MICHEL SALAZAR-LINDEN v. BOARD OF EDUCATION OF THE TOWNSHIP OF HOLMDEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6088-07T26088-07T2

MICHEL SALAZAR-LINDEN,

Appellant,

v.

BOARD OF EDUCATION OF THE

TOWNSHIP OF HOLMDEL,

Respondent.

________________________________________________________________

 

Submitted October 6, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from a Final Decision of The

New Jersey Commissioner of Education,

Docket No. 220-8/07.

David Nash, attorney for appellant.

Purcell, Ries, Shannon, Mulcahy &

O'Neill, attorneys for respondent Board

of Education of the Township of Holmdel

(Rita F. Barone, of counsel; Alyssa K.

Weinstein, on the brief).

Anne Milgram, Attorney General, attorney

for New Jersey Commissioner of Education

(Jennifer L. Campbell, Deputy Attorney

General, on the brief).

PER CURIAM

Appellant Michel Salazar-Linden appeals from a final decision of the Commissioner of Education affirming the decision of an Administrative Law Judge (ALJ). The Commissioner concluded that her petition was time-barred by N.J.A.C. 6A:3-1.3(i), and we affirm.

The relevant facts are not in dispute. On June 23, 2004, appellant was appointed by respondent Holmdel Board of Education (Board), as a supervisor, effective August 2004. She was employed under a ten-month contract to a non-tenured teaching staff position. Although she claims that she began work as Supervisor of Humanities on July 16, 2004 and remained employed in the position through June 30, 2007, her contract term commenced on August 24, 2004. On April 27, 2007, in the eighth month of her third academic year, appellant was notified by the Board Superintendent that she would not be reappointed for the 2007-08 school year. One hundred and nine days later, on August 14, 2007, appellant filed a Petition of Appeal with the Commissioner alleging that she had accrued tenure pursuant to N.J.S.A. 18A:28-5 by completing the equivalent of three academic years during a four year period and her tenure rights were violated when the Board failed to rehire her after her termination effective June 30, 2007. Thereafter, respondent filed a motion to dismiss the petition, alleging it was untimely pursuant to N.J.A.C. 6A:3-1.3(i), which provides that the petition must be filed within ninety days of notice of the challenged board action.

After submission of the matter to the Office of Administrative Law, the ALJ rendered his decision concluding that the April 27, 2007 letter from the Board, advising appellant that she had not been reappointed for the 2007-08 school year, commenced the 90-day period. The ALJ rejected appellant's arguments that a compelling public interest or a novel constitutional issue existed to justify a relaxation of the 90-day rule. Appellant then filed an appeal with the Commissioner.

The Commissioner rendered a final decision adopting the ALJ's decision. The Commissioner found there is no unfairness in computing the appeal limitations period from April 27, 2007, the date on which appellant became aware that respondent had "taken action that was inconsistent with her attainment and enjoyment of tenure rights." This appeal followed.

On appeal, appellant asserts that her claim was timely filed within 90 days of when "she knew or should have known of the violation of her tenure rights" or in the alternative, the 90-day filing time should have been relaxed.

Appellant first contends that Nissman v. Bd. of Educ. of Twp. of Long Beach Island, 272 N.J. Super. 373 (App. Div. 1993), certif. denied, 137 N.J. 315 (1994), relied on by both the ALJ and the Commissioner, does not apply, as it inherently undermines her statutory tenure rights as recognized in Spiewak v. Bd. of Educ. of Rutherford, 90 N.J. 63 (1982). Appellant did not have tenure when she received the nonrenewal notice in April 2007. She contends that the 34 calendar days, from July 16, 2004 through August 20, 2004, which she allegedly worked, "should count towards the accrual of the first ten-month time period necessary for purposes of determining completion of an 'academic year' under N.J.S.A. 18A:28-5(c)." In relying on these extra days of work, appellant contends that she obtained tenure, by completing "the equivalent of three academic years within a four year period on May 27, 2007." Further, since she only became "aware that she may have tenure rights that would be violated by the board's termination of her employment effective June 30" upon consultation with an attorney the week of May 14, 2007, her August 14, 2007 petition was within the 90-day period. We reject her argument.

N.J.A.C. 6A:3-1.3(i) provides that a petitioner must file an appeal with the Commissioner within ninety days of obtaining notice of the final action of a district board of education. The regulation provides, in pertinent part, that:

The petitioner shall file a petition no later

than the 90th day from the date of receipt of

the notice of a final order, ruling or other

action by the district board of education,

individual party, or agency, which is the

subject of the requested contested case hearing.

[N.J.A.C. 6A:3-1.3(i)(emphasis added).]

The April 27, 2007 letter was the relevant nonrenewal notice and was in compliance with N.J.S.A. 18A:27-10.

Consistent with both the Commissioner and ALJ's findings, we deem Nissman to be controlling. In Nissman, supra, the petitioner entered into a contract, for a principal position, with the Long Beach Board of Education on August 10, 1987. The contract was for a three year term, "commencing on September 1, 1987 and ending on August 31, 1990." 272 N.J. Super. at 374. On April 27, 1990, Nissman received a resolution issued by the Long Beach Board of Education on April 23, 1990, that her employment contract would not be renewed when it expired on August 31, 1990, nor would she be offered a new contract or granted tenure. After receiving the notice, Nissman continued to work until the final day of her contract, August 31, 1990. On that day, her attorney advised the Board that Nissman had acquired tenure, by working for three full academic years and would report to work on September 4, 1990, to resume her duties. The Board responded the same day that Nissman's contract had not been renewed pursuant to the April 23 resolution, and she was not to report for work.

Nissman then filed a petition with the Commissioner on September 21, 1990, contending that "she had acquired tenure rights on August 31, 1990, and, notwithstanding those rights, her employment was terminated on September 4, 1990." Id. at 376. The Board filed a motion to dismiss under the 90-day filing requirement arguing Nissman's petition was untimely. Nissman countered that the 90-day period should be calculated from August 31, when she acquired tenure and the Board had denied her rights. She asserted that the April 23 resolution was not controlling. The Board argued that "its letter of August 31, 1990 was not new action initiating the 90 day period, but only a restatement of its April resolution." Ibid. Following her appeal of the State Board's dismissal of Nissman's petition, we upheld the State Board's determination that the only action of the Board was the April 23 resolution, finding that the determination was neither arbitrary or unreasonable. We rejected Nissman's argument that when her tenure right ripened, the Board's "restatement of its earlier decision not to renew her contract without terminating her while she was non-tenured, became an attempt to bar a now-tenured employee from her position." Id. at 378. We said:

Upon receipt of the Local Board's resolution,

petitioner knew or should have known that she

was not going to be offered a new contract for the following academic year; that she was going to

be required to serve out the remaining time on her

existing contract; that she would complete three

full years of service in the district thereby

granting her tenure rights under N.J.S.A. 18A:28-5;

and notwithstanding the fact, the Local Board had

voted not to grant her tenure.

[Id. at 379.]

We relied on Kaprow v. Berkeley Twp. Bd. of Educ., 131 N.J. 572 (1993), which recognized that the "limitation period gives school districts security in knowing that administrative decisions regarding the operation of the school cannot be challenged after ninety days." Id. at 582. The 90-day limitation "represents a fair and reasonably-necessary requirement for the proper and efficient resolution of disputes under the school laws." Ibid. The Court observed that since "local school boards operate on a cash basis, claims must be filed promptly so that the local board can anticipate any back- pay requirements." Ibid. In Nissman, supra, we found that to "allow a teaching staff member, such as petitioner, to file a claim after the commencement of a new academic year in these circumstances defeats the principle of 'repose, an essential element in the proper and efficient administration of school laws.'" 272 N.J. Super. at 380 (citing Kaprow, supra, 131 N.J. at 582).

Additionally, we rejected Nissman's argument that her claim could not have been filed earlier because she did not acquire tenure until August 31, 1990. Ibid. We noted that "[a]n agency regulation that focuses on the date of the employer's wrongful act as the accrual date for the cause of action, rather than the date on which the consequences of the act is directly felt by the employee (termination), is not inherently arbitrary or capricious." Id. at 381 (relying on Delaware State College v. Ricks, 449 U.S. 250, 259-61, 101 S. Ct. 498, 504-06, 66 L. Ed. 2d 431, 440-42 (1980)), which held that the employee's cause of action accrued on the date he was advised that he would be denied tenure, and not the date when his employment terminated.

Here the ALJ, Judge Masin, noted that "Nissman teaches that the relevant date is April 27, when the letter from the Superintendent made it clear that the petitioner had not been reappointed for the 2007-08 school year, not the date upon which she claims to have attained tenure, which date at its earliest was after the April 27 action." He reasoned that "as the appeal is not from a denial of tenure, but from an action clearly known to petitioner and clearly contrary to her interests that she knew of as of April 27, the 90-day period must be measured from that action and thus it expired on July 27."

Further, appellant distinguishes Nissman by arguing it is inherently inconsistent with the New Jersey Supreme Court's decisions in Spiewak, supra, and Lavin v. Bd. of Educ. of the City of Hackensack, 90 N.J. 145 (1982). Spiewak held that all "teaching staff members who work in positions for which a certificate is required, who hold valid certificates, and who have worked the requisite number of years, are eligible for tenure unless they come within the explicit exceptions in N.J.S.A. 18A:28-5." Spiewak, supra, 90 N.J. at 81. Additionally, the Court noted that because of the tenure statute's remedial purpose, it should be liberally construed. Id. at 74.

In Lavin, a teacher filed an action, nine years after starting employment, seeking military service credit under N.J.S.A. 18A:29-11 which credited military service as employment credit towards tenure. Lavin, supra, 90 N.J. at 147-56. The Court found that the statute of limitations did not apply since the benefit under the statute was a statutory entitlement, and "not directly related to the employment service." Id. at 150-51.

Appellant contends that a "direct conflict" exists between Spiewak and Nissman as it "effectively undermines Spiewak and its prodigy by compelling a teaching staff member to assert a tenure right that the employee does not yet have, rather than permitting the teaching staff member to assert the right after it becomes vested." Appellant's contention regarding Spiewak fails to recognize that at the time the Board provided appellant notice of nonrenewal, she had not obtained tenure status. More importantly, appellant could have made the same substantive argument that she would obtain tenure under Spiewak, once she received notice of the Board's decision not to renew her contract on April 27, 2007. However, appellant's petition was filed after the 90-day limitation.

More importantly, in Polaha v. Buena Reg'l Sch. Dist., 212 N.J. Super. 628 (App. Div. 1986), we upheld the Commissioner's decision that the 90-day limitation, (then codified at N.J.A.C. 6:24-1.2), is applicable to appellant's petition "notwithstanding the assertion of his statutory right to tenure under N.J.S.A. 18A:28-5." Id. at 633. Appellant's argument that the 90-day limitation is somehow a direct restraint on her tenure rights is meritless. Simply put, appellant's failure to file her petition within the required time precludes any substantive argument that she is entitled to tenure.

In sum, despite appellant's arguments, we deem Nissman controlling and find no basis to question the continued viability of that decision. The Commissioner's determination that the 90-day period ran from the April notice of the Board's decision not to renew is neither arbitrary nor capricious.

We, likewise, reject appellant's arguments that the 90-day period should have been relaxed. We reject appellant's reliance on Eisenberg v. Bd. of Educ. Fort Lee, OAL Dkt. No. EDU9451-01, S.B. No. 43-02 (November 5, 2003) aff'd, S.B. No. 31-07 (January 9, 2008), to argue that the 90-day limit should be relaxed. Eisenberg involved unique circumstances including intentional wrongdoing causing the Commissioner to relax the 90-day time limit, "in order to effectuate concerns for individual justice." Id. at 7. Such unique circumstances are not present here.

Both the ALJ and the Commissioner concluded that appellant's additional arguments were without merit. In the initial decision, Judge Masin noted:

And there is no showing that the issue of when

she would actually have achieved tenure is of such compelling public interest or presents a novel constitutional issue that should cause a relaxation

of the rule. . . .

The Commissioner likewise noted that appellant did not meet her burden of demonstrating that compelling public interests are implicated in her case nor provide a reasonable basis for relaxing the 90-day rule. The Commissioner held that "[n]either the observation that academic supervisors perform important services, nor the unsupported speculation that hundreds or even thousands of academic supervisors might experience circumstances similar to petitioner's, rises to the level of a showing that the present case is of compelling public interest."

 
We agree with the Commissioner and affirm the dismissal of appellant's petition for the reasons set forth in Judge Masin's comprehensive opinion of December 7, 2007, as adopted by the Commissioner in her decision of March 3, 2008.

Affirmed.

N.J.S.A. 18A:28-5 provides:

The services of all teaching staff members employed in the positions of teacher, principal. . . and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, . . . shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause . . . after employment in such district or by such board for:

(a) Three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or

(b) Three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or

(c) The equivalent of more than three academic years within a period of any four consecutive academic years.

For purposes of this chapter, tenure in any of the administrative or supervisory positions enumerated herein shall accrue only by employment in that administrative or supervisory position. . . .

During the pendency of the appeal, P.L. 2008. C.36 was enacted, eliminating the State Board of Education from the appeal process.

Appellant provides no documentation that her employment began on July 16, 2004 rather than August 24, 2004 other than an email sent to her on July 16, 2004, which discusses school-related issues; however, appellant fails to provide proof that she was paid for that period of time or that she was obligated, as part of her job responsibilities, to work those days.

N.J.S.A. 18A:27-10 provides:

On or before May 15 in each year, each nontenured teaching staff member continuously employed by a board of education since the preceding September 30 shall receive either

(a) A written offer of a contract for employment from the board of education for the next succeeding year providing for at least the same terms and conditions of employment but with such increases in salary as may be required by law or policies of the board of education, or

(b) A written notice from the chief school administrator that such employment will not be offered.

See footnote 2, supra, at pg 4.

(continued)

(continued)

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A-6088-07T2

October 28, 2009