ALI FETI VS. BOARD OF EDUCATION OF THE BOROUGH OF NETCONG, MORRIS COUNTY(NEW JERSEY COMMISSIONER OF EDUCATION)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 8, 2017
• Docket: A-2584-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2584-15T2

ALI FETI,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE BOROUGH OF NETCONG, MORRIS COUNTY, BERNADETTE DALESANDRO and KEVIN CARROLL,

Respondents-Respondents. ______________________________________________

Argued June 6, 2017 – Decided August 8, 2017

Before Judges Suter and Grall.

On appeal from the New Jersey Commissioner on Education, Docket No. 231-9/13.

Noel C. Crowley argued the cause for appellant (Crowley & Crowley, attorneys; Mr. Crowley, of counsel and on the briefs).

Derlys Maria Gutierrez argued the cause for respondents Netcong Board of Education, Bernadette Dalesandro and Kevin J. Carrol (Adams, Gutierrez & Lattiboudere, LLC, attorneys; Ms. Gutierrez, of counsel and on the brief; Ruby Kumar-Thompson, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Commissioner of Education (Lori Prapas, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Ali Feti, formerly a custodian for the Netcong

Board of Education (Board), appeals from a final decision of the

Commissioner of Education. The Commissioner accepted the

findings of fact and credibility determinations made by the

Administrative Law Judge (ALJ). See N.J.S.A. 52:14B-10(c).

"[F]or reasons thoroughly set forth" in the ALJ's Initial

Decision, the Commissioner adopted it as his final decision,

determined Feti did not acquire tenure pursuant to N.J.S.A.

18A:17-3 and directed the Board to award Feti an additional

$1000 "owed to him based on the miscalculation of the payment

received for his accrued vacation time."1

1 The ALJ and the Commissioner rejected other claims, which Feti does not raise on appeal. Feti's due process claim was denied, because he did not invoke the process available upon receiving notice of the Board's decision not to renew his contract. See N.J.S.A. 18A:27-4.1(b); Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 578 (2009). The ALJ dismissed Feti's claims for relief due to violations of the civil service laws, N.J.S.A. 11A:2-13 and -24, and violations of the collective bargaining agreement, as outside the Commissioner's jurisdiction, N.J.S.A. 18A:16-9.

Because Feti does not challenge those determinations on appeal, he effectively abandoned them. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

2 A-2584-15T2 Feti urges us to reverse the Commissioner's decision on

tenure and contends the ALJ's calculation of monetary relief

lacks support in the record. The Board and the Commissioner, in

his statement in lieu of brief, urge us to affirm.2

For reasons that follow, we affirm the Commissioner's

decision on tenure. We reject Feti's claim that the ALJ's

decision on pay for work done and vacation accrued after June

30, 2013 lacks support in the record, because it is amply

supported by a payroll record and a separate handwritten check

for vacation time as the Board's President, Bernadette

Dalesandro, explained during her testimony. Feti's arguments to

the contrary have insufficient merit to warrant discussion in a

written opinion. Accordingly, we affirm that determination in

conformity with Rule 2:11-3(e)(1)(D)-(E).

A limited remand to address monetary relief is necessary,

however, because there is a discrepancy between the amount the

Commissioner awarded and the ALJ recommended, which the

Commissioner did not explain.

Turning to the Commissioner's decision on tenure, appellate

review is limited. Courts are not obligated to follow an

agency's interpretation of a statute. U.S. Bank, N.A. v. Hough,

2 On June 1, 2017, we granted Feti leave to file a letter in opposition to the Commissioner's statement in lieu of brief.

3 A-2584-15T2 210 N.J. 187, 200 (2012). But courts accord a strong

presumption of reasonableness to an agency's exercise of

statutorily delegated responsibility, City of Newark v. Nat.

Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert.

denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980),

and defer to the agency's findings of fact, Lavezzi v. State,

219 N.J. 163, 172 (2014). Courts disturb an agency's

determination only if it is arbitrary, capricious, unreasonable,

unsupported by the evidence or contrary to legislative policy.

In re Musick, 143 N.J. 206, 216 (1996).

The tenure dispute in this case concerns the Commissioner's

application of N.J.S.A. 18A:17-3, which addresses tenure for

custodians employed by school districts. In pertinent part,

N.J.S.A. 18A:17-3 provides:

Every public school janitor of a school district shall, unless he is appointed for a fixed term, hold his office, position or employment under tenure . . . .

[(Emphasis added).]

In Wright v. Board of Education of the City of East Orange, 99

N.J. 112, 119 (1985), the Supreme Court interpreted this statute

to mean that a "janitor employed without a fixed term contract

will gain tenure immediately upon beginning appointment."

4 A-2584-15T2 Neither Wright nor N.J.S.A. 18A:17-3 expressly requires an

individual contract signed by the employer or the school

custodian. Indeed, N.J.S.A. 18A:17-3 does not refer to a

contract; it refers to an appointment "for a fixed term," and in

Wright, the Supreme Court enforced a collective bargaining

agreement providing tenure for custodians after three years even

though the custodian had a fixed-term contract. 99 N.J. at 115-

23. When Wright was decided, as now, the Court interprets

statutes to effectuate the Legislature's intent and views the

"the statutory language" as "the best indicator of that intent."

DiProspero v. Penn, 183 N.J. 477, 492 (2005); accord In re

Closing of Jamesburg High School, 83 N.J. 540, 548 (1980)

(declining to "engage in conjecture or surmise which will

circumvent the plain meaning of the act").

The documentary and testimonial evidence admitted by the

ALJ adequately establishes Feti was appointed for a "fixed term"

that in this case can be summarized as follows. The Board first

appointed Feti in April 2001 under a contract commencing on

April 6 of that year and ending on June 30, 2001. Thereafter,

the Board employed Feti under a successive series of contracts

commencing on July 1 and ending on June 30 of the next year.

The last of Feti's contracts produced at the hearing in the

Office of Administrative Law expired on June 30, 2012.

5 A-2584-15T2 On May 11, 2012, the district's superintendent wrote to

Feti and advised him the Board had taken action "not to renew

all members of the custodial staff, effective July 1, 2012." On

June 12, the superintendent advised the Board there would be no

head custodian and recommended the Board appoint Feti and

another custodian, Peterson, to serve "as the district's

custodians for the ensuing school year." (emphasis added).

Two weeks later, on June 26, 2012, the Board unanimously

approved Feti's employment "as a Full-Time Custodian, effective

July 1, 2012 with an annual salary of $46,000." The Board also

passed a resolution appointing Peterson at an annual salary of

$36,000. Neither resolution expressly limited the term to the

"ensuing school year."

A Board policy adopted about seven years earlier, Policy

4360, precludes appointment for other than a fixed term. Policy

4360 addresses "Support Staff Member Tenure," and it refers to

N.J.S.A. 18A:17-3. It requires fixed-term contracts as follows:

The Board of Education directs that the tenure status of support staff members be determined only in accordance with law and this policy and such contractual terms as may have been negotiated with the employee's majority representative.

Persons employed as janitors, custodians, and maintenance personnel including supervisory personnel will be employed on

6 A-2584-15T2 fixed term contracts and will not acquire tenure in their positions.

The Board will not grant tenure to any employee for whom such tenure has not been provided in law.

The Board's position on tenure for custodians is also

memorialized in the Board's collective bargaining agreement with

the Netcong Teachers' Association, Inc., which was in place from

July 1, 2010 through June 30, 2013. Paragraph E of Article XV

states: "Custodians shall continue the practice of executing

annual employment contracts with the Board. Custodians shall

not receive tenure."

According to Feti's testimony, he was given a contract for

2012-2013, which he signed and returned to the superintendent's

secretary. To Feti, the contract "looked like every year." He

signed it and gave it back to the secretary because it needed

the signature of the Board President or a Board member. Feti

returned to the superintendent's office more than once to get a

signed copy of the contract, but he gave up trying when he did

not receive it through the mail as the secretary promised.

On cross-examination, Feti testified he had not read the

contract before signing it and did not "pay attention" to it.

He did not, however, retract his initial testimony describing

7 A-2584-15T2 the 2012-2013 contract as looking like the others he had

received.

The Board also presented evidence to explain its inability

to produce Feti's written contract for 2012-2013. Collectively,

the Board's testimonial and photographic evidence demonstrated

the business office was not well run during the time at issue.

The person responsible for records, including contracts and

personnel records, did not maintain files, stored unrelated

records in unlabeled boxes, and kept the boxes in different

rooms of the building and even in her car. On that evidence,

the ALJ determined the Board's inability to produce a contract

was attributable to the "dysfunction of the Board's business

office" and its prior administrator's poor performance. The

Commissioner accepted that determination.

The ALJ concluded the parties' mutual inability to produce

Feti's contract for school year 2012-2013 did not preclude a

finding that Feti was appointed for a fixed, one-year term.

Relying upon Feti's past contracts, the Board's Policy 4360 and

the collective bargaining agreement, the ALJ concluded Feti was

appointed for a fixed-term, as he had been in the past. There

was no evidence even suggesting the Board would have appointed

Feti for an indeterminate period in violation of its Policy 4360

and its agreement with the Association. The only testimony on a

8 A-2584-15T2 contract for 2012-2013 was Feti's describing it as looking like

the others.

The ALJ reasoned, and the Commissioner agreed, that

reliance on the collective bargaining agreement was consistent

with the Court's reasoning in Wright. We agree.

In Wright, the Supreme Court recognized the Legislature

adopted N.J.S.A. 18A:17-3 intending to "leave employing boards

with some flexibility," and the Court concluded N.J.S.A. 18A:17-

3 left room for negotiated agreements addressing "custodians'

tenure rights." 99 N.J. at 119-20. Having resolved that

question of negotiability, the Court enforced the provision of

collective bargaining agreement providing tenure for all members

of the Association "after three years of employment," even

though the employee had a fixed-term contract. Id. at 116. The

Court reasoned that if the "representative unit of the

custodians were prohibited from negotiating job security, the

result would frustrate, rather than promote, the intent of the

janitors' tenure statute," which was to provide some prospect

for job security. Id. at 122-23.

While the provision of the Netcong Association's negotiated

contract, unlike the one in Wright, did not expand the statutory

tenure rights of custodians, neither did it narrow them. In

fact, inclusion of this provision in the bargaining agreement

9 A-2584-15T2 effectively recognized negotiability and preserved tenure for

custodians as a topic for future negotiations.

Neither the ALJ nor the Commissioner focused on the plain

language of N.J.S.A. 18A:17-3, but it is worth restating:

"Every public school janitor of a school district shall, unless

he is appointed for a fixed term, hold his office, position or

employment under tenure. . . ." (emphasis added). Given that

the statute does not expressly require a formal, written

contract signed by the Board and each custodian, we decline to

interpret it to require one or to preclude reliance on Policy

4360, the collective bargaining agreement and Feti's prior

contracts.

For all of the foregoing reasons, we affirm. The

Commissioner's decision is amply supported by the evidence, not

inconsistent with legislative policy and reasonable. R. 2:11-

3(e)(1)(D). Moreover, Feti's claim that the Commissioner

erroneously shifted the burden of proof to him has insufficient

merit to warrant any comment beyond reference to Policy 4360 and

the Board's agreement with the Association, which prohibited

unlimited appointments for custodians. R. 2:11-3(e)(1)(E).

Viewed in light of the evidence, Feti's argument urges tenure

based on a technical defect unrelated to the Legislature's

purpose.

10 A-2584-15T2 As previously noted, we also affirm the Commissioner's

decision to adopt the ALJ's findings and conclusions relevant to

the payment Feti was due for work performed and vacation days

accrued after the 2012-2013 school year. R. 2:11-3(e)(1)(D). A

remand is required and directed for the limited purpose of

addressing the unexplained discrepancy between the ALJ's and the

Commissioner's statements of the additional payment due from the

Board to Feti.

Specifically, the ALJ recommended the Commissioner direct

the Board to pay "$1000, reflecting" a $1000 increase in Feti's

salary and that Feti's "payment for vacation pay should likewise

be adjusted to reflect pro rata payment" at that higher annual

rate. In contrast, the Commissioner directed the Board "to pay

the petitioner $1000 owed to him for the miscalculation of the

payment received for his accrued vacation time" and did not

require a $1000 salary adjustment. On remand, the Commissioner

should reconsider and explain the payment due.

Affirmed in part; remanded in part; jurisdiction is not

retained.

11 A-2584-15T2