NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3066-16T2
CHRISTOPHER CONCATO,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE RIVER DELL REGIONAL HIGH SCHOOL DISTRICT, BERGEN COUNTY,
Respondent-Respondent. _________________________________
Argued May 15, 2018 – Decided August 14, 2018
Before Judges Sumners and Natali.
On appeal from the New Jersey Commissioner of Education, Agency Docket No. 146-6/15.
Alfred F. Maurice argued the cause for appellant (Springstead & Maurice, attorneys; Alfred F. Maurice and Lauren E. McGovern, on the briefs).
Rodney T. Hara argued the cause for respondent Board Of Education of the River Dell Regional High School District (Fogarty & Hara, attorneys; Rodney T. Hara, of counsel and on the brief).
Nicole T. Castiglione, Deputy Attorney General, argued the cause for respondent New Jersey Department of Education (Gurbir S. Grewal, Attorney General, attorney; Nicole T. Castiglione, on the statement in lieu of brief).
PER CURIAM
Christopher Concato filed a petition of appeal with the Acting
Commissioner of Education (Commissioner) claiming that his tenure
and seniority rights under the New Jersey Tenure Act (the Tenure
Act), N.J.S.A. 18A:28-1 to -18, were violated when the Board of
Education of the River Dell Regional High School District (Board)
reduced his full-time Teacher of Industrial Arts position to a
part-time position due to a reduction in force (RIF) for reasons
of economy, and he was not appointed to positions that were held
by tenured teachers with less seniority and non-tenured teachers.
He appeals from the Commissioner's final agency decision adopting
the Administrative Law Judge's (ALJ) initial decision that the
Board did not violate his rights because he did not hold the proper
certification at the time the RIF took effect. We affirm
substantially for the reasons set forth in the Commissioner's
Decision.
Before addressing the relevant facts concerning Concato's
claims, we briefly discuss our standard of review and the relevant
law that governs his tenure and seniority rights.
We limit our review "to a determination of whether the
[Commissioner's] decision is 'unreasonable, unsupported by the
2 A-3066-16T2 record or violative of the legislative will.'" D.L. v. Bd. of
Educ., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting
Capodilupo v. Bd. of Educ., 218 N.J. Super. 510, 515 (App. Div.
1987)). Regarding educational matters, the Supreme Court has
cautioned that "the courts cannot supplant educators; they are not
at liberty to interfere with regulatory and administrative
judgments of the professionals in the field of public education
unless those judgments are palpably arbitrary or depart from
governing law." Dennery v. Bd. of Educ., 131 N.J. 626, 643 (1993).
Although we are not bound by an administrative agency's legal
opinions, Levine v. State Dep't of Trans., 338 N.J. Super. 28, 32
(App. Div. 2001) (citation omitted), the "'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) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.
Super. 93, 102 (App. Div. 1997)).
A RIF, "whether of tenured or nontenured teachers, if done
for reasons of economy, is entirely within the authority of the
board." Jamison v. Bd. of Educ., 198 N.J. Super. 411, 414-15
(App. Div. 1985). However, where a tenured teacher is riffed, the
Tenure Act protects the teacher by providing "a measure of security
in the ranks they hold after years of service." Viemeister v. Bd.
3 A-3066-16T2 of Educ., 5 N.J. Super. 215, 218 (App. Div. 1949). N.J.S.A.
18A:28-9, provides:
Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article.
"Seniority is a by-product of tenure and comes into play only if
tenure rights are reduced by way of dismissal or reduction in . .
. benefits." Carpenito v. Bd. of Educ., 322 N.J. Super. 522, 531
(App. Div. 1999).
A teacher's tenure and seniority rights are not unlimited.
N.J.S.A. 18A:28-4, provides that "[n]o teaching staff member shall
acquire tenure in any position in the public schools in any school
district or under any board of education, who is not the holder
of an appropriate certificate for . . . [the] position. . . ." In
a similar vein, N.J.S.A. 18A:28-12 provides:
If any teaching staff member shall be dismissed as a result of . . . [a reduction in force], such person shall be and remain upon a preferred eligible list in the order of seniority for reemployment whenever a vacancy occurs in a position for which such person shall be qualified and he shall be
4 A-3066-16T2 reemployed by the body causing dismissal, if and when such vacancy occurs. . . .
[(Emphasis added).]
Thus, a riffed teacher's right to exercise tenure and seniority
rights is restricted to positions for which the teacher holds the
appropriate certificate and endorsement during employment with the
school district. Francey v. Bd. of Educ., 286 N.J. Super. 354,
360 (App. Div. 1996).
Turning to the undisputed facts of Concato's situation, in
June 2015, his industrial arts position, in which he obtained
tenure, was reduced by the Board effective for the 2015-2016 school
year to a twenty-percent part-time position due to reasons of
economy and efficiency. At the effective date of the Board's
action, Concato possessed a Standard Certificate for "Teacher of
Industrial Arts"; a Standard Certificate with an endorsement of
"Supervisor"; a provisional "Certificate of Eligibility for
Principal"; a Standard Certificate with an endorsement of
"Elementary School Teacher in Grades K-5"; and a Standard
Certificate with an endorsement of "Elementary School with Subject
Matter Specialization: Science in Grades 5-8".1 Employed by the
Board prior to April 23, 2014, he was eligible for a Standard
1 Concato had never taught science in the District under his elementary school science grades 5-8 certificate.
5 A-3066-16T2 Certification with Endorsement of Teacher of Technology in
accordance with N.J.A.C. 6A:9B-10.6, but he failed to apply to the
State Board of Examiners to obtain the endorsement until several
months after he was riffed and while his petition of appeal was
pending.
In his petition, Concato claimed that his tenure and seniority
rights were violated because the Board continued to employ tenured
and non-tenured teachers with less seniority in twenty-two
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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-3066-16T2
CHRISTOPHER CONCATO,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE RIVER DELL REGIONAL HIGH SCHOOL DISTRICT, BERGEN COUNTY,
Respondent-Respondent. _________________________________
Argued May 15, 2018 – Decided August 14, 2018
Before Judges Sumners and Natali.
On appeal from the New Jersey Commissioner of Education, Agency Docket No. 146-6/15.
Alfred F. Maurice argued the cause for appellant (Springstead & Maurice, attorneys; Alfred F. Maurice and Lauren E. McGovern, on the briefs).
Rodney T. Hara argued the cause for respondent Board Of Education of the River Dell Regional High School District (Fogarty & Hara, attorneys; Rodney T. Hara, of counsel and on the brief).
Nicole T. Castiglione, Deputy Attorney General, argued the cause for respondent New Jersey Department of Education (Gurbir S. Grewal, Attorney General, attorney; Nicole T. Castiglione, on the statement in lieu of brief).
PER CURIAM
Christopher Concato filed a petition of appeal with the Acting
Commissioner of Education (Commissioner) claiming that his tenure
and seniority rights under the New Jersey Tenure Act (the Tenure
Act), N.J.S.A. 18A:28-1 to -18, were violated when the Board of
Education of the River Dell Regional High School District (Board)
reduced his full-time Teacher of Industrial Arts position to a
part-time position due to a reduction in force (RIF) for reasons
of economy, and he was not appointed to positions that were held
by tenured teachers with less seniority and non-tenured teachers.
He appeals from the Commissioner's final agency decision adopting
the Administrative Law Judge's (ALJ) initial decision that the
Board did not violate his rights because he did not hold the proper
certification at the time the RIF took effect. We affirm
substantially for the reasons set forth in the Commissioner's
Decision.
Before addressing the relevant facts concerning Concato's
claims, we briefly discuss our standard of review and the relevant
law that governs his tenure and seniority rights.
We limit our review "to a determination of whether the
[Commissioner's] decision is 'unreasonable, unsupported by the
2 A-3066-16T2 record or violative of the legislative will.'" D.L. v. Bd. of
Educ., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting
Capodilupo v. Bd. of Educ., 218 N.J. Super. 510, 515 (App. Div.
1987)). Regarding educational matters, the Supreme Court has
cautioned that "the courts cannot supplant educators; they are not
at liberty to interfere with regulatory and administrative
judgments of the professionals in the field of public education
unless those judgments are palpably arbitrary or depart from
governing law." Dennery v. Bd. of Educ., 131 N.J. 626, 643 (1993).
Although we are not bound by an administrative agency's legal
opinions, Levine v. State Dep't of Trans., 338 N.J. Super. 28, 32
(App. Div. 2001) (citation omitted), the "'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) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.
Super. 93, 102 (App. Div. 1997)).
A RIF, "whether of tenured or nontenured teachers, if done
for reasons of economy, is entirely within the authority of the
board." Jamison v. Bd. of Educ., 198 N.J. Super. 411, 414-15
(App. Div. 1985). However, where a tenured teacher is riffed, the
Tenure Act protects the teacher by providing "a measure of security
in the ranks they hold after years of service." Viemeister v. Bd.
3 A-3066-16T2 of Educ., 5 N.J. Super. 215, 218 (App. Div. 1949). N.J.S.A.
18A:28-9, provides:
Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article.
"Seniority is a by-product of tenure and comes into play only if
tenure rights are reduced by way of dismissal or reduction in . .
. benefits." Carpenito v. Bd. of Educ., 322 N.J. Super. 522, 531
(App. Div. 1999).
A teacher's tenure and seniority rights are not unlimited.
N.J.S.A. 18A:28-4, provides that "[n]o teaching staff member shall
acquire tenure in any position in the public schools in any school
district or under any board of education, who is not the holder
of an appropriate certificate for . . . [the] position. . . ." In
a similar vein, N.J.S.A. 18A:28-12 provides:
If any teaching staff member shall be dismissed as a result of . . . [a reduction in force], such person shall be and remain upon a preferred eligible list in the order of seniority for reemployment whenever a vacancy occurs in a position for which such person shall be qualified and he shall be
4 A-3066-16T2 reemployed by the body causing dismissal, if and when such vacancy occurs. . . .
[(Emphasis added).]
Thus, a riffed teacher's right to exercise tenure and seniority
rights is restricted to positions for which the teacher holds the
appropriate certificate and endorsement during employment with the
school district. Francey v. Bd. of Educ., 286 N.J. Super. 354,
360 (App. Div. 1996).
Turning to the undisputed facts of Concato's situation, in
June 2015, his industrial arts position, in which he obtained
tenure, was reduced by the Board effective for the 2015-2016 school
year to a twenty-percent part-time position due to reasons of
economy and efficiency. At the effective date of the Board's
action, Concato possessed a Standard Certificate for "Teacher of
Industrial Arts"; a Standard Certificate with an endorsement of
"Supervisor"; a provisional "Certificate of Eligibility for
Principal"; a Standard Certificate with an endorsement of
"Elementary School Teacher in Grades K-5"; and a Standard
Certificate with an endorsement of "Elementary School with Subject
Matter Specialization: Science in Grades 5-8".1 Employed by the
Board prior to April 23, 2014, he was eligible for a Standard
1 Concato had never taught science in the District under his elementary school science grades 5-8 certificate.
5 A-3066-16T2 Certification with Endorsement of Teacher of Technology in
accordance with N.J.A.C. 6A:9B-10.6, but he failed to apply to the
State Board of Examiners to obtain the endorsement until several
months after he was riffed and while his petition of appeal was
pending.
In his petition, Concato claimed that his tenure and seniority
rights were violated because the Board continued to employ tenured
and non-tenured teachers with less seniority in twenty-two
assignments for which he was qualified.2 The dispute was
transmitted as a contested matter to the Office of Administrative
Law, which resulted in the ALJ's initial decision after the
parties' submitted cross-motions for summary decision. The ALJ
rejected Concato's claims on the basis that he had no bumping
rights to any of the positions he was seeking. The ALJ stated,
[a]n endorsement titled 'Technology Education,' found at N.J.A.C. 6A:9B- 9.3(a)(8), authorizes the holder of this endorsement to teach, in all public schools, a variety of technical education courses, . . . but does not authorize the holder to teach
2 He claimed to have seniority in the positions of: Project and Performances; Research 4 Today; Robotics; Intro to Computer Science; Engineering your World; TV Production I; TV Production II; TV Production III; Advanced Media Project; Math Plus; Geometry Lab; Algebra II Lab; Digital Imaging; Animation; Digital Arts Major; Intro to Photography; Digital Illustration; Digital Commercial Design; Advanced Placement Photography; Advanced Photography; Painting and Printmaking; and World of Music and Music Technology.
6 A-3066-16T2 'career and technical education programs' listed in N.J.A.C. 6A:9B-9.4(a) and (c).
By means of a special 'grandfather' provision found at N.J.A.C. 6A:9B-10.6(b) an endorsement in 'Technical Education' is available to holders of an Industrial Arts endorsement who have been employed by a school district before April 23, 2004. These individuals can obtain the Technology Education endorsement upon his/her application to the Board of Education. N.J.A.C. 6A:9B-10.[6](b).
Because Concato failed to possess a Technology Endorsement at the
time of the RIF, the ALJ ruled he was not entitled to use it
thereafter to bump anyone employed in a position requiring that
endorsement. And since Concato never served in a position in
which he had to possess the Standard Certificate with an
Endorsement in Elementary Education with Subject Matter
Specification in Science grades 5-8, he had no rights to the
positions requiring that endorsement.
In adopting the ALJ's initial decision, the Commissioner
reasoned:
The ALJ thoroughly and comprehensively conducted an analysis of each course – examining the curriculum, the endorsements the Board states are required, as well as petitioner's arguments – prior to making a determination on each course as to the necessary endorsement and whether petitioner has the required credentials to teach the course. As the ALJ found that petitioner lacked the certifications and endorsements to teach these twenty-two courses, there was no need for the ALJ to analyze the seniority of
7 A-3066-16T2 those teachers who were assigned to teach them.
On appeal, Concato argues the ALJ and Commissioner erred in
finding that he not did not have tenure and seniority rights to
other teaching positions at the time of the RIF based on his
Industrial Arts endorsement and his eligibility to obtain his
Technology Education endorsement. We disagree. Based upon our
standard of review, we are convinced that the Commissioner's
Decision – concurring with the ALJ's findings and conclusions and
adopting his summary decision – was correct substantially for the
reasons set forth therein.
Affirmed.
8 A-3066-16T2