DEANA FRAYNE VS. BOARD OF EDUCATION OF THE BOROUGH OF HIGHLAND PARK (NEW JERSEY COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE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-0268-18
DEANA FRAYNE,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE
BOROUGH OF HIGHLAND PARK,
MIDDLESEX COUNTY, ISRAEL
SOTO, and KELLY WYSOCZANSKI,
Respondents-Respondents.
________________________________
Argued May 17, 2021 – Decided June 16, 2021
Before Judges Hoffman, Suter and Smith.
On appeal from the New Jersey Commissioner of
Education, Docket No. 316-12/16.
Deana Frayne, appellant, argued the cause pro se.
Tiffany D. Togarelli, argued the cause for respondents
Highland Park Board of Education, Israel Soto and
Kelly Wysoczanski (Methfessel & Werbel, attorneys;
Eric L. Harrison, of counsel and on the brief; James V.
Mazewski, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Amna T.
Toor, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Plaintiff Deanna Frayne appeals from an August 9, 2018 Commissioner
of Education (Commissioner) Final Decision finding that her petition alleging
the Highland Park Board of Education (Board) violated her tenure rights under
N.J.S.A. 18A:28-5 is time-barred pursuant to N.J.A.C. 6A:3-1.3(i). Plaintiff
also argues the doctrine of equitable estoppel prevents imposition of the time
bar. We affirm the Commissioner's decision for the reasons set forth below.
I.
The Highland Park Board of Education (Board) hired plaintiff to serve as
a non-tenure track first grade maternity leave replacement for the 2008-2009
school year. The Board continued plaintiff's employment in the non-tenure track
role for the 2009-2010, 2010-2011, and 2011-2012 school years.
Thereafter, the Board employed plaintiff as a tenure track first grade
teacher for the 2012-2013, 2013-2014, and 2014-2015 school years. On May 5,
2015, plaintiff signed a contract with the Board to continue as a tenure track first
grade teacher for the 2015-2016 school year. On June 25, 2015, before
commencement of the 2015-2016 school year, the Board served plaintiff with a
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letter advising her that her employment would be terminated effective August
23, 2015.
In the letter, the Board asserted plaintiff's attendance, classroom
performance, and overall behavior over the past several years had been
exceedingly poor. The letter also cited a parent-teacher incident where plaintiff
recorded a conversation between her and a parent without that parent's consent.
The letter was plaintiff's second written notice of unsatisfactory performance
within thirty days. 1
In addition to the Board's June 25, 2015 letter to plaintiff, the Board also
presented plaintiff a proposed "Agreement and Mutual Release," dated June 24,
2015, which offered plaintiff continuing health benefits and sixty days’ worth
of salary in exchange for her waiving the sixty-day termination notice period,
accepting termination, and releasing any potential claims against the Board. The
first page of this proposed agreement contained this relevant language:
WHEREAS Ms. Frayne is not a tenured employee of
the Board pursuant to the requirements for acquiring
the same as set forth in the "Teacher Effectiveness and
Accountability for Children of New Jersey Act."
1
The June 25, 2015 letter references a May 27, 2015 letter the Board sent to
plaintiff. The May 27, 2015 letter advised plaintiff that the Board was
considering disciplinary action against plaintiff for reasons including but not
limited to "excessive absenteeism."
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[(emphasis added).]
Plaintiff declined to execute the proposed agreement. Next, on July 13,
2015, the Board served plaintiff a letter advising that, "pursuant to the
requirements of N.J.S.A. 10:4-12(b)(8),2 on Monday, July 20, 2015, the Board
will discuss a personnel matter which could affect your employment in this
school district." The Board met publicly on August 23, 2015, and in a
unanimous 9-0 vote, terminated plaintiff’s employment.
Ten months later, in June 2016, plaintiff filed suit in Superior Court
challenging her termination and asserting that she had been a tenured employee
at the time the Board fired her. The Law Division judge transferred the
determination of plaintiff's tenure rights to the Commissioner, while staying all
2
N.J.S.A. 10:4-12 (b)(8) reads in pertinent part:
"A public body may exclude the public only from that
portion of a meeting at which the public body discusses
any . . . matter involving the employment, appointment,
termination of employment, terms and conditions of
employment, evaluation of the performance of,
promotion, or disciplining of any specific prospective
public officer or employee or current public officer or
employee employed or appointed by the public body,
unless all the individual employees or appointees
whose rights could be adversely affected request in
writing that the matter or matters be discussed at a
public meeting . . . ."
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other claims. The Board moved for summary decision, arguing that plaintiff
failed to assert her claim of tenure within the ninety-day period required by
N.J.A.C. 6A:3-1.3(i).
The administrative law judge (ALJ) found the Board's written
communications to plaintiff on June 24-25, 2015 placed her on notice that any
tenure status she believed she had was being challenged by the Board. The ALJ
also found plaintiff was well beyond the ninety-day period during which she
could file a petition with the Commissioner to assert and protect her tenure
rights.
The ALJ issued an initial decision dismissing plaintiff's tenure claim. The
Commissioner issued a final decision adopting the ALJ's findings on August 9,
2018. Plaintiff appealed challenging the Commissioner's decision. 3 She
contends her tenure action should not be time-barred under the doctrine of
equitable estoppel.
3
Plaintiff, who appears before us pro se, raises breach of contract and
Conscientious Employee Protection Act (N.J.S.A. 34:19-1 to -14) theories
against the Board in her brief. Those claims are not before us. We decide the
sole issue presented, whether the Commissioner's decision to dismiss the
plaintiff's tenure claim as time-barred pursuant to N.J.A.C. 6A:3-1.3(i) was
proper.
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II.
A.
"[We] have 'a limited role' in the review of [agency] decisions." In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81
N.J. 571, 579 (1980)). "[A] 'strong presumption of reasonableness attaches to
[an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)
(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J.
306 (1994)). "In order to reverse an agency's judgment, [we] must find the
agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not
supported by substantial credible evidence in the record as a whole.'"
Stallworth, 208 N.J. at 194 (second alteration in original) (quoting Henry, 81
N.J. at 579-80). The burden of proving that an agency action is arbitrary,
capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J.
Super. 227, 234 (App. Div. 2011) (citing McGowan v. N.J. State Parole Bd., 347
N.J. Super. 544, 563 (App. Div. 2002)).
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Stallworth, 208 N.J. at 194 (quoting
In re Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue
under review is directed to the agency's special 'expertise and superior
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knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J.
19, 28 (2007)). Furthermore, "[a]n administrative agency's interpretation of
statutes and regulations within its implementing and enforcing responsibility is
ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co.,
307 N.J. Super. 93, 102 (App. Div. 1997).
B.
N.J.S.A. 18A:27-4.1(b) regulates the power of a board of education to
renew the employment contract of a non-tenured employee. It provides in
pertinent part:
Notwithstanding the provisions of any law, rule or
regulation to the contrary,
....
b. A board of education shall renew the employment
contract of a certificated or non-certificated officer or
employee only upon the recommendation of the chief
school administrator and by a recorded roll call
majority vote of the full membership of the board. The
board shall not withhold its approval for arbitrary and
capricious reasons. A nontenured officer or employee
who is not recommended for renewal by the chief
school administrator shall be deemed nonrenewed.
Prior to notifying the officer or employee of the
nonrenewal, the chief school administrator shall notify
the board of the recommendation not to renew the
officer's or employee's contract and the reasons for the
recommendation. An officer or employee whose
employment contract is not renewed shall have the right
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to a written statement of reasons for nonrenewal . . . and
to an informal appearance before the board. The
purpose of the appearance shall be to permit the staff
member to convince the members of the board to offer
reemployment. The chief school administrator shall
notify the officer or employee of the nonrenewal . . . .
[N.J.S.A. 18A:27-4.1(b).]
N.J.S.A. 18A:27-10 establishes a May 15 deadline by which boards of
education must offer written contracts of employment to certain non-tenured
teaching staff or provide them with notice they will not be rehired. It reads:
On or before May 15 in each year, each nontenured
teaching staff member continuously employed by a
board of education since the preceding September 30
shall receive either
a. A written offer of a contract for
employment from the board of education
for the next succeeding year providing for
at least the same terms and conditions of
employment but with such increases in
salary as may be required by law or
policies of the board of education, or
b. A written notice from the chief school
administrator that such employment will
not be offered.
[N.J.S.A. 18A:27-10.]
N.J.A.C. 6A:3-1.3 addresses the initiation of a contested case before the
Commissioner and provides in pertinent part:
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The petitioner shall file a petition 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 contested case hearing. This
rule shall not apply in instances where a specific
statute, regulation or court order provides for a period
of limitation shorter than 90 days for the filing of a
particular type of appeal.
[N.J.A.C. 6A:3-1.3(i) (emphasis added).]
A school board has "broad discretionary authority in the granting of
tenure" and the decision not to grant tenure "need not be grounded on
unsatisfactory classroom or professional performance for there are many
unrelated but nonetheless equally valid reasons why a board . . . may conclude
that tenure should not be granted." Donaldson v. Bd. of Educ., 65 N.J. 236,
241 (1974).
III.
The ninety-day rule has been strictly construed by the courts and
consistently applied. See Nissman v Bd. of Educ., 272 N.J. Super 373, 380-81
(App. Div. 1994); Kaprow v. Bd. of Educ., 131 N.J. 572, 588-89 (1993); Riely
v. Bd. of Educ., 173 N.J. Super. 109, 112-14 (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,
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131 N.J. at 588-89. A petitioner need not receive official and formal
notification that he or she may have a valid claim. Id. at 588.
The Board offered plaintiff a contract on May 5, 2015, pursuant to
N.J.S.A. 18A:27-10. However, the Board did not renew that contract by a
recorded roll call majority vote of the full membership of the board pursuant
to N.J.S.A. 18A:27-4.1(b). The undisputed record reveals the Board put
plaintiff on written notice that her teaching position was in jeopardy at least
three times prior to her actual August 23, 2015 termination. Most telling is the
language from the June 24, 2015 "Release," which stated unequivocally that
the Board did not consider plaintiff tenured. Plaintiff had sufficient
information from which to "learn[ ] from the . . . Board the existence of that
state of facts that would enable [her] to file a timely claim." Kaprow, 131
N.J.at 588-89.
Plaintiff argues that she obtained tenure by May 2015, however she had
ample warning that the Board disagreed. We defer to the Commissioner's
finding, supported by credible evidence in the record, that plaintiff had ninety
days from July 20, 2015 to file her petition and assert tenure. Instead, she filed
an untimely lawsuit in the Superior Court nearly one year after the Board fired
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her at a public meeting. Plaintiff's actions did not satisfy the statutory or
regulatory appeal requirements.
Finally, we conclude there is no merit to plaintiff's argument that Board
withheld public records from her, triggering the doctrine of equitable estoppel
and tolling the ninety-day limit on her tenure action. "Equitable estoppel has
been used to prevent a defendant from asserting the statute of limitations when
the defendant engages in conduct calculated to mislead plaintiff into believing
that it is unnecessary to seek civil redress." Id. at 589. The record discloses no
Board conduct that caused plaintiff to postpone filing her claim with the
Commissioner. Indeed, the Board's conduct during the summer of 2015 revealed
quite the opposite. The Board was clear that it intended to remove plaintiff from
employment and communicated that intent in writing from June 24th forward.
Plaintiff has not shown evidence of detrimental reliance; consequently her
equitable estoppel argument fails.
We concur with the Commissioner that plaintiff failed to bring an action
to protect her asserted tenure rights within ninety days as required by N.J.A.C.
6A:3-1.3(i). Any of plaintiff's arguments not addressed here lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).
Affirmed.
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