JENNIFER JORDAN VS. BOARD OF EDUCATION OF THE NORTH HUNTERDON-VOORHEES REGIONAL HIGH SCHOOL DISTRICT(COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4420-14T1
JENNIFER JORDAN,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE
NORTH HUNTERDON-VOORHEES
REGIONAL HIGH SCHOOL DISTRICT,
HUNTERDON COUNTY, RICHARD BERGACS,
MICHAEL HUGHES, CHARLES SHADDOW
AND PATRICIA RALEIGH,
Respondents-Respondents.
________________________________________________
Argued December 13, 2016 – Decided July 21, 2017
Before Judges Messano, Suter, and Guadagno.
On appeal from the Commissioner of
Education, Docket No. 218-8/14.
John R. Lanza argued the cause for appellant
(Lanza & Lanza, LLP, attorneys; Kenneth W.
Thomas, on the briefs).
Robert M. Tosti argued the cause for
respondents (Purcell, Mulcahy, Hawkins,
Flanagan & Lawless, LLC, attorneys; Rita F.
Barone, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey
Commissioner of Education (Geoffrey N.
Stark, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Plaintiff, Jennifer Jordan, appeals from the May 20, 2015
decision of the Commissioner of Education (Commissioner)
adopting the recommendation of an administrative law judge
(ALJ), finding that plaintiff's petition challenging the denial
of her tenure is procedurally time-barred as it was filed after
the ninety-day statute of limitations period set forth in
N.J.A.C. 6A:3-1.3(i). We affirm.
I.
Plaintiff was hired to work as a non-tenured guidance
counselor for the North Hunterdon-Voorhees Regional High School
(NHHS) in January 2011. Plaintiff was recommended for a
permanent position by the Supervisor of Guidance, Patricia
Raleigh, and was reappointed for the 2011-2012, 2012-2013, and
2013-2014 school years. Plaintiff became eligible for tenure
following the 2013-2014 school year.
On May 8, 2014, plaintiff received a letter from JoAnn F.
Keffer, Director of Human Resources for NHHS, informing her that
at the meeting of the Board of Education (Board) scheduled for
May 13, 2014, the Superintendent of Schools will recommend that
the Board not renew plaintiff's employment for the 2014-2015
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school year. The letter further stated that plaintiff's
employment would terminate effective June 30, 2014.
On May 13, 2014, plaintiff appeared before the Board with
her attorney and presented seven members of the public who spoke
in support of her. Plaintiff and her counsel addressed the
Board and requested renewal of her contract. District
Superintendent Charles M. Shaddow provided his rationale for not
recommending plaintiff for renewal, and NHHS Principal, Richard
Bergacs, also addressed the Board regarding plaintiff's
termination.1 After Shaddow and Bergacs spoke, the Board
approved a personnel agenda that did not include the renewal of
plaintiff's employment.
On August 11, 2014, plaintiff filed a petition with the
Commissioner alleging the Board violated her "constitutional
right to due process; manufactured 'reasons' for the non-renewal
of her contract; interfered with her protected property rights
attendant to her education, work history and guidance counselor
certification; failed to follow their own policy on non-renewal
and issued a defective notice of the reasons for non-renewal."
1
These facts were elicited from the minutes of the meeting. We
were not provided with a transcript or summaries of the
presentations to the Board.
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The matter was transferred to the Office of Administrative
Law as a contested case. The Board moved to dismiss plaintiff's
complaint as time-barred under N.J.A.C. 6A:3-1.3(i). Plaintiff
cross-moved for a finding that the Board's action of failing to
renew her employment contract was improper. An ALJ considered
briefs by the parties and issued an initial decision on March 2,
2015, recommending that the Commissioner dismiss the petition as
time-barred.
The ALJ rejected plaintiff's argument that the May 8, 2014
letter was not a final action within the meaning of N.J.A.C.
6A:3-1.3(i), and recommended the Commissioner grant defendant's
motion to dismiss because plaintiff failed to file her petition
within ninety days of receiving notice of her termination. The
Commissioner adopted the recommended decision of the ALJ, and
dismissed plaintiff's petition on May 20, 2015.
On appeal, plaintiff claims the Commissioner's decision
constitutes an abuse of discretion and runs contrary to
legislative intent. Plaintiff urges us to exercise original
jurisdiction and grant her tenure; in the alternative, she seeks
a remand of the matter for a hearing.
II.
"[We] have 'a limited role' in the review of [agency]
decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting
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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.)
(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993),
aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001).
"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, supra, 208 N.J. at 194 (quoting
Henry, supra, 81 N.J. at 580). The burden of proving that an
agency action is arbitrary, capricious, or unreasonable is on
the challenger. Bueno v. Bd. of Trs. of the Teachers' Pension
and Annuity Fund, 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, supra, 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 knowledge of a particular field.'" Id.
at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
Furthermore, "'[i]t is settled that [a]n administrative agency's
5 A-4420-14T1
interpretation of statutes and regulations within its
implementing and enforcing responsibility is ordinarily entitled
to our deference.'" E.S v. Div. of Med. Assistance & Health
Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (quoting Wnuck
v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.
Div. 2001)). "[W]e are not bound by the agency's legal
opinions." A.B. v. Div. of Med. Assistance & Health Servs., 407
N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State, Dep't
of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif.
denied, 200 N.J. 210-11 (2009). "Statutory and regulatory
construction is a purely legal issue subject to de novo review."
Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85,
93 (1973)).
III.
N.J.A.C. 6A:3-1.3 addresses the initiation of a contested
case before the Commissioner and provides in pertinent part:
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).]
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Plaintiff argues that her August 11, 2014 petition was
timely filed because the May 8, 2014 letter did not constitute a
"final order" and therefore did not trigger the ninety-day
filing period. She maintains that the language of the letter
suggests that the Superintendent merely intended to recommend
non-renewal and "does not . . . tell [plaintiff] that she would
not be reemployed, only that the Superintendent would recommend
against it on a subsequent date upon which the Board would
either accept or reject the recommendation."
In Kaprow v. Board of Education of Berkeley Township, 131
N.J. 572 (1993), our Supreme Court recognized the importance of
the ninety-day limitation period to the ability of school
districts to set their budgets:
The limitation period gives school districts
the security of knowing that administrative
decisions regarding the operation of the
school cannot be challenged after ninety days.
Moreover, because local school boards operate
on a cash basis, claims must be filed promptly
so that the local board can anticipate any
back-pay requirements.
[Id. at 582.]
N.J.S.A. 18A:27-10 provides:
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
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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.
In Nissman v. Board of Education of the Township of Long
Beach Island, Ocean County, 272 N.J. Super. 373 (App. Div.),
certif. denied, 137 N.J. 315 (1994), we discussed the notice
requirements of N.J.S.A. 18A:27-10, and concluded that the test
was whether the employee "knew or should have known that [he or]
she was not going to be offered a new contract for the following
academic year." Id. at 379.
The plain language of the May 8 letter simply does not
support plaintiff's interpretation that the letter merely
advised her of the possibility that she would not be offered a
new contract. The letter clearly qualifies as written notice
that plaintiff's employment will be terminated and she will not
be offered tenure.
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:
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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 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[.]
By its terms, the statute provides, inter alia, that a
board may renew an employee's contract "only" if the chief
school administrator so recommends, and that it may decline to
follow a chief school administrator's recommendation for renewal
but may not do so arbitrarily and capriciously. Jackson Tp. Bd.
of Educ. v. Jackson Educ. Ass'n ex rel. Scelba, 334 N.J. Super.
162, 168 (App. Div.) (citing N.J.S.A. 18A:27-4.1(b), certif.
9 A-4420-14T1
denied, 165 N.J. 678 (2000). The May 8 letter clearly informed
plaintiff that "the Superintendent will recommend against
renewal of your employment" and "your employment will terminate
effective June 30, 2014." (emphasis added).
We reject plaintiff's argument that the May 8 notice was
deficient because it was not signed by the superintendent. The
letter was written on the superintendent's letterhead and was
signed by the district's director of human resources. As we
have stated, the purpose of the letter was to advise plaintiff
that she would not be offered employment for the upcoming term.
We also reject plaintiff's argument that the Board's
decision constitutes an abuse of discretion. In response to
plaintiff's request for reasons why her employment was not being
renewed, Patricia Raleigh provided a memo dated May 7, 2014
providing:
 Four families have demanded a counselor
change from Ms. Jordan's caseload this
year, which seems to indicate an
unusually high level of dissatisfaction
in spite of the positive relationships
she seems to have with most of her
students.
 Absences have been unusually numerous
over the past two years, in addition to
late arrivals.
 Although the issues which have impacted
her performance at North Hunterdon have
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not seemed to rise to a level that would
compel intervention or censure, the
difficulty with which Ms. Jordan receives
any form of criticism has raised concerns
with regard to her long-term performance
as a counselor in this school.
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. of N. Wildwood, 65
N.J. 236, 241 (1974). "An 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). In light of the
budgetary implications of late-asserted claims, as explained in
Kaprow, supra, we find the Commissioner's interpretation to be
reasonable and that plaintiff has failed to demonstrate the
Board's action was arbitrary, capricious, or unreasonable in any
way.
Finally, plaintiff argues that the Board violated its own
Policy 3142, which required that teaching staff members who will
not be offered renewal must be notified no later than April 24.
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Because of this failure plaintiff argues she was already tenured
when she received the letter of non-renewal on May 8, 2014.
While the Board failed to comply with its own policy
providing notice of re-employment by April 24, the Board's
action remained in compliance with N.J.S.A. 18A:27-10, as
plaintiff received notice prior to May 15. In addition,
plaintiff failed to meet the statutory requirements for tenure
under N.J.S.A. 18A:28-5, which requires teaching staff employees
to be employed for three consecutive calendar or school years to
acquire tenure. Plaintiff joined NHHS on January 26, 2011,
therefore she had neither been employed in the district for
three consecutive school years nor three consecutive calendar
years when she received the notice of non-renewal on May 8,
2014. As a result, plaintiff cannot assert that she been
automatically granted tenure as of April 24, 2014.
Plaintiff's remaining arguments lack sufficient merit to
warrant discussion in our opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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