CARMELLA MUCCI v. BOARD OF EDUCATION OF THE BOROUGH OF MOONACHIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2201-04T22201-04T2

CARMELLA MUCCI,

Petitioner-Appellant,

vs.

BOARD OF EDUCATION OF THE

BOROUGH OF MOONACHIE,

BERGEN COUNTY,

Respondent-Respondent.

__________________________________

 

Argued: January 17, 2006 - Decided February 16, 2006

Before Judges Cuff and Gilroy.

On appeal from the State Board of Education.

Barbara E. Riefberg argued the cause for appellant (Baron & Riefberg, attorneys; Ms. Riefberg, of counsel and on the brief).

Eric B. Levine argued the cause for respondent Board of Education of the Borough of Moonachie, Bergen County (Lindabury, McCormick & Estabrook, attorneys; Anthony P. Sciarrillo, of counsel and on the brief; Mr. Levine, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent State Board of Education (Cindy M. Campbell, Deputy Attorney General, filed a statement in lieu of brief).

PER CURIAM

Petitioner Carmella Mucci was employed as a teacher by respondent Board of Education of the Borough of Moonachie (Board) for thirty-six years. Mucci has not worked since the third day of the 1999-2000 school year. She now appeals from a final decision of the State Board of Education (State Board) upholding the summary disposition of the matter. We affirm.

Mucci reported for work on the first three days of the 1999-2000 school term. Thereafter, she absented herself from her teaching assignment for the balance of the 1999-2000 school term. She did not report in September 2000 to commence the 2000-2001 term. Mucci contended that her absences before, during and after the 1999-2000 school year were attributable to a debilitating environmental/occupational illness.

By December 2000, an Employment Separation Agreement (ESA) had been negotiated with the assistance of an attorney and union representatives. She also tendered her resignation effective December 31, 2000, conditioned on acceptance by the Board of the ESA. Mucci admits that she modified the ESA prior to its submission with her letter of resignation. She contends that the modifications were minor rather than material. The Board rejected the ESA but accepted her retirement effective December 31, 2000. In addition, on February 6, 2001, the Board, finding probable cause voted to certify tenure charges to the Commissioner of Education.

Mucci appealed and the matter was referred to the Office of Administrative Law (OAL). The disposition of the charges was delayed in part due to petitioner's professed inability to attend hearings or to participate in preparation for the hearings. In the meantime, Mucci submitted the necessary paperwork for a service retirement, and in October 2001, her retirement application was granted retroactive to January 1, 2001. Thus, when the Board's motion for summary disposition was argued before the Administrative Law Judge (ALJ), the primary issue pressed by Mucci was enforcement of the ESA.

Ultimately, the ALJ granted the Board's motion for summary disposition. The ALJ found that the modifications made to the ESA were material, that the ESA had never been accepted or adopted by the Board, that Mucci had retired effective January 1, 2001, that Mucci had not worked a single day for nearly a year and one-half leading up to the events of December 2000 and January 2001, and that Mucci was not capable of performing as a tenured teaching staff member as of September 1999. The ALJ said:

Even assuming Mucci's resignation-retirement was, in her mind, conditioned upon the Board's acceptance of the Agreement, the fact is that for nearly one and one half school years leading up to the events of late December 2000 and early January 2001, Mucci did not at work a single day (sic). At no time did she present herself for active employment, and given various submissions made during the course of these cases it is clear that she had no real capacity to do so. There is, therefore, no need to continue these cases in light of the fact that Mucci: (a) has not worked since September 1999; (b) retired effective January 1, 2001; (c) has been receiving pension benefits for a few years, at least; and (d) no longer opposes the Tenure Charges and claims they are "moot". Her position plainly militates against proceeding any further and it is time, once and for all, to put an end to this litigation. As the Board pointed out in its reply to Mucci's certification nearly three years ago, ". . . this case presents the most severe example of how a teacher's absences impact upon a district. It is also illustrative of the absurdity of certain possible outcomes. To find in favor of Ms. Mucci would force the Board, a one-school district with a small budget, to continue to pay a teacher, who has not worked for two years and admittedly would not return to work, with one of the highest salaries in the State of New Jersey." I agree.

Beginning in September 1999, Mucci simply was not capable of performing as a tenured teaching staff member. Although she wanted to effect her retirement through a negotiated agreement with the Board, that agreement never came to fruition because it was never fully executed, no less adopted by the Board. When Mucci then rescinded her resignation the Board, to protect itself, naturally prepared tenure charges of unbecoming conduct and incapacity. Then Mucci retired. Thus, it would be, as the Board points out, absurd to continue any further. Having withdrawn her opposition to the tenure charges and retired over three years ago, Mucci, for all intents and purposes, has waived any claims for relief she may have had, if any, against the Board. In the interest of economy and efficiency, if nothing else, her petitions should be and hereby are ORDERED dismissed.

Mucci appealed the initial decision to the Commissioner of Education (Commissioner). The Commissioner rejected Mucci's argument that the matter was not ripe for summary decision and that her absenteeism is a fact-sensitive issue not amenable to disposition in a summary fashion. In his decision, the Commissioner determined the grant of summary decision to the Board was appropriate in this case. He also determined that the matter was moot. The Commissioner stated:

Notwithstanding Ms. Mucci's challenge to the withholding of her increment and the filing of tenure charges against her by the Board, this matter, in actuality, turns on the resolution of two issues: 1) whether the Employment Separation Agreement at issue was finalized and approved by both parties to this action and 2) whether Ms. Mucci's retirement renders the consolidated petitions in this matter moot.

It is undisputed that Ms. Mucci and the Board were engaged in active negotiations to develop an Employment Separation Agreement during the 1999-2000 school year, but that such negotiations did not ultimately result in a finalized, executed Agreement during that year. . . . It is also undisputed that, although negotiations continued into the Fall of 2000, on or about September 5, 2000, the Board voted to withhold Ms. Mucci's employment, adjustment and longevity increments for the 2000-01 school year . . . and on December 13, 2000, Ms. Mucci was served with tenure charges. . . . Moreover, there is no dispute that : 1) Ms. Mucci sent a letter to the Board on December 27, 2000 notifying it of her intention to retire as of December 31, 2000 . . .; 2) Ms. Mucci's attorney made changes to the latest version of the proposed Agreement and Ms. Mucci delivered a signed copy of the revised Agreement on or about January 5, 2001, along with the letter of resignation required by the Agreement, to the Board Secretary . . .; 3) on January 9, 2001, the Board voted to accept Ms. Mucci's retirement effective December 31, 2000, but did not vote on the revised Agreement submitted by Ms. Mucci . . .; and 4) on February 6, 2001, the Board voted to certify tenure charges against Ms. Mucci to the Commissioner. . . .

The "genuine issues of material fact" set forth in petitioner's exceptions with respect to the Agreement, therefore, i.e., the dispute over whether there was a duly executed Agreement that was agreed upon prior to the Board's decision to proffer tenure charges against Ms. Mucci; whether the Board ever communicated a date to Ms. Mucci, and whether there was a meeting of the minds . . . are facts not material to the determination as to whether the Employment Separation Agreement at issue was finalized and approved by both parties to this action given Ms. Mucci's concession that the revised Agreement was neither approved by the Board nor signed by a duly designated Board representative. . . . Moreover, the Commissioner cannot ignore that Ms. Mucci made revisions to and signed the proposed Agreement following the December 13, 2000 notification from the Board that it was contemplating the filing of tenure charges against her. The action of the Board initiating the filing of tenure charges and Ms. Mucci's revisions to and signing of the proposed Agreement shortly thereafter clearly demonstrate that there was no finalized Agreement between the parties. In this context, Ms. Mucci's signature on the Agreement she revised cannot be construed as an acceptance of a settlement, but, instead, was a counteroffer that the Board did not act upon. . . . Accordingly, the Commissioner finds that the Employment Separation Agreement at issue in this matter was never finalized and approved by both parties to this action and, thus, Ms. Mucci's request to enforce such Agreement is hereby denied.

Turning to the issue of Ms. Mucci's retirement and its effect on the remaining issues in these consolidated petitions, the Commissioner notes that, in her certification dated May 23, 2001, Ms. Mucci states that she filed an application for retirement with the Division of Pensions for a January 1, 2001 retirement, that there was a delay in the Board submitting its portion, which was finally submitted, and that there is now a delay because she cannot locate a copy of her birth certificate. . . . The Board of Trustees at the Division of Pensions subsequently approved Ms. Mucci's retirement, effective January 1, 2001, at their regular meeting on October 11, 2001. . . . Notwithstanding Ms. Mucci's claim in her exceptions that there is a factual issue as to whether she has retired, given that her letter of resignation was expressly conditioned upon the Board's acceptance of the revised Employment Separation Agreement and that she has not cashed any pension checks, the Commissioner observes that, as of May 23, 2001, the date of the above-cited certification, Ms. Mucci was proceeding to complete the process to effectuate her retirement, with an effective date of January 1, 2001, some five months after she was aware that the Board had not acted to accept her proffer of a revised Agreement, and that there is nothing in the record to suggest that Ms[.] Mucci made any attempt to rescind or nullify her retirement with the Division of Pensions, pursuant to N.J.A.C. 17:3-6.3(a). Accordingly, there is no basis for the Commissioner to conclude that Ms. Mucci has nullified her retirement status with the Division of Pensions. (footnote omitted.)

The Commissioner also rejected the argument that Mucci's failure to cash retirement checks signals her intention to nullify her retirement. He cited to her history of not depositing or cashing pay checks while employed by the Board.

Mucci's appeal to the State Board was also unsuccessful. It affirmed the decision of the Commissioner based on the reasons expressed in his June 21, 2004 decision.

On appeal, Mucci reiterates the arguments presented to the ALJ, the Commissioner and the State Board. She asserts that the matter was not ripe for summary disposition, that factual questions existed concerning not only the enforceability of the ESA but also the propriety of the tenure charges, and that the matter cannot be considered moot. We have surveyed the record in its entirety and conclude that summary disposition was appropriate. The changes to the negotiated ESA were material. The modified ESA was never accepted by the Board and should not be enforced. The unilateral modifications made to the document by Mucci were material because the modifications altered the terms of several disputed issues, including a requirement that the Board would re-issue uncashed pay checks and pay a disputed annual increment. Furthermore, her retirement, effective January 1, 2001, renders the tenure charges moot. Therefore, we affirm the December 3, 2004 decision of the State Board for the reasons expressed by the Commissioner in his June 21, 2004 decision.

 
Affirmed.

We were informed at oral argument that a Workers' Compensation claim remained active which may address plaintiff's salary increment claim, if she prevails.

(continued)

(continued)

9

A-2201-04T2

February 16, 2006