LORETTA COLANTONI, Petitioner-Respondent v. BOARD OF EDUCATION TOWNSHIP OF LONG HILL, MORRIS COUNTY, Respondent-Appellant.

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 329 N.J. Super. 545.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4070-98T1

LORETTA COLANTONI,

Petitioner-Respondent,

v.

BOARD OF EDUCATION OF THE
TOWNSHIP OF LONG HILL,
MORRIS COUNTY,

Respondent-Appellant.
_____________________________________

Argued March 22, 2000 - Decided April 10, 2000

Before Judges Baime, Brochin and Wecker.

On appeal from New Jersey State Board
of Education.

Richard S. Kohn argued the cause for appellant
Long Hill Township Board of Education
(Riker, Danzig, Scherer, Hyland & Perretti,
attorneys; James S. Rothschild, Jr., of counsel;
Mr. Kohn, on the brief).

Terri A. Cutrera, Deputy Attorney General,
argued the cause for respondent New Jersey
State Board of Education (John J. Farmer,
Attorney General, attorney; Mary C. Jacobson,
Assistant Attorney General, of counsel;
Ms. Cutrera, on the brief).

Louis P. Bucceri argued the cause for respondent
Loretta Colantoni (Bucceri & Pincus, attorneys;
Mr. Bucceri, of counsel; Linda Ganz Ott,
on the brief).

Morris-Union Jointure Commission Board
of Education submitted an amicus curiae
brief (Martin R. Pachman, attorney;
Robin T. McMahon, on the brief).

The opinion of the court was delivered by

BAIME, P.J.A.D.

Our statutes authorize two or more boards of education to establish a jointure commission for the purpose of educating handicapped pupils. N.J.S.A. 18A:46-25 to -28. The novel question presented by this appeal is whether a jointure commission may contract with a participating board of education to provide guidance services to non-handicapped students. We find no statutory authority for the exercise of such a power.

I.
 
The facts are not in dispute and are essentially a matter of public record. Loretta Colantoni was a tenured teacher and guidance counselor employed by the Long Hill Board of Education. From 1990 to 1993, Colantoni was assigned as a guidance counselor for grades five through eight. In 1994, the Long Hill Board eliminated the position of guidance counselor for budgetary reasons. Colantoni was reassigned as a full-time classroom teacher.
In 1995, the Long Hill Board decided that part-time guidance services were necessary. The Board contracted with the Morris Union Jointure Commission Board of Education (Commission) to obtain guidance services for sixteen hours a week to both handicapped and non-handicapped students. We digress to note that the Long Hill Board asserts in its brief the guidance services rendered by the Commission were predominantly for the benefit of special needs students. The record does not support that conclusory allegation which is, in any event, irrelevant because the legal question presented is whether the Commission was empowered to provide services to non-handicapped students. We will return to this issue later in our opinion.
Colantoni filed a petition with the Commissioner of Education. She alleged that the Long Hill Board violated her tenure and seniority rights when it eliminated her position as guidance counselor and contracted with the Commission for the provision of guidance services.See footnote 11 The matter was referred to the Office of Administrative Law as a contested case. On October 18, 1996, an administrative law judge found that Colantoni was not entitled to any relief. The ALJ determined that a board of education could eliminate the position of guidance counselor and enter into a contract for the provision of guidance services. However, she further concluded that a jointure commission's statutory authority was limited to providing educational services to handicapped pupils. To the extent to which the contract between the Long Hill Board and the Commission required the provision of guidance services to non-handicapped students, the agreement was found to be illegal.
The Commissioner adopted the ALJ's finding that the Long Hill Board did not violate Colantoni's seniority and tenure rights when it eliminated her position and "contracted out" for guidance services. The Commissioner disagreed, however, with the ALJ's conclusion that the Commission lacked the authority to provide educational services to non-handicapped students. According to the Commissioner, "[w]hile the primary purpose of a jointure commission is to assist boards of education in carrying out their common duties with respect to the education and training of handicapped pupils, nothing in the statute . . . preclude[s] [it] from expanding the scope of its services to include non-handicapped [students]."
Colantoni appealed to the State Board of Education. On March 3, 1999, the State Board reinstated the ALJ's determination that the contract between the Long Hill Board and the Commission was unlawful to the extent that it required the Commission to provide educational services to non-handicapped pupils.See footnote 22 In reaching this conclusion, the State Board stressed that the legislatively articulated purpose for creating a jointure commission was to provide for the education and training of handicapped students. On March 23, 1999, the Commission filed a motion with the State Board, seeking to intervene and requesting reconsideration. While that motion was pending, Colantoni filed a notice of appeal with this court effectively divesting the State Board of jurisdiction. However, on May 7, 1999, the State Board denied the Commission's motion.See footnote 33 In its written decision, the State Board directed the Commissioner of Education to determine what activities of the Commission "involved the provision of services to non-handicapped students." We subsequently granted the Commission's motion to appear in the role of amicus curiae. We now consider the issue presented.
II.
 
We view the question before us as solely one of statutory interpretation. More specifically, we have no occasion to determine which of the services provided by the Commission benefit handicapped pupils and which benefit non-handicapped pupils. This is an issue within the State Board's domain. The State Board has ordered the Commissioner to investigate that subject. We have no occasion to delve into that question here.
At issue is whether a jointure commission is authorized to provide educational services to non-handicapped students. In resolving that question, we give substantial deference to the interpretation of the agency charged with enforcement of the statute - the State Board. The State Board's construction of the statute "will prevail provided it is not plainly unreasonable." Merin v. Maglaki, 126 N.J. 430, 437 (1992); see also Turnpike Authority v. AFSCME Council 73, 150 N.J. 331, 351 (1997). Although the Legislature's clearly expressed legislative intent "cannot be trumped by countervailing administrative practices," Airwork Serv. Div. v. Director, Div. Taxation, 97 N.J. 290, 296 (1984), cert. denied, 471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985), and agencies do not necessarily have "superior ability to resolve purely legal questions," Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992), we recognize that we have no monopoly on justice and are thus obliged to give weight to the manner in which an executive department has applied a statute. Service Armament Co. v. Hyland, 70 N.J. 550, 560-63 (1976).
In this case, the State Board's interpretation is manifestly supported by the statutory language. N.J.S.A. 18A:46-25 provides:
When two or more boards of education determine to carry out jointly by agreement the duties imposed upon them in regard to the education and training of handicapped pupils the said boards may, in accordance with rules and regulations of the state board, and with approval of the Commissioner by the adoption of similar resolutions establish a jointure commission for the purpose of providing such services . . . .
 
The italicized phrases plainly define the scope of the powers conferred upon a jointure commission. The statutory language is crystal clear. The "purpose" of a jointure commission is to provide "education[al]" and "training" services to handicapped pupils.
The Legislature's description of the powers of a jointure commission makes specific reference to this articulated objective. N.J.S.A. 18A:46-26 provides:
The commission may, in accordance with rules of the state board:
 
a. Provide and maintain the necessary facilities by acquiring land, building, enlarging, repairing, furnishing, leasing or renting;
 
b. Take such action as may be necessary for the lawful and proper conduct of the educational program for such children as are referred to the commission by boards of education which are members of the commission;
 
c. Employ necessary principals, teachers and other officers and employees, who shall have the same rights and privileges as those who are similarly employed by local boards of education;
 
d. Accept pupils from other school districts and fix the tuition rates therefor;
 
e. Apportion among the contracting districts the amounts of the capital and current operating costs of the program so undertaken.
 
Within the limited responsibilities of this chapter and except as otherwise provided, the commission shall have and may exercise all the powers of a board of education in carrying out the purpose of this chapter.
 
The phrase "for such children" clearly pertains to handicapped students who are referred to a jointure commission by a member board of education. So too, the phrase "[w]ithin the limited responsibilities of this chapter" plainly refers to the raison d' tre for the establishment of a jointure commission. The words "this chapter" plainly refer to Chapter 46 which is comprised of sections relating to the educational needs of handicapped pupils.
We regard the statutory language as fully dispositive of this issue. But even were we to find some ambiguity in the legislative language, extrinsic evidence would support the conclusion we have reached. The preamble to L. 1962, c. 232 reads as follows:
An Act to facilitate the education facilities for physically handicapped and mentally retarded children by 2 or more boards of education by the establishment of jointure commissions.
 
[Laws of 1962, Chapter 232 at 1129].

Further, the statement of the bill's sponsors explains:

This bill would afford a method whereby 2 or more boards of education may provide the required educational facilities and program for physically handicapped and mentally retarded children.
 
Thus, the Legislature made its intent explicit - the purpose of a jointure commission is to provide educational facilities and programs for handicapped children.
We reject the Long Hill Board's argument that although the primary mission of a jointure commission is to assist member districts in educating special needs children, a secondary purpose is to provide flexibility to local boards of education and to promote efficient fiscal operations of public educational institutions. We find nothing in the statutory language or legislative history to support this contention. The available evidence abounds the other way. We cannot act as a superlegislature and supply an ingredient that is missing from the statutory scheme. Perhaps the Legislature did not want to dilute the responsibility of a jointure commission to provide educational service to handicapped students. But in any event, assessing the wisdom of the legislation is beyond our judicial power.
We add that the Legislature has created other avenues to provide pooled services, facilities and programs that do not distinguish between handicapped and non-handicapped pupils. One avenue is through county educational services commissions. N.J.S.A. 18A:46-14. Such commissions may be established by local boards of education with the concurrence of the Commissioner of Education on the approval of the State Board. N.J.S.A. 18A:6-52. These commissions are empowered to provide a broad range of educational and administrative services to both handicapped and non-handicapped students. Impey v. Board of Educ. of Borough of Shrewsbury, 142 N.J. 388 (1995). In contrast, the powers conferred upon a jointure commission established under N.J.S.A. 18A:46-25 are more narrowly circumscribed, and may be exercised only with respect to special needs pupils.
Affirmed.

Footnote: 1 1On April 8, 1996, the Long Hill Education Association filed