Opinion
DOCKET NO. A-2473-13T4
10-16-2015
ASKIAA NASH, Petitioner-Appellant, v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY, Respondent-Respondent.
Mellk O'Neill, attorneys for appellant (Arnold M. Mellk, of counsel; Gidian R. Mellk and Edward A. Cridge, on the brief). Adams Gutierrez & Lattiboudere, LLC, attorneys for respondent, State-Operated School District of the City of Newark (Cherie L. Adams, of counsel and on the brief; Adam S. Herman, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent, Commissioner of Education (Laura Mastriano Console, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the Commissioner of Education, Department of Education, Docket No. 92-5/13. Mellk O'Neill, attorneys for appellant (Arnold M. Mellk, of counsel; Gidian R. Mellk and Edward A. Cridge, on the brief). Adams Gutierrez & Lattiboudere, LLC, attorneys for respondent, State-Operated School District of the City of Newark (Cherie L. Adams, of counsel and on the brief; Adam S. Herman, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent, Commissioner of Education (Laura Mastriano Console, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Askiaa Nash (Nash) appeals from a final decision by the Commissioner of the New Jersey Board of Education (Commissioner) denying his application for reinstatement, back pay, benefits, and other relief following his termination in 2001. The Commissioner affirmed the Administrative Law Judge (ALJ). The ALJ dismissed Nash's claim on summary judgement finding it was filed out of time and that Nash never acquired tenure before his termination. We agree that Nash did not acquire tenure and affirm.
Nash was hired by the State-Operated School District of the City of Newark (District) in September 1993 as an Educational Media Specialist (EMS). From 1993 to 2001, the Board of Examiners annually issued Nash an emergency certificate to work as an EMS. It is undisputed that Nash never received a standard or provisional certificate as an EMS. In October 2000, the Division of Child Protection and Permanency began investigating allegations of sexual abuse by Nash against two District students. Nash's employment with the District was suspended with pay effective October 12, 2000. He was indicted on January 16, 2001, and subsequently terminated effective June 22, 2001.
An EMS performs the services of a school librarian.
In August 1993, the Board of Examiners issued Nash a Certificate of Eligibility as an elementary school teacher. As this was a position that Nash never held with the District, that certificate is irrelevant to our discussion. --------
After his trial concluded on May 16, 2002, Nash was wrongfully convicted of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and related charges. Following his incarceration in New Jersey State Prison for over ten years, Nash's criminal conviction was vacated on January 22, 2013. See State v. Nash, 212 N.J. 518 (2013). On April 29, 2013, the Essex County Prosecutor moved to dismiss the indictment against Nash that previously resulted in his May 2002 conviction, and all charges were dismissed.
On May 7, 2013, Nash filed a petition of appeal with the New Jersey Commissioner of Education, alleging that he attained tenure with the District and that his 2001 termination "was undertaken in contravention of N.J.S.A. 18A:6-10, et seq." because he had tenure. On October 10, 2013, the ALJ issued a summary order dismissing Nash's petition of appeal as untimely pursuant to N.J.A.C. 6A:3-1.3(i). Additionally, the ALJ found Nash did not attain tenure with the District. The decision was affirmed by the Commissioner by order on November 25, 2013.
Our review of administrative determinations is limited. "[W]e will not reverse the determination of an administrative agency unless it is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." Kaprow v. Bd. of Educ. of Berkley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v. Bd. of Educ. of Passaic Cty. Reg'l High Sch. Dist. #1, 131 N.J. 626, 641 (1993); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985)). Although we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)), administrative decisions are nevertheless afforded a "strong presumption of reasonableness." City of Newark v. Natural 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 245-46 (1980).
We first address Nash's argument that he had a claim for tenure. We agree with the Commissioner that Nash was still serving under an emergency certificate as an EMS when his employment was terminated and he had not acquired the necessary certificate required to obtain tenure.
"Tenure arises only upon compliance with the precise conditions articulated in the statute." Picogna v. Bd. of Educ. of Twp. of Cherry Hill, 143 N.J. 391, 400 (1996) (citing Zimmerman v. Bd. of Educ. of City of Newark, 38 N.J. 65, 72 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963)). The statute provides in pertinent part:
a. The services of all teaching staff members employed prior to the effective date
of P.L.2012, c. 26 (C.18A:6-117 et al.) in the positions of teacher, . . . and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect . . . , shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner prescribed by sub article B of article 2 of chapter 6 of this Title, after employment in such district or by such board for:
(1) Three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or
(2) Three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(3) The equivalent of more than three academic years within a period of any four consecutive academic years.
[N.J.S.A. 18A:28-5 (emphasis added).]
There are three categories of educational certificates: instructional, administrative, and educational services. N.J.A.C. 6A:9B-5.2(a). "No teaching staff member shall be employed in the public schools by any board of education unless he [or she] is the holder of a valid certificate to teach, administer, direct or supervise the teaching, instruction, or educational guidance of . . . pupils in such public schools . . . ." N.J.S.A. 18A:26-2. See also N.J.A.C. 6A:9B-5.1(a). Within each category, the Board of Examiners may issue three types of certificates: standard, provisional, and emergency. N.J.A.C. 6A:9B-6.1 to -6.3. A standard certificate is a permanent certificate for candidates meeting all requirements for State certification. N.J.A.C. 6A:9B-6.1. A provisional certificate within the educational services category is a two-year certificate given to candidates who meet the requirements of N.J.A.C. 6A:9B-12.1(b). N.J.A.C. 6A:9B-6.2. Finally, an emergency certificate "is a substandard certificate issued only to educational services certificate candidates who meet the requirements specified for each endorsement." N.J.A.C. 6A:9B-6.3(a).
The "'proper certificate' which N.J.S.A. 18A:28-5 requires a teacher to hold when claiming tenure must be either a standard certificate or a provisional certificate." Breitwieser v. State-Operated Sch. Dist. of City of Jersey City, 286 N.J. Super. 633, 639 (App. Div. 1996). Notably, "a teacher may not acquire tenure solely upon service under an emergency certificate," regardless of the length of time served under such a certificate. Id. at 640. Adhering to this principle is appropriate because "emergency-certified teachers are by definition unqualified to hold their positions." Id. at 640-41.
Here, Nash was only employed by the District as an EMS under an annually issued emergency certificate. He never received a standard or provisional EMS certificate. Therefore, Nash's employment with the District was never pursuant to a "proper certificate" as required by N.J.S.A. 18A:28-5. Because Nash served as an EMS only under emergency certificates, and not under either a provisional or standard certificate for the necessary time frames established in N.J.S.A. 18A:28-5(a)(1)-(3), he was not eligible for tenure prior to his termination on June 11, 2001.
Nash contends that he "may have met all of the qualifications for issuance of a Standard Certificate upon the completion of his studies at Montclair State University (Montclair State) in Summer 1995, more than four years prior to his termination by the District." Nash certifies that he presented his Montclair State transcript to the Board in 1995, and that the Board improperly issued emergency certificates for the next six years. See N.J.A.C. 6A:9B-6.3(c).
By Nash's own account, he did not challenge the Board's failure to issue a standard certificate, or its issuance of emergency certificates, from 1995 through his suspension in 2000. According to Nash, he had every incentive to do so in order to work under a standard certificate, and earn credit for tenure, for the five or more school years after 1995 when he remained employed by the District. Nash does not allege any impediment to his obtaining a certificate other than the District's inaction. However, he never challenged this inaction during those several years, even though he was not indicted until 2001. Given Nash's failure during that lengthy period to challenge the District's failure to obtain a proper certificate, we decline to consider Nash's contention. As we stated in Breitwieser, supra:
Renewal of an emergency certificate cannot convert service under an emergency certificate into service under a "proper certificate" for purposes of N.J.S.A. 18A:28-5. A district's decision to renew an emergency certificate means only that the district could not locate a qualified teacher, not necessarily that the district was "satisfied" with the performance rendered. Logically, the only inference which necessarily follows from a district's renewal of employment of an emergency certificate holder is that it is not so dissatisfied with the teacher's performance as to decline to renew the employment.
[286 N.J. Super. at 645-46.]
Because our determination with respect to tenure is dispositive, we need not address whether the appeal following his termination was time barred pursuant to N.J.A.C. 6A:3-1.3(i).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION