ALI FETI VS. BOARD OF EDUCATION OF THE BOROUGH OF NETCONG, MORRIS COUNTY(NEW JERSEY COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-2584-15T2
ALI FETI,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE
BOROUGH OF NETCONG, MORRIS
COUNTY, BERNADETTE DALESANDRO
and KEVIN CARROLL,
Respondents-Respondents.
______________________________________________
Argued June 6, 2017 – Decided August 8, 2017
Before Judges Suter and Grall.
On appeal from the New Jersey Commissioner
on Education, Docket No. 231-9/13.
Noel C. Crowley argued the cause for
appellant (Crowley & Crowley, attorneys; Mr.
Crowley, of counsel and on the briefs).
Derlys Maria Gutierrez argued the cause for
respondents Netcong Board of Education,
Bernadette Dalesandro and Kevin J. Carrol
(Adams, Gutierrez & Lattiboudere, LLC,
attorneys; Ms. Gutierrez, of counsel and on
the brief; Ruby Kumar-Thompson, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Commissioner of
Education (Lori Prapas, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Petitioner Ali Feti, formerly a custodian for the Netcong
Board of Education (Board), appeals from a final decision of the
Commissioner of Education. The Commissioner accepted the
findings of fact and credibility determinations made by the
Administrative Law Judge (ALJ). See N.J.S.A. 52:14B-10(c).
"[F]or reasons thoroughly set forth" in the ALJ's Initial
Decision, the Commissioner adopted it as his final decision,
determined Feti did not acquire tenure pursuant to N.J.S.A.
18A:17-3 and directed the Board to award Feti an additional
$1000 "owed to him based on the miscalculation of the payment
received for his accrued vacation time."1
1
The ALJ and the Commissioner rejected other claims, which Feti
does not raise on appeal. Feti's due process claim was denied,
because he did not invoke the process available upon receiving
notice of the Board's decision not to renew his contract. See
N.J.S.A. 18A:27-4.1(b); Leang v. Jersey City Bd. of Educ., 198
N.J. 557, 578 (2009). The ALJ dismissed Feti's claims for
relief due to violations of the civil service laws, N.J.S.A.
11A:2-13 and -24, and violations of the collective bargaining
agreement, as outside the Commissioner's jurisdiction, N.J.S.A.
18A:16-9.
Because Feti does not challenge those determinations on
appeal, he effectively abandoned them. Muto v. Kemper
Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).
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Feti urges us to reverse the Commissioner's decision on
tenure and contends the ALJ's calculation of monetary relief
lacks support in the record. The Board and the Commissioner, in
his statement in lieu of brief, urge us to affirm.2
For reasons that follow, we affirm the Commissioner's
decision on tenure. We reject Feti's claim that the ALJ's
decision on pay for work done and vacation accrued after June
30, 2013 lacks support in the record, because it is amply
supported by a payroll record and a separate handwritten check
for vacation time as the Board's President, Bernadette
Dalesandro, explained during her testimony. Feti's arguments to
the contrary have insufficient merit to warrant discussion in a
written opinion. Accordingly, we affirm that determination in
conformity with Rule 2:11-3(e)(1)(D)-(E).
A limited remand to address monetary relief is necessary,
however, because there is a discrepancy between the amount the
Commissioner awarded and the ALJ recommended, which the
Commissioner did not explain.
Turning to the Commissioner's decision on tenure, appellate
review is limited. Courts are not obligated to follow an
agency's interpretation of a statute. U.S. Bank, N.A. v. Hough,
2
On June 1, 2017, we granted Feti leave to file a letter in
opposition to the Commissioner's statement in lieu of brief.
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210 N.J. 187, 200 (2012). But courts accord a strong
presumption of reasonableness to an agency's exercise of
statutorily delegated responsibility, City of Newark v. Nat.
Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert.
denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980),
and defer to the agency's findings of fact, Lavezzi v. State,
219 N.J. 163, 172 (2014). Courts disturb an agency's
determination only if it is arbitrary, capricious, unreasonable,
unsupported by the evidence or contrary to legislative policy.
In re Musick, 143 N.J. 206, 216 (1996).
The tenure dispute in this case concerns the Commissioner's
application of N.J.S.A. 18A:17-3, which addresses tenure for
custodians employed by school districts. In pertinent part,
N.J.S.A. 18A:17-3 provides:
Every public school janitor of a school
district shall, unless he is appointed for a
fixed term, hold his office, position or
employment under tenure . . . .
[(Emphasis added).]
In Wright v. Board of Education of the City of East Orange, 99
N.J. 112, 119 (1985), the Supreme Court interpreted this statute
to mean that a "janitor employed without a fixed term contract
will gain tenure immediately upon beginning appointment."
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Neither Wright nor N.J.S.A. 18A:17-3 expressly requires an
individual contract signed by the employer or the school
custodian. Indeed, N.J.S.A. 18A:17-3 does not refer to a
contract; it refers to an appointment "for a fixed term," and in
Wright, the Supreme Court enforced a collective bargaining
agreement providing tenure for custodians after three years even
though the custodian had a fixed-term contract. 99 N.J. at 115-
23. When Wright was decided, as now, the Court interprets
statutes to effectuate the Legislature's intent and views the
"the statutory language" as "the best indicator of that intent."
DiProspero v. Penn, 183 N.J. 477, 492 (2005); accord In re
Closing of Jamesburg High School, 83 N.J. 540, 548 (1980)
(declining to "engage in conjecture or surmise which will
circumvent the plain meaning of the act").
The documentary and testimonial evidence admitted by the
ALJ adequately establishes Feti was appointed for a "fixed term"
that in this case can be summarized as follows. The Board first
appointed Feti in April 2001 under a contract commencing on
April 6 of that year and ending on June 30, 2001. Thereafter,
the Board employed Feti under a successive series of contracts
commencing on July 1 and ending on June 30 of the next year.
The last of Feti's contracts produced at the hearing in the
Office of Administrative Law expired on June 30, 2012.
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On May 11, 2012, the district's superintendent wrote to
Feti and advised him the Board had taken action "not to renew
all members of the custodial staff, effective July 1, 2012." On
June 12, the superintendent advised the Board there would be no
head custodian and recommended the Board appoint Feti and
another custodian, Peterson, to serve "as the district's
custodians for the ensuing school year." (emphasis added).
Two weeks later, on June 26, 2012, the Board unanimously
approved Feti's employment "as a Full-Time Custodian, effective
July 1, 2012 with an annual salary of $46,000." The Board also
passed a resolution appointing Peterson at an annual salary of
$36,000. Neither resolution expressly limited the term to the
"ensuing school year."
A Board policy adopted about seven years earlier, Policy
4360, precludes appointment for other than a fixed term. Policy
4360 addresses "Support Staff Member Tenure," and it refers to
N.J.S.A. 18A:17-3. It requires fixed-term contracts as follows:
The Board of Education directs that the
tenure status of support staff members be
determined only in accordance with law and
this policy and such contractual terms as
may have been negotiated with the employee's
majority representative.
Persons employed as janitors, custodians,
and maintenance personnel including
supervisory personnel will be employed on
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fixed term contracts and will not acquire
tenure in their positions.
The Board will not grant tenure to any
employee for whom such tenure has not been
provided in law.
The Board's position on tenure for custodians is also
memorialized in the Board's collective bargaining agreement with
the Netcong Teachers' Association, Inc., which was in place from
July 1, 2010 through June 30, 2013. Paragraph E of Article XV
states: "Custodians shall continue the practice of executing
annual employment contracts with the Board. Custodians shall
not receive tenure."
According to Feti's testimony, he was given a contract for
2012-2013, which he signed and returned to the superintendent's
secretary. To Feti, the contract "looked like every year." He
signed it and gave it back to the secretary because it needed
the signature of the Board President or a Board member. Feti
returned to the superintendent's office more than once to get a
signed copy of the contract, but he gave up trying when he did
not receive it through the mail as the secretary promised.
On cross-examination, Feti testified he had not read the
contract before signing it and did not "pay attention" to it.
He did not, however, retract his initial testimony describing
7 A-2584-15T2
the 2012-2013 contract as looking like the others he had
received.
The Board also presented evidence to explain its inability
to produce Feti's written contract for 2012-2013. Collectively,
the Board's testimonial and photographic evidence demonstrated
the business office was not well run during the time at issue.
The person responsible for records, including contracts and
personnel records, did not maintain files, stored unrelated
records in unlabeled boxes, and kept the boxes in different
rooms of the building and even in her car. On that evidence,
the ALJ determined the Board's inability to produce a contract
was attributable to the "dysfunction of the Board's business
office" and its prior administrator's poor performance. The
Commissioner accepted that determination.
The ALJ concluded the parties' mutual inability to produce
Feti's contract for school year 2012-2013 did not preclude a
finding that Feti was appointed for a fixed, one-year term.
Relying upon Feti's past contracts, the Board's Policy 4360 and
the collective bargaining agreement, the ALJ concluded Feti was
appointed for a fixed-term, as he had been in the past. There
was no evidence even suggesting the Board would have appointed
Feti for an indeterminate period in violation of its Policy 4360
and its agreement with the Association. The only testimony on a
8 A-2584-15T2
contract for 2012-2013 was Feti's describing it as looking like
the others.
The ALJ reasoned, and the Commissioner agreed, that
reliance on the collective bargaining agreement was consistent
with the Court's reasoning in Wright. We agree.
In Wright, the Supreme Court recognized the Legislature
adopted N.J.S.A. 18A:17-3 intending to "leave employing boards
with some flexibility," and the Court concluded N.J.S.A. 18A:17-
3 left room for negotiated agreements addressing "custodians'
tenure rights." 99 N.J. at 119-20. Having resolved that
question of negotiability, the Court enforced the provision of
collective bargaining agreement providing tenure for all members
of the Association "after three years of employment," even
though the employee had a fixed-term contract. Id. at 116. The
Court reasoned that if the "representative unit of the
custodians were prohibited from negotiating job security, the
result would frustrate, rather than promote, the intent of the
janitors' tenure statute," which was to provide some prospect
for job security. Id. at 122-23.
While the provision of the Netcong Association's negotiated
contract, unlike the one in Wright, did not expand the statutory
tenure rights of custodians, neither did it narrow them. In
fact, inclusion of this provision in the bargaining agreement
9 A-2584-15T2
effectively recognized negotiability and preserved tenure for
custodians as a topic for future negotiations.
Neither the ALJ nor the Commissioner focused on the plain
language of N.J.S.A. 18A:17-3, but it is worth restating:
"Every public school janitor of a school district shall, unless
he is appointed for a fixed term, hold his office, position or
employment under tenure. . . ." (emphasis added). Given that
the statute does not expressly require a formal, written
contract signed by the Board and each custodian, we decline to
interpret it to require one or to preclude reliance on Policy
4360, the collective bargaining agreement and Feti's prior
contracts.
For all of the foregoing reasons, we affirm. The
Commissioner's decision is amply supported by the evidence, not
inconsistent with legislative policy and reasonable. R. 2:11-
3(e)(1)(D). Moreover, Feti's claim that the Commissioner
erroneously shifted the burden of proof to him has insufficient
merit to warrant any comment beyond reference to Policy 4360 and
the Board's agreement with the Association, which prohibited
unlimited appointments for custodians. R. 2:11-3(e)(1)(E).
Viewed in light of the evidence, Feti's argument urges tenure
based on a technical defect unrelated to the Legislature's
purpose.
10 A-2584-15T2
As previously noted, we also affirm the Commissioner's
decision to adopt the ALJ's findings and conclusions relevant to
the payment Feti was due for work performed and vacation days
accrued after the 2012-2013 school year. R. 2:11-3(e)(1)(D). A
remand is required and directed for the limited purpose of
addressing the unexplained discrepancy between the ALJ's and the
Commissioner's statements of the additional payment due from the
Board to Feti.
Specifically, the ALJ recommended the Commissioner direct
the Board to pay "$1000, reflecting" a $1000 increase in Feti's
salary and that Feti's "payment for vacation pay should likewise
be adjusted to reflect pro rata payment" at that higher annual
rate. In contrast, the Commissioner directed the Board "to pay
the petitioner $1000 owed to him for the miscalculation of the
payment received for his accrued vacation time" and did not
require a $1000 salary adjustment. On remand, the Commissioner
should reconsider and explain the payment due.
Affirmed in part; remanded in part; jurisdiction is not
retained.
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