Opinion
DOCKET NO. A-3117-11T4
02-27-2013
SONJA MCKENNA and MARGARET MACMURREN, Petitioners-Appellants/Cross-Respondents, v. BOARD OF EDUCATION OF THE ANDOVER REGIONAL HIGH SCHOOL DISTRICT, SUSSEX COUNTY, Respondent-Respondent/Cross-Appellant.
Bucceri and Pincus, attorneys for appellants/ cross-respondents (Gregory T. Syrek, of counsel and on the brief). Schwartz Simon Edelstein & Celso, LLC, attorneys for respondent/cross-appellant Andover Regional Board of Education (Allan P. Dzwilewski, of counsel; Jenna A. Rottenberg, Christopher A. Dzwilewski, and Amber J. Loughran, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Maven.
On appeal from the Commissioner of Education, Agency Docket No. 405-8/10.
Bucceri and Pincus, attorneys for appellants/ cross-respondents (Gregory T. Syrek, of counsel and on the brief).
Schwartz Simon Edelstein & Celso, LLC, attorneys for respondent/cross-appellant Andover Regional Board of Education (Allan P. Dzwilewski, of counsel; Jenna A. Rottenberg, Christopher A. Dzwilewski, and Amber J. Loughran, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
This matter arises out of a verified petition that appellants Sonja McKenna and Margaret MacMurren, former tenured staff members of the Andover Regional High School District Child Study Team ("CST"), filed with the Commissioner of Education. Appellants challenge the school district's elimination of the in-house CST program and the district's entry into what appellants contend is an illegal arrangement for those CST services to be provided instead through the Sussex County Educational Services Commission ("SCESC"). Without reaching the merits of appellants' claims of illegality, the Commissioner summarily dismissed their verified petition for lack of standing.
For the reasons that follow, we reverse the Commissioner's ruling that appellant McKenna lacks standing to pursue her verified petition, and remand her case for consideration on the merits. However, we affirm the dismissal of appellant MacMurren's claims because she has retired from service as a public school employee. Lastly, we reject the school district's cross-appeal asserting that the Commissioner should have declared appellants' verified petition to be untimely.
I.
The relevant sequence of events is substantially undisputed. Before the new arrangements complained about by appellants were implemented, McKenna and MacMurren were both employed by respondent, Board of Education of the Andover Regional High School District ("the Board"), as members of the district's CST. McKenna served as a school psychologist and MacMurren as a learning consultant and coordinator. Both individuals were tenured employees of the school district.
In or about the spring of 2010, the school district formulated plans to eliminate its in-house CST program as a cost-savings measure. The district intended, in lieu of operating its own CST program, to arrange to have such CST services provided by the SCESC, a county agency. Upon learning of those plans, MacMurren submitted a letter of resignation in March 2010 to Bernard Baggs, the district's then-Superintendent of Schools, informing him that she had decided to retire and resign from her position with the CST after the current school year. MacMurren's letter stated that she was retiring because of the Board's anticipated elimination of the in-house CST program, a plan that she contended was in violation of her tenure rights. In April 2010, the Board accepted MacMurren's resignation, to be effective as of July 1, 2010.
At a subsequent regular meeting on May 4, 2010, the Board adopted a resolution, as recommended by Baggs, to eliminate the school district's CST on June 30, 2010, "for reasons of economy." In the same resolution, the Board approved elimination of certain staff positions within the district. The affected staff members to be discharged included McKenna and a social worker. In addition, the Board resolved to place any tenured teaching staff members affected by the CST's elimination on a preferred hiring eligibility list, should their positions be reestablished at a future date. See N.J.S.A. 18A:28-12 (requiring that tenured staff dismissed on account of a reduction in force must be placed on a preferential rehiring list).
The discharged social worker did not join in appellants' petition.
The next day, May 5, 2010, Baggs sent a letter to McKenna informing her of the Board's resolution, in accordance with the notice requirements set forth in N.J.S.A. 18A:27-10. In that letter, Baggs advised McKenna of the Board's decision to eliminate the CST and, consequently, her position on the CST.
About a month later, on June 1, 2010, the Board held its next regular meeting. At that meeting, again upon Baggs' recommendation, the Board approved a resolution authorizing the Board President to enter into a Shared Services Agreement ("Agreement") with the SCESC, to provide CST services for the school district. In early June 2010, both parties approved the Agreement, which was to run from July 1, 2010 to June 30, 2011.
The Board's representative signed the Agreement on June 1, 2010 and the SCESC's representative signed it on June 7, 2010.
After the Board approved the Agreement, Kim Cowing, a field representative of appellants' labor union, contacted the Board. Cowing requested further details about the anticipated CST staffing arrangements under the Agreement. By this point, Baggs apparently was no longer the district's superintendent. The school district's interim superintendent replied to Cowing in a letter dated July 13, 2010, advising that the CST positions were going to be filled by both employees of the SCESC and also by "third party consultants."
Following receipt of that response to Cowing's inquiry, MacMurren and McKenna filed a verified petition with the Commissioner on August 9, 2010, alleging that the Board's decision to eliminate the in-house CST violated their tenure rights conferred in N.J.S.A. 18A:28-5. Among other things, they contended that the Board's decision to enter into the Agreement was "arbitrary, capricious, and/or unreasonable" since, first, the Agreement did not contain a maximum cost figure, and, second, the Agreement violated applicable statutory provisions, including N.J.S.A. 18A:46-5.1, and state regulations, including N.J.A.C. 6A:14-3.1.
The school district denied these allegations of impropriety. The Board maintained that it had the legal prerogative to eliminate the in-house CST program as a cost-savings measure, and that the shared-services arrangements it had made with the SCESC to replace that in-house program were lawful. The Board also raised affirmative defenses that: (1) the verified petition was time-barred because it had not been filed within the ninety-day period prescribed by N.J.A.C. 6A:3-1.3(i); and (2) appellants lacked standing to complain about the Board's actions.
The contested matter was transmitted to the Office of Administrative Law ("OAL"). Meanwhile, the Board moved for summary decision, invoking its threshold arguments of untimeliness and lack of standing.
On November 30, 2011, an Administrative Law Judge ("ALJ") issued a written decision recommending the summary dismissal of appellants' petition, solely on the basis of lack of standing. The ALJ rejected the Board's contention that the complaint was untimely, finding that the complaint had been properly filed within ninety days of July 15, 2010, the date when the Board had given notice to appellants' union representative that the Agreement called for some use of third party contractors. However, the ALJ agreed with the Board that appellants lacked standing to contest the propriety of the Agreement. The ALJ reasoned that if there were any statutory deficiencies or flaws with the county's program, those deficiencies presumably could be corrected by a revised Agreement, and that such corrective action would not provide any legal right for appellants to get their jobs back.
On January 17, 2012, the Commissioner of Education issued a two-page final agency decision adopting the ALJ's recommendations and dismissing the verified petition. In particular, the Commissioner endorsed both the ALJ's finding that appellants lacked standing and her separate finding that their petition had been timely.
McKenna and MacMurren now appeal, contending that the ALJ and the Commissioner erred, as a matter of law, in concluding that they lacked standing to pursue their administrative claims. The Board has filed a cross-appeal, contending that the complaint should have been dismissed as untimely, based on its own interpretation of the triggering event for the ninety-day filing deadline.
II.
Under this state's general principles of standing, a party "must present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision." In re Camden Cnty., 170 N.J. 439, 449 (2002); see also Home Builders League of S. Jersey, Inc. v. Berlin Twp., 81 N.J. 127, 132 (1979) (similarly requiring a sufficient stake in the outcome and true adversity with the position of the opposing party); N.J.A.C. 6A:3-1.2 (noting that a party has standing in administrative proceedings before the Commissioner if he or she is "substantially, specifically, and directly affected by the outcome of the controversy"). In contrast with the more restrictive notion of standing applied in federal courts, New Jersey has adopted a broader approach that assures, to even a greater extent, that aggrieved parties will not be denied easy access to the judicial system. See Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 101-08 (1971).
The question of whether appellants each had standing to challenge the Board's actions in this case is fundamentally a question of law. See People for Open Gov't v. Roberts, 397 N.J. Super. 502, 508 (App. Div. 2008). Consequently, we owe no special deference to the ALJ or the Commissioner in their resolution of that legal question. Mayflower Sec . Co . v . Bureau of Sec ., 64 N . J . 85, 93 (1973) (applying de novo review on appeal to determinations of legal issues).
McKenna and MacMurren respectively assert that they have standing to challenge the Board's actions in entering into an allegedly defective Agreement with the SCESC, which was part of the Board's overall plan to abolish the CST and terminate appellants' jobs. Appellants acknowledge in their reply brief that the Board's abolition of the CST, "in a vacuum, probably would not be actionable." However, they contend that the Board's replacement of their CST unit with what they claim to be an illegal arrangement sufficiently implicates their vested rights as tenured educators to give them legal standing to challenge that arrangement.
The ALJ assumed in her analysis of the standing issue that any proven defects in the Agreement between the Board and the SCESC could be cured in a manner that would not involve the possible reinstitution of the CST unit in the school district. That conclusive assumption, which the Commissioner likewise adopted, was unwarranted. Assuming, for the sake of argument, that it were shown in this case that the Agreement with the SCESC does not, in fact, save the district money, or that the Board otherwise lacked "good cause" to displace the in-house program, the continued legal viability of the arrangement might be suspect. See N.J.S.A. 18A:28-9.
Moreover, if it were shown that the Agreement's reliance upon the services of private contractors does not fully comply with applicable statutes or regulations, there is no guarantee that the SCESC would be able to achieve such compliance, or could do so without raising the contractual charges to the Board. There is also no assurance that the SCESC would be willing to renegotiate the terms of the Agreement.
We make no determination in this appeal, which narrowly turns on appellants' standing, as to whether such reliance is unauthorized by applicable statutes or regulations. We do note that N.J.A.C. 6A:14-5.1, which authorizes multi-district shared services arrangements for CST services, also imposes certain conditions concerning the credentials and licensure of private clinics, agencies, and private professional practitioners that are part of such arrangements. See N.J.A.C. 6A:14-5.1(a)(1), (c).
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Depending upon how these or other scenarios of a nullified Agreement would unfold, it is entirely conceivable that the Board might consider reinstating its in-house CST. Indeed, the Board planned for such a contingency, by noting in one of its resolutions that any aggrieved tenured staff members would have priority of rehiring if the CST were reinstated. The Board would not, of course, have the option of depriving its students of the CST services, which are mandated by state law. See N.J.S.A. 18A:46-5.1 ("Each board of education and State operated program shall separately or jointly with one or more boards of education or State agencies provide for basic child study team services."); N.J.A.C. 6A:14-5.1(a) ("Each district board of education, independently or through joint agreements, shall employ or contract with child study teams as set forth in N.J.A.C. 6A:14-3.1(b), speech correctionists or speech-language specialists and other school personnel in numbers sufficient to ensure provision of required programs and services pursuant to this chapter.").
Given these distinct and unrebutted possibilities, we conclude that the ALJ and the Commissioner erred in summarily concluding that McKenna lacks standing to pursue her verified petition. She has a sufficient personal stake in the outcome of a ruling on the validity of the contractual arrangement that was created to replace her. Her financial interests in continuing her employment as a tenured staff member were directly affected by the Board's coordinated series of actions in dismantling the in-house CST program and entering into an allegedly noncompliant shared services arrangement with the county. A declaration of that arrangement's invalidity might well lead to a reinstatement of the CST and McKenna's reemployment with the district. The ALJ and the Commissioner should not have totally ruled out that eventuality. There is also clear adversity between McKenna and the Board, which maintains the bona fide nature of the Agreement.
We are cognizant that N.J.S.A. 18A:28-9 gives local school boards the prerogative to cease providing CST programs through district employees "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[.]" We also are mindful of the "managerial prerogative[s]" of a school district to reduce its teacher personnel. See, e.g., In re Maywood Bd. of Educ, 168 N.J. Super. 45, 55 (App. Div. 1979) (citing N.J.S.A. 18A:28-9); see also N.J.A.C. 6A:14-5.1(a)(1) (authorizing such CST services shared to be provided through shared service agreements). Even so, that does not mean that the district can fire its tenured staff and replace the CST with what is proven to be an illegal arrangement. Cf. Klinger v. Bd. of Educ. of Twp. of Cranbury, 190 N.J. Super. 354, 357-58 (App. Div. 1982) (reaching the merits of a tenured teacher's challenge to a school district's reduction-in-force that had been based upon asserted "reasons of economy"), certif. denied, 95 N.J. 277 (1983).
Although we do not address here the merits of the Board's series of interconnected decisions changing the method of how CST services are provided in the district, we are satisfied that McKenna has a sufficient interest in those decisions to be permitted to raise her concerns and to have them substantively addressed by the Commissioner. The agency's ruling to deny her standing is therefore reversed.
We reach a different conclusion as to MacMurren. She has retired from her tenured position, pursuant to the formal procedures set forth in N.J.S.A. 18A:28-8. Although MacMurren contends that she was essentially forced by the Board's actions to tender her resignation and her notice of retirement, we agree with the ALJ and the Commissioner that her interest in this matter as a retiree is too attenuated to satisfy the prerequisites for standing.
We also concur with the ALJ and the Commissioner in their rejection of the Board's contention that the verified petition was untimely. N.J.A.C. 6A:3-1.3(i) requires a petitioner seeking redress from the Commissioner to file a claim "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." N.J.A.C. 6A:3-1.3(i). The Board asserts that the trigger for that ninety-day filing deadline in this case began at least on May 4, 2010, the date that the Board adopted a resolution to discontinue its in-house CST. Alternatively, the Board contends that, at the very latest, the trigger date was May 5, 2010, the date when the Board issued notices of that resolution's adoption. According to the Board, by that point, appellants were made sufficiently aware of the actions from which their claims arose.
The ALJ and the Commissioner rejected the Board's analysis of these timing matters, and so do we. As appellants have clarified, their petition was ultimately precipitated by the Board's decision to enter into an allegedly illegal Agreement with the SCESC, and not just from the Board's preliminary step of eliminating the CST and their job positions. Appellants could not have made their allegations of the Agreement's impropriety without first becoming aware of its terms.
Consequently, the ninety-day filing period did not begin running until at least June 1, 2010 (when the Board signed the Agreement); June 7, 2010 (when the SCESC signed the Agreement); or July 15, 2010 (when Cowing received the information from the Board about the staffing arrangements contemplated under the Agreement). The ALJ and the Commissioner reasonably adopted the July 15 date as the trigger date, although any of those three June or July dates would operate to render the filing of appellants' petition on August 9, 2010 timely and within the ninety-day window.
The Commissioner's final agency decision is affirmed as to MacMurren's appeal and as to the Board's cross-appeal. The decision is reversed solely as to the finding of McKenna's lack of standing, and thus her case is remanded to the Commissioner for consideration on the merits. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION