Opinion
DOCKET NO. A-4418-12T1
08-01-2016
CHRISTINA SILVIERA-FRANCISCO, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE CITY OF ELIZABETH, Respondent-Appellant.
LaCorte Bundy Varady & Kinsella, attorneys for appellant (Bruce S. Rosen (McCusker, Anselmi, Rosen & Carvelli, P.C.) and Michael R. Futterman (McCusker, Anselmi, Rosen & Carvelli, P.C.), on the briefs). Lawrence N. Lavigne, attorney for respondent Christina Silviera-Francisco. Christopher S. Porrino, Acting Attorney General, attorney for respondent Commissioner of Education (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Beth N. Shore, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Argued June 4, 2014 - Decided August 7, 2014
Remanded by Supreme Court January 27, 2016
Resubmitted July 18, 2016 - Decided August 1, 2016 Before Judges Fuentes, Fasciale and Haas. On appeal from the Commissioner of Education, Docket No. 192-7/11. LaCorte Bundy Varady & Kinsella, attorneys for appellant (Bruce S. Rosen (McCusker, Anselmi, Rosen & Carvelli, P.C.) and Michael R. Futterman (McCusker, Anselmi, Rosen & Carvelli, P.C.), on the briefs). Lawrence N. Lavigne, attorney for respondent Christina Silviera-Francisco. Christopher S. Porrino, Acting Attorney General, attorney for respondent Commissioner of Education (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Beth N. Shore, Deputy Attorney General, on the brief). PER CURIAM
In Silviera-Francisco v. Bd. of Educ., No. A-4418-12, (App. Div. August 7, 2014), this court decided the City of Elizabeth's (the Elizabeth Board) appeal from the April 17, 2013 order of the State Commissioner of Education (Commissioner). That order confirmed the Initial Decision of an Administrative Law Judge (ALJ) who found petitioner Christina Silviera-Francisco "was tenured in the position of Vice Principal when she was removed from the position of Principal in June 2010. Consequently, Silviera-Francisco was entitled to receive a Vice Principal salary while assigned to a teaching position, pro-rated over a ten-month period." Id. slip op. at 2.
Despite having identified the Commissioner's April 17, 2013 order on the Notice of Appeal, the Elizabeth Board devoted it's appellate brief to challenging the validity of the Commissioner's September 14, 2012 decision, in which the Commissioner found the ALJ acted beyond the scope of his jurisdiction when he found the Department of Education's retroactive approval of petitioner's Standard Certificate-Principal to September 2009 was ultra vires. Id. slip op. at 5.
We held the Commissioner's September 14, 2012 decision was a final order subject to appellate review as of right pursuant to N.J.S.A. 18A:6-9.1 and Rule 2:2-3(a)(2). Ibid. Thus, the Elizabeth Board's failure to appeal that decision constituted a waiver of its right to challenge its validity in an appeal of the Commissioner's April 17, 2013 order. Ibid.
The Supreme Court granted the Elizabeth Board's petition for certification, 220 N.J. 207 (2014), and thereafter reversed our decision holding:
the September 2012 decision of the Commissioner was an interlocutory order from which there was no right to appeal, that the Elizabeth Board did not waive its right to appeal that order once a final agency decision addressing all issues raised in Silviera-Francisco's petition was issued on April 17, 2013, and . . . the Elizabeth Board has not had a full and fair opportunity to have the merits of its objections considered. . . .
[Silviera-Francisco v. Bd. of Educ., 224 N.J. 126, 143-44 (2016).]
The Court remanded the matter for this court to consider and decide the arguments presented by the Elizabeth Board attacking the validity of the Commissioner's September 14, 2012 decision. Id. at 144. We now undertake this task.
We will dispense with restating the facts of this case. Instead, we incorporate by reference the salient facts as described by our Supreme Court. Id. at 131-135. The Elizabeth Board argues the Commissioner erred in determining the ALJ lacked the legal authority to review and invalidate the Department of Education's decision to make Silviera-Francisco's Principal Certificate in August 2010 retroactive to September 2009.
In support of its argument, the Elizabeth Board relies on our decision in Francey v. Bd. of Educ., 286 N.J. Super. 354 (App. Div. 1996). In Francey, a tenured home economics teacher was laid off in 1989 as part of a reduction in force (RIF) implemented by the Salem City Board of Education. Id. at 356. The teacher was placed on a preferred reemployment list pursuant to N.J.S.A. 18A:28-12. Ibid. In 1991, two years after she was laid off, the teacher "received an endorsement on her teaching certificate for elementary education." Ibid.
Sometime thereafter several elementary school teaching positions became available in Salem City. Ibid. The teacher applied, asserting her preferential status as a tenured home economics teacher carried over to the elementary school positions. Ibid. The Salem City Board of Education "disagree[ed] that her after-acquired endorsement for elementary education entitled her to preference pursuant to N.J.S.A. 18A:28-12 . . . ." Id. at 356. In response to the teacher's appeal, both the Acting Commissioner of Education and the State Board of Education affirmed Salem City's position. Id. at 357. The State Board of Education construed "N.J.S.A. 18A:28-12 to accord preferred reemployment rights based upon the scope of the RIF'd tenured teacher's teaching certificate and endorsements thereon as of the date of the lay-off determination." Ibid.
The teacher appealed this final State agency determination to this court. In affirming the State Board of Education's construction of N.J.S.A. 18A:28-12, we acknowledged a contrary interpretation of the statue was possible. Ibid. Ultimately our decision to uphold the State Board of Education's decision turned on our standard of review. "[W]hen the issue is one of statutory interpretation, we are not bound to accept an administrative agency's interpretation. But we do, nonetheless, accord administrative agency's expertise considerable weight" Ibid. (citations omitted).
As this procedural recitation illustrates, the Elizabeth Board's reliance on Francey is misplaced. In the September 14, 2012 decision under review here, the Commissioner found the ALJ acted beyond the scope of his authority in his Initial Decision when he invalidated as ultra vires the action taken by the Department of Education to issue the petitioner's Standard Certificate-Principal retroactive to September 2009. The Commissioner was particularly troubled that the Department of Education was not even a party in the case. The ALJ's authority was limited to determining "whether the petitioner obtained tenure as a vice principal."
Despite the clearly demarcated parameters of his charge, the ALJ decided to go far beyond his role and declared the entire procedural mechanism employed by the Department of Education to validate certificates retroactively ultra vires and unsanctioned by duly promulgated regulations. The ALJ found that this practice by the Department of Education lacked regulatory authority and was thus in violation of the Supreme Court's mandate in Metromedia v. Dir. of the Div. of Taxation, 97 N.J. 313, 331 (1984). In rejecting the ALJ's ruling expressed in his Initial Decision, the Commissioner emphasized that attacks on the validity of an administrative agency's practices invariably have unforeseen and adverse systemic ramifications. Legal issues of this magnitude "should not be addressed as a collateral issue in a case where the Department was not even afforded the opportunity to participate in the litigation." The Commissioner concluded by noting that a case challenging the validity of an administrative agency's actions based on an alleged lack of regulatory authority under Metromedia can only be brought in the Appellate Division pursuant to Rule 2:2-3(a)(2).
We agree. N.J.A.C. 1:1-2.1 defines "administrative law judge" as "a person appointed pursuant to N.J.S.A. 52:14F-4 or N.J.S.A. 52:14F-5(m) and assigned by the Director of the Office of Administrative Law to preside over contested cases and other proceedings." By contrast, an "Agency head" is "the person or body authorized by law to render final decisions in contested cases, except that in the Department of Education, the State Board of Education is the head of an agency but the Commissioner of Education is authorized by statute to render final decisions." Ibid. (emphasis added). It is well-settled that this court's primary jurisdiction to review final decisions of a State administrative agency extends to both agency action and inaction. Natural Medical, Inc. v. New Jersey Dept. of Health & Sr. Services, 428 N.J. Super. 259, 266 (App. Div. 2012).
An appellate court will not upset a final decision of a State administrative agency "unless the agency's decision is shown to have been arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as a whole." Barrick v. State, 218 N.J. 247, 259 (2014) (citations omitted). Here, the procedures used by the State Department of Education to validate petitioner's Principal certificate is not properly before this court for the reasons expressed by the Commissioner in his September 14, 2012 decision. The Elizabeth Board's remaining arguments are without sufficient merit to warrant discussion in a written opinion. 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
See Rule 2:5-1(b).