Opinion
DOCKET NO. A-1494-11T3
02-15-2013
ENRIKA GILLIKIN, Respondent, v. GARFIELD BOARD OF EDUCATION, Appellant.
Amy E. Lefkowitz argued the cause for appellant (Law Offices of Curt J. Geisler, LLC, attorneys; Mr. Geisler, of counsel; Ms. Lefkowitz, on the brief). Louis P. Bucceri argued the cause for respondent (Bucceri & Pincus, attorneys; Mr. Bucceri, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Graves and Espinosa.
On appeal from Office of Administrative Law, Commissioner of Education, Docket No. 149-7/10.
Amy E. Lefkowitz argued the cause for appellant (Law Offices of Curt J. Geisler, LLC, attorneys; Mr. Geisler, of counsel; Ms. Lefkowitz, on the brief).
Louis P. Bucceri argued the cause for respondent (Bucceri & Pincus, attorneys; Mr. Bucceri, of counsel and on the brief). PER CURIAM
Appellant Garfield Board of Education (Board) appeals from a decision of the acting Commissioner of Education (Commissioner) dated October 17, 2011, adopting the initial decision of an Administrative Law Judge (ALJ). The ALJ reversed the Board's decision to terminate Enrika Gillikin's employment. For the reasons that follow, we affirm the Commissioner's decision to reinstate Gillikin with back pay and other benefits.
Gillikin earned a standard instructional certificate with an endorsement as a Teacher of Elementary Education in May 2001 and earned a second endorsement as a Teacher of Italian in September 2002. On September 18, 2002, she began employment in the Garfield Public Schools as a full-time elementary Italian teacher as part of the Elementary World Language Program. The parties agree that, "by virtue of her term of service," Gillikin achieved tenure in the Board's "school district pursuant to N.J.S.A. 18A:28-5."
Pursuant to N.J.A.C. 6A:9-2.1, "'Certificate' means one of three types of credentials, instructional, educational services and administrative, that the Board of Examiners issues which permits an individual to serve as a teaching staff member. . . . [An] endorsement shall be considered part of the certificate." "'Endorsement' means the specific subject area in which a certificate holder is authorized to serve." Ibid.
On August 6, 2012 Governor Christie approved the Teacher Effectiveness and Accountability for the Children of New Jersey Act. L. 2012, c. 26. However, the changes to the tenure system only apply to those employed "on or after" August 6, 2012. L. 2012, c. 26, § 9.
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During a public meeting on May 12, 2010, the Board considered a series of thirty-four personnel actions pursuant to a proposed reduction in force, which included a resolution to abolish three full-time Italian teacher positions and a resolution to dismiss Gillikin. The Board unanimously rejected all of the resolutions. Two days later on May 14, 2010, Gillikin received the following letter from the Superintendent of the Garfield Public Schools:
Please be advised upon the recommendation of the Chief School Administrator, the full-time positions of Italian Teacher Elementary will be abolished from the table of organization effective July 1, 2010, for economic reasons.
As a result of this action, you are dismissed from the position of Teacher of Italian and placed on a preferred eligible recall list for the category of Italian Teacher Elementary effective July 1, 2010, with a seniority entitlement of 7.943 years of service.
On July 13, 2010, Gillikin filed a verified petition with the Commissioner requesting her reinstatement. Gillikin alleged that the Board continued to employ "nontenured teachers to teach classes within the scope of [her] endorsement as an Elementary Teacher." She also claimed that retention of "nontenured elementary teachers constitute[d] a violation of her tenure rights."
The matter was transferred to the Office of Administrative Law as a contested case. The parties jointly filed a stipulation of facts and cross-moved for a summary decision. The matter was heard on June 17, 2011. Gillikin primarily argued she was entitled to reinstatement as an elementary school teacher over the nontenured teachers. However, the Board maintained Gillikin was only entitled to tenure as an elementary Italian teacher. The ALJ concluded Gillikin had "obtained tenure under both her Elementary School Teacher endorsement and her Teacher of Italian endorsement" and was entitled to reinstatement.
In a final decision dated October 17, 2011, the Commissioner adopted the findings and conclusions of the ALJ and determined Gillikin's tenure rights "were violated, as a matter of law, when the Board abolished her teaching position and continued to employ nontenured individuals as elementary teachers." The Commissioner ordered the Board to: (1) immediately reinstate Gillikin "to a full-time teaching position within the scope of her endorsements"; (2) reimburse her for lost salary and payments she made for medical, dental, and prescription insurance coverage; (3) provide her with seniority credit; and (4) "make the requisite contributions to the pension fund and Social Security for the entire period of her illegal termination."
The Board's sole argument on appeal is that Gillikin "is not entitled to an elementary education position in the Garfield school system after the abolishment of the Elementary World Language Program." We do not agree.
"Courts have only a limited role to play in reviewing the actions of other branches of government. In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Ordinarily, an appellate court will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In determining whether an agency action is arbitrary, capricious, or unreasonable, we consider: (1) whether the agency followed the law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether the agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011) (citing In re Carter, 191 N.J. 474, 486 (2007)).
When reviewing agency actions, we "must 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). Therefore, "if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Ibid.
This case was decided by summary decision. Summary decision is "substantially the same" as a motion for summary judgment under Rule 4:46-2. Contini v. Bd. of Educ, 286 N.J. Super. 106, 121 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). Grant of summary decision "may be made if the pleadings, discovery and affidavits 'show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law.'" Ibid. (quoting N.J.A.C. 1:1-12.5(b)). We must first determine "whether the competent evidential material 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. of Am., 142 N.J. 520, 540 (1995). If there is no genuine issue of material fact, we must decide whether the agency's application of the law was correct. Contini, supra, 286 N.J. Super. at 122.
There are three types of educational certificates issued by the New Jersey Board of Examiners: instructional, administrative, and educational services. N.J.A.C. 6A:9—5.2(a). "[A]ny person employed as a teaching staff member" must hold the correct certificate and that certificate must be valid. N.J.A.C. 6A:9-5.1. Under each certificate, a teacher may acquire a number of endorsements, which allow the teacher to teach a particular subject matter or age group. See N.J.A.C. 6A:9-9.2(b)(2). "An educator may hold more than one type of certificate," and under any certificate "an individual may possess multiple endorsements." Nelson v. Bd. of Educ., 148 N.J. 358, 363 (1997).
It is well established that when a teacher has achieved tenure under an instructional certificate, they receive tenure for all endorsements under that certificate. See Dennery v. Bd. of Educ., 131 N.J. 626, 634 (1993) ("Tenure under any one endorsement entitles an educator to tenure under all endorsements obtained under his or her certificate."); Ellicott v. Bd. of Educ., 251 N.J. Super. 342, 349 (App. Div. 1991) ("[A] teaching staff member has tenure in all positions for which his instructional certificate qualifies him."). Moreover, a tenured teacher "is entitled to retention as against a non-tenured teacher under the tenure law." Capodilupo v. Bd. of Educ., 218 N.J. Super. 510, 514-15 (App. Div.), certif. denied, 109 N.J. 514 (1987).
In this case, it is clear that Gillikin obtained tenure status while employed as an elementary Italian teacher. Thus, she achieved tenure status under all endorsements to her teaching certificate—both as an Italian teacher and an elementary school teacher. Accordingly the Commissioner correctly concluded that Gillikin was entitled to be reinstated "to a full-time teaching position within the scope of her endorsements."
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION