MELISSA KOLLAR VS. BOARD OF EDUCATION OF THE TOWN OFÂ HARRISION, HUDSON COUNTY(STATE DEPARTMENT OF EDUCATION)

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5203-14T2
MELISSA KOLLAR,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE TOWN
OF HARRISON, HUDSON COUNTY,
Defendant-Respondent.
___________________________________
Submitted January 18, 2017 – Decided July 17, 2017
Before Judges Fisher and Ostrer.
On appeal from the State Department of
Education, Docket No. 94-5/13.
Melissa Kollar, appellant pro se.
The Murray Law Firm, LLC, attorneys for
respondent Board of Education of the Town of
Harrison, Hudson County (Karen A. Murray, of
counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Commissioner of
Education (Beth N. Shore, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Petitioner Melissa Kollar appeals from the Commissioner of
Education's May 12, 2015 final decision dismissing her petition
that challenged the Town of Harrison Board of Education's
determination that she had not attained tenure as a school athletic
trainer.
Petitioner worked as an athletic trainer for the Board since
2007, but did not obtain an athletic trainer's certificate until
2013, although it had been required as a condition of employment
as a school athletic trainer since 1999. See L. 1999, c. 87, §
4, now codified as N.J.S.A. 18A:26-2.4; see also N.J.A.C. 6A:9B-
14.17. Her contract was not renewed later that year and she
declined to re-apply for the position. Instead, she contended she
was entitled to tenure.
Although petitioner failed to timely obtain the certificate,
she nonetheless satisfied the certificate requirement — she
possessed an athletic trainer's license from the New Jersey Board
of Medical Examiners (except for a brief period in 2009 when she
let her license lapse) and was a graduate of a four-year college.
See N.J.A.C. 6A:9B-14.17 (setting forth requirements for
certificate). She noted that the Board failed to require proof
of a certificate when it posted the job opening in 2007 or when
it hired her. However, in 2010 and thereafter, she certified to
the Board that she possessed an athletic trainer certificate, but
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she had in mind a certificate she possessed from the National
Athletic Trainers Association. Although she did not actually
possess a State certificate, petitioner contended her years of
service when she was qualified for it should count towards the
prerequisite years of service for tenure.
The Commissioner rejected this argument. In a cogent review
of the facts and law, the Commissioner determined that petitioner's
failure to obtain the statutorily required certificate was fatal
to her claim. That she was eligible for a certificate was of no
moment. The Commissioner relied upon the plain language of
N.J.S.A. 18A:28-4, which states that "[n]o teaching staff member
shall acquire tenure in any position in the public schools . . .
who is not the holder of an appropriate certificate for such
position, issued by the State Board of Examiners, in full force
and effect . . . ." Petitioner did not benefit from the grandfather
provisions of the 1999 law, see N.J.S.A. 18A:28-4(b), as she was
not employed as an athletic trainer in 1999. The Commissioner
also found inapplicable decisions that permitted tenure applicants
to "tack" time periods in which they held emergency certificates,
since petitioner possessed no certificate until 2013.
Our standard of review of the Commissioner's decision is
limited. In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp., 216 N.J. 370, 385 (2013). We "may reverse an agency
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decision if it is arbitrary, capricious, or unreasonable," or it
clearly violates its mandate. Ibid. We defer to an agency's
"expertise and superior knowledge of a particular field."
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
That is particularly true with respect to the Commissioner's
interpretation and enforcement of statutes and regulations
pertaining to the complex and specialized area of tenure. Nelson
v. Bd. of Educ., 148 N.J. 358, 364-65 (1997). Nonetheless, we are
"in no way bound by the agency's interpretation of a statute or
its determination of a strictly legal issue." Mayflower Sec. Co.
v. Bureau of Sec., 64 N.J. 85, 93 (1973).
Applying that deferential standard of review, we affirm
substantially for the reasons set forth in the Commissioner's
decision. We are mindful that this may be viewed as a harsh
result, inasmuch as the Board apparently was no more aware than
petitioner was of the certificate requirement when it hired her.
Nonetheless, she failed to obtain a certificate during her years
of employment as an athletic trainer. The Board eventually became
aware of the certificate requirement and asked petitioner if she
had one. Although her affirmation that she possessed a certificate
may have been an innocent mistake, "the primary responsibility for
applying for and possession [of] appropriate certification rests
with the teacher . . . ." McAneny v. Bd. of Educ. of the Sch.
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Dist. of the Chathams, 92 N.J.A.R.2d (Vol. 7) 208, 212 (Dep't of
Educ. 1991). The Commissioner has rejected claims to tenure in
other circumstances where the Board erred along with the employee:
It is, of course, unfortunate that the
petitioner was employed under such
circumstances for so substantial a period of
time, as the result of an apparent
misunderstanding in which the Board and she
appear equally culpable; however, the fact
remains that she could not, as a matter of
law, acquire tenure in a position for which
she was not certified.
[Nelson v. Bd. of Educ. of the City of
Plainfield, 2008 N.J. AGEN LEXIS 1013 at *7
(N.J. Adm. April 18, 2008).]
The Commissioner reached a similar decision here. We shall not
disturb it.
Affirmed.
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