BETHLEHEM TOWNSHIP EDUCATION ASSOCIATION, Petitioner–Appellant, v. BOARD OF EDUCATION OF BETHLEHEM TOWNSHIP, Respondent–Respondent.
DOCKET NO. A–1168–11T2
-- September 06, 2013
Sanford R. Oxfeld argued the cause for appellant (Oxfeld Cohen, P.C., attorneys; Mr. Oxfeld, of counsel; William P. Hannan, of counsel and on the briefs).Joseph L. Roselle argued the cause for respondent Board of Education of Bethlehem Township (Schenck, Price, Smith & King, L.L.P., attorneys; Marc H. Zitomer, of counsel; Mr. Roselle, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Department of Education (Farha Ahmed, Deputy Attorney General, on the statement in lieu of brief).
In September 2010, the Board of Education of Bethlehem Township (Board) approved a proposal to align its school year to coincide with the start of the school year of North Hunterdon Regional High School. As a result, the 2011 Bethlehem School District school year began on August 24, 2011. On June 3, 2011, almost nine months after the Board's approval, the Bethlehem Township Education Association (Association) filed an emergent petition with the Commissioner of Education (Commissioner) challenging the Board's decision. Citing the Supreme Court's decision in Lavin v. Hackensack Board of Education, 90 N.J. 145 (1982), the Association claimed that “there exits a statutory entitlement, created by the statutory scheme of the education laws as well as prior Commissioner of Education decisions, benefiting 10–month certificated teaching staff members in that the school year runs between September 1 and June 30 and may not commence prior to September 1.”
The matter was transferred as a contested case to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ). See N.J.S.A. 52:14B–1 to –15; N.J.S.A. 52:14F–1 to –23. After considering the arguments presented, the ALJ assigned to the case issued an initial decision dismissing the Association's petition as procedurally barred because it was filed beyond the ninety-day limit imposed by N.J.A.C. 6A:3–1.3(i).
The Commissioner agreed with the ALJ's findings and legal conclusion and dismissed the petition as untimely. On appeal to this court, the Association argues that the Commissioner erred because the ninety-day period to “initiate a contested case for the Commissioner's determination of a controversy or dispute arising under the school laws” in N.J.A.C. 6A:3–1.3(i) does not apply to a claim grounded on a statutory entitlement. We disagree and affirm substantially for the reasons expressed by the Commissioner in her final order dated September 22, 2011.
Although the facts are not disputed, a brief recitation of the most salient events is warranted. The Association is the collective bargaining agent that represents all certified teaching staff members, cafeteria workers, and bus drivers employed by the Bethlehem School District. The Association and the Board were parties to a collective bargaining agreement that expired on June 30, 2011.
On September 21, 2010, the Board held a regular public meeting at which it discussed the 2011–2012 academic calendar. The topic was specifically identified in the Board's agenda as “Attachment # 30.” Through this attachment, the Board considered different calendaring options for the school district. The reasoning behind the proposal to align the start of the school year to coincide with the start of the academic year of North Hunterdon High School is cogently explained by Dr. Nancy Lubarsky, the then Superintendent of Schools of Bethlehem. Dr. Lubarsky explained as follows in a certification she submitted to the Commissioner in support of the Board's position:
5. As a member of the North Hunterdon–Voorhees regional school district, Bethlehem students in grades 9 through 12 attend North Hunterdon High School for their secondary education.
6. In general, the Bethlehem School District and the North Hunterdon School District have operated independently, such that one district's operations were not dependent upon, or in concert with, those of the other district. For example, the Bethlehem School District and North Hunterdon School District have traditionally operated on separate school year calendars, such that the first and last days of school, as well as other school vacations, were different between the districts.
7. There are a number of families residing in Bethlehem Township who have children in both the Bethlehem School District and the North Hunterdon School District. Prior to establishing the Bethlehem school calendar for the 2011–2012 school year, many of those families requested that Bethlehem examine whether it could match its school year calendar to that of North Hunterdon so as to eliminate or reduce the hardship the two (2) different calendars were having on families with pupils in both districts. Doing so would enable those families to better plan for summer activities such as vacations, jobs and camps as well as for other school recesses such as spring break.
Thus, by a vote of six to zero, the Board resolved “to align the first day of school with the North Hunterdon Regional High School schedule.” 1 This calendar adjustment required the teachers to report on August 24, and students reported the following day on August 25. This was the first time the Bethlehem School District began its academic year before the first day of September.
The Association argues that the ALJ, and by extension the Commissioner, misunderstood the legal basis of its claim. As the Association makes clear in its appellate brief:
Petitioner did not assert that the petition [before the Commissioner] is solely a contractual claim as the ALJ wrote in the June 10, 2011 order outlining her position on the timeliness issue. Rather, the Association relied on Lavin in bringing forth its petition under a statutory scheme created by the education laws. Contrary to the ALJ's holding, the substance of the petition does indeed arise under the education laws, which is why the petition was properly filed with the Commissioner.
Without citing to a specific statute, the Association's amorphous reference to the “education laws,” presumably Title 18A, fails because, in addition to being untethered to any specific statutory authority, it fundamentally misconstrues the Court's holding in Lavin. As Justice Schreiber crystalized in Lavin, “[t]his case involves the retroactivity of a school teacher's claim for employment credit for military service rendered long before the teacher's employment began.” 90 N.J. at 147. The petitioner's ultimately successful claim in Lavin was squarely grounded on N.J.S.A. 18A:29—11, through which the Legislature granted employment credit as follows:
Every [teacher] who after July 1, 1940, has served ․ in the active military or naval service of the United States ․ shall be entitled to receive equivalent years of employment credit for such service as if he had been employed for the same period of time in some publicly owned and operated
․ school or institution of learning
․ except that the period of such service shall not be credited toward more than four employment or adjustment increments.
The petitioner in Lavin sought to receive this credit for her service in our country's Armed Forces between 1943 and 1945. Ibid. The petitioner in Lavin was first employed as a teacher in 1968. Id. at 148. She did not assert her credit under N.J.S.A. 18A:29—11 until nine years later in 1977. Ibid. The State Board of Education (State Board) held that her retroactive claim was limited by the relevant “six year statute of limitations and was barred in its entirety for the period of time prior to September 1978 on the basis of laches and estoppel.” Ibid. The State Board awarded her “two years' military service credit to be applied beginning with the 1978–79 school year.” Ibid.
On appeal to this court, we affirmed the State Board's ruling but held that the petitioner was entitled to three years' credit. Ibid. (citing Lavin v. Bd. of Ed., 178 N.J.Super. 221 (App.Div.1981)). The Supreme Court held in pertinent part:
The legislative purpose of N.J.S.A. 18A:29–11 is to reward veterans for service to their country in time of war. The reward takes the form of crediting the military service as teaching experience even though there is no functional relationship between the two. The credit has the effect of increasing the number of dollars to which the teacher who is a veteran is entitled. The emolument is not for services rendered or to be rendered for school teaching as such. It was established by the Legislature as a reward or bonus for service in the military, and not for performance as a teacher. Accordingly, the payment should be considered as a statutory entitlement, rather than as an element of the employment contract. That being so, the statute of limitations is inapplicable.
[Id. at 151.]
The Court's analysis and ultimate holding was specifically grounded on the public policy considerations expressed and codified by the Legislature in N.J.S.A. 18A:29–11. Here, by contrast, the Association's arguments not only lack a similar well-defined statutory basis, but also run contrary to clearly articulated authority. N.J.S.A. 18A:36–1 provides that “[t]he school year for all schools in the public school system shall begin on July 1 and end on June 30.” Furthermore, N.J.S.A. 18A:1–1 defines “academic year” as “the period between the time school opens in any school district or under any board of education after the general summer vacation until the next succeeding summer vacation.” There is no statutory basis prohibiting the Board in this case from commencing the academic or school year on September 1.
Finally, despite the clear lack of legal merit in the Association's position, N.J.A.C. 6A:3–1.3(i) requires the Association to initiate a contested case before the Commissioner by filing 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.” As the Commissioner correctly found here, the Association's petition was procedurally barred as untimely under N.J.A.C. 6A:3–1.3(i).
On appeal from a final agency determination, we can intervene only in those rare circumstances in which an agency action is arbitrary, capricious, or unreasonable, Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)), or is otherwise not supported by substantial credible evidence in the record, N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384–85 (2008) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980)). The Association has clearly not met this standard.
1. FN1. The Association avers in its brief that the 2011–2012 calendar was not officially adopted until a later meeting. Although not germane to our discussion, we note that the Association does not cite to any specific part of the record to support this claim.