BRENDA MILLER v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0078-16T3
BRENDA MILLER,
Petitioner-Appellant,
v. APPROVED FOR PUBLICATION
STATE-OPERATED SCHOOL DISTRICT November 4, 2019
OF THE CITY OF NEWARK, ESSEX
COUNTY, APPELLATE DIVISION
Respondent-Respondent.
________________________________
Argued February 5, 2018 – Decided July 27, 2018
Before Judges Vernoia and DeAlmeida.
On appeal from the Commissioner of Education,
Agency Docket No. 301-10/14.
William P. Hannan argued the cause for
appellant (Oxfeld Cohen, PC, attorneys;
William P. Hannan, of counsel and on the
brief).
Shana T. Don argued the cause for respondent
Newark Public School District (Scarinci &
Hollenbeck, LLC, attorneys; Ramon E. Rivera,
of counsel; Jason T. Mushnick and Shana T.
Don, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Commissioner of
Education (Nicole T. Castiglione, Deputy
Attorney General, on the statement in lieu of
brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
Petitioner Brenda Miller appeals from the New Jersey
Commissioner of Education's final agency decisions dismissing her
claims that her employment with the State Operated School District
of the City of Newark (the District) was terminated in violation
of her tenure rights under N.J.S.A. 18A:17-2, and the termination
was void because it was effectuated without the proper delegation
of authority by the District's superintendent. Because we conclude
the termination of petitioner's employment violated her tenure
rights under N.J.S.A. 18A:17-2, we reverse.
I.
The relevant facts are not disputed. Petitioner was hired
by the District on May 4, 1998, and held various provisional titles
until her permanent appointment to the title of Senior Clerk on
April 1, 2004. She held that position until her transfer to the
title of Secretarial Assistant, Typing on July 23, 2007. Effective
June 16, 2012, her title was renamed Secretarial Assistant. The
parties agree that all of the foregoing positions were classified
titles under the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to
12-6.
Effective July 2012, the District reclassified petitioner's
position to the unclassified title of Confidential Assistant. In
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a letter to petitioner sent almost seventeen months later, the
District confirmed petitioner's July 2, 2012 reassignment to the
Confidential Assistant position, and advised the new position was
"unaffiliated" and therefore no longer governed by the Act. The
letter explained that petitioner's employment record would reflect
she resigned from her Civil Service title effective June 30, 2012,
and would "no longer be afforded Civil Service rights." The letter
further informed petitioner she could "request consideration for
reemployment in [her] prior Civil Service title" with the District
"by indicating [her] availability within three (3) years of the
date of [her] resignation." Petitioner did not appeal her transfer
to the unclassified position, or the District's confirmation of
her resignation from the classified position, to the Civil Service
Commission.
More than two years later, on August 15, 2014, the District's
Chief Talent Officer, Vanessa Rodriguez, sent petitioner a letter
terminating her employment. Petitioner appealed to the Civil
Service Commission, arguing the termination violated the Act
because she was entitled to return to the permanent classified
position she held prior to the 2012 transfer. The Civil Service
Commission dismissed her appeal, finding petitioner acquiesced to
the 2012 transfer and effectively resigned from her classified
position at that time. The Commission concluded petitioner was
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terminated from her classified position in 2012, and had no right
to challenge the 2014 termination from her unclassified position
under the Act. There is no record showing petitioner appealed the
Commission's decision.
Petitioner also appealed her termination to the Commissioner
of Education. She alleged her termination was unlawful because
she had tenure under N.J.S.A. 18A:17-2 in her position as a
Confidential Assistant, and Rodriguez lacked the authority to
terminate her. In a December 9, 2015 decision, an Administrative
Law Judge (ALJ) granted summary disposition in petitioner's favor
finding petitioner had tenure under N.J.S.A. 18A:17-2 because she
had been employed by the District in secretarial positions for
more than three consecutive years. The ALJ concluded petitioner's
termination violated her tenure rights under N.J.S.A. 18A:17-2,
and recommended petitioner's reinstatement.
The District filed exceptions to the ALJ's decision, and the
Commissioner rejected the ALJ's recommended decision. The
Commissioner determined petitioner did not earn tenure under
N.J.S.A. 18A:17-2 while she served in classified positions under
the Act because N.J.S.A. 18A:28-2 provides that "[n]o person, who
is in the classified service of the civil service of the state
pursuant to Title 11, Civil Service . . . , shall be affected by
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any provisions of this chapter."1 The Commissioner concluded
petitioner accrued credit toward tenure under N.J.S.A. 18A:17-2
only during the period following her 2012 transfer to the
unclassified position, and that because she had not served in that
position for three consecutive years prior to her termination, she
did not have tenure rights under the statute. The Commissioner
dismissed petitioner's claim that her termination violated her
tenure rights under N.J.S.A. 18A:17-2, and remanded for the ALJ
to consider petitioner's remaining claim – that Rodriguez lacked
the authority to terminate her employment.
On remand before the ALJ, the parties relied solely on written
submissions. The ALJ considered a certification from Larisa
Shambaugh, who stated she was "fully familiar with the facts and
circumstances associated with [petitioner's] case," and was
appointed the District's Interim Chief Talent Officer following
Rodriguez's resignation in January 2016. Shambaugh stated the
State-appointed Superintendent has responsibility for the hiring
and firing of District employees and "delegates to the Chief Talent
1
We note that although N.J.S.A. 18A:28-2 expressly references
Title 11, "[i]n 1986, the Legislature passed the current Civil
Service Act, repealing Title 11 and establishing Title 11A of the
New Jersey Statutes." In re Reallocation of Prob. Officer, 441
N.J. Super. 434, 444 (App. Div. 2015); L. 1986, c. 112. We
construe N.J.S.A. 18A:28-2's reference to Title 11 to include
Title 11A.
5 A-0078-16T3
Officer the responsibility to communicate with District employees
regarding their employment." Attached to Shambaugh's
certification is a job description for the District Chief Talent
Officer, the position Rodriguez held when she sent the August 2014
letter terminating petitioner's employment.
The District also submitted a certification from Christopher
Cerf, who replaced Cami Anderson as the District Superintendent
in July 2016. Cerf stated that Anderson delegated the authority
to hire and fire the District's "non-civil service employees" to
Rodriguez, and that upon his appointment as Superintendent, he
continued that delegation of authority to Rodriguez and, following
her resignation, to Shambaugh.
The ALJ found the certifications convincing. He determined
N.J.S.A. 18A:7A-42(b) authorized the Superintendent to "delegate
to subordinate officers or employees in the district any of his
powers or duties as he may deem desirable to be exercised under
his supervision and direction," and concluded the certifications
and Chief Talent Officer's job description established Rodriguez
had the delegated authority to terminate petitioner's employment
in 2014. The ALJ also found it "inconceivable" that in a District
"consist[ing] of seventy-four schools serving 39,440 students,"
the Superintendent "would micro-manage every personnel decision,"
and "logical" that decisions concerning the duty to hire and fire
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unclassified employees would be delegated to the Chief Talent
Officer whose job description required "leadership in all matters
related to talent management."
The ALJ also found petitioner had the burden of establishing
by a preponderance of the evidence that Rodriguez lacked the
requisite delegated authority, and she failed to sustain her burden
because she offered nothing more than "a bald assertion that the
State-Appointed Superintendent did not delegate the authority" to
Rodriguez. The ALJ noted that petitioner failed to present any
evidence refuting the Shambaugh and Cerf certifications, and
concluded the "unrefuted evidence supports [a finding] of proper
delegation of authority." The ALJ recommended dismissal of
petitioner's claim Rodriguez lacked the authority to terminate her
employment.
The Commissioner adopted the ALJ's findings and
recommendation, and determined that in 2014 the Superintendent
delegated her authority to terminate petitioner's employment to
Rodriguez in accordance with N.J.S.A. 18A:7A-42(b). The
Commissioner, relying on the Shambaugh and Cerf certifications and
the lack of any evidence from petitioner refuting them, concluded
petitioner failed to sustain her burden of showing Rodriguez lacked
the authority to terminate her employment.
7 A-0078-16T3
On appeal, petitioner challenges the Commissioner's
decisions, and presents the following arguments:
POINT I
STANDARD OF REVIEW OF AGENCY DECISION.
POINT II
THE COMMISSIONER OF EDUCATION ERRED IN FINDING
THAT [PETITIONER] DID NOT HAVE TENURE UNDER
. . . TITLE 18A AT THE TIME OF HER TERMINATION.
a. The Commissioner's Narrow Application of
N.J.S.A. 18A:17-2 Ignores the Long-
Established Requirement that Tenure Statutes
Are to be Liberally Construed in Favor of
Employees and [Petitioner] Satisfied the
Express Terms of the Statute.
b. The Commissioner Erred by Applying N.J.S.A.
18A:28-2 to [Petitioner] as a Non-Teaching
Staff Member.
POINT III
THE COMMISSIONER ERRED BY [DISMISSING] COUNT
TWO OF [PETITIONER'S] PETITION BECAUSE THE
DISTRICT PRESENTED NO CREDIBLE EVIDENCE TO
DEMONSTRATE THAT THE AUTHORITY TO TERMINATE
[PETITIONER] HAD BEEN PROPERLY DESIGNATED TO
THE CHIEF TALENT OFFICER PURSUANT TO LAW.
II.
"The scope of appellate review of a final agency decision is
limited," and we will not overturn an agency's final decision "in
the absence of a showing that it was arbitrary, capricious or
unreasonable, or that it lacked fair support in the evidence." In
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re Carter, 191 N.J. 474, 482 (2007) (citations omitted).
Generally, our review of an agency decision is
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., 216
N.J. 370, 385 (2013) (quoting Mazza v. Bd. of
Trs., 143 N.J. 22, 25 (1995)).]
The person challenging an agency action has "[t]he burden of
showing that an action was arbitrary, unreasonable or capricious."
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.
Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med.
Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div.
1986)).
Although "we respect an agency's expertise and will 'defer
to the specialized or technical expertise of the agency charged
with administration of a regulatory system,' we are 'in no way
bound by the agency's interpretation of a statute or its
determination of a strictly legal issue.'" DiNapoli v. Bd. of
Educ., 434 N.J. Super. 233, 236-37 (App. Div. 2014) (first quoting
In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008);
9 A-0078-16T3
and then quoting Mayflower Sec. Co. v. Bureau of Sec., Div. of
Consumer Affairs, 64 N.J. 85, 93 (1973)). "Statutory
interpretation involves the examination of legal issues and is,
therefore, a question of law subject to de novo review." Saccone
v. Bd. of Trs. of Police and Firemen's Ret. Sys., 219 N.J. 369,
380 (2014) (citations omitted) (citing McGovern v. Rutgers, 211
N.J. 94, 107-08 (2012)).
The Commissioner's rejection of petitioner's claim that her
termination violated her tenure rights is founded on his
interpretation of N.J.S.A. 18A:17-2 and N.J.S.A. 18A:28-2. The
Commissioner recognized that under N.J.S.A. 18A:17-2(b), a
secretary employed by a board of education has tenure after "the
expiration of a period of employment of three consecutive calendar
years," and petitioner was employed in secretarial positions for
that period of time during her employment by the District. The
Commissioner, however, found petitioner's years of service in
classified secretarial positions prior to her 2012 reassignment
could not be counted toward the time of service requirements for
tenure under N.J.S.A. 18A:17-2, because N.J.S.A. 18A:28-2 provides
that "[n]o person, who is in the classified service of the civil
service . . . pursuant to Title 11 . . . shall be affected by any
provisions of this chapter."
10 A-0078-16T3
An appellate court's primary purpose in construing a statute
is to "discern the meaning and intent of the Legislature." State
v. Gandhi, 201 N.J. 161, 176 (2010). "There is no more persuasive
evidence of legislative intent than the words by which the
Legislature undertook to express its purpose; therefore, we first
look to the plain language of the statute." Perez v. Zagami,
L.L.C., 218 N.J. 202, 209-10 (2014). "We ascribe to the statutory
words their ordinary meaning and significance, and read them in
context with related provisions so as to give sense to the
legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492
(2005) (internal citations omitted). Where "the plain language
leads to a clear and unambiguous result, . . . our interpretive
process is over." Richardson v. Bd. of Trs., Police & Firemen's
Ret. Sys., 192 N.J. 189, 195 (2007). When the statutory language
"clearly reveals the meaning of the statute, the court's sole
function is to enforce the statute in accordance with those terms."
McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting
SASCO 1997 NI, L.L.C. v. Zudkewich, 166 N.J. 579, 586 (2001)).
Petitioner contends she earned tenure in her secretarial
positions under N.J.S.A. 18A:17-2, which "defines the conditions
under which secretarial employees of a board of education are
entitled to the security of tenure." DiNapoli, 434 N.J. Super.
at 237. The statute provides that "[a]ny person holding any
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secretarial or clerical position" has tenure after either "[t]he
expiration of a period of employment of three consecutive calendar
years in the district or such shorter period as may be fixed" by
the board of education, or "[e]mployment for three consecutive
academic years, together with employment at the beginning of the
next succeeding academic year." N.J.S.A. 18A:17-2(b)(1) and (2).
"To acquire the security of tenure, the precise conditions
enunciated in [N.J.S.A. 18A:17-2] must be met." DiNapoli, 434
N.J. Super. at 237-38.
It is undisputed that petitioner held secretarial positions
following her permanent appointment in 2004 through her
termination in 2014, and therefore was employed for a sufficient
period of time to earn tenure under N.J.S.A. 18A:17-2. The
Commissioner, however, rejected petitioner's claim she had tenure
rights under N.J.S.A. 18A:17-2 based on the conclusion petitioner
did not accrue credit toward the time in employment requirements
of the statute during her employment in the classified Civil
Service positions.
The Commissioner determined that N.J.S.A. 18A:28-2 barred
consideration of petitioner's employment in classified Civil
Service positions in the calculation of the time in employment
requirements for tenure under N.J.S.A. 18A:17-2. N.J.S.A. 18A:28-
2 provides:
12 A-0078-16T3
No person, who is in the classified service
of the civil service of the state pursuant to
Title 11, Civil Service, of the Revised
Statutes, shall be affected by any provisions
of this chapter.
[(Emphasis added).]
The Commissioner reasoned that because N.J.S.A. 18A:28-2 provides
that "[n]o person" who holds a classified Civil Service title
"shall be affected by any provisions of this chapter," petitioner's
employment in her Civil Service position could not be considered
in determining if she satisfied the time in employment requirements
for tenure under N.J.S.A. 18A:17-2. We disagree.
N.J.S.A. 18A:28-2 was enacted in 1967, L. 1967, c. 271, and
included in the chapter of Title 18A entitled "Tenure," which the
Legislature designated as Chapter 28. N.J.S.A. 18A:28-2's plain
language makes clear that individuals in classified Civil Service
positions are not "affected by any provisions of" Chapter 28. The
statute is expressly limited in its applicability — it renders
Chapter 28's tenure provisions inapplicable to persons holding
classified Civil Service positions.
The fatal flaw in the Commissioner's reasoning is that Chapter
28's tenure provisions are inapplicable to individuals, such as
petitioner, holding secretarial positions, and thus are
inapplicable to the determination of petitioner's tenure. Chapter
28 is bereft of any provisions concerning the tenure rights of
13 A-0078-16T3
secretarial employees. Chapter 28 pertains exclusively to the
tenure rights of teaching staff members in public school
districts.2 See, e.g., DiNapoli, 434 N.J. Super. at 240-41
(comparing tenure rights of secretaries under N.J.S.A. 18A:17-2
with the rights of teaching staff members under N.J.S.A. 18A:28-6
and superintendents under N.J.S.A. 18A:17-20.4).
The plain language of N.J.S.A. 18A:28-2 exempts persons
employed in classified Civil Service titles from the "provisions
of" Chapter 28, but does not exempt employees in classified titles
from the tenure provisions in other chapters of Title 18A. Thus,
N.J.S.A. 18A:28-2 applies only to "teaching staff member[s]" who
hold classified Civil Service titles because they are the only
employees "affected by" Chapter 28's tenure provisions.
Moreover, although N.J.S.A. 18A:17-2 was enacted at the same
time as N.J.S.A. 18A:28-2, L. 1999, c. 271, the Legislature chose
2
N.J.S.A. 18A:28-4 provides that, with defined exceptions,
"teaching staff member[s]" who do not hold "an appropriate
certificate for such position" may not accrue tenure. N.J.S.A.
18A:28-5 details the tenure requirements for "teaching staff
members," N.J.S.A. 18A:28-5.1 provides that certain "tenured
teaching staff member[s]" may transfer their tenure rights when
accepting positions in underperforming schools, and N.J.S.A.
18A:28-6 describes the effects of transfers and promotions on the
tenure of "teaching staff member[s]." Chapter 28 further provides
for teaching staff member tenure rights upon discontinuance of
school, N.J.S.A. 18A:28-6.1, and termination of tenured teaching
staff members, N.J.S.A. 18A:28-8 to -14, and the effects of a
change of government on teaching staff members, N.J.S.A. 18A:28-
15.
14 A-0078-16T3
not to include in N.J.S.A. 18A:17-2 the Civil Service exemption
set forth in N.J.S.A. 18A:28-2. "When the Legislature expressly
includes a requirement in one subsection and excludes that same
requirement in other subsections of the same general statute, we
need not strain to import that requirement where it is not." In
re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004).
The Commissioner's application of N.J.S.A. 18A:28-2 to limit
petitioner's tenure rights under Chapter 17 ignores that the
statute's application is expressly limited to "this chapter" –
Chapter 28 – of Title 18A. "We cannot assume that the Legislature
used meaningless language" in a statute, McCann, 167 N.J. at 321(quoting Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969)),
and are required to give effect to the words of the law as written,
see Johnson v. Johnson, 204 N.J. 529, 552-53 (2010) (citation
omitted) ("[C]ourts should adhere to the legislation as
written."). Applying those principles, any limitations imposed
by N.J.S.A. 18A:28-2 pertain only to tenure rights of teaching
staff members "affected" by Title 28.
It was therefore error for the Commissioner to conclude
petitioner's time employed in classified Civil Service titles
could not be considered in determining petitioner's tenure rights
under N.J.S.A. 18A:17-2. By its plain terms, N.J.S.A. 18A:28-2
is limited to "this chapter" — Chapter 28 — of Title 18A. Thus,
15 A-0078-16T3
it is inapplicable to tenure rights earned under N.J.S.A. 18A:17-
2.
N.J.S.A. 18A:17-2 does not exempt secretarial employees in
Civil Service positions from its tenure protections, and it was
error for the Commissioner to apply such an exemption where the
Legislature chose not to. Neither the Commissioner nor this court
is "permitted to 'rewrite a plainly-written enactment of the
Legislature [or] presume that the Legislature intended something
other than that expressed by way of the plain language,'" or "add
terms to a statute, lest they usurp the Legislature's authority."
DiNapoli, 434 N.J. Super. at 238 (alteration in original) (citation
omitted) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).
Because Chapter 17 does not include an exemption from its
tenure protections for secretarial employees holding classified
Civil Service titles, we apply the plain language of N.J.S.A.
18A:17-2 to determine petitioner's entitlement to tenure. "Tenure
'arises only by the passage of time fixed by the statute . . . .'"
Ibid. (quoting Canfield v. Bd. of Educ., 97 N.J. Super. 483, 490
(App. Div. 1967) (Gaulkin, J., dissenting), rev'd on dissent, 51
N.J. 400 (1968)). It is undisputed that petitioner satisfied the
tenure requirements of the statute, and N.J.S.A. 18A:17-2 does not
exclude time of employment spent by secretarial employees in
classified Civil Service titles. The record therefore establishes
16 A-0078-16T3
petitioner had tenure under N.J.S.A. 18A:17-2 when she was
terminated.
Although not cited or relied upon by the District or the
Commissioner, we note that Title 18A includes a provision
concerning the tenure rights of school employees holding Civil
Service titles that requires discussion here. N.J.S.A. 18A:6-31
provides that "[n]othing contained in [Title 18A] shall be
construed to affect the tenure or civil service rights of any
person presently existing, or hereafter obtained, under this or
any other law."3 The plain language of the statute does not permit
or require the conclusion that an employee holding a secretarial
position in the classified service does not accrue time in
employment credit toward tenure under N.J.S.A. 18A:17-2. To the
contrary, the statute provides only that tenure rights granted
under Title 18A, such as those to which petitioner is entitled
under N.J.S.A. 18A:17-2, do not affect any tenure rights under
Title 11A.
3
N.J.S.A. 18A:11-1(c) also authorizes boards of education to
"[m]ake, amend and repeal rules, not inconsistent with [Title 18A]
. . . for the employment, regulation of conduct and discharge of
its employees, subject, where applicable, to the provisions of
Title 11, Civil Service, of the Revised Statutes." The statute
has no application here because there are no District rules at
issue.
17 A-0078-16T3
We are unpersuaded by the District's reliance on In re
Fulcomer, 93 N.J. Super. 404, 411 (App. Div. 1967), where we
observed that the tenure provisions of Title 18, the predecessor
to Title 18A, provided a "comprehensive procedure for the
resolution of all controversies involving charges against all
tenure employees not subject to Civil Service." The District
argues our observation means N.J.S.A. 18A:28-2 should be
interpreted to exclude all school district employees in classified
Civil Service titles from the tenure protections otherwise
provided under Title 18A. We reject this argument because here
we interpret a different statute, and note that if the Legislature
intended to deny tenure protections to all school employees who
hold classified Civil Service titles, it would not have limited
the exemption for Civil Service employees to only those teaching
staff members "affected by" Chapter 28 of Title 18A.
We similarly reject the District's reliance on the
Commissioner's decision in Anderson v. Dep't of Pers., 95
N.J.A.R.2d 65 (Dep't of Educ.), where it was noted "that
nonprofessional staff protected under Title 11 in school districts
which have adopted civil service laws do not acquire separate
tenure rights under Title 18A." We defer to the Commissioner's
expertise in the administration of the Department of Education's
regulatory system, but are not bound by the Commissioner's
18 A-0078-16T3
interpretation of a statute or determination of legal issues,
DiNapoli, 434 N.J. Super. at 236, and are convinced that
application of N.J.S.A. 18A:28-2 to employees not "affected by"
Chapter 28 is inconsistent with the statute's plain language.
We also reject the contention that our interpretation of
N.J.S.A. 18A:28-2 and N.J.S.A. 18A:17-2 will unfairly and
illogically provide employees in the classified service who
otherwise earn tenure under N.J.S.A. 18A:17-2 with "two bites of
the apple" through two tenure proceedings – one under the Act and
the other under Title 18A. We have not decided that issue because
it is not before us. Petitioner did not have two bites of the
apple because she did not have Civil Service tenure rights when
her employment was terminated, and the Civil Service Commission
rejected her appeal on that basis. Thus, this case did not present
a circumstance where an employee with Civil Service tenure rights
also asserts tenure rights under Title 18A in a proceeding before
the Commissioner.
"[S]ince tenure statutes are intended to secure efficient
public service by protecting public employees in their employment,
'the widest range should be given to the applicability of the
law.'" Barnes v. Jersey City Bd. of Educ., 85 N.J. Super. 42, 45
(App. Div. 1964) (quoting Sullivan v. McOsker, 84 N.J.L. 380, 385
(E. & A. 1913)). Here, we decide only that the Commissioner erred
19 A-0078-16T3
by relying on N.J.S.A. 18A:28-2 to determine petitioner's tenure
rights under N.J.S.A. 18A:17-2, there is no statutory bar to
utilizing time employed in a classified Civil Service position to
satisfy the time in employment requirements of N.J.S.A. 18A:17-2,
and petitioner satisfied N.J.S.A. 18A:17-2(b)'s requirements and
had tenure when her employment was terminated. We therefore
reverse the Commissioner's determination that petitioner did not
have tenure rights under N.J.S.A. 18A:17-2 and the District did
not violate petitioner's tenure rights by terminating her
employment.
Because we determine the District violated petitioner's
tenure rights under N.J.S.A. 18A:17-2, it is unnecessary to address
petitioner's remaining argument that Rodriguez did not have the
authority to terminate her employment. We note only that
petitioner's arguments concerning Rodriguez's purported lack of
authority are otherwise without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E), because there
was sufficient credible evidence in the record supporting the
Commissioner's determination that Rodriguez was vested with the
authority to terminate petitioner's employment as a matter of
fact, see Harris ex rel. Harris v. Bd. of Trus. of P.E.R.S., 378
N.J. Super. 459, 464 (App. Div. 2005) (finding a reviewing court
will not reverse an agency's findings of fact that are supported
20 A-0078-16T3
by sufficient credible evidence), and petitioner otherwise failed
to sustain her burden of demonstrating Rodriguez lacked the
requisite authority, see McGowan, 347 N.J. Super at 563.
Reversed.
21 A-0078-16T3