PEGGY PREZIOSO v. BOARD OF EDUCATION OF THE POLYTECH CAREER ACADEMY HUNTERDON COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PEGGY PREZIOSO,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

POLYTECH CAREER ACADEMY,

HUNTERDON COUNTY,

Respondent-Respondent.

August 27, 2014

Argued April 8, 2014 Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from the State Board of Education, #112-6/10.

William P. Hannan argued the cause for appellant (Oxfeld Cohen, P.C., attorneys; Mr. Hannan, of counsel and on the brief).

Howard A. Vex argued the cause for respondent Board of Education of the Hunterdon County Polytech Career Academy (The Vex Labor & Employment Law Firm, attorneys; Mr. Vex, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State Board of Education (Angela L. Velez, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Peggy Prezioso, a tenured certified school nurse employed by respondent the Polytech Career Academy Board of Education (Polytech), appeals from the April 26, 2013 final decision of the Commissioner of Education (Commissioner). Prezioso maintains that Polytech improperly eliminated her position as its sole certified school nurse and that Polytech's agreement with a neighboring school district to provide certified nursing services is invalid. The Commissioner found that the record fully supported the Administrative Law Judge's (ALJ) conclusions that Prezioso's tenure rights were not violated and that Polytech "had legal authority to implement the shared services agreement for certified school nurse services and the corresponding reduction in force for reason of economy." The Commissioner therefore granted the Board's motion for summary decision and dismissed Prezioso's appeal. We affirm.

I.

Polytech is Hunterdon County's vocational high school for career and technical education. It has two campuses in Raritan Township: the Central Campus, which shares a parking lot with Hunterdon Central Regional High School (Hunterdon Central), and the Bartles Corner Campus, located about two miles from the Central Campus.

Prezioso was hired as the full-time certified school nurse by Polytech in September 2003 and attained tenured status in September 2006. She was located at the Central Campus, but also served the needs of the Bartles Corner Campus.

In April 2010, Polytech informed Prezioso that it had taken "action not to renew" her contract for the 2010-11 school year. Her last day was June 30, 2010. After terminating Prezioso, Polytech entered into a Shared Services Agreement for Nursing Services (Agreement) with the Board of Education of Hunterdon Central to provide nursing services. The Agreement states that it "covers the 2010-2011 school year" and that, during the school year, "Hunterdon Central will provide nursing services to Polytech from 7:30 a.m. to 2:00 p.m. during regular work days as defined by the Hunterdon Central employee ten[-]month work day calendar."

Under the Agreement, Hunterdon Central agreed to provide certain "direct nursing services" to Polytech; Polytech agreed, among other things, to undertake numerous recordkeeping responsibilities and, "[f]or illness or first aid services that do not require on-site attention," to "identify an appropriate covering nurse that is properly certified to address the issue." In the absence of the "covering nurse," Polytech must "identify another covering nurse or . . . secure the services of a substitute nurse." The Agreement further stated that "Hunterdon Central will provide the health services in compliance with all applicable New Jersey State rules and regulations and in conformance with accepted standards." According to the Certification of Kimberly Metz, the Superintendent for Polytech, the effect of the Agreement was that "Central High School's four Certified School Nurses are now designated as the Certified Nurses for Polytech's" two campuses and would be "stationed at Central High School."

Polytech created a "stipend position" for a "covering nurse," and required this person be a registered nurse or equivalent and an employee of Polytech. Kelly Pike, a full-time teaching staff member of Polytech who teaches nursing courses, was appointed to fill the "covering nurse" position, in addition to her teaching duties, for an annual stipend of $1000. Pike is not a certified school nurse.

Polytech has achieved cost savings by eliminating Prezioso's position as certified school nurse and entering into the Agreement. During the 2010-2011 school year, Polytech spent $29,700.00 for services under the Agreement and $1500.00 in "First Responder Stipends," for a total of $31,200.00. By contrast, if Polytech had retained Prezioso, it contends that it would have spent $83,469.12 in salary and benefits for that same school year.

Prezioso filed a petition of appeal to the Commissioner on May 26, 2010, contending that Polytech had violated her tenure rights by failing to renew her contract because, as a tenured, certified school nurse, she was "not subject to having her contract renewed or not renewed." On October 6, 2010, Prezioso filed an amended petition of appeal, adding a count challenging Polytech's appointment of Kelly Pike to the position of "covering nurse" at Polytech, contending that "Pike is now apparently authorized to perform the duties that were previously performed by" Prezioso.

The matter was referred to the Office of Administrative Law. Contending that no material facts were in dispute, the parties cross-moved for summary decision. The Administrative Law Judge (ALJ) concluded that Prezioso's tenure rights were not violated and that Polytech "had legal authority to implement the shared services agreement for certified school nurse services and the corresponding reduction in force for reason of economy."

The Commissioner concurred with the ALJ's conclusion, amplifying the ALJ's reasoning by pointing to the inclusion of the phrase "utilize or employ" in N.J.S.A. 18A:40-3.3 as "clearly indicat[ing] that the Legislature did not intend to preclude the appointment of otherwise qualified certified school nurses pursuant to the utilization of a shared services agreement." This appeal followed.

II.

Initially, we note our review is limited. We will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the statutory scheme administered by that agency. In re Musick, 143 N.J. 206, 216 (1996). We remain "mindful of the deference that courts must accord agency action that purports to effectuate statutory and regulatory authority." Brady v. Dep't of Pers., 149 N.J. 244, 256 (1997). "We adhere to that standard to resolve disputes arising under school laws." Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993); see also Impey v. Bd. of Educ., 142 N.J. 388, 397 (1995).

In construing a statute, a court must first look at the wording of the statute to ascertain its plain meaning and intent. Miah v. Ahmed, 179 N.J. 511, 520 (2004); Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128 (1987). The language of a statute is to be given its ordinary meaning, absent a legislative intent to the contrary. Vicenzino v. Bedminster Twp. Bd. of Educ., 312 N.J. Super. 243, 247 (App. Div.), certif. denied, 156 N.J. 408 (1998). If the language is "plain and clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms." State, Dep't of Law & Pub. Safety v. Bigham, 119 N.J. 646, 651 (1990).

If there is ambiguity in the statutory language that allows for more than one plausible interpretation, then the Legislature's intent should be ascertained and considered as a guide to interpretation. Burns v. Belafsky, 166 N.J. 466, 473 (2001). The "determination of legislative intent includes consideration of not only the particular statute in question, but the entire legislative scheme of which it is a part." Ramsey Teachers Ass'n v. Bd. of Educ. of the Borough of Ramsey, 382 N.J. Super. 241, 248 (App. Div.), certif. denied, 186 N.J. 364 (2006) (citing Kimmelman, supra, 108 N.J. at 129). The court's task is to "'effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" Burns, supra, 166 N.J. at 473 (quoting State v. Hoffman, 149 N.J. 564, 578 (1997)).

A statute must be "interpreted in an integrated way without undue emphasis on any particular word or phrase and, if possible, in a manner which harmonizes all of its parts so as to do justice to its overall meaning." Chasin v. Montclair State Univ., 159 N.J. 418, 427 (1999) (quoting Zimmerman v. Municipal Clerk of Tp. of Berkeley, 201 N.J. Super. 363, 368 (App. Div. 1985)). If a literal interpretation of individual terms is inconsistent with the overall statutory scheme or intent, that interpretation should be rejected. Turner v. First Union Nat'l Bank, 162 N.J. 75, 84 (1999). Moreover, where there are several statutes to be addressed, "[s]tatutes in pari materia are to be construed together when helpful in resolving doubts or uncertainties and the ascertainment of legislative intent." Superior Air Prods. Co. v. NL Indus., Inc., 216 N.J. Super. 46, 64 (App. Div. 1987), appeal dismissed, 126 N.J. 308 (1991).

At issue here is whether the Commissioner erred, as a matter of law, in determining the requirements of the statutory scheme applicable to certified school nurses do not mandate each district to directly employ at least one certified school nurse, but rather allow districts to share certified school nurses under the Uniform Shared Services and Consolidation Act (Act), N.J.S.A. 40A:65-1 to -35. Adopted in 2007, the intent of the Act is to "facilitate and promote shared service agreements . . . ." N.J.S.A. 40A:65-13. In adopting the Act, the legislature noted that "[o]ther laws, permitting a variety of shared services . . . have not been very effective in promoting the broad use of shared services as a technique to reduce local expenses funded by property taxpayers;" thus, the Legislature found it appropriate "to enact a new shared services statute that can be used to effectuate agreements between local units for any service or circumstance intended to reduce property taxes through the reduction of local expenses." N.J.S.A. 40A:65-2. The Act further provides

[a]ny local unit may enter into an agreement with any other local unit or units to provide or receive any service that each local unit participating in the agreement is empowered to provide or receive within its own jurisdiction, including services incidental to the primary purposes of any of the participating local units . . . .

[N.J.S.A. 40A:65-4(a).]

"Local unit" under the act includes a school district. N.J.S.A. 40A:65-3.

The Legislature intended the grant of power under the Act to be "as broad as is consistent with general law." N.J.S.A. 40A:65-13. Moreover, the act creates a rebuttable presumption that shared services agreements are "in furtherance of the public good and presumed valid[.]" N.J.S.A.40A:65-34(a).

N.J.S.A. 18A:40-3.3, which became effective on July 1, 1999, provides:

A school district shall only utilize or employ for the provision of nursing services in the public schools of the district persons holding an educational services certificate with an endorsement as a school nurse issued by the State Board of Examiners, except for those non-nursing personnel who are otherwise authorized by statute or regulation to perform specific health related services. . . . No person shall be issued such certificate unless the person is licensed as a registered nurse . . . and meets all of the requirements prescribed by the board for a nursing endorsement. A school district may supplement the services provided by the certified school nurse with non-certified nurses, provided that the non-certified nurse is assigned to the same school building or school complex as the certified school nurse.

In Ramsey Teachers Ass'n, supra, 382 N.J. Super. at 245, we addressed whether N.J.S.A. 18A:40-3.3 requires the physical presence in the school building or complex of a certified school nurse at all times when a non-certified nurse is scheduled to perform duties. The Board of Education for the Ramsey School District employed two full-time certified school nurses and three part-time certified school nurses. Ibid. At the Tisdale School, where one of the part-time certified school nurses was regularly scheduled to work daily between 8:45 a.m. and 12:15 p.m., the Ramsey District also hired a "school health aide" to work daily from 12:00 p.m. to 3:00 p.m. Ibid. The Ramsey Teachers Association maintained that the requirement that any non-certified nurse "supplement[ing] the services provided by the certified school nurse" be "assigned to the same school building or school complex as the certified school nurse" means that the non-certified nurse can only be performing services at the same time as and in the presence of the certified school nurse. Id. at 247-50.

We rejected this argument, determining that N.J.S.A. 18A:40-3.3 does not expressly require the physical presence of a certified school nurse whenever a non-certified nurse provides services. Id. at 253-54. A review of the legislative history of N.J.S.A. 18A:40-3.3 caused us to conclude

that the Governor and Legislature struck a balance between the competing goals of providing enhanced nursing services and at the same time allowing local districts flexibility in their personnel and budgetary decisions. When viewed in the context of the overall legislative and regulatory scheme, these competing interests are reasonably accommodated by not requiring the physical presence of a certified school nurse in the building or complex at all times that a non-certified nurse is providing services.

[Id. at 250.]

Clearly, Polytech was empowered under the Act to enter into a wide variety of shared services agreements, so long as they were "consistent with general law." Prezioso does not contest that Polytech's purpose in entering into the Agreement was to save money or that it has, in fact, reduced costs. The central issue on appeal, then, is whether Polytech's choice to eliminate Prezioso's certified nursing position and enter into the Agreement with Hunterdon Central was "consistent with general law," specifically, the law governing certified school nurses.

Prezioso argues the statutes and regulations, pertaining to certified school nurses, establish the "general law" requiring at least one such nurse be the direct employee of each school district in the State. Because the Act does not permit districts to violate "general law," she contends that districts are not permitted to eliminate the position of certified school nurse entirely by entering into a shared services agreement under which all certified school nursing services will be provided by another school district.

The ALJ perceived Prezioso's to be arguing that "any position specifically named in the educations laws cannot be shared without its own authorizing legislation" and that, "[t]aken to its logical conclusion, the argument would[] produce an absurd result that frustrates the stated intent of the [Shared Services] Act" Accordingly, the ALJ concluded Polytech had the legal authority to enter into the shared services agreement for economic reasons.

The Commissioner concurred with the ALJ's findings and conclusions, noting the inclusion of the phrase "utilize or employ" in N.J.S.A. 18A:40-3.3 indicates the Legislature did not intend to preclude employing other qualified certified nurses pursuant to the shared services agreement. The Commissioner further described the result as "fully consistent with" the laws and regulations governing certified school nurses.

After carefully reviewing the record in light of the written arguments advanced by the parties, we are satisfied the record contains sufficient credible evidence to support the Commissioner's decision to dismiss Prezioso's appeal. We discern no credible evidence in the record that shows the Commissioner's decision waseither arbitrary, capricious or unreasonable. Considering the legislative history of the relevant statutes, we also find no basis to conclude the Commissioner clearly erred in reaching the conclusion that N.J.S.A. 18A:40-3.3 does not preclude the appointment of otherwise qualified certified school nurses pursuant to a shared services agreement. We therefore affirm substantially for the reasons expressed by the ALJ in his summary decision, as adopted and amplified by the Commissioner. R. 2:11-3(e)(1)(D). We have considered appellant's remaining arguments and find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.