ANGELO RAIMONDI v. BOARD OF EDUCATION WESTWOOD REGIONAL SCHOOL DISTRICT, BERGEN COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5555-05T35555-05T3

ANGELO RAIMONDI,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

WESTWOOD REGIONAL SCHOOL

DISTRICT, BERGEN COUNTY,

Respondent-Respondent.

________________________________

 

Argued May 7, 2007 - Decided August 7, 2007

Before Judges S.L. Reisner, Seltzer and C.L. Miniman.

On appeal from the State Board of Education, #3-06.

Sanford R. Oxfeld argued the cause for appellant (Oxfeld Cohen, attorneys; Mr. Oxfeld, of counsel and on the brief).

Rodney T. Hara argued the cause for respondent Board of Education of the Westwood Regional School District (Fogarty & Hara, attorneys; Mr. Hara, of counsel; Mr. Hara and Jocelyn M. Frank, on the brief).

Stuart Rabner, Attorney General, attorney for respondent State Board of Education (Carolyn Grace Labin, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Angelo Raimondi (Raimondi) appeals from a decision of the State Board of Education (State Board) affirming a decision by the Acting Commissioner of Education (Commissioner) to dismiss Raimondi's petition claiming that the Westwood Regional Board of Education (Westwood Board) violated the school laws when it entered into an interlocal services agreement with the Board of Education of the Vocational Schools in the County of Bergen (Vocational Board) for the services of a business administrator. Petitioner also appeals the dismissal of his claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.

Raimondi petitioned the Commissioner on May 11, 2004, seeking a ruling that would require the Westwood Board to comply with N.J.S.A. 18A:17-24.1(a) with respect to the interlocal services agreement. The matter was referred to the Office of Administrative Law (OAL) for an initial decision. The parties agreed to submit cross-motions for summary decision based upon a joint stipulation of facts. The following facts are taken from that joint stipulation.

Raimondi was employed by the Westwood Board as the Board Secretary and Business Administrator from September 1983 until June 30, 2004. Raimondi possessed a school business administrator certificate, which was a requirement for the position of Business Administrator, and acquired tenure in that position.

On April 8, 2004, Raimondi submitted a letter of resignation to the Westwood Board. He wrote:

I am hereby submitting my letter of resignation, for the purpose of retirement, effective with the end of my contract as Business Administrator/Board Secretary for the 2003-04 school year. I am constrained to take this action due to your pending decision to enter into an inter-local services agreement to share the services of the Business Administrator with the Bergen County Vocational and Technical School District. However, should you decide not to enter into the agreement my decision to retire is to be considered rescinded.

I have 270 sick days in my bank. I expect to receive pay for unused sick leave pursuant to Section 10 of my contract.

Petitioner's resignation was accepted by the Westwood Board that same day, effective July 1, 2004.

Also on April 8, 2004, the Westwood Board passed a resolution effective July 1, 2004, approving an interlocal services agreement with the Vocational Board. This resolution stated:

WHEREAS, the Westwood Regional Board of Education is desirous of effectuating economies and achieving cost savings to improve the financial condition of the Westwood Regional School District;

WHEREAS, economies could be effectuated and cost savings can be achieved by entering into an interlocal services agreement with the Board of Education of the Vocational Schools in the County of Bergen for the services of a school business administrator; and

WHEREAS, an interlocal services agreement has been negotiated with the Board of Education of the Vocational Schools in the County of Bergen for the services of a school business administrator;

BE IT RESOLVED that the Westwood Regional Board of Education hereby approves the interlocal services agreement with the Board of Education of the Vocational Schools in the County of Bergen for the services of a school business administrator for the period beginning July 1, 2004 and ending June 30, 2006;

BE IT FURTHER RESOLVED that the Westwood Regional Board of Education authorizes the Board President and the Superintendent of Schools to sign the interlocal services agreement on behalf of the Westwood Regional Board of Education;

BE IT FURTHER RESOLVED that, effective July 1, 2004, the Westwood Regional Board of Education abolishes the position of board secretary/business administrator and the job description for the position;

BE IT FURTHER RESOLVED that, effective July 1, 2004, the Westwood Regional Board of Education, adopts the following job descriptions, effective July 1, 2004.

1. School Board Administrator

2. Board Secretary

After this resolution was adopted, Raimondi filed his petition with the Commissioner on May 11, 2004. The tenured, but less senior, Business Administrator employed by the Vocational Board performed the functions of Business Administrator for the Westwood Board effective July 1, 2004. Also effective July 1, 2004, Dr. Roy Montesano, the Westwood Superintendent of Schools, performed the duties of Board Secretary for the Board.

Prior to entering into the interlocal services agreement, the Westwood Board and the Vocational Board did not prepare and submit a report to the County Superintendent outlining the anticipated advantages to the districts, the feasibility of a shared arrangement, and a plan explaining how the shared arrangement would operate. As a result, neither the County Superintendent nor the Commissioner approved or disapproved of the plan. The parties finally stipulated that the reason a report was not prepared or submitted was because the Westwood Board took the position that N.J.S.A. 18A:17-24.1 did not apply to the interlocal services agreement.

The parties stipulated that the issues to be decided were:

1. Whether the Board was legally obligated to comply with the provisions of N.J.S.A. 18A:17-24.1 before it entered into an interlocal services agreement with the Board of Education of the Vocational Schools in the County of Bergen pursuant to N.J.S.A. 40:8A-1 et seq. for the services of a school business administrator for the period beginning July 1, 2004 and ending June 30, 2006.

2. Whether Raimondi's tenure and years of service in the Westwood Regional School District entitled him to employment as school business administrator when the services of school business administrator are provided by the Board of Education of the Vocational Schools in the County of Bergen under the terms of an interlocal services agreement.

3. Whether the Commissioner of Education has jurisdiction to hear a claim under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq.

The ALJ issued an opinion granting a summary decision in favor of the Westwood Board. Noting that actions of a board of education are entitled to "a presumption of correctness, as well as a presumption that such actions will be upheld by the Commissioner of Education, absent a showing of bad faith, illegal motive or a lack of rational basis," he found that petitioner offered little to overcome the presumption afforded the Board.

With respect to the CEPA claims, the ALJ observed that the OAL "has only the jurisdiction that is conferred on it by statute," citing the case of Borough of Park Ridge v. Salimone, 36 N.J. Super. 485, 495 (App. Div. 1955), aff'd 21 N.J. 28 (1956). He noted that under N.J.S.A. 18A:6-9, "the Commissioner . . . has jurisdiction only over matters arising under the school law," citing Balsley v. North Hunterdon Regional School District Board of Education, 117 N.J. 434 (1990) and Board of Education of East Brunswick v. Township Council of East Brunswick, 48 N.J. 94 (1966). He found that the plain language of the CEPA statute did not grant any administrative agency jurisdiction to hear claims under CEPA, and that the CEPA right to jury trial conclusively established that the OAL and the Commissioner had no such jurisdiction. He also relied on Abbamont v. Piscataway Township Board of Education, 238 N.J. Super. 603 (App. Div. 1990), for the proposition that CEPA actions do not augment or parallel any administrative remedy. Additionally, the ALJ relied on Picogna v. Board of Education of Cherry Hill, 249 N.J. Super. 332 (App. Div. 1991), which held that only the courts, not the Commissioner, could decide a CEPA claim, and found it indistinguishable on the facts before him.

Nonetheless, the ALJ found that the Commissioner did have jurisdiction to decide whether the Westwood Board acted in bad faith in terminating Raimondi, relying on Cheloc v. Board of Education of Elizabeth, Nos. EDU 5150-95 & EDU 11726-95, 2 000 N.J. AGEN LEXIS 288 (Apr. 24, 2000), modified, 2 000 N.J. AGEN LEXIS 940 (June 12, 2000). After noting that boards of education have the authority to engage in reductions in force, he found that Raimondi offered little to meet his burden of proving that the Westwood Board's action "was undertaken in bad faith or was arbitrary and capricious or was in any other fashion contrary to the dictates of N.J.S.A. 18A:28-9," which authorizes reductions in force. He found that an alleged failure to comply with N.J.S.A. 18A:17-24.1 did not meet that burden and was cognizable only as a CEPA claim. Finally, noting that petitioner offered no assertions that he was pressured or coerced into resigning his position, the ALJ found that any right to a tenure claim had been waived. He concluded that the termination of Raimondi's position was not done in bad faith. The ALJ, however, did not address the first issue presented for his determination, i.e., whether the Westwood Board was required to comply with N.J.S.A. 18A:17-24.1.

The Commissioner adopted the ALJ's initial decision in favor of the Westwood Board. She addressed the statutory issue presented by Raimondi and concluded from her "review of the clear language of the statutes at issue, N.J.S.A. 40:8A-1 et seq. and N.J.S.A. 18A:17-24.1 et seq., . . . that these two statutes govern two separate and distinct arrangements for the provision of business administrator services." The former governed subcontracting and the latter governed sharing of services. Because the Westwood Board entered into an undisputed subcontract, the controlling statute was N.J.S.A. 40:8A-1 to -11 and not N.J.S.A. 18A:17-24.1. Additionally, she rejected Raimondi's argument that the Westwood Board should be required to comply with both statutes because "N.J.S.A. 18A:17-24.9 explicitly states that N.J.S.A. 18A:17-24.1 shall govern the sharing of a school business administrator and shall not be deemed inconsistent with the provisions of the Interlocal Services Act governing the subcontracting of such services." She also

noted that the Senate Education Commission's Statement on the Assembly Bill explained that "the bill would not affect the ability of a school district to subcontract the services of its business administrator to another school district" and the Statement also made clear that - for a district choosing subcontracting over sharing of a school business administrator - credit toward tenure acquisition would accrue only in the primary district of employment.

After noting that the Legislature was clearly aware of N.J.S.A. 40:8A-1 to -11 when it later enacted N.J.S.A. 18A:17-24.1, she pointed out that in 1996 the Legislature amended the latter act to provide specifically that it "shall not apply when a school district subcontracts its school business administrator." Accordingly, she concluded that the Westwood Board "was not required to comply with N.J.S.A. 18A:17-24.1 et seq. when it subcontracted for the services of a business administrator."

Finally, the Commissioner held that it was unnecessary to consider the other claims in the petition. She found that there was no assertion that Raimondi was pressured or coerced into resigning his position. Thus, because Raimondi ended his employment relationship with the Westwood Board by voluntarily tendering his resignation, the Commissioner concluded that he relinquished any rights he may have had. She found that there was no basis upon which relief could be granted with respect to the other claims raised in his petition.

Raimondi raises the following issues for our consideration:

POINT I - THE WESTWOOD REGIONAL BOARD OF EDUCATION WAS LEGALLY OBLIGATED TO COMPLY WITH THE PROVISIONS OF N.J.S.A. 18A:17-24.1 BEFORE ENTERING INTO ANY AGREEMENT WITH THE BOARD OF EDUCATION OF VOCATIONAL SCHOOLS IN THE COUNTY OF BERGEN FOR THE SERVICES OF A SCHOOL BUSINESS ADMINISTRATOR.

POINT II - BY NOT FOLLOWING N.J.S.A. 18A:17-24.1, THE INTERLOCAL SERVICES AGREEMENT IN QUESTION IS VOID AS BEING ULTRA VIRES.

POINT III - APPELLANT RAIMONDI'S TENURE AND YEARS OF SERVICE IN THE WESTWOOD SCHOOL DISTRICT ENTITLE HIM TO EMPLOYMENT AS THE SCHOOL BUSINESS ADMINISTRATOR, EVEN ASSUMING THAT THE INTERLOCAL SERVICES AGREEMENT WITH THE BOARD OF EDUCATION OF THE VOCATIONAL SCHOOLS IN THE COUNTY OF BERGEN IS VALID.

POINT IV - THE COMMISSIONER OF EDUCATION HAS JURISDICTION TO HEAR A CLAIM ARISING UNDER THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT, N.J.S.A. 34:19-1, ET SEQ.

POINT V - THE COMMISSIONER OF EDUCATION ERRED IN DECLINING TO DETERMINE THE ISSUES IDENTIFIED ABOVE AT POINTS II, III AND IV MERELY BECAUSE APPELLANT RESIGNED FROM HIS POSITION AND RETIRED UNDER THE TEACHERS' PENSION AND ANNUITY FUND.

We begin our consideration of Raimondi's arguments by restating applicable legal principles. The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Additionally, "[i]t is settled that '[a]n administrative 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) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Although we recognize that deference is generally given to an administrative agency charged with interpretation of the law, we are not bound by the 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), and Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by Raimondi are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(D), (E), and we affirm substantially for the reasons expressed by the ALJ in his written opinion of September 26, 2005, and by the Acting Commissioner in her written decision of December 23, 2005, as adopted by the State Board on June 7, 2006. These findings and conclusions are supported by substantial, credible evidence in the record. Close, supra, 44 N.J. at 599. We add the following.

Generally, at the time in question, N.J.S.A. 18A:17-14.1 (amended 2007), which governs the appointment of a school business administrator, permitted a board of education, or the boards of education of two or more districts, to:

appoint a school business administrator by a majority vote of all the members of the board, define his duties, which may include serving as secretary of one of the boards, and fix his salary, whenever the necessity for such appointment shall have been agreed to by the county superintendent of schools or the county superintendents of schools of the counties in which the districts are situate and approved by the commissioner and the State board. A school business administrator shall be appointed in the manner provided in this section, however when the boards of education of two or more school districts determine to share a school business administrator, the appointment shall comply with the provisions of [N.J.S.A. 18A:17-24.1].

However, the Legislature had expressly provided that N.J.S.A. 18A:17-24.1 would not apply in a situation where a school district subcontracts its school business administrator to another school district. N.J.S.A. 18A:17-14.1.

A decision by a school board to subcontract the services of a school business administrator is governed by N.J.S.A. 40:8A-3:

Any local unit of this State may enter into a contract with any other local unit or units for the joint provision within their several jurisdictions of any service, including services incidental to the primary purposes of the local unit which any party to the agreement is empowered to render within its own jurisdiction. An authority subject to the "Local Authorities Fiscal Control Law," [N.J.S.A. 40A:5A-1, et seq.], and any other board, commission or district established by and within a single local unit and providing service within such local unit or a part thereof may become a party to such contract with the consent of the governing body of the local unit, by resolution thereof adopted in the manner provided in [N.J.S.A. 40:8A-4]; and after such consent duly given, such authority, board, commission or district may enter into such contract by resolution without need of publication or hearing.

Raimondi argues that there is a conflict between N.J.S.A. 18A:17-24.1 and N.J.S.A. 40:8A-3 and, when that is so, the specific statute takes precedence over the general statute. However, his argument ignores N.J.S.A. 18A:17-14.1, which expressly stated that the requirements of Title 18A did not apply if a school district subcontracts a school business administrator. Thus, the statutes are not in conflict.

Petitioner also argues that his tenure and years of service in the Westwood School District entitle him under N.J.S.A. 18A:17-2 to employment as the school business administrator, assuming that the interlocal services agreement with the Vocational Board is valid. That statute states that any school business administrator of a board of education of any school district who has devoted full time to the duties of his office and has served for three consecutive calendar years "shall hold his office, position or employment under tenure during good behavior and efficiency and shall not be dismissed or suspended or reduced in compensation, except for neglect, misbehavior or other offense." Ibid.

We have already found the Commissioner did not act in an arbitrary, capricious or unreasonable manner in finding that Raimondi voluntarily retired, cutting off his tenure rights. But, even if the Westwood Board had entered into a sharing agreement, as petitioner argues, it would not have been required to appoint petitioner to the position of school business administrator because N.J.S.A. 18A:17-24.5 provides that "in no event shall the districts be required to appoint a tenured individual from within any of the districts to fill a shared position." Thus, the statutory language is very clear that a school board is not required to appoint the person with the most seniority according to the tenure system.

Finally, Raimondi argues that the Commissioner had jurisdiction to hear a claim arising under CEPA. The Commissioner does have broad authority to adjudicate "all controversies and disputes arising under the school laws." N.J.S.A. 18A:6-9. However, "[w]here the controversy does not arise under the school laws, it is outside the Commissioner's jurisdiction even though it may pertain to school personnel." Bd. of Educ. of E. Brunswick, supra, 48 N.J. at 102. We have already held that the Commissioner and the State Board have no jurisdiction under CEPA claims. Picogna, supra, 249 N.J. Super. at 335.

Raimondi argues that as long as the matter is before the Commissioner on an issue appropriately before her, she must exercise jurisdiction over all aspects of the matter, relying on Balsley, supra, 117 N.J. 434. The Supreme Court there noted that the Division of Civil Rights and the Commissioner of Education have concurrent jurisdiction in discrimination cases concerning education. Id. at 446. Because the discrimination occurred in a public education context, the Court held that "the Commissioner ha[d] the predominant interest in the subject matter." Ibid. However, the Court held that Balsley's claim for "counsel fees under [the Law Against Discrimination] presented issues cognizable only before the Division of Civil Rights." Id. at 447. Thus, the Court held that the Commissioner of Education could not determine the attorney's fee claim. Ibid.

Here, however, there are not two administrative agencies that have concurrent jurisdiction over a CEPA claim. Jurisdiction of such claims is vested in the courts. N.J.S.A. 34:19-5. Furthermore, the parties to a CEPA claim have a right to trial by jury, ibid., and that right may not be denied merely because there might be some factual overlap between issues before the State Board and issues that belong in the courts. We find no error in the decision of the Commissioner and the State Board to dismiss Raimondi's CEPA claim.

 
Affirmed.

This statute governs the sharing of a superintendent, or business administrator, or both and establishes procedures for such sharing.

Subsequent to the action of the Westwood Board and the June 7, 2006, decision of the State Board, the Legislature amended N.J.S.A. 18A:17-14.1 to delete the last above-quoted sentence. P.L. 2007, c. 63, 36.

(continued)

(continued)

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A-5555-05T3

August 7, 2007