KIMBERLYNN JURKOWSKI VS. BOARD OF EDUCATION OF THE Â CITY OF ATLANTIC CITY(DEPARTMENT OF EDUCATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1032-15T3
KIMBERLYNN JURKOWSKI,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF
THE CITY OF ATLANTIC CITY,
ATLANTIC COUNTY, AND DONNA
HAYE, SUPERINTENDENT,
Respondents-Respondents.
——————————————————————————————————-
Argued January 19, 2017 – Decided July 12, 2017
Before Judges Lihotz and Hoffman.
On appeal from the Department of Education,
Docket No. 252-9/14.
Wesley L. Fenza argued the cause for
appellant.
James J. Panzini argued the cause for
respondents Board of Education of the City of
Atlantic City, Atlantic County and Donna Haye
(Jackson Lewis P.C., attorneys; Mr. Panzini,
on the brief; Diane M. Shelley, of counsel and
on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Department of
Education (Geoffrey N. Stark, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Petitioner Kimberlynn Jurkowski appeals from the September
28, 2015 decision of the Commissioner of the Department of
Education (Commissioner), adopting the order of the Office of
Administrative Law (OAL) granting summary decision in favor of
respondents, Board of Education of the City of Atlantic City (A.C.
Board), Atlantic County, and Donna Haye, Superintendent. In her
petition, Jurkowski sought reinstatement of her employment with
the A.C. Board and back pay. We affirm.
We begin by summarizing the relevant facts and procedural
history. According to petitioner, the A.C. Board hired her as an
educational media specialist in October 2005, and she received
tenure in 2008. In 2005, petitioner's son began kindergarten in
the Hamilton Township School District, and in 2008, her daughter
began kindergarten in the same district. Both children had
difficulties in school and petitioner sought additional services
for them from the Hamilton Township Board of Education (Hamilton
Board).
In January 2010, petitioner reached a settlement with the
Hamilton Board, which agreed to provide her son with home
instruction; however, no teacher was available to provide the home
instruction at that time. A month later, petitioner suggested
Midge Spencer, who owned a business called Bridges Educational
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Consulting Services, as a homebound instructor for her son. The
Hamilton Board approved Spencer, and she began providing
instruction to petitioner's son. In September 2010, the Hamilton
Board also approved Spencer to provide homebound instruction to
petitioner's daughter. According to petitioner, "Ms. Spencer
would give me invoices to sign for her tutoring services. I often
signed batches of them at a time because I did not see her every
day."
At some point in 2011, Spencer stopped providing tutoring
services to petitioner's children; petitioner and her children
then moved to another school district. Notwithstanding this
development, Spencer continued to submit invoices signed by
petitioner to the Hamilton Board, fraudulently representing the
hours she spent with petitioner's children. On July 25, 2012,
petitioner was arrested and charged with conspiracy, N.J.S.A.
2C:5-2(a)(1); theft by deception, N.J.S.A. 2C:20-4(a); forgery,
N.J.S.A. 2C:21-1(a)(2); and falsifying or tampering with records,
N.J.S.A. 2C:21-4(a).
By letter, petitioner promptly informed the A.C. Board's
superintendent of the criminal charges. On August 7, 2012, the
superintendent suspended petitioner with pay, based upon the
pending charges. In December 2012, petitioner informed the
superintendent she had been indicted. Effective January 14, 2013,
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the A.C. Board suspended petitioner without pay based upon her
indictment.
Petitioner applied for Pretrial Intervention (PTI) in
February 2013, but the prosecutor rejected her application.
Petitioner proceeded to trial in October 2013. On October 23,
2013, at the end of a two-day trial, the judge dismissed two
conspiracy charges and the jury returned a guilty verdict on the
remaining charges, theft by deception and falsifying records. In
accordance with Rule 3:21-5, the trial judge did not enter a
judgment of conviction at that time.
By letter dated October 30, 2013, the superintendent advised
petitioner that based upon the jury verdict, her employment with
the A.C. Board was terminated, effective October 23, 2013, pursuant
to N.J.S.A. 2C:51-5(a)(8).1 On November 5, 2013, petitioner
informed the New Jersey Department of Higher Education of her
intentions to appeal the jury verdict as well as the termination
of her employment.
On December 6, 2013, petitioner filed a motion to set aside
the jury verdict. Before the trial court decided the motion, the
prosecutor consented to petitioner's admission into PTI on the
condition she forfeit her current employment. When asked by the
1
N.J.S.A. 2C:51-5(a)(8) provides that a person convicted of a
third-degree crime will automatically have his or her professional
license suspended.
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trial judge if the terms were agreeable with petitioner,
petitioner's counsel stated he went over the PTI terms with his
client and acknowledged "[this] matter[] involves a potential
revocation of a teacher's license. She understands also that the
present position, however, would be one of the conditions, I guess,
in addition to the usual conditions of pre-trial intervention."
The trial judge postponed sentencing pending the successful
completion of PTI. The judge then stated, "[S]he will forfeit
current employment only, and I understand that . . . probably is
mooted because I believe she's unemployed at the present time, is
that correct?" Petitioner's counsel responded,
She's at least suspended on her present
employment in any way, and just so the record
is clear, she agrees that that would remain
and not be contested . . . because this
reserves her right[,] the whole purpose to
attempt to take her position later on
regarding her teacher's license based on the
absence of a judgment of conviction here,
assuming that she does the pre-trial regiment.
Petitioner completed PTI on June 16, 2014, resulting in the
dismissal of the charges against her. On June 17, 2014, plaintiff
sent a letter to the superintendent seeking reinstatement of her
employment and back pay, claiming this was in accordance with
their discussion at a July 2012 meeting. The superintendent
responded on July 16, 2014, denying petitioner's request for
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reinstatement based upon her acceptance of the PTI condition
requiring she forfeit her employment.
On September 12, 2014, petitioner filed a petition with the
Commissioner seeking reinstatement of her employment and back pay
from the A.C. Board. The Commissioner treated the petition as a
contested case, pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A.
52:14F-1 to -13, and transferred the matter to the OAL on October
23, 2014.
Before the OAL, petitioner argued she was under the
impression, when she entered PTI, the condition requiring she
forfeit her current employment was moot as she was already
terminated by the A.C. Board, pursuant to the superintendent's
October 30, 2013 letter. However, a certification from
petitioner's criminal defense attorney, H. Robert Boney, Jr.,
directly contradicted petitioner's claimed understanding of the
PTI agreement:
I fully explained in detail to [petitioner]
that by accepting the conditions to enter PTI,
she was no longer entitled to reinstatement
to seek her position with the Atlantic City
Board of Education. Instead, she could seek
employment with the Atlantic City Board of
Education or any other School District but the
Board of [E]ducation was not required to hire
her into her prior position or any other
position.
The A.C. Board filed a motion for summary decision, which an
Administrative Law Judge (ALJ) granted on June 29, 2015. The ALJ
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concluded, absent a judgment of conviction, the A.C. Board could
not terminate plaintiff's employment without the proper tenure
charges and due process protections. The ALJ found the A.C. Board
incorrectly equated a jury verdict as the "legal equivalent of a
judgment of conviction and forfeiture" when the superintendent
sent her October 30 letter. Therefore, petitioner remained
employed by the A.C. Board at the time she entered into the PTI
program and agreed to forfeit her current employment.
Petitioner filed exceptions to the ALJ's decision, and the
Commissioner issued a final decision dated September 28, 2015.
The Commissioner accepted and adopted the ALJ's findings of fact
and determination, upholding the order granting summary decision
in favor of respondents. This appeal followed.
On appeal, petitioner argues that (1) she was not employed
with the A.C. Board when she forfeited her current employment, (2)
the A.C. Board's interpretation of the PTI agreement was contrary
to her reasonable expectations, and (3) summary decision in this
matter was premature.
We have carefully considered the record and conclude
petitioner's arguments are entirely without merit. We affirm
substantially for the reasons set forth in the final decision of
the Commissioner. R. 2:11-3(e)(1)(D). We add the following
comments.
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It is well established that "[i]n light of the executive
function of administrative agencies, judicial capacity to review
administrative actions is severely limited." In re Musick, 143
N.J. 206, 216 (1996). We will intervene "only in those rare
circumstances in which an agency action is clearly inconsistent
with its statutory mission or other state policy." Ibid.Our review of a final decision of an administrative agency
is limited to three inquiries: (1) whether the agency's action is
consistent with the applicable law; (2) whether there is
substantial credible evidence in the record to support the factual
findings upon which the agency acted; and (3) whether, in applying
the law 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." Ibid. (citing Campbell v. Dep't of
Civil Serv., 39 N.J. 556, 562 (1963)).
Furthermore, when reviewing an agency's factual finding, "an
appellate court may not 'engage in an independent assessment of
the evidence as if it were the court of first instance.'" In re
Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157
N.J. 463, 471 (1999)). The findings of fact made by an
administrative agency are binding on appeal if they are supported
by substantial, credible evidence. Id. at 656-57 (citing Close
v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
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We are satisfied the record contains sufficient credible
evidence to support the Commissioner's determination to adopt the
summary decision of the ALJ as the final agency decision and to
dismiss petitioner's appeal. The record fully supports the
conclusion petitioner remained employed by the A.C. Board on the
date she entered PTI as the superintendent's October 30, 2013
letter was procedurally defective.
We also reject petitioner's argument that summary decision
should not have been granted prior to the completion of discovery.
Petitioner simply argues there are "likely" many documents in
support of her position, falling short of demonstrating with any
degree of particularity the need for discovery.
Notably, the ALJ stated he addressed the motion before him
solely on the legal issues. Our Supreme Court has held, "Purely
legal questions . . . are questions of law particularly suited for
summary judgment." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,
555 (2015). Therefore, the Commissioner correctly concluded the
ALJ properly decided the summary decision motion based upon the
legal questions presented.
We are satisfied that the Commission's decision was not
arbitrary, capricious, or unreasonable. Any arguments not
specially addressed lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
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