Opinion
DOCKET NO. A-2736-11T3
02-27-2013
WILLIAM FELDMAN, Petitioner-Appellant, v. BOARD OF EDUCATION OF THE TOWNSHIP OF BRANCHBURG, SOMERSET COUNTY, Respondent-Respondent, and REBECCA GENSEL, Respondent/Intervenor-Respondent.
Robert M. Schwartz argued the cause for appellant. David B. Rubin argued the cause for respondent Board of Education of the Township of Branchburg. Wayne J. Oppito argued the cause for respondent Rebecca Gensel (Mr. Oppito joins in the brief of respondent Board of Education of the Township of Branchburg). Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from the Commissioner of Education, Docket No. 131-5/11.
Robert M. Schwartz argued the cause for appellant.
David B. Rubin argued the cause for respondent Board of Education of the Township of Branchburg.
Wayne J. Oppito argued the cause for respondent Rebecca Gensel (Mr. Oppito joins in the brief of respondent Board of Education of the Township of Branchburg).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant William Feldman appeals from the December 23, 2011 final decision of the Commissioner of Education, adopting an initial decision of the Office of Administrative Law (OAL), which affirmed the determination of the Branchburg Township Board of Education (Board), that he had the least seniority among several principals subject to a reduction in force that resulted in his termination. We affirm.
I.
To understand the facts, we briefly review relevant legal principles governing the appointment, tenure, and termination of principals, which we revisit at greater length later in our opinion.
In order to begin employment as a principal, a person must possess "a valid and appropriate certificate." N.J.A.C. 6A:9-5.1(a). There are four kinds of certificates: certificate of eligibility, provisional certificate, standard certificate, and emergency certificate. See N.J.A.C. 6A:9-6.1 - 6.4. A master's degree is required, among other things, to obtain a principal's certificate of eligibility. N.J.A.C. 6A:9-12.5(a). A principal who only possesses a certificate of eligibility can seek employment, but cannot assume job responsibilities. See N.J.A.C. 6A:9-6.4(c); see also N.J.S.A. 18A:26-2.
A provisional certificate may be issued to a principal only if the candidate holds a certificate of eligibility and "accept[s] an offer of employment in a position requiring the principal endorsement in a school or district that has agreed formally to sponsor the residency." N.J.A.C. 6A:9-12.5(d). Finally, a standard certificate is a permanent certificate issued to candidates who have met all requirements for state certification. N.J.A.C. 6A:9-6.1. To obtain a standard certificate, the candidate must hold a provisional certificate and, among other things, complete a two-year residency program, administered by a State-approved mentor, pursuant to a standard agreement with the Department of Education (Department). N.J.A.C. 6A:9-12.5(e).
As a "teaching staff member," a principal is entitled to tenure. N.J.S.A. 18A:1-1 (defining "teaching staff member"); N.J.S.A. 18A:28-5 (addressing tenure of "teaching staff members"); Spiewak v. Bd. of Educ. of Rutherford, 90 N.J. 63, 74 (1982). A tenured principal can only be dismissed in limited circumstances, such as a reduction in force (RIF) based on seniority. N.J.S.A. 18A:28-9 (authorizing RIF affecting tenured personnel), N.J.S.A. 18A:28-10 (requiring dismissals from RIF "be made on the basis of seniority according to standards to be established by the commissioner with the approval of the state board"). Seniority is "determined according to the number of academic or calendar years of employment . . . in the school district in specific categories[.]" N.J.A.C. 6A:32-5.1.
With those basic concepts explained, we turn to the facts, which are undisputed, although their significance is not. On February 10, 2005, the Board adopted a resolution approving Feldman as a school principal effective March 14, 2005. Feldman possessed only a certificate of eligibility.
Feldman does not dispute that he only had a certificate of eligibility when he "began his employment" on March 14, 2005.
On April 8, 2005, Raymond Levy, the Department's Coordinator of Administrator Training, acknowledged in a letter to John Hrevnack, Ed.D., the District's Superintendent, that the District had "provisionally employed" Feldman, but Levy indicated that the "dates of residency" were not set. Levy wrote: "It is our understanding that your district has provisionally employed . . . [Feldman]. Upon successful completion of a one-year mentor-directed residency, the State of New Jersey may issue this candidate a standard license. Until that time, the candidate will be practicing under a provisional license." Levy asked Dr. Hrevnack to return various documents to the Department, including Feldman's certificate of eligibility, a "Statement of Assurance," and his mentor's identification form and resume. Levy stated, "Upon receipt, dates of residency will be established, a mentor will be assigned, and the training program will commence."
The "Statement of Assurance," a Department form, certifies that a particular named candidate "[h]as been assured of the following position which requires principal certification." The form indicates an effective date for the position, and is to be signed and dated by the Chief School Administrator.
On April 14, 2005, Linda Schmitt, the District's personnel secretary, returned to Levy the completed Mentor Identification Form and Statement of Assurance. The Mentor Identification Form listed Diane Tait as Feldman's mentor. The Statement of Assurance was signed by Dr. Hrevnack but undated, and indicated that Feldman had been assured the position of Branchburg Central Middle School Principal and "[t]his position is effective March 14, 2005."
Although the record does not include a completed copy of the Statement of Assurance, neither party disputes the fact that it was completed and returned to Levy on April 14, 2005.
On May 4, 2005, Levy sent Tait a form Standard Residency Agreement (Agreement), and materials to assist her in mentoring Feldman. The documents included a letter notifying Tait that the Agreement is a "contract which must be signed by all parties[.]" Notwithstanding Levy's statement in his April letter that the "district has provisionally employed" Feldman, he wrote in May that "[a] provisional license will be issued to [Feldman] upon receipt" of the Agreement. However, a Schedule for Candidate Evaluation, apparently included with Levy's letter, stated the "Dates of Residency" were April 1, 2005 to March 31, 2006, and noted that dates for the three-month, six-month, and nine-month evaluations were predicated on an April 1, 2005 start date.
In July 2005, Tait returned to Levy the Agreement signed by Tait, Dr. Hrevnack, and Feldman. Tait included a note apologizing for the delay, and explained that she had difficulty obtaining one of Feldman's transcripts. Although all three signers inserted the date "7/5/05" next to their signatures, the Agreement purported to make the provisional certificate effective retroactively to April 1, 2005. Neither the Secretary of the State Board of Examiners, nor the Director of the Office of Licensing & Credentials signed, in the spaces provided for them, the copy of the Agreement included in the record before us.
The Agreement submitted to the State officials stated (we indicate with bold type the typewritten inserts in the form):
The New Jersey Department of Education, Diane Tait[,] Principal Mentor, and the Branchburg Township School District hereby agree to provide a program of training andAn April 1, 2005 date was also inserted elsewhere on the form as the commencement date for a one-year period of "training, support and supervision."
supervision required in N.J.A.C. 6:11-10 for William Feldman . . . who has accepted employment in a position which requires principal certification, in accord with the following terms and conditions:
The New Jersey Department of Education agrees to:
1. issue a provisional certificate to the above named principal candidate valid for a [sic] one year beginning April 1, 2005[.]
The Department apparently did not execute and return the Agreement. Instead, it sent a provisional certificate to Feldman, with an "issued" date of "7/05." A print-out of an Application Status Check downloaded from the Department's website shows that Feldman's provisional certificate was "received" on July 26, 2005.
Although the provisional certificate bore a July 2005 issuance date, the Department issued Feldman a standard certificate in April 2006. Feldman received tenure on or about March 14, 2008. Two other principals, hired April 4, 2005, and May 31, 2005, while possessing standard certificates, received tenure three years after their respective hiring dates. See N.J.S.A. 18A:28-5 (stating that tenure may be granted "after employment . . . for [t]hree consecutive calendar years"). A fourth principal with a standard certificate was hired in July 2003.
As we discussed above, the regulations in place in 2005 required a two-year residency program. However, prior regulations allowed a "one to two-year State-approved residency program while employed under provisional principal certification[.]" See 36 N.J.R. 469(a), 502 (Jan. 20, 2004).
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On May 4, 2011, the District voted to close one school at the end of the 2010-2011 school year, and eliminate a principal position. Based on the July 2005 date of his provisional certificate, Feldman was terminated, as he was deemed less senior than the principals who began work in April and May 2005.
Feldman filed a petition of appeal with the Commissioner on May 23, 2011, arguing that his relevant period of employment began in March 2005, and that he was therefore more senior than two principals who were retained instead of him. He sought reinstatement and back pay.
In lieu of an answer, the District moved for summary decision, and the case was transmitted to OAL on May 2, 2011. The principal who was hired in May 2005 intervened and adopted the District's arguments.
On November 10, 2011, Administrative Law Judge (ALJ) Joseph F. Martone issued an initial decision granting the District's motion for summary decision, after concluding that Feldman's service when he possessed only a certificate of eligibility did not count towards seniority. The judge reasoned that under N.J.S.A. 18A:28-5 and N.J.S.A. 18A:1-1, only a "teaching staff member" who has an emergency, provisional, or standard certificate can acquire tenure. When hired, Feldman only had a certificate of eligibility. Judge Martone also relied on N.J.A.C. 6A:9-6.4(c), which precludes the holder of a certificate of eligibility from assuming responsibilities under a job assignment. The ALJ found that Feldman had been improperly allowed to work as a principal with only a certificate of eligibility.
The ALJ concluded that seniority only began to accrue when Feldman possessed the provisional certificate. The judge found there was no genuine issue of material fact regarding its date of issuance on July 2005. Although Feldman's residency may have actually begun in April 2005, it "should not have if he did not get his provisional certificate until July 2005 and did not enter a valid residency agreement until July 2005."
The Commissioner adopted the ALJ's initial decision, including his finding that the operative date for calculating Feldman's seniority was July 2005, when the provisional certificate was issued.
[T]he Commissioner recognizes that — notwithstanding a regulation clearly stating that the holder of a certificate of eligibility may not assume job responsibilities until issued a provisional certificate (N.J.A.C. 6A:9-6.4(c)), and that seniority is not accrued under a certificate of eligibility (See Davis v. Board of Education of the City of Englewood, Commissioner's decision #442-06, decided December 8, 2006) — on March 14, 2005, the Board and petitioner entered into a contract of employment based solely on the petitioner's possession of a certificate of eligibility. The crux of the issue in this matter — where petitioner is claiming entitlement to a position of another principal in the District based on "seniority," — is the point in time at which petitioner acquired a provisional certificate. The Commissioner finds and concludes that - notwithstanding that there are documents in the record which include conflicting information with respect to the date on which a provisional certificate was issued to petitioner — he is in full accord with the ALJ's conclusion in this regard.The Commissioner also rejected Feldman's argument that the Department and District were responsible for the confusion involving his application for a provisional certificate.
Feldman now appeals on the ground that (1) the July 2005 date on his provisional certificate should relate back to his date of employment, (2) the Commissioner should not have granted summary decision because the record contained, as the Commissioner observed, conflicting documents with respect to the provisional certificate's effective date, (3) the Commissioner's decision was arbitrary and capricious, (4) Feldman justifiably relied on information forwarded by the Department, and (5) the District is equitably estopped from discounting Feldman's service between March and July 2005 for seniority purposes.
II.
The standard for granting a motion for summary decision under N.J.A.C. 1:1-12.5(b) is "substantially the same" as that governing a motion for summary judgment under Rule 4:46-2. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). Consequently, the Commissioner must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party . . . are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). No genuine issue of material fact exists if there is "a single, unavoidable resolution of the alleged disputed issue of fact[.]" Contini, supra, 286 N.J. Super. at 122 (quoting Brill, supra, 142 N.J. at 523).
Although the applicable test for granting the two motions is essentially the same, our review of an agency's summary decision differs from our review of a trial court's grant of summary judgment. We review a trial court's grant of summary judgment de novo. Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div.), certif. denied, 208 N.J. 600 (2011). We apply the same standard as the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), and do not defer to the trial court's interpretation of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
While we likewise review de novo the Commissioner's determination that no genuine issue of material fact existed, we "strive to give substantial deference to the interpretation [the] agency gives to a statute that the agency is charged with enforcing." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 423 (2008) (citation and quotation omitted). We defer to an agency's interpretation of its own regulations unless plainly unreasonable, In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 260 (2010).
We defer as well to an agency's "expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). In particular, that is true with respect to the Board's interpretation and enforcement of statutes and regulations pertaining to the complex and specialized area of tenure. Nelson v. Bd. of Educ. of the Twp. of Old Bridge, 148 N.J. 358, 364-65 (1997). We will affirm an agency's final quasi-judicial decision unless it is "arbitrary, capricious or unreasonable." Russo v. Bd. of Trustees, Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citations and quotations omitted). 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 these standards, we return to the principles governing appointment of principals that we addressed at the outset. The District was authorized to terminate one of its four tenured principals pursuant to a RIF based on seniority as defined in state standards. See N.J.S.A. 18A:28-10 ("Dismissals resulting from any such reduction . . . shall be made on the basis of seniority according to standards to be established by the commissioner with the approval of the state board."). Seniority, in turn, is determined according to the length of employment, with exclusions and additions not relevant here. N.J.A.C. 6A:32-5.1 ("Seniority, pursuant to N.J.S.A. 18A:29-9 et seq., shall be determined according to the number of academic or calendar years of employment, or fraction thereof, as the case may be, in the school district in specific categories as hereinafter provided.").
Employment may not begin until a teaching staff member obtains the required certificate. See N.J.S.A. 18A:26-2 (stating that "[n]o teaching staff member shall be employed . . . unless he is the holder of a valid certificate to teach, administer, direct or supervise"). A principal who only possesses a certificate of eligibility can seek employment, but cannot begin employment until issued a provisional certificate. See N.J.A.C. 6A:9-6.4(c) ("The CE [certificate of eligibility] . . . authorizes the holder to seek employment. A holder of a CE . . . shall not assume responsibility for a job assignment until the holder has been issued a provisional certificate.").
It is undisputed that the provisional certificate was issued in July 2005. It could not have been issued sooner, as the regulations state that "[t]he Board of Examiners shall issue the appropriate certificate upon the candidate's completion of all certification requirements," including coursework, educational degrees, tests and "certificate rules pursuant to N.J.A.C. 6A:9-8, 11, 12, and 13." N.J.A.C. 6A:9-5.16(a) (emphasis added). Under N.J.A.C. 6A:9-12.5, to obtain a provisional certificate, a school or district must "agree[] formally to sponsor the [applicant's] residency." Feldman did not complete the certification requirements, including submission of the residency agreement, until shortly before the provisional certificate was issued in July 2005.
Relying on the July 2005 date as the commencement of Feldman's employment, the Commissioner determined Feldman was the least senior of the four principals. However, Feldman argues that the effective date of his provisional certificate should relate back to March 2005, when he actually began work, or in April 2005, when his mentorship informally began. Feldman's argument may have some facial appeal. However, it is at odds with the Board's reasonable and well-settled interpretation of its governing statutes and regulations, to which we defer.
Employment for seniority purposes generally does not begin until the "teaching staff member" receives the required certificate, regardless of when the teaching staff member actually begins working on the job. See Davis v. Bd. of Educ. of the City of Englewood, OAL Dkt. No. EDU 9689-06, Agency Dkt. No. 222-6/06, initial decision, (October 26, 2006), aff'd (Comm'r December 8, 2006) (substitute teacher's service under a certificate of eligibility does not count towards seniority); Clanton v. State-Operated Sch. Dist. of the City of Newark, OAL Dkt. No EDU 07092-06, Agency Dkt. No. 172-5/06, initial decision, (February 2, 2007), aff'd (Comm'r March 12, 2007) (time served as vice principal with a certificate of eligibility does not count toward tenure because "nothing in the statute or case law . . . supports this position"); Nelson v. Bd. of Educ. of the City of Plainfield, OAL Dkt. No. EDU 11414-07, Agency Dkt. No. 122-5/07, initial decision, (March 4, 2008), aff'd (Comm'r April 18, 2008) (petitioner did not qualify as a "teaching staff member" who is guaranteed seniority because she only had a certificate of eligibility for a principal position).
The effective date of the certificate is not altered by the fact that: the District permitted Feldman to commence work without a provisional certificate in March; his "informal mentorship" began in March; Levy acknowledged Feldman was "provisionally employed" in April; Levy's letter stated Feldman's "Dates of Residency" as April 1, 2005 to March 31, 2006; his schedule of evaluations was predicated on an April 1, 2005 start date; his Standard Residency Agreement, signed by Feldman and other District officials, proposed that the Department agreed to issue a provisional certificate valid for the year beginning April 1, 2005; his standard certificate was issued a year from April 1, 2005, not July 2005; and he was awarded tenure three years from March 2005. We need not address the significance of the opposing facts that Levy also wrote that a provisional license would "be issued to the candidate upon receipt" of his Agreement; the state officials did not sign the Agreement that included an April 1, 2005 effective date for the provisional certificate; and the Agreement binding Feldman and the District was not signed until July 2005. As a matter of law, the only material fact is the date the provisional certificate was issued. That is the date when employment, for purposes of calculating seniority, commenced.
Neither Feldman, the District, nor Levy were authorized to "agree to contractual terms that contravene a specific term or condition of employment set by a statute." Spiewak, supra, 90 N.J. at 76. "Whether certain teachers are entitled to tenure never depends on the contractual agreement between the teachers and the board of education." Id. at 77. The same may be said regarding seniority. The statute and regulations, not the parties' subjective intent, controls.
In the alternative, Feldman argues his employment should be deemed to have begun in March 2005, by misplacing reliance on a rule not applicable to principals. He cites N.J.A.C. 6A:9-8.2, which states that "[t]he effective date of provisional certificate issuance is the date on which the holder of a [certificate of eligibility] . . . begins employment with the district board of education in a certificated position in accordance with N.J.S.A. 18A:26-2 and 18A:27-4a." Simply put, N.J.A.C. 6A:9-8.2 applies to instructional teachers, and not principals. The provision is found in subchapter eight of the Department's regulations, which pertain only to instructional certificates. Provisions pertaining to principals are found in subchapter twelve. N.J.A.C. 6A:9-12.5.
We also reject Feldman's argument the District is equitably estopped from denying his employment began at least as early as April 2005. The Board has rejected claims of equitable estoppel under similar circumstances. See McAneny v. Bd. of Educ. of the Sch. Dist. of the Chathams, 92 N.J.A.R.2d (Vol. 4) 208 (Dep't of Educ. 1991) (holding that "the primary responsibility for applying for and possession [of] appropriate certification rests with the teacher"); Nelson, supra (petitioner could not acquire tenure in a position for which she lacked certification, even though the board and petitioner were "equally culpable" in entering into an employment contract).
The principle of equitable estoppel is that "one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct." Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503-04 (1955). An essential element is the "knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance[.]" O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987).
The doctrine of equitable estoppel is applied "'only in very compelling circumstances.'" Twp. of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320, 331 (App. Div. 1994) (quoting Palatine I v. Planning Bd. of Montville, 133 N.J. 546, 560 (1993)). Equitable estoppel is "hesitantly applied against public entities but it will be invoked against them where interests of justice, morality and common fairness dictate." Likanchuk's, supra, 274 N.J. Super. at 331 (citations and quotations omitted). Estoppel will be applied when there is a "'studied policy not to enforce'" the law, but not mere "'laxity.'" Newark Council No. 21 v. James, 318 N.J. Super. 208, 217 (App. Div. 1999) (quoting Kennedy v. City of Newark, 29 N.J. 178, 192 ( 1959)). Estoppel will not be applied where it would "prejudice essential governmental functions." Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (Middletown) (citation and quotation omitted). In O'Malley, the Court disapproved permitting an employee to retain a provisional position based on principles of estoppel because it would undermine the integrity of the merit-based personnel system. Supra, 109 N.J. at 316-18.
Here, there is no evidence that Feldman detrimentally relied on the District's actions. Although he may have believed his provisional certificate and employment began in April instead of July 2005, there is no evidence that absent that understanding, he would have acted differently, such as take a job elsewhere. Cf. Middletown, supra, 124 N.J. at 364 (statutory estoppel applies where plaintiff retires early based on assurances he would receive retiree health benefits, which are then terminated). Nor is there evidence that the Board intentionally and knowingly misrepresented the date his provisional employment commenced, with the goal of inducing his reliance. Moreover, application of equitable estoppel would interfere with a well-established regulatory scheme, and disadvantage the principal who began employment in May 2005 and was deemed more senior than Feldman.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION