SOPHIA GIACOMAZZI - v. BOARD OF EDUCATION OF THE SOUTH ORANGE-MAPLEWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5686-07T25686-07T2

SOPHIA GIACOMAZZI,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

SOUTH ORANGE-MAPLEWOOD

SCHOOL DISTRICT, ESSEX COUNTY,

Respondent-Respondent.

________________________________________________________________

 

Argued June 2, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from a final decision of the Commissioner of Education, Docket No. 233-7/06.

Gail Oxfeld Kanef argued the cause for appellant (Oxfeld Cohen, attorneys; Ms. Kanef, of counsel and on the briefs).

Rita F. Barone argued the cause for respondent Board of Education of the South Orange-Maplewood School District (Purcell, Ries, Shannon, Mulcahy & O'Neill, attorneys; Ms. Barone, of counsel; Ms. Barone and Alyssa K. Weinstein, on the brief).

Anne Milgram, Attorney General, attorney for respondent Commissioner of Education (Bryant Lawrence Horsley, Jr., Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Sophia Giacomazzi appeals from a decision by the Commissioner of Education (Commissioner) rendered on June 13, 2008, holding that she was not employed in a tenure-eligible position during the 2002-2003 school year. We affirm.

The facts underlying this appeal are as follows. Petitioner was hired by respondent South Orange-Maplewood Board of Education (Board) as a substitute teacher on October 14, 2001, to fill the position of tenured high school English teacher, Nelson Trias, who was then on active military duty. Plaintiff held the substitute position for the remainder of the 2001-2002 school year and was paid the daily rate for a long-term substitute.

In May 2002, petitioner applied for a certificate and license as an English teacher through the alternate provisional teacher program. In May 2002, she was hired for the 2002-2003 school year as a continuing replacement for Trias. Her salary for that year was to be $35,000. Her contract specifically indicated that the 2002-2003 school year would not be considered toward tenure.

In October 2002, Trias returned to his position, although he had originally been expected to be on leave for the entire 2002-2003 school year. Another English teacher, Ann Wessel-Dwyer, had requested personal leave for the 2002-2003 school year and another substitute teacher was hired to cover her classes.

Petitioner continued to cover Trias' classes in order to avoid disruption for the students, and Trias was assigned to cover Wessel-Dwyer's classes. Petitioner remained in the substitute position for the 2002-2003 school year. The Board maintains that if Wessel-Dwyer had not taken a leave of absence, Trias would have been assigned to his original classes and petitioner's employment would have been terminated.

At the beginning of the next school year, 2003-2004, another English teacher retired. Petitioner was hired as a permanent teacher to fill this vacancy and was subsequently rehired for the 2004-2005 and the 2005-2006 school years.

In April 2006, however, the Board notified petitioner that her position would not be renewed for 2006-2007 and, because she was a non-tenured teacher, she did not have a claim on the position. Plaintiff was given the opportunity to discuss the non-renewal with the superintendent and an opportunity to appear before the Board to argue for her position. After both meetings, the superintendent confirmed that her contract would not be renewed.

Thereafter, petitioner filed an appeal with the Commissioner of Education, claiming that she had earned tenure between October 2001 and May 2006. The Board responded and the parties cross-moved for summary judgment. The Administrative Law Judge (ALJ) decided in favor of petitioner, holding that she had tenure in the position. In her June 13, 2008 decision, however, the Commissioner rejected the ALJ's recommendation, found that petitioner did not earn tenure and dismissed the petition.

In this appeal, petitioner argues that (1) she served the requisite period to earn tenure; (2) case law mandates that tenure laws be liberally construed; (3) she never replaced anyone after Trias returned; and (4) nothing in the tenure law requires that the district establish a formal vacancy before a staff member can accrue tenure.

The Commissioner undertook an independent review of the record in rejecting the ALJ's decision and determined that

although there were teachers on temporary leave during the 2002-2003 school year, there were no actual vacancies in the English department until June 2003 and therefore no tenure-track positions to which petitioner could lay claim; respondent Board has the discretion to modify teaching assignments and locations; and petitioner's claim that by continuing her assignment to teach the same courses in the same rooms for the remainder of the school year - after the permanent teacher she was hired to replace had returned to work - is without merit. Accordingly, the petition was dismissed.

We agree. We have carefully considered petitioner's arguments in light of the record and the applicable law. We are satisfied that her arguments lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). Nevertheless, we add the following.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

 
The Commissioner's decision is supported by the substantial credible evidence in the record and we affirm substantially for the reasons stated by Lucille E. Davy, Commissioner of Education, in her decision dated June 13, 2008.

(continued)

(continued)

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A-5686-07T2

September 2, 2009