, the ALJ ruled that respondent should not have required that petitioner, Minuskin, and Graf possess a "school administrator/principal" certificate in order to be considered for the Assistant Director positions. The ALJ further recommended that the positions be retitled as "Supervisors."

However, the ALJ found ample justification in the record for respondent's decision to require that Assistant Directors hold content-specific certificates for core subjects taught in the schools where they worked. The ALJ stated

It is clear that as envisioned by [the superintendent], and approved by [the State Monitor], the Assistant Director positions had a different focus and physical placement from the previous supervisory positions. Instead of focusing on a narrow subject area, the [A]ssistant [D]irectors were assigned by grade groupings and housed at schools for those grades. They were to focus upon the delivery of consistent curriculum and to oversee the manner of instruction within their specified grades. . . . [The Superintendent's] plan also envisaged the . . . [A]ssistant [D]irector positions at issue here to focus upon core areas such as mathematics and reading.

. . .

The additional teaching certificates required . . . for the new 9-12 grade position, a teacher of English and/or math certification, and for the intermediate grade position, either an elementary teaching certification[,] a teacher of reading, or one of the middle school certificates, show a nexus to the reconfigured positions. They are grade[-]related and focus on core content areas.

The ALJ found that Graf held "a math and science certification which qualifies her for the Assistant Director of Curriculum for Grades 9-12" and that "Minuskin has an elementary teaching certification which completes her qualification for the Assistant Director of Curriculum for Grades 4-8 position." The ALJ directed respondent to appoint Graf and Minuskin to these positions, "with all salary, benefits and emoluments of this position, less mitigation, retroactive to June 30, 2010." However, petitioner did "not have the requisite certifications for either of the reconfigured positions." Therefore, the ALJ denied her petition for relief.

Petitioner and respondent filed exceptions with the Commissioner who, in a thorough final decision, affirmed the ALJ's Initial Decision in all respects. The Commissioner explained that a school administrator/principal certificate was not required for the new Assistant Director positions

Although [the superintendent] may have envisioned a scenario where the Assistant Directors would supervise principals, that concept was never implemented or even approved by the State Monitor. Additionally, the job description does not specifically say the Assistant Directors will supervise the building principals, but rather it says, "[s]upervise assigned personnel, conduct observations and complete annual performance appraisals and make recommendations for appropriate employment action." The job duties of the Assistant Directors were substantially similar to the Supervisor positions held by the plaintiffs. Instead of supervising one subject area for the entire district, the newly created positions included the supervision of all subject areas for select grade levels. Further, since the Assistant Directors did not in fact supervise the principals, the school administrator/principal endorsement was not required for the Assistant Director positions. . . . [R]e-titling a position does not by itself give the position more or less authority, and there is no reason why the Board could not have used the title of supervisor and reconfigured it to have authority over specific grades.

With regard to the issue of whether petitioner met the requirements for any of the three Assistant Director positions, the Commissioner was "not persuaded that [her] business endorsement was the equivalent of an elementary teacher, teacher of reading or one of the middle schools teaching endorsements required for the Assistant Director of Curriculum and Instructions for grades 4-8 position." The Commissioner concurred with the ALJ's determination "that the additional instructional certificates bore a logical nexus to the positions, and it was appropriate for the Board to include them as a requirement for the positions." Because petitioner did "not hold the necessary instructional endorsement," the Commissioner held "she was not entitled to any of the Assistant Director positions." Petitioner's appeal and respondent's cross-appeal followed.

On appeal, petitioner argues she was qualified to fill the position of Assistant Director for grades four through eight1 and that the Commissioner erred in affirming respondent's decision to require applicants to possess content-specific certificates in order to be considered for this position. In its cross-appeal, respondent asserts the Commissioner improperly found that a school administrator/principal certificate should not be required for the new Assistant Director positions. It also argues for the first time that, in the event its appeal is unsuccessful, the State Monitor should be responsible for paying for any back pay due Minuskin or Graf. Based on our review of the record and applicable law, we are not persuaded by any of these arguments and affirm substantially for the reasons articulated by the Commissioner.

Our standard of review of administrative determinations is limited. "[W]e will not reverse the determination of an administrative agency unless it is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993)). We limit our review "to a determination of whether the [Commissioner's] decision is 'unreasonable, unsupported by the record or violative of the legislative will.'" D.L. v. Bd. of Educ. of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting Capodilupo v. Bd. of Educ. of W. Orange, 218 N.J. Super. 510, 515 (App. Div.), certif. denied, 109 N.J. 514 (1987)).

We are not bound by an administrative agency's legal opinions. Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999)). Nonetheless, administrative decisions are cloaked with a "strong presumption of reasonableness." Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980). Additionally, the "agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (internal quotation marks and citation omitted). Regarding educational matters, the New Jersey Supreme Court has cautioned that "the courts cannot supplant educators; they are not at liberty to interfere with regulatory and administrative judgments of the professionals in the field of public education unless those judgments are palpably arbitrary or depart from governing law." Dennery, supra, 131 N.J. at 643.

We have to "undertake a 'careful and principled consideration of the agency['s] record and findings.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Riverside Gen. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)). However, if we are satisfied after our review that "the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm even if [we] . . . would have reached a different result." Campbell, supra, 169 N.J. at 587 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). See also N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (holding "a reviewing court is not to substitute its judgment for that of the agency").

Contrary to petitioner's argument, there was ample evidence to support the requirement that the new Assistant Directors hold content-specific certificates relevant to the duties they performed in the school to which they were assigned. The superintendent fully explained her reasoning for requiring these certificates and, based upon the Commissioner's finding that "the additional instructional certificates bore a logical nexus to the Assistant Director positions," we discern no basis for second-guessing the Commissioner's decision to approve respondent's action.

Petitioner's contention that she was qualified for the Assistant Director position for grades four through eight also lacks merit. Petitioner held a Teacher of General Business Studies certificate, a Secondary Teacher of Secretarial Studies certificate, and a Standard Certificate as a Teacher of Typewriting. However, the Assistant Director position she sought required that she hold an "Elementary Teacher, Teacher of Reading, or one of the Middle School teaching certificates." Petitioner did not possess any of these certificates.

Petitioner contends she was nonetheless entitled to teach in the middle school, grades four through eight, because any of the "teaching endorsement[s]" she holds permit her to teach in preschool through grade twelve. However, the superintendent explained the policy reasons underlying respondent's decision to no longer permit applicants who held only such broad-based certificates to undertake the "more focused" duties required of the new Assistant Directors. Under these circumstances, the Commissioner's approval of respondent's decision to require applicants to hold content-specific certificates was neither arbitrary, capricious, or unreasonable.

Turning to respondent's cross-appeal, the record also amply supports the Commissioner's finding that a school administrator/principal certificate should not be required for the new Assistant Director positions. Although respondent initiated this new requirement as part of the RIF, the State Monitor eventually ruled that the Assistant Directors were not permitted to supervise the building principals. Thus, there was no longer any need for the Assistant Directors to hold this type of supervisory certificate and, therefore, no basis for mandating it as part of the job requirements for the positions.

Finally, we reject respondent's argument that the State Monitor should be responsible for any financial obligations respondent incurs in implementing the Commissioner's final decision. Ordinarily, we will decline to consider an issue not properly raised before a trial court or administrative agency, unless the jurisdiction of the court or agency is implicated or the matter concerns an issue of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither situation exists here. Moreover, the State Monitor, Minuskin, and Graf, the parties who would be most affected by the financial implications of the Commissioner's decision, are not even parties to this appeal.

Affirmed.

1 The Commissioner ordered respondent to give this position to Minuskin, who held the required certificates. Before the OAL and the Commissioner, petitioner, Minuskin, and Graf were all represented by the same attorney. Minuskin is not a party to this appeal.