ALBERT ZIEGLER v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, HUDSON COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1998-08T31998-08T3

ALBERT ZIEGLER,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE CITY

OF BAYONNE, HUDSON COUNTY,

Respondent-Respondent.

___________________________________

 

Submitted January 12, 2010 - Decided

Before Judges Wefing and Grall.

On appeal from a Final Decision of the

Commissioner of Education, No. 384-12/07.

Bucceri & Pincus, attorneys for appellant

(Gregory T. Syrek, of counsel and on the brief).

Apruzzese, McDermott, Mastro & Murphy, attorneys

for respondent Bayonne Board of Education (Robert J.

Merryman, on the brief).

Anne Milgram, Attorney General, attorney for

respondent Commissioner of Education (Joyce D.

Atkins, Deputy Attorney General, on the statement

in lieu of brief).

PER CURIAM

Petitioner Albert Ziegler appeals from a Final Decision of the Commissioner of the Department of Education dismissing as untimely the petition Ziegler filed on December 14, 2007. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Ziegler was hired by the Bayonne Board of Education (the "Board") in 1984 to teach employment orientation courses. At the time he was hired, Ziegler held a certificate for teacher of skilled trades, with an endorsement in employment orientation. He did not, however, have a bachelor's degree from college. He taught for a total of fourteen years in the Bayonne school system and was granted tenure. Over those years, he taught a number of different courses, including Shop, Maintenance and Repair, and Industrial Technology. In 1997 he obtained a standard educational services certificate with an endorsement as a teacher coordinator of cooperative industrial education.

Despite his number of years teaching in the Bayonne school system, the Board's superintendent after consulting with the County superintendent and the State Department of Education, determined that Ziegler did not have the appropriate certificate to teach the courses to which he had been assigned for a number of years, and he recommended to the Board that Ziegler be terminated. The Board adopted a resolution terminating Ziegler, to be effective in January 1999. In February 1999, Ziegler filed a petition with the Commissioner of Education contesting his termination and seeking his reinstatement.

The parties' litigation over that issue, with Ziegler contesting his termination and the Board resisting his claim for reinstatement and back pay, continued until August 2009, when, in consolidated appeals, we affirmed the decision of the Commissioner that Ziegler was entitled to be rehired, as well as the computation of back pay to which Ziegler was entitled. Ziegler v. Bd. of Educ. of Bayonne, Nos. A-4189-07T3, A-4199-07T3 (App. Div. Aug. 4, 2009). While that litigation was in progress, Ziegler completed the course work for his bachelor's degree, which he obtained in 2002, together with an endorsement to his teacher's license as a teacher of the handicapped.

In December 2007, prior to the final completion of his challenge to his termination, and some five years after he obtained the appropriate endorsement to teach the handicapped, Ziegler filed the petition with the Commissioner that is before us on this appeal. In that petition, Ziegler asserted that he was entitled to be reinstated as a teacher in the Bayonne school system by virtue of his having obtained the endorsement to teach the handicapped.

The Board filed a motion to dismiss this petition as untimely. The administrative law judge granted the Board's motion, and the Commissioner adopted the decision of the administrative law judge. This appeal followed.

We note first the limited scope of our review. We will not overturn the ultimate determination of an administrative agency unless it is shown that the determination was "arbitrary, capricious or unreasonable," or that it ran counter to the applicable policies governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, we accord significant deference to the determinations of an administrative agency within its particular field of expertise. Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 469 (1985).

N.J.A.C. 6A:3-1.3(i) provides that any petition appealing to the Commissioner shall be filed "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 case hearing." This ninety-day rule has been strictly construed by the courts and consistently applied. See Riely v. Bd. of Educ., 173 N.J. Super. 109 (App. Div. 1980). This period begins to run when the petitioner "learn[s] from the Local Board the existence of that state of facts that would enable him to file a timely claim." Kaprow v. Bd. of Educ., 131 N.J. 572, 588-89 (1993). A petitioner need not receive official and formal notification that he or she may have a valid claim. Id. at 588. Requiring more than actual notice would defeat the underlying policy behind the ninety-day deadline. Id. at 589.

We agree with the Commissioner that as a result of a brief filed on behalf of the Board in the earlier litigation, Ziegler learned in December 2006 of the Board's position with respect to his later-acquired endorsement. His petition seeking to vindicate rights under that endorsement, filed in December 2007, was untimely.

We affirm, substantially for the reasons stated by the Commissioner of Education in her written decision of November 3, 2008.

 

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A-1998-08T3

April 23, 2010