                                NOT FOR PUBLICATION WITHOUT THE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-1347-17T3

DORIT SNOW,

          Petitioner-Appellant,

v.

BOARD OF EDUCATION OF
THE TOWNSHIP OF BRICK,
OCEAN COUNTY,

     Respondent-Respondent.
_____________________________

                    Argued November 28, 2018 - Decided December 7, 2018

                    Before Judges Reisner and Mawla.

                    On appeal from the Commissioner of Education,
                    Docket No. 98-3/16.

                    Kathleen Naprstek Cerisano argued the cause for
                    appellant (Zazzali, Fagella, Nowak, Kleinbaum &
                    Friedman, PC, attorneys; Kathleen Naprstek Cerisano,
                    of counsel and on the briefs).

                    Sebastian Ferrantell argued the cause for respondent
                    Brick Township Board of Education (Montenegro,
             Thompson, Montenegro & Genz, PC, attorneys;
             Sebastian Ferrantell, of counsel and on the brief).

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

PER CURIAM

      Petitioner Dorit Snow appeals from an October 12, 2017 final decision of

the Commissioner of Education upholding her termination because her

occupational therapist license expired. The Commissioner found that N.J.A.C.

6A:9B-5.1(c) requires removal of any teaching staff member who fails to

maintain a mandated license or certification, regardless of tenure or hardship.

We affirm.

      The following facts are taken from the record.       Petitioner has been

employed as an occupational therapist by respondent during various time

periods beginning in January 1991 through June 1998, then in 2006, and most

recently, on a full-time basis beginning in September 2007. Pursuant to N.J.S.A.

18A:28-5, petitioner possessed an occupational therapist license, issued through

the State of New Jersey by the Occupational Therapy Advisory Council, during

her employment with respondent.




                                                                        A-1347-17T3
                                       2
      Petitioner's difficulties began prior to the 2015-2016 school year. On

September 2, 2015, she left work early because she claimed to be experiencing

dizziness, difficulty breathing, feelings of anxiety, and severe depression

resulting from marital discord with her husband. This was the last day petitioner

reported to work.

      When petitioner failed to return to work on September 3 and 4, 2015,

respondent made several unsuccessful attempts to contact her. Respondent

certified it attempted to contact petitioner by telephone and text, and also

requested a welfare check by the Manalapan Police Department.

      On September 8, 2015, petitioner emailed her supervisor, informing her

she was ill and had left the country to live with her parents in Israel, where she

was receiving medical treatment. Petitioner's supervisor responded the same

day by reply email as follows:

            Thank you for making contact with me. At this time
            you have enough sick days until the end of
            September. . . . On the [d]istrict [w]ebsite there are
            forms that you will have to fill out so that you can take
            a medical leave of absence [because] you are unable to
            return to work before the end of September. Of course
            your leave would be without pay. I wish you well and
            a speedy [recovery].

      On September 30, 2015, petitioner's occupational therapist license lapsed.

The same day, a letter was sent to petitioner's home in New Jersey indicating

                                                                          A-1347-17T3
                                        3
respondent had not received her request for leave, any update on her situation

since the September 8, 2015 communication, or any indication when petitioner

would be returning to work.       Respondent's letter informed petitioner her

employment would be terminated on grounds of abandonment effective October

5, 2015. Petitioner did not see this letter until she returned to New Jersey in

November 2015.

      The next contact petitioner had with respondent was on October 21, 2015,

when she emailed her supervisor stating: "I . . . need to apologize to you for my

delayed responses . . . I am doing well and feeling much better with more energy

and enthusiasm."    On October 28, 2015, petitioner emailed her supervisor

indicating she and her husband were planning to return to the United States the

following week and stated:

            I also wanted to ask you again about my leave
            entitlement. You mentioned I had enough sick leave to
            carry me to end of September. Is there any way you
            could advance me more leave with pay, as it will help
            me out financially, tremendously!

      On January 7, 2016, petitioner left a voicemail informing respondent her

occupational therapist license had lapsed. The following day, respondent sent a

letter to petitioner advising a meeting was scheduled for January 14, 2016, at

Brick Memorial High School, pertaining to her employment. Petitioner did not


                                                                         A-1347-17T3
                                       4
attend the meeting. Respondent voted to terminate petitioner's employment

because her license had lapsed. The following day, respondent sent petitioner

formal notice of her termination by certified mail.

      On January 18, 2016, petitioner emailed her supervisor seeking to appeal

her termination. In this email, petitioner claimed she had "not been medically

cleared to go back to work and submitted a note from [her] doctor that [she

would] be able to return on [February 1, 2016]."          Petitioner renewed her

occupational therapy license on January 20, 2016.

      Following the filing of petitioner's administrative appeal, the parties filed

competing motions for summary judgment. Respondent's motion for summary

judgment was granted by an administrative law judge (ALJ). The Commissioner

adopted the ALJ's decision and dismissed petitioner's appeal.         This appeal

followed.

                                        I.

      "[We] have 'a limited role' in the review of [agency] decisions." In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81

N.J. 571, 579 (1980)). "[A] 'strong presumption of reasonableness attaches to

[an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)

(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). "In order to


                                                                           A-1347-17T3
                                        5
reverse an agency's judgment, [we] must find the agency's decision to be

'arbitrary, capricious, or unreasonable, or . . . not supported by substantial

credible evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting

Henry, 81 N.J. at 580). The burden of proving an agency action is arbitrary,

capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J.

Super. 227, 234 (App. Div. 2011) (citations omitted).

      We "may not substitute [our] own judgment for the agency's, even though

[we] might have reached a different result." Stallworth, 208 N.J. at 194 (quoting

In re Carter, 191 N.J. 474, 483 (2007)). "It is settled that [a]n administrative

agency's interpretation of statutes and regulations within its implementing and

enforcing responsibility is ordinarily entitled to our deference." E.S v. Div. of

Med. Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010)

(quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.

Div. 2001)). "[W]e are not bound by the agency's legal opinions." A.B. v. Div.

of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)

(quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.

2001)). "Statutory and regulatory construction is a purely legal issue subject to

de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.

85, 93 (1973)).


                                                                          A-1347-17T3
                                        6
      On appeal, petitioner claims she was wrongfully terminated because

respondent failed to file tenure charges and hold a tenure hearing. She argues

the Commissioner's decision overlooked that she had a valid excuse for

permitting her certification to lapse, namely, the stress caused by her marital

discord, and that she was not servicing students as a school occupational

therapist during her medical leave. She also argues respondent's true reason for

terminating her was to avoid accommodating her mental health condition.

                                       II.

      "The tenure of educational personnel is authorized by the Tenure Act[.]"

Nelson v. Bd. of Educ. of Twp. of Old Bridge, 148 N.J. 358, 363 (1997) (citing

N.J.S.A. 18A:28–1 to –18). The Act's purpose "is to aid in the establishment of

a competent and efficient school system by affording [public school employees]

'a measure of security in the ranks they hold after years of service.'" Carpenito

v. Bd. of Educ. of Borough of Rumson, Monmouth Cty., 322 N.J. Super. 522,

528-29 (App. Div. 1999) (quoting Viemeister v. Prospect Park, Passaic Cty., Bd.

of Educ., 5 N.J. Super. 215, 218 (App. Div. 1949)).

      "The Tenure laws are an 'important expression of legislative policy' and

should be given 'liberal support, consistent, however, with legitimate demands




                                                                         A-1347-17T3
                                       7
for governmental economy.'" Id. at 529 (quoting Viemeister, 322 N.J. Super. at

218).

             The ultimate administrative decision-maker in
             reviewing law concerning school matters is the State
             Board, whose determination should not be vacated
             absent a showing that the decision is arbitrary or
             capricious, that it lacks support in the record, or that it
             violates legislative policies expressed or fairly to be
             implied in the statutory scheme administered by that
             agency.

             [Ibid. (citing Dore v. Bd. of Educ. of Bedminster Twp.,
             185 N.J. Super. 447, 453 (App. Div. 1982)).]

        The Tenure Act requires:

             The services of all [public school] teaching staff
             members . . . and such other employees as are in
             positions1 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[.]

             [N.J.S.A. 18A:28-5(a) (emphasis added).]




1
  "[T]he word 'position' includes any office, position or employment." N.J.S.A.
18A:28-1.
                                                                           A-1347-17T3
                                         8
However, "[n]o teaching staff member shall acquire tenure in any position in the

public schools in any school district . . . who is not the holder of an appropriate

certificate for such position." N.J.S.A. 18A:28-4.

      N.J.S.A. 18A:6-10 governs the dismissal of employees under tenure in the

public school system. In pertinent part, it states:

            No person shall be dismissed . . . if [she] is or shall be
            under tenure of . . . position . . . except for inefficiency,
            incapacity, unbecoming conduct, or other just cause,
            and then only after a hearing held . . . by the
            commissioner, or a person appointed by him to act in
            his behalf, after a written charge or charges, of the
            cause or causes of complaint, shall have been preferred
            against such person, signed by the person or persons
            making the same, who may or may not be a member or
            members of a board of education, and filed and
            proceeded upon[.]

However, N.J.S.A. 18A:28-14 provides:

            The services of any teaching staff member who is not
            the holder of an appropriate certificate, in full force and
            effect, issued by the state board of examiners under
            rules and regulations prescribed by the state board of
            education may be terminated without charge or trial[.]

      The regulations pertinent to petitioner's employment state:

            To be eligible for the school occupational therapist
            endorsement, a candidate shall have:

            1. A bachelor's degree from a regionally accredited
            college or university;


                                                                            A-1347-17T3
                                         9
            2. Completed a program in occupational therapy from
            an approved school; and

            3. A currently valid license issued by the New Jersey
            Occupational Therapy Advisory Council.

            [N.J.A.C. 6A:9B-14.11(b) (emphasis added).]

      There is no dispute petitioner lacked the certifications required by

N.J.A.C. 6A:9B-14.11(b) for employment with respondent. Petitioner's January

7, 2016 voicemail informed respondent she had let her certifications lapse on

September 30, 2015. Therefore, respondent could terminate petitioner, pursuant

to N.J.S.A. 18A:28-14, without a hearing. As the Commissioner noted, the fact

petitioner was not assisting students during the time period her license had

lapsed was not an exception to N.J.S.A. 18A:28-14 because, pursuant to

N.J.A.C. 6A:9B-5.1(c), "it is mandatory for districts to remove individuals who

do not have required licenses[.]" Therefore, the Commissioner's ruling was not

arbitrary, capricious, unreasonable, or unsupported by substantial credible

evidence in the record.

      Finally, in affirming the Commissioner's determination, we do not reach

petitioner's claim that respondent's actions were motivated by a desire to avoid

accommodating petitioner's medical needs.      The record is devoid of facts

supporting this contention, and it was not raised before the Commissioner.


                                                                        A-1347-17T3
                                      10
Affirmed.




                 A-1347-17T3
            11
