JENNIFER JORDAN VS. BOARD OF EDUCATION OF THE NORTH HUNTERDON-VOORHEES REGIONAL HIGH SCHOOL DISTRICT(COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE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-4420-14T1

JENNIFER JORDAN,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE
NORTH HUNTERDON-VOORHEES
REGIONAL HIGH SCHOOL DISTRICT,
HUNTERDON COUNTY, RICHARD BERGACS,
MICHAEL HUGHES, CHARLES SHADDOW
AND PATRICIA RALEIGH,

Respondents-Respondents.
________________________________________________

Argued December 13, 2016 – Decided July 21, 2017

Before Judges Messano, Suter, and Guadagno.

On appeal from the Commissioner of
Education, Docket No. 218-8/14.

John R. Lanza argued the cause for appellant
(Lanza & Lanza, LLP, attorneys; Kenneth W.
Thomas, on the briefs).

Robert M. Tosti argued the cause for
respondents (Purcell, Mulcahy, Hawkins,
Flanagan & Lawless, LLC, attorneys; Rita F.
Barone, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey
 Commissioner of Education (Geoffrey N.
Stark, Deputy Attorney General, on the
statement in lieu of brief).

PER CURIAM

Plaintiff, Jennifer Jordan, appeals from the May 20, 2015

decision of the Commissioner of Education (Commissioner)

adopting the recommendation of an administrative law judge

(ALJ), finding that plaintiff's petition challenging the denial

of her tenure is procedurally time-barred as it was filed after

the ninety-day statute of limitations period set forth in

N.J.A.C. 6A:3-1.3(i). We affirm.

I.

Plaintiff was hired to work as a non-tenured guidance

counselor for the North Hunterdon-Voorhees Regional High School

(NHHS) in January 2011. Plaintiff was recommended for a

permanent position by the Supervisor of Guidance, Patricia

Raleigh, and was reappointed for the 2011-2012, 2012-2013, and

2013-2014 school years. Plaintiff became eligible for tenure

following the 2013-2014 school year.

On May 8, 2014, plaintiff received a letter from JoAnn F.

Keffer, Director of Human Resources for NHHS, informing her that

at the meeting of the Board of Education (Board) scheduled for

May 13, 2014, the Superintendent of Schools will recommend that

the Board not renew plaintiff's employment for the 2014-2015

2 A-4420-14T1
school year. The letter further stated that plaintiff's

employment would terminate effective June 30, 2014.

On May 13, 2014, plaintiff appeared before the Board with

her attorney and presented seven members of the public who spoke

in support of her. Plaintiff and her counsel addressed the

Board and requested renewal of her contract. District

Superintendent Charles M. Shaddow provided his rationale for not

recommending plaintiff for renewal, and NHHS Principal, Richard

Bergacs, also addressed the Board regarding plaintiff's

termination.1 After Shaddow and Bergacs spoke, the Board

approved a personnel agenda that did not include the renewal of

plaintiff's employment.

On August 11, 2014, plaintiff filed a petition with the

Commissioner alleging the Board violated her "constitutional

right to due process; manufactured 'reasons' for the non-renewal

of her contract; interfered with her protected property rights

attendant to her education, work history and guidance counselor

certification; failed to follow their own policy on non-renewal

and issued a defective notice of the reasons for non-renewal."

1
These facts were elicited from the minutes of the meeting. We
were not provided with a transcript or summaries of the
presentations to the Board.

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 The matter was transferred to the Office of Administrative

Law as a contested case. The Board moved to dismiss plaintiff's

complaint as time-barred under N.J.A.C. 6A:3-1.3(i). Plaintiff

cross-moved for a finding that the Board's action of failing to

renew her employment contract was improper. An ALJ considered

briefs by the parties and issued an initial decision on March 2,

2015, recommending that the Commissioner dismiss the petition as

time-barred.

The ALJ rejected plaintiff's argument that the May 8, 2014

letter was not a final action within the meaning of N.J.A.C.

6A:3-1.3(i), and recommended the Commissioner grant defendant's

motion to dismiss because plaintiff failed to file her petition

within ninety days of receiving notice of her termination. The

Commissioner adopted the recommended decision of the ALJ, and

dismissed plaintiff's petition on May 20, 2015.

On appeal, plaintiff claims the Commissioner's decision

constitutes an abuse of discretion and runs contrary to

legislative intent. Plaintiff urges us to exercise original

jurisdiction and grant her tenure; in the alternative, she seeks

a remand of the matter for a hearing.

II.

"[We] have 'a limited role' in the review of [agency]

decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting

4 A-4420-14T1
Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "[A]

'strong presumption of reasonableness attaches to [an agency

decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.)

(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993),

aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001).

"In order to reverse an agency's judgment, [we] must find the

agency's decision to be 'arbitrary, capricious, or unreasonable,

or [] not supported by substantial credible evidence in the

record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting

Henry, supra, 81 N.J. at 580). The burden of proving that an

agency action is arbitrary, capricious, or unreasonable is on

the challenger. Bueno v. Bd. of Trs. of the Teachers' Pension

and Annuity Fund, 422 N.J. Super. 227, 234 (App. Div. 2011)

(citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544,

563 (App. Div. 2002)).

We "may not substitute [our] own judgment for the agency's,

even though [we] might have reached a different result."

Stallworth, supra, 208 N.J. at 194 (quoting In re Carter, 191

N.J. 474, 483 (2007)). "This is particularly true when the

issue under review is directed to the agency's special

'expertise and superior knowledge of a particular field.'" Id.

at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

Furthermore, "'[i]t is settled that [a]n administrative agency's

5 A-4420-14T1
interpretation of statutes and regulations within its

implementing and enforcing responsibility is ordinarily entitled

to our deference.'" E.S v. Div. of Med. Assistance & Health

Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (quoting Wnuck

v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.

Div. 2001)). "[W]e are not bound by the agency's legal

opinions." A.B. v. Div. of Med. Assistance & Health Servs., 407

N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State, Dep't

of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif.

denied, 200 N.J. 210-11 (2009). "Statutory and regulatory

construction is a purely legal issue subject to de novo review."

Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85,

93 (1973)).

III.

N.J.A.C. 6A:3-1.3 addresses the initiation of a contested

case before the Commissioner and provides in pertinent part:

The petitioner shall file a petition no later
than the 90th day from the date of receipt of
the notice of a final order, ruling or other
action by the district board of education,
individual party, or agency, which is the
subject of the requested contested case
hearing. This rule shall not apply in
instances where a specific statute, regulation
or court order provides for a period of
limitation shorter than 90 days for the filing
of a particular type of appeal.

[N.J.A.C. 6A:3-1.3(i) (emphasis added).]

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 Plaintiff argues that her August 11, 2014 petition was

timely filed because the May 8, 2014 letter did not constitute a

"final order" and therefore did not trigger the ninety-day

filing period. She maintains that the language of the letter

suggests that the Superintendent merely intended to recommend

non-renewal and "does not . . . tell [plaintiff] that she would

not be reemployed, only that the Superintendent would recommend

against it on a subsequent date upon which the Board would

either accept or reject the recommendation."

In Kaprow v. Board of Education of Berkeley Township, 131

N.J. 572 (1993), our Supreme Court recognized the importance of

the ninety-day limitation period to the ability of school

districts to set their budgets:

The limitation period gives school districts
the security of knowing that administrative
decisions regarding the operation of the
school cannot be challenged after ninety days.
Moreover, because local school boards operate
on a cash basis, claims must be filed promptly
so that the local board can anticipate any
back-pay requirements.

[Id. at 582.]

N.J.S.A. 18A:27-10 provides:

On or before May 15 in each year, each
nontenured teaching staff member continuously
employed by a board of education since the
preceding September 30 shall receive either

7 A-4420-14T1
 a. A written offer of a contract for
employment from the board of education for the
next succeeding year providing for at least
the same terms and conditions of employment
but with such increases in salary as may be
required by law or policies of the board of
education, or

b. A written notice from the chief school
administrator that such employment will not
be offered.

In Nissman v. Board of Education of the Township of Long

Beach Island, Ocean County, 272 N.J. Super. 373 (App. Div.),

certif. denied, 137 N.J. 315 (1994), we discussed the notice

requirements of N.J.S.A. 18A:27-10, and concluded that the test

was whether the employee "knew or should have known that [he or]

she was not going to be offered a new contract for the following

academic year." Id. at 379.

The plain language of the May 8 letter simply does not

support plaintiff's interpretation that the letter merely

advised her of the possibility that she would not be offered a

new contract. The letter clearly qualifies as written notice

that plaintiff's employment will be terminated and she will not

be offered tenure.

N.J.S.A. 18A:27-4.1(b) regulates the power of a board of

education to renew the employment contract of a non-tenured

employee. It provides in pertinent part:

8 A-4420-14T1
 Notwithstanding the provisions of any law,
rule or regulation to the contrary,

. . . .

b. A board of education shall renew the
employment contract of 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.
A nontenured officer or employee who is not
recommended for renewal by the chief school
administrator shall be deemed nonrenewed.
Prior to notifying the officer or employee of
the nonrenewal, the chief school administrator
shall notify the board of the recommendation
not to renew the officer’s or employee’s
contract and the reasons for the
recommendation. An officer or employee whose
employment contract is not renewed shall have
the right to a written statement of reasons
for nonrenewal . . . and to an informal
appearance before the board. The purpose of
the appearance shall be to permit the staff
member to convince the members of the board
to offer reemployment. The chief school
administrator shall notify the officer or
employee of the nonrenewal[.]

By its terms, the statute provides, inter alia, that a

board may renew an employee's contract "only" if the chief

school administrator so recommends, and that it may decline to

follow a chief school administrator's recommendation for renewal

but may not do so arbitrarily and capriciously. Jackson Tp. Bd.

of Educ. v. Jackson Educ. Ass'n ex rel. Scelba, 334 N.J. Super.

162, 168 (App. Div.) (citing N.J.S.A. 18A:27-4.1(b), certif.

9 A-4420-14T1
denied, 165 N.J. 678 (2000). The May 8 letter clearly informed

plaintiff that "the Superintendent will recommend against

renewal of your employment" and "your employment will terminate

effective June 30, 2014." (emphasis added).

We reject plaintiff's argument that the May 8 notice was

deficient because it was not signed by the superintendent. The

letter was written on the superintendent's letterhead and was

signed by the district's director of human resources. As we

have stated, the purpose of the letter was to advise plaintiff

that she would not be offered employment for the upcoming term.

We also reject plaintiff's argument that the Board's

decision constitutes an abuse of discretion. In response to

plaintiff's request for reasons why her employment was not being

renewed, Patricia Raleigh provided a memo dated May 7, 2014

providing:

 Four families have demanded a counselor
change from Ms. Jordan's caseload this
year, which seems to indicate an
unusually high level of dissatisfaction
in spite of the positive relationships
she seems to have with most of her
students.

 Absences have been unusually numerous
over the past two years, in addition to
late arrivals.

 Although the issues which have impacted
her performance at North Hunterdon have

10 A-4420-14T1
 not seemed to rise to a level that would
compel intervention or censure, the
difficulty with which Ms. Jordan receives
any form of criticism has raised concerns
with regard to her long-term performance
as a counselor in this school.

A school board has "broad discretionary authority in the

granting of tenure" and the decision not to grant tenure "need

not be grounded on unsatisfactory classroom or professional

performance for there are many unrelated but nonetheless equally

valid reasons why a board . . . may conclude that tenure should

not be granted." Donaldson v. Bd. of Educ. of N. Wildwood, 65

N.J. 236, 241 (1974). "An administrative agency's

interpretation of statutes and regulations within its

implementing and enforcing responsibility is ordinarily entitled

to our deference." In re Appeal by Progressive Cas. Ins. Co.,

307 N.J. Super. 93, 102 (App. Div. 1997). In light of the

budgetary implications of late-asserted claims, as explained in

Kaprow, supra, we find the Commissioner's interpretation to be

reasonable and that plaintiff has failed to demonstrate the

Board's action was arbitrary, capricious, or unreasonable in any

way.

Finally, plaintiff argues that the Board violated its own

Policy 3142, which required that teaching staff members who will

not be offered renewal must be notified no later than April 24.

11 A-4420-14T1
Because of this failure plaintiff argues she was already tenured

when she received the letter of non-renewal on May 8, 2014.

While the Board failed to comply with its own policy

providing notice of re-employment by April 24, the Board's

action remained in compliance with N.J.S.A. 18A:27-10, as

plaintiff received notice prior to May 15. In addition,

plaintiff failed to meet the statutory requirements for tenure

under N.J.S.A. 18A:28-5, which requires teaching staff employees

to be employed for three consecutive calendar or school years to

acquire tenure. Plaintiff joined NHHS on January 26, 2011,

therefore she had neither been employed in the district for

three consecutive school years nor three consecutive calendar

years when she received the notice of non-renewal on May 8,

2014. As a result, plaintiff cannot assert that she been

automatically granted tenure as of April 24, 2014.

Plaintiff's remaining arguments lack sufficient merit to

warrant discussion in our opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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