Opinion
DOCKET NO. A-3757-13T4
04-08-2016
ELIZABETH JIMENEZ, Petitioner-Appellant, v. BOARD OF EDUCATION OF THE CITY OF JERSEY CITY, HUDSON COUNTY, Respondent-Respondent.
Elizabeth Jimenez, appellant pro se. Nirenberg & Varano, LLP, attorneys for respondent the School District of the City of Jersey City (Sandra N. Varano and Howard M. Nirenberg, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Laura Mastriano Console, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from the New Jersey Department of Education. Elizabeth Jimenez, appellant pro se. Nirenberg & Varano, LLP, attorneys for respondent the School District of the City of Jersey City (Sandra N. Varano and Howard M. Nirenberg, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Laura Mastriano Console, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Elizabeth Jimenez, a former supervisor in the special education department of the Jersey City School District, challenges the Commissioner of Education's March 4, 2014 final agency decision upholding the District's termination of her employment. We affirm.
The record shows that appellant was hired by the District in June 2007. At the time of her removal she was the highest paid non-tenured employee in her department of about 600 to 700 employees.
In March 2010 the District terminated appellant before the expiration of her employment contract, only a few months before she was eligible to attain tenure in June 2010. Her discharge was part of a larger layoff of District employees precipitated by cuts in State aid.
The District had been taken over by the State in October 1989. In 2008, the State returned partial control to the District. As of the time of appellant's removal in 2010, the District specifically had regained local control over Governance and Fiscal Management but continued to be State operated in the areas of Personnel, Operations Management, and Instruction and Program.
Appellant, who was then represented by counsel, filed suit in the Law Division to contest her discharge. The trial court transferred the dispute to the primary jurisdiction of the Commissioner of Education. The matter was then heard before an Administrative Law Judge ("ALJ") as a contested case.
Appellant's primary argument before the ALJ, which she reiterates on this appeal, is that in removing her the District violated the procedures set forth in N.J.S.A. 18A:27-4.1(a). That statute prescribes:
A board of education shall appoint, transfer or remove 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.
[(Emphasis added).]
It is undisputed that no such roll-call vote by the Board of Education approving appellant's removal occurred here. Instead, the Board's practice at the time was to defer to the State-appointed School Superintendent in such personnel decisions. The practice apparently came to light for the first time in 2012 during a review by the Department of Education, in which the District was initially perceived to have violated what is known as QSAC Governance "Indicator G-3." However, the Department ultimately did not find the District non-compliant for the deviation from Indicator G-3, essentially because of confusion existing under the partial State takeover arrangement.
The ALJ accepted the District's justification for deviating from the statutory roll-call vote procedure, and granted its motion for summary decision. Among other things, the ALJ noted that appellant's termination "came at a time of transition in a troubled school district operating under a unique governance model." The Commissioner adopted the ALJ's ruling in his final agency decision.
Appellant, who is now self-represented, seeks reversal of the Commissioner's adverse determination. The District opposes the appeal and urges us to sustain the Commissioner's decision. The Attorney General has submitted a short statement in lieu of a brief likewise asking us to affirm.
Our scope of review of this administrative agency decision is limited. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Piv.), certif. denied, 188 N.J. 219 (2006); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
"It is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (alteration in original) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). This court is not, of course, bound by the agency's opinions on matters of regulatory law. Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)); see also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
As is pertinent here, the Commissioner of Education has "fundamental and indispensable jurisdiction over all disputes and controversies arising under the school laws." Hinfey v. Matawan Reg'l Bd. of Educ., 77 N.J. 514, 525 (1978) (citing N.J.S.A. 18A:6-9). Consequently, our case law "has repeatedly 'reaffirmed the great breadth of the Commissioner's powers.'" Ibid. (quoting Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17, 23 (1973)). We are satisfied that those powers were not misapplied here.
The ALJ's decision, which the Commissioner adopted, identified numerous persuasive reasons why this State-operated District's compliance with the roll-call voting procedure set forth in N.J.S.A. 18A:27-4.1(a) was not strictly required. There is adequate substantiation of the District's explanation that there was a period of administrative confusion while the District transitioned from a State-operated institution to a partially-controlled entity. That transitional uncertainty extended to personnel-related matters such as appellant's discharge. The ALJ reasonably found that the circumstances excused the lack of a roll-call vote in this setting.
As we have already noted, although the District's Transition Plan that was carried out after partial control was returned to the District did state that the Board was given back its control of the Governance and Fiscal Management, the Plan explicitly stated that the functions of Operations Management, Personnel, and Instruction and Program were retained by the State under its partial control. Moreover, the Plan did not set forth any guidance as to what specific functions would be performed by the Board and what functions would remain in the control of the Superintendent.
Although the Plan identified certain actions to be taken by the Board in the areas of Governance and Fiscal Management, the Plan notably did not state that the Board was to approve termination recommendations by the Superintendent as part of the transition to partial local control. Consequently, the Board had a reasonable basis on which to assume that the discharge of employees remained under the control of the Superintendent. This circumstance was recognized by the ALJ, who found it "significant that the formal [Transition Plan] that returned finance and governance to local control in Jersey City did not specify . . . a return to local control for any aspect of personnel action" and noted that "indeed, the district continue[d] to perform poorly in the area of personnel to date."
Appellant refers to policies subsequently adopted after the Transition Plan, which she characterizes as "requir[ing] [the Board] to vote on hiring and firing of employees." However, those policies actually refer only to the procedures for hiring and non-renewing employees, and do not address the procedures for terminating employees, such as appellant here. The only actions explicitly requiring a Board majority vote were: (1) the hiring of new employees that the Superintendent recommended, and (2) the renewal of non-tenured employees after the Superintendent recommended the contract for renewal. Neither of those actions are at issue here with respect to appellant.
In addition, the Special Assistant to the Business Division at the time of the District's partial transition certified that "[t]he policies [enacted] were not specifically drafted to address the unique circumstances of the Jersey City Public School District as a District under partial State-operation." (Emphasis added). At the time of the Transition Plan's implementation, the District was in a distinctive position of apparently being the only school district in the State that then had local control over Governance and Fiscal Management but continued to be State operated in the areas of Personnel, Operations Management, and Instruction and Program.
The ALJ reasonably determined that "because the statutory scheme [of State full or partial takeover of a school district] vests broad discretion in the Commissioner to determine the scope of his intervention, the local board must follow his lead in determining where its authority begins and ends[.]" Hence, the termination of appellant's employment "must be considered against this statutory and regulatory backdrop." The ALJ also reasonably found it significant that the Transition Plan did not mention that there was "a return to local control for any aspect of personnel action[.]"
As the ALJ aptly summarized it:
Consistent with the understanding that the State District Superintendent thus continued to retain authority to hire and fire staff, both the district and the County Office of the State Department of Education repeatedly ranked Jersey City compliant with governance indicator G-3, this despite the fact that the local board openly failed to ratify the [S]uperintendent's personnel recommendation. It was not until February 2012 that the Commissioner advised that the local board could and should vote on matters of personnel.
In sum as the ALJ observed, the District was "simply following the Commissioner's lead, as it had been required to do since 1989[,]" and thus "the Commissioner rightly determined that the failure of the Jersey City Board to act on personnel recommendations did not constitute non-compliance with QSAC Quality Indicator G-3." Given this special context, the ALJ and the Commissioner justifiably excused the District's lack of a roll-call vote that otherwise would normally be called for under N.J.S.A. 18A:27-4.1(a) in terminating appellant.
We do not quarrel with the manner in which the Commissioner pragmatically applied his authority in this transitional setting. Nor do we second-guess the merits of the District's decision to remove appellant at the time when it did. The District needed to trim payroll because of budget cuts, and appellant was a logical candidate for layoff as a highly paid and not yet tenured administrator.
We need not comment at length about appellant's second argument that she was entitled under N.J.S.A. 18A:27-4.1(b) to a written statement of reasons for her discharge. That provision literally applies only to non-renewed employees, not employees such as appellant who are terminated before their contracts run out. The ALJ and the Commissioner did not err in finding the provision inapplicable here.
The remaining arguments presented by appellant lack sufficient merit to be addressed here. R. 2:11-3(e)(1)(D).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION