                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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        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-1572-16T3

LORENZO RICHARDSON,

        Petitioner,

v.

VIDYA GANGADIN, BOARD OF
EDUCATION PRESIDENT and
RAMON RIVERA, BOARD ATTORNEY,

        Respondents,

and

THE JERSEY CITY EDUCATION
ASSOCIATION, RONALD F.
GRECO, JR., MONIQUE K.
ANDREWS and ELLEN ZADROGA,

        Petitioners-Appellants,

v.

THE BOARD OF EDUCATION OF THE
CITY OF JERSEY CITY and
DR. MARCIA V. LYLES,

     Respondents-Respondents.
_________________________________

              Argued May 23, 2018 – Decided June 25, 2018

              Before Judges Koblitz, Manahan and Suter.
          On appeal from the Commissioner of the New
          Jersey Department of Education, Docket Nos.
          62-2/16 and 85-3/16.

          Albert J. Leonardo argued the cause for
          appellants Jersey City Education Association,
          Ronald F. Greco, Jr., Monique K. Andrews and
          Ellen Zadroga (Bucceri & Pincus, attorneys;
          Louis P. Bucceri, of counsel; Albert J.
          Leonardo, on the brief).

          Perry L. Lattiboudere argued the cause for
          respondent Board of Education of the City of
          Jersey City (Adams, Gutierrez & Lattiboudere,
          LLC, attorneys; Perry L. Lattiboudere, of
          counsel and on the brief; Ruby Kumar-Thompson,
          on the brief).

          Stephen J. Edelstein argued the cause for
          respondent Dr. Marcia V. Lyles (Schwartz,
          Simon, Edelstein & Celso, LLC, attorneys;
          Stephen J. Edelstein, of counsel and on the
          brief; Stephen M. Bacigalupo and Aimee S.
          Weiner, on the brief).

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

PER CURIAM

     Petitioners Jersey City Education Association, Ronald F.

Greco, Jr., Monique K. Andrews and Ellen Zadroga (collectively

petitioners) appeal from a final decision of the Commissioner of

Education (Commissioner) dismissing the petition.   The petitioners

sought to enjoin the Jersey City Board of Education (Board) from

renewing the contract of Dr. Marcia V. Lyles as Superintendent of

Schools (superintendent).   We affirm.

                                2                           A-1572-16T3
     We recite the facts and procedural history relevant to our

decision.    In August 2012, the Board entered into a contract of

employment with Dr. Lyles for the position of superintendent.                  The

contract's   term   was    through     June   30,   2016,     and    included    a

renewal/non-renewal       provision.       That     provision       provided    in

pertinent part:

            The parties agree that prior to October 31,
            2015, the [s]uperintendent shall notify the
            Board of her desire to extend her employment
            on the terms offered or upon other terms upon
            which the parties may agree. The Board agrees
            that by December 31, 2015[,] it shall notify
            the [s]uperintendent in writing whether it
            desires to renew this Agreement for an
            additional period of time, and of the terms
            and conditions proposed for that period.
            Failure to notify the [s]uperintendent by that
            date of an intention to renew will mean that
            an offer of renewal is not being made.

     N.J.S.A.     18A:17-20.1     provides        for   a   superintendent's

automatic    reappointment      unless     "the     [B]oard     notifies       the

superintendent in writing that he will not be reappointed at the

end of the current term."            The statute provides a formula to

determine the deadline by which the Board shall provide such

notice, which was undisputed to be 120 days prior to the expiration

of the contract.

     On December 17, 2015, the Board's attorney advised the Board

that notice of non-renewal had to be given to Lyles by December

31, 2015, or her contract would be deemed automatically renewed

                                       3                                 A-1572-16T3
by operation of N.J.S.A. 18A:17-20.1.               Notwithstanding, the Board

took no action with regard to the renewal or non-renewal of Lyles'

contract prior to March 2, 2016.

       On March 14, 2016, petitioner filed a petition with the

Commissioner challenging Lyles' continued employment.                  After the

Board and Lyles filed motions to dismiss the petition in lieu of

an    answer,    the    matter      was   transferred     to    the   Office       of

Administrative Law.        The Administrative Law Judge (ALJ) issued an

order consolidating the instant matter with a related petition

filed by Lorenzo Richardson, which also challenged the renewal of

the contract.1 Motions for summary decision and opposition thereto

were filed.          The ALJ issued an initial decision granting the

Board's and Lyles' motions for summary decision and recommending

the dismissal of the petition with prejudice.                  Petitioners filed

exceptions      to    which   the    Board    and    Lyles     responded.        The

Commissioner adopted the ALJ's findings and his initial decision

dismissing the petition.

       On appeal, petitioners raise the following arguments:

            POINT [I]

            LYLES' CONTRACT PROVIDED NOTICE OF NON-RENEWAL
            IN ACCORDANCE WITH N.J.S.A. 18A:17-20.1 WHICH
            THUS PROHIBITED HER AUTOMATIC RENEWAL AND THE
            COMMISSIONER'S    DETERMINATION    THAT    HER


1
     Richardson has not filed an appeal.

                                          4                                 A-1572-16T3
          CONTRACT DID NOT SERVE AS WRITTEN NOTICE IS
          ENTITLED TO NO DEFERENCE.

               A. Lyles' contract and other actions
               by the Board provided her with
               notice of her non-renewal, contrary
               to   the   Commissioner's    plainly
               erroneous application of N.J.S.A.
               18A:17-20.1 and basic principles of
               contract law.

               B. The contract between the Board
               and   Lyles   is  valid   and   even
               assuming,    arguendo,   that    its
               provision on renewal is invalid,
               that provision is severable from the
               non-renewal provision because the
               non-renewal provision would not and
               did not bind a successor Board.

               C. Lyles is serving in the position
               of    [s]uperintendent    illegally
               because the Board took no action to
               renew her employment.

          POINT [II]

          LYLES MUST BE REMOVED FROM HER POSITION AS
          SUPERINTENDENT BECAUSE THE BOARD'S FAILURE TO
          LEGALLY APPOINT HER VOIDS HER ABILITY TO SERVE
          AS SUPERINTENDENT.

     The scope of our review in an appeal from a final decision

of an administrative agency is limited.   Russo v. Bd. of Trs., 206

N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)).

The agency's decision should be upheld unless there is a "clear

showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record."     Ibid.   (quoting Herrmann,

192 N.J. at 27-28).    We are not, however, bound by the "agency's

                                 5                           A-1572-16T3
interpretation of a statute or its determination of a strictly

legal issue."   Ibid.     (quoting Mayflower Sec. Co. v. Bureau of

Sec., 64 N.J. 85, 93 (1973)).

     Public   employees   and   their   employers   may   not   agree    to

contractual terms that contravene a specific term or condition of

employment set by a statute.    Rita Spiewak, et al. v. Bd. of Educ.

of Rutherford, et al., 90 N.J. 63, 76 (1982).         N.J.S.A. 18A:17-

20.12 governs the reappointment of superintendents, and provides

(in pertinent part) that:

          At the conclusion of the term of the initial
          contract or of any subsequent contract as
          hereinafter   provided,   the   superintendent
          shall be deemed reappointed for another
          contracted term of the same duration as the
          previous contract unless . . . .       b. the
          [B]oard notifies the superintendent in writing
          that he [or she] will not be reappointed at
          the end of the current term, in which event
          his [or her] employment shall cease at the
          expiration of that term, provided that such
          notification shall be given prior to the
          expiration of the first or any subsequent
          contract by a length of time equal to [thirty]
          days for each year in the term of the current
          contract.




2
    The statute was originally enacted in connection with the
abolition of lifetime tenure for superintendents appointed after
August 24, 1991, as a means of promoting stability of employment.
Gonzalez v. Bd. of Educ. of Elizabeth Sch. Dist., 325 N.J. Super.
244, 253-54 (App. Div. 1999). This section was modified to its
current form in 2008, and previously required one year's notice
of non-renewal. L. 2008, c. 106, § 1.

                                   6                              A-1572-16T3
     Here, the contract of employment terms may neither substitute

nor override the statutorily required written notice.      To the

contrary, the Legislature's express mandate requires Boards of

Education to provide superintendents with an affirmative, timely

declaration of non-renewal in writing.

     Since Lyles' contract spanned four years, the applicable

statutory formula required the Board to provide her with written

notification of non-renewal by March 2, 2016.   As noted above, it

is without dispute the Board did not issue a formal written notice

of non-renewal to Lyles within the statutory timeframe.           It

follows, as the Commissioner decided and we agree, the renewal of

Lyles' contract occurred by operation of law.

     Petitioners' remaining arguments, not specifically addressed

herein, lack sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(1)(E).

     Affirmed.




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