CHRISTINA SILVIERA-FRANCISCO v. BOARD OF EDUCATION OF THE CITY OF ELIZABETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTINA SILVIERA-FRANCISCO,

Petitioner-Respondent,

v.

BOARD OF EDUCATION OF THE CITY

OF ELIZABETH, UNION COUNTY,

Respondent-Appellant.

_________________________________________

Argued June 4, 2014 Decided August 7, 2014

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Commissioner of Education, Docket No. 192-7/11.

Bruce S. Rosen argued the cause for appellant (McCusker, Anselmi, Rosen & Carvelli, P.C., attorneys; Mr. Rosen and Michael R. Futterman, on the briefs).

Lawrence N. Lavigne argued the cause for respondent Christina Silviera-Francisco.

Beth N. Shore, Deputy Attorney General, argued the cause for respondent Commissioner of Education (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Shore, on the brief).

PER CURIAM

The Board of Education of the City of Elizabeth (the Elizabeth Board) appeals from the April 17, 2013 order of the State Commissioner of Education that confirmed the Initial Decision of an Administrative Law Judge (ALJ) that found Christina Silviera-Francisco was tenured in the position of Vice Principal when she was removed from the position of Principal in June 2010. Consequently, Silviera-Francisco was entitled to receive a Vice Principal salary while assigned to a teaching position, pro-rated over a ten-month period.

Despite the narrow scope of this appeal, the Elizabeth Board urges us to expand our review and determine the legality of the decision of the State Board Examiners to issue a certificate to Silviera-Francisco indicating that as of September 2009, she had completed all of the requirements necessary for the position of Principal, despite evidence showing: (1) that she did not send her completed application and required fee until June 26, 2010; and (2) that these documents were received by the State Education Department on July 15, 2010.

The Elizabeth Board argues that this practice of "backdating" certificates is ultra vires because it lacks

specific statutory or regulatory support. This argument was found persuasive by the ALJ who first reviewed the matter. In an Initial Decision dated July 31, 2012, the ALJ concluded that the Board of Examiners' authority to issue certificates indicating that a particular individual had met all of the requirements for a particular administrative position in the field of education was strictly and exclusively regulated under N.J.A.C. 6A:9-5.15, which provides:

(a) The Board of Examiners shall issue the appropriate certificate upon the candidate's completion of all certification requirements. The candidate shall be subject to all requirements in effect at the time the application is received in the Office. Requirements include, but are not limited to, coursework, degree, tests, fees, GPA and all certificate rules pursuant to N.J.A.C. 6A:9-8, 11, 12, and 13. Applications shall be deemed filed with the Office when the application and all required supporting documentation has been received. The teacher shall maintain possession of the original certificate.

(b) If the candidate is not eligible for the certificate sought, the Office shall issue a written evaluation that identifies the deficiencies for certification.

(c) The Board of Examiners may refuse to issue a certificate to a candidate enrolled in a New Jersey or out-of-State approved program when the candidate fails to secure the recommendation of the preparing institution.

The ALJ found "no reference [in this regulation] to the circumstances by which a certificate may be granted retroactively to a date before the submission of an application and fee." As a corollary to this analysis, the ALJ also found the Department's practice of backdating certificates violated its rule-making responsibilities under the Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 to -31, as our Supreme Court "required" in Metromedia, Inc. v. Div. of Taxation, 97 N.J. 313, 331-32 (1984).

The Commissioner rejected the ALJ's findings and conclusions of law in a Final Order and Decision dated September 14, 2012. Specifically addressing the scope of the ALJ's authority in this respect, the Commissioner noted:

Upon a comprehensive review of the record in this matter, the Commissioner finds that the ALJ acted beyond the scope of his jurisdiction when he found that the Department's action to issue the petitioner's Standard Certificate-Principal retroactive to September 2009 was ultra vires. The Commissioner further finds that the ALJ's determination that the Department's process of backdating certifications is in violation of Metromedia, supra, is also beyond the scope of his jurisdiction.

It is important to recognize that the Department was not a party to this action and that the underlying issue in this case was limited to a determination as to whether the petitioner obtained tenure as a vice principal. Certainly, a decision deeming a Department process to be ultra vires which would invariably affect other certifications and the certification process as a whole should not be addressed as a collateral issue in a case where the Department was not even afforded an opportunity to participate in the litigation. If the [Elizabeth] Board believes that the action of the Department in issuing the petitioner's certification was arbitrary, capricious or unreasonable, the [Elizabeth] Board would be required to institute an action against the Department challenging the validity of its decision.

With respect to the rulemaking issue: in the course of this matter, the ALJ concluded that the Department violated Metromedia, supra, when it failed to promulgate a rule that governs the circumstances under which certificates may be backdated and the procedure to do so. It is, however, well settled that the action or inaction of an administrative agency is a challenge which belongs in the Superior Court of New Jersey, Appellate Division, pursuant to [Rule] 2:2-3(a)(2). See N.J. Civil Services Ass'n v. State, 88 N.J. 605, 612 (1982). It is without question that the alleged failure to promulgate a rule constitutes agency inaction. Therefore, the OAL [Office of Administrative Law] is not the proper forum to determine whether the Department must issue a rule that provides guidelines for the backdating of certifications pursuant to Metromedia, supra.

After this complete repudiation of the ALJ's legal conclusions, The Commissioner remanded the matter to the OAL "for a determination of the petitioner's tenure and seniority rights in the District based upon the fact that she received a valid Standard Certificate Principal on August 11, 2010, with a September 2009 effective date."

The Commissioner's September 14, 2012 Final Decision included a gratuitous footnote apprising the Elizabeth Board of its right to appeal this decision to the Superior Court, Appellate Division pursuant to N.J.S.A. 18A:6-9.1. Despite this, the Elizabeth Board opted not to seek appellate review. Instead, the matter was returned to the OAL where the same ALJ dutifully adhered to the Commissioner's remand directions and based on the "relevant undisputed facts" found in favor of petitioner in all respects.

Based on the undisputed facts, the ALJ found that Silviera-Francisco "had tenure in the position of vice principal at the time she was returned to her former teaching position as a result of a Reduction in Force (RIF) in June 2010." She was therefore entitled to be paid the salary of vice principal when she was assigned to a teaching position. The Commissioner adopted the ALJ's findings and conclusions of law in a Final Order and Decision dated April 17, 2013. It is from this Final Order and Decision that the Elizabeth Board now appeals to this court.

The arguments raised by the Elizabeth Board in this appeal are all grounded in attacking the Commissioner's September 14, 2012 Final Decision. However, as the Elizabeth Board made clear in its Notice of Appeal and Civil Case Information Statement, "[o]n April 17, 2013, the Commissioner confirmed the decision of the ALJ and entered its Final Decision and Order. It is this final order and decision from the Commissioner that is the subject of the instant appeal." (Emphasis added).

Within the limitations set by the Elizabeth Board itself, we will apply the standards of review the Supreme Court has repeatedly reaffirmed:

[a]lthough sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role [in reviewing an agency action] is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

[In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385-86, (2013) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

We discern no legal grounds to overturn the Commissioner's decision. The salient facts of this case were undisputed and the core legal issues were settled in an earlier decision by the Commissioner that the Elizabeth Board opted not to appeal. To be clear, we affirm substantially for the reasons expressed by the Commissioner in his Final Order and Decision dated April 17, 2013.

Affirmed.