NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
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-3002-16T4
DANELE STILL,
Petitioner-Respondent,
v.
STATE-OPERATED SCHOOL DISTRICT
OF THE CITY OF CAMDEN, CAMDEN
COUNTY,
Respondent-Appellant.
___________________________________
Argued June 5, 2018 – Decided July 5, 2018
Before Judges Fisher, Sumners and Natali.
On appeal from the New Jersey Commissioner of
Education, Agency Docket No. 199-7/16.
Adam S. Herman argued the cause for appellant
(Adams Gutierrez & Lattiboudere, LLC,
attorneys; Derlys M. Gutierrez, of counsel and
on the briefs; Adam S. Herman, on the briefs).
Andrew L. Schwartz argued the cause for
respondent Danele Still (Schwartz Law Group,
LLC, attorneys; Andrew L. Schwartz and Robert
M. Schwartz, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent Commissioner of Education
(James M. Esposito, Deputy Attorney General,
on the statement in lieu of brief).
PER CURIAM
The State Operated School District of the City of Camden
(District) appeals from a final agency determination of the
Commissioner of Education (Commissioner) affirming the decision
of Administrative Law Judge (ALJ) Susan M. Scarola. The
Commissioner concluded that the District violated Danele Still's
tenure rights when it failed to place her in a tenured teaching
position after terminating her position of lead educator. We
agree and affirm.
After serving as a third and fourth grade teacher for seven
years, Still briefly left the District and was rehired as the
technology coordinator. Still possessed the required standard
teaching certificate for that position. The District's job
description defined the technology coordinator job as a "tenured
position" and required Still to provide "instructional support and
assistance to staff members [to] integrat[e] technology into the
curriculum."
For the next fourteen years, Still served as the technology
coordinator until the District abolished the position. She was
then reassigned as a fifth grade teacher and a week later accepted
the position of lead educator, a job she held for two years. Still
obtained the required provisional principal certificate for that
title. Two years later, the District informed Still that it would
2 A-3002-16T4
be terminating the lead educator position at the end of the
academic year and she was not entitled to "bumping rights" or
entitlements to other positions in the District.
She challenged her termination by filing a certified petition
with the Commissioner. Shortly thereafter, Still accepted a non-
tenured position in the District as the manager of school
operations. Still's counsel advised the District that her
acceptance of that position was without prejudice to the tenure
claims pleaded in the petition.
The District moved to dismiss the petition on two discrete
grounds. First, it contended that Still "did not accrue tenure
under her elementary school teacher certificate due to her service
in the abolished [t]echnology [c]oordinator position because it
was a non-instructional position that required no classroom
instruction commensurate with this certificate." In the
alternative, the District maintained that Still relinquished any
accrued tenure rights "when she accepted the [m]anager, [s]chool
[o]perations position . . . a distinct non-tenured, non-
certificated, non-teaching staff position." (emphasis added).
The Commissioner transferred the case to the Office of
Administrative Law as a contested matter. In her written decision,
the ALJ concluded that pursuant to N.J.S.A. 18A:28-5, Still accrued
tenure as a technology coordinator because she "worked in a
3 A-3002-16T4
position for which a teaching certificate was required, held the
appropriate certificate, and served the requisite period of time."1
Relying on the plain language of the statute, ALJ Scarola held
that "when [Still] acquired tenure as technology coordinator, she
also acquired tenure in all positions for which she was qualified
under her instructional certificate" and noted that "since [Still]
held an elementary school endorsement, she earned tenure in all
elementary teaching positions." ALJ Scarola also determined that
a certified teaching position need not have an instruction
component to qualify for tenure as the statute imposed no such
requirement. Finally, ALJ Scarola concluded that Still's
acceptance of the manager of school operations position did not
relinquish her tenure rights because Still was improperly
terminated, accepted the position without prejudice to her tenure
claims and she had an obligation to mitigate damages.
The District filed exceptions with the Commissioner. In
addition to those arguments rejected by the ALJ, the District
raised for the first time before the Commissioner an issue at the
center of the appeal: that the position of technology coordinator
is an "unrecognized" title pursuant to N.J.S.A. 18A:27-1, N.J.S.A
1
Because the District introduced factual matters outside the
pleadings, ALJ Scarola converted the District's motion to dismiss
and Still's opposition as a motion and cross-motion for summary
decision.
4 A-3002-16T4
18A:27-4 and N.J.A.C. 6A:9B-5.5. As an unrecognized title, the
District maintained that before Still could accrue tenure as the
technology coordinator, the Executive County Superintendent (ECS)
must approve the position and determine the necessary title and
certification. According to the District, because there was no
evidence of such approval, the ALJ erred in concluding Still
accrued tenure.
The Commissioner rejected all of the District's arguments and
adopted ALJ Scarola's decision as the final determination. In
denying the District's exceptions, the Commissioner was
"[un]persuaded by the [District's] reliance on unreported
decisional law[] from over thirty years ago." As to the
requirement that the ECS approve the technology coordinator
position, the Commissioner held it was "inconsequential" to a
determination of Still's tenure rights as neither the tenure
statute nor the enabling regulations condition the accrual of
tenure on ECS approval. Further, the Commissioner concluded that
even if such approval was necessary "holding [Still] accountable
in any way for the Board's administrative failure would contravene
the principles of fairness and equity."
On appeal, the District claims the ALJ and Commissioner (1)
improperly converted the motion to dismiss to a motion for summary
decision and improvidently granted Still's cross-motion for
5 A-3002-16T4
summary decision in the presence of genuine and material fact
disputes; (2) incorrectly concluded that Still accrued tenure in
the unrecognized technology coordinator position that did not have
an instructional component; and (3) failed to conclude that Still
relinquished any accrued tenure rights when she accepted the
manager of school operations position. Notably, the District
raises for the first time on appeal that Still also waived her
accrued tenure when she accepted the lead educator position.
We begin with our standard of review. The test for granting
a motion for summary decision before an administrative agency is
largely the same as the test for granting motions for summary
judgment under Rule 4:46-2. Contini v. Bd. of Educ., 286 N.J.
Super. 106, 121 (App. Div. 1995). However, our review of an
agency's summary decision differs slightly from our de novo review
of a court's grant of summary judgment. Busciglio v. DellaFave,
366 N.J. Super. 135, 139 (App. Div. 2004). Although we employ a
de novo standard of review to an agency's determination that there
are no genuine issues of material fact, we aim to "give substantial
deference to the interpretation an agency gives to a statute that
the agency is charged with enforcing." St. Peter's Univ. Hosp.
v. Lacy, 185 N.J. 1, 15 (2005) (quoting Smith v. Director, Div.
of Taxation, 108 N.J. 19, 25 (1987)). Generally, we will affirm
an agency's decision unless "there is a clear showing that it is
6 A-3002-16T4
arbitrary, capricious, or unreasonable." J.B. v. N.J. State Parole
Bd., 229 N.J. 21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19,
27 (2007)). However, we are "in no way bound by [an] agency's
interpretation of a statute or its determination of a strictly
legal issue." L.A. v. Bd. of Educ., 221 N.J. 192, 204 (2015)
(alteration in original) (quoting Dep't of Children & Families,
Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011)).
Based upon these standards, we are satisfied that the agency
decision was reasonable and firmly based on the relevant statutory
language and comports with common sense and logic. We affirm
substantially for the reasons expressed in the ALJ's and
Commissioner's written decisions. We add the following brief
comments.
A right to tenure accrues only upon compliance with specific
statutory conditions. Platia v. Bd. of Educ., 434 N.J. Super.
382, 388 (App. Div. 2014). An employee must clearly prove the
right to tenure. Canfield v. Bd. of Educ., 51 N.J. 400 (1968).
Tenure laws should be liberally construed in light of their
remedial purpose. Spiewak v. Bd. of Educ., 90 N.J. 63, 74 (1982).
When interpreting a statute, our goal "is to ascertain the
intent of the Legislature with reasonable certainty." No Illegal
Points, Citizens for Drivers' Rights, Inc. v. Florio, 264 N.J.
Super. 318, 323 (App. Div. 1993). The starting point of the
7 A-3002-16T4
inquiry "is the language of the statute itself," Marshall v.
Klebanov, 188 N.J. 23, 36-37 (2006), and "[a]ll terms in a statute
should be accorded their normal sense and significance," Velazquez
v. Jiminez, 172 N.J. 240, 256 (2002).
As the ALJ and Commissioner pointed out, the tenure statute
is clear. In addition to the enumerated positions, "all teaching
staff members employed . . . in the positions of teacher . . . and
such other employees as are in positions which require them to
hold appropriate certificates issued by the board of examiners
. . . shall be under tenure." N.J.S.A. 18A:28-5(a) (emphasis
added). Because it was undisputed that Still held an appropriate
certificate for over fourteen years as the technology coordinator,
she accrued tenure. Nothing in the statute or the enabling
regulations supports the requirement urged by the District that
the technology coordinator position must have an instruction
component or be approved by the ECS before the holder of the
position acquires tenure. The ALJ's and Commissioner's refusal
to graft conditions onto the statute was eminently reasonable.
Likewise, there was nothing arbitrary or capricious about the
Commissioner's legal conclusion, grounded in fairness and equity,
that even if ECS approval was necessary, it was the District’s
responsibility, not Still's, to obtain it given Still had dutifully
8 A-3002-16T4
worked for over fourteen years as the technology coordinator,
described by the District as a tenured position.
The District's waiver arguments fare no better. It is well
established that waiver is a "voluntary and intentional
relinquishment of a known right" evidenced by a clear, unequivocal
and decisive act from which an intention to relinquish the right
can be based. Sroczynski v. Milek, 197 N.J. 36, 63-64 (2008)
(quoting Knorr v. Smeal, 178 N.J. 169, 177 (2003)). A waiver is
effective when a party possesses full knowledge of its legal rights
and an intent to waive those rights. Sroczynski, 197 N.J. at 63.
Also, the "intent to waive need not be stated expressly, provided
the circumstances clearly show that the party knew of the right
and then abandoned it, either by design or indifference." Knorr,
178 N.J. at 177.
Before the ALJ, the District based its waiver argument only
on Still's acceptance of the manager of school operations position.
Although the ALJ correctly acknowledged that an employee can,
under certain circumstances, waive accrued tenure by accepting a
non-tenured position, here, Still had already accrued tenure and
was improperly denied the exercise of those rights. Second, she
promptly filed an appeal and, on the day she accepted a position
as manager of school operations, her counsel wrote to the District
specifically reserving all of her rights. Under these
9 A-3002-16T4
circumstances, it is clear that Still did not relinquish her rights
"either by design or indifference." Ibid.
The ALJ and Commissioner also reasonably concluded that
Still's acceptance of a non-tenured position was appropriate to
mitigate her damages. It can hardly be characterized as arbitrary
or capricious for the ALJ and Commissioner to decide that an
employee improperly removed from a tenured position may engage in
other meaningful employment while the contested matter is
resolved. J.B., 229 N.J. at 43.
We decline to address the District's claim that Still
abdicated her accrued tenure when she accepted the lead educator
position as it was not raised before the ALJ or Commissioner. It
is well settled that we will "not consider issues not raised below
at an administrative hearing" unless they are of "public importance
and will likely arise in the future." In re Stream Encroachment
Permit, Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587, 602
(App. Div. 2008); see also Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973). This issue satisfies neither criterion.2
2
The District's reliance upon DiNapoli v. Bd. of Educ., 434 N.J.
Super. 233 (App. Div. 2014) is misplaced as it is factually
distinguishable. In DiNapoli, 434 N.J. Super. at 235, 239-40, the
court reversed the finding of the Commissioner that the plaintiff
retained tenure rights upon transferring from a secretarial
tenured position, to a non-certified position, and then to a
certified position. The court recognized that N.J.S.A. 18A:17-2
10 A-3002-16T4
To the extent we have not directly addressed the balance of
the District's arguments, we find them to lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
authorizes tenure to be maintained while an employee serves in
secretarial employment. Id. at 239. However, the court held that
the statute does not "reflect a legislative design to provide
secretaries, who have relinquished their positions for non-
secretarial certificated employment, the right to retain tenure."
Ibid. In contrast, the court recognized that N.J.S.A. 18A:28-6
"afford[s] tenure retention rights to teachers . . .
notwithstanding promotion or transfer." Id. at 240.
First, as we have already held, Still's purported
relinquishment of her accrued tenure as a result of her acceptance
of the lead educator position was not raised before the ALJ or
Commissioner. Further, we note that the record before the ALJ
contains Still's unrebutted certified petition in which she states
that she was promoted to lead educator and that the position
required a principal certificate. Unlike the statute in DiNapoli,
N.J.S.A. 18A:28-6 recognizes Still's right to retain tenure upon
her acceptance of the lead educator position. See DiNapoli, 434
N.J. Super. at 240.
11 A-3002-16T4