FREDERICK CHATMAN VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY (COMMISSIONER OF EDUCATION)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 10, 2018
• Docket: A-0844-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0844-16T4

FREDERICK CHATMAN,

Petitioner-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY,

Respondent-Respondent. ________________________________

Argued January 30, 2018 – Decided July 10, 2018

Before Judges Reisner and Hoffman.

On appeal from the Commissioner of Education, Docket No. 283-9/14.

Dennis McKeever argued the cause for appellant (Sciarrillo, Cornell, Merlino, McKeever & Osborne, LLC, attorneys; Dennis McKeever, of counsel and on the brief; Marcie L. Mackolin, on the brief).

Ramon E. Rivera argued the cause for respondent (Scarinci Hollenbeck, LLC, attorneys; Ramon E. Rivera, of counsel; Jason T. Mushnick and Shana T. Don, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Eric L. Apar, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner appeals from a September 12, 2016 decision of the

Commissioner of the Department of Education (Commissioner),

denying his petition seeking tenure in the position of principal,

and seeking reinstatement as principal at Harriet Tubman

Elementary School (Tubman school) in the City of Newark State

Operated School District (District). We affirm substantially for

the reasons stated in the Commissioner's decision. We add these

comments.

Petitioner was promoted from vice principal to interim

principal on August 22, 2012. That promotion was accomplished

through the established, legal process of appointment by the Board

of Education. Pursuant to the Teacher Effectiveness and

Accountability for the Children of New Jersey Act (TEACHNJ), L.

2012, c. 26, as of August 6, 2012, time served in a position no

longer sufficed to permit a newly-promoted principal to obtain

tenure in the promotional position. Instead, a principal who was

promoted after the Act's effective date of August 6, 2012, could

not attain tenure without achieving an evaluation of "effective"

or "highly effective" in two annual summative evaluations within

2 A-0844-16T4 the first three years of employment in the new position. N.J.S.A.

18A:28-6(b).

Petitioner did not attain tenure under the TEACHNJ standards

because he received annual ratings of "partially effective" and

"ineffective" for the two school years following his August 22,

2012 appointment. As a result, he was removed from the principal

position and returned to a vice principal position. He filed a

petition with the Commissioner, claiming a right to tenure as a

principal based on the pre-TEACHNJ standards, set forth in N.J.S.A.

18A:28-6(a).

Prior to his appointment as interim principal, petitioner

held the appointed title of vice principal at the Tubman school.

There was evidence that, after the appointed principal at the

Tubman school retired in December 2011, petitioner unofficially

functioned as the acting principal until the end of that school

year. However, during that time frame, the Board did not appoint

petitioner to the acting principal position or otherwise approve

his appointment to any position other than vice principal.

On April 27, 2012, petitioner wrote a letter to the District

Superintendent describing himself as a "principal" and expressing

his hope that he could continue in that position. The

Superintendent did not respond, but on May 25, 2012, the Board

served petitioner with a written notice that his position at the

3 A-0844-16T4 Tubman school had been eliminated effective at the end of the

school year, and he would have to find another position in the

District. The letter did not acknowledge that petitioner held any

position at the school other than vice principal. However, the

letter made clear that whatever position petitioner held at that

time was eliminated.

According to petitioner, in June and July 2012, he interviewed

for a principal position. On August 22, 2012, petitioner was

appointed as an interim principal, a position for which he signed

a contract. A September 24, 2012 letter, confirming petitioner's

August 22, 2012 appointment, stated that petitioner's "Current

Position" was "Vice Principal" and his "New Position" was "Interim

Principal."

In her decision, the Commissioner rejected petitioner's claim

that his unofficial, un-appointed service filling in for the former

principal entitled him to be grandfathered under the old tenure

standards set forth in N.J.S.A. 18A:28-6(a).1 Rather, the

Commissioner construed N.J.S.A. 18A:28-6(b) "to mean that the date

upon which a teaching staff member is approved by the board is the

relevant date for determining whether new tenure rules established

1 The Commissioner rejected an administrative law judge's initial decision in petitioner's favor. The initial decision relied heavily on pre-TEACHNJ administrative decisions, concerning the calculation of service credit for tenure purposes.

4 A-0844-16T4 pursuant to TEACHNJ, or previous tenure rules, apply." The

Commissioner concluded: "In the instant matter, petitioner was

officially promoted from vice principal to interim principal on

August 22, 2012, which is after August 6, 2012. As such N.J.S.A.

18A:28-6(b) applies because petitioner was promoted subsequent to

the effective date of TEACHNJ."

The Commissioner reasoned that the time-in-service issue on

which petitioner relied was not dispositive, because to obtain

tenure, petitioner needed good evaluations in addition to service

credit:

The Commissioner need not reach the issue of whether petitioner assumed the duties and responsibilities of the principal and served as acting principal in an un-appointed capacity because – even if petitioner could tack on the time served as acting principal in an un-appointed capacity toward the time required to earn tenure – he is ineligible for tenure due to his evaluations falling below the required ratings.

Our review of the Commissioner's decision is limited. We will

not disturb an agency's final decision so long as it is supported

by substantial credible evidence and is consistent with applicable

law. See In re Proposed Quest Acad. Charter Sch. of Montclair

Founders Grp., 216 N.J. 370, 385 (2013). We review an agency's

legal interpretations de novo. DiNapoli v. Bd. of Educ. of Twp.

of Verona, 434 N.J. Super. 233, 236 (App. Div. 2014). However,

5 A-0844-16T4 we give "considerable weight" to an agency's reasonable

interpretation of a statute it is charged with enforcing. Kletzkin

v. Spotswood Bd. of Educ., 136 N.J. 275, 278 (1994) (citation

omitted); see DiNapoli, 434 N.J. Super. at 237.

In light of those standards, we find nothing unreasonable in

the Commissioner's interpretation of N.J.S.A. 18A:28-6(b). In

enacting TEACHNJ, the Legislature intended to benefit children,

by improving the quality of education. See Pugliese v. State-

Operated Sch. Dist. of City of Newark, 440 N.J. Super. 501, 508

(App. Div. 2015). To that end, TEACHNJ bases a principal's tenure

rights on demonstrated effectiveness in the position, as well as

service credit. The Commissioner's interpretation of TEACHNJ

serves that purpose and is consistent with the statutory language.

See Kletzkin, 136 N.J. 278.

Affirmed.

6 A-0844-16T4