                        NOT FOR PUBLICATION WITHOUT THE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-3066-16T2

CHRISTOPHER CONCATO,

        Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE
RIVER DELL REGIONAL HIGH
SCHOOL DISTRICT, BERGEN COUNTY,

     Respondent-Respondent.
_________________________________

              Argued May 15, 2018 – Decided August 14, 2018

              Before Judges Sumners and Natali.

              On appeal from the New Jersey Commissioner of
              Education, Agency Docket No. 146-6/15.

              Alfred F. Maurice argued the cause for
              appellant (Springstead & Maurice, attorneys;
              Alfred F. Maurice and Lauren E. McGovern, on
              the briefs).

              Rodney T. Hara argued the cause for respondent
              Board Of Education of the River Dell Regional
              High   School   District   (Fogarty  &   Hara,
              attorneys; Rodney T. Hara, of counsel and on
              the brief).

              Nicole   T.  Castiglione,   Deputy   Attorney
              General, argued the cause for respondent New
              Jersey Department of Education (Gurbir S.
              Grewal, Attorney General, attorney; Nicole T.
            Castiglione,   on     the    statement       in   lieu   of
            brief).

PER CURIAM

     Christopher Concato filed a petition of appeal with the Acting

Commissioner of Education (Commissioner) claiming that his tenure

and seniority rights under the New Jersey Tenure Act (the Tenure

Act), N.J.S.A. 18A:28-1 to -18, were violated when the Board of

Education of the River Dell Regional High School District (Board)

reduced his full-time Teacher of Industrial Arts position to a

part-time position due to a reduction in force (RIF) for reasons

of economy, and he was not appointed to positions that were held

by tenured teachers with less seniority and non-tenured teachers.

He appeals from the Commissioner's final agency decision adopting

the Administrative Law Judge's (ALJ) initial decision that the

Board did not violate his rights because he did not hold the proper

certification   at   the   time    the      RIF   took    effect.         We    affirm

substantially for the reasons set forth in the Commissioner's

Decision.

     Before addressing the relevant facts concerning Concato's

claims, we briefly discuss our standard of review and the relevant

law that governs his tenure and seniority rights.

     We limit our review "to a determination of whether the

[Commissioner's] decision is 'unreasonable, unsupported by the


                                        2                                      A-3066-16T2
record or violative of the legislative will.'"                     D.L. v. Bd. of

Educ.,    366   N.J.    Super.     269,    273    (App.     Div.   2004)   (quoting

Capodilupo v. Bd. of Educ., 218 N.J. Super. 510, 515 (App. Div.

1987)).     Regarding educational matters, the Supreme Court has

cautioned that "the courts cannot supplant educators; they are not

at   liberty    to     interfere    with       regulatory    and   administrative

judgments of the professionals in the field of public education

unless those judgments are palpably arbitrary or depart from

governing law." Dennery v. Bd. of Educ., 131 N.J. 626, 643 (1993).

Although we are not bound by an administrative agency's legal

opinions, Levine v. State Dep't of Trans., 338 N.J. Super. 28, 32

(App. Div. 2001) (citation omitted), the "'agency's interpretation

of statutes and regulations within its implementing and enforcing

responsibility is ordinarily entitled to our deference,'" Wnuck

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

2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.

Super. 93, 102 (App. Div. 1997)).

      A RIF, "whether of tenured or nontenured teachers, if done

for reasons of economy, is entirely within the authority of the

board."    Jamison v. Bd. of Educ., 198 N.J. Super. 411, 414-15

(App. Div. 1985).       However, where a tenured teacher is riffed, the

Tenure Act protects the teacher by providing "a measure of security

in the ranks they hold after years of service."                Viemeister v. Bd.

                                           3                                A-3066-16T2
of Educ., 5 N.J. Super. 215, 218 (App. Div. 1949).        N.J.S.A.

18A:28-9, provides:

          Nothing in this title or any other law
          relating to tenure of service shall be held
          to limit the right of any board of education
          to reduce the number of teaching staff
          members, employed in the district whenever,
          in the judgment of the board, it is advisable
          to abolish any such positions 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 upon compliance with
          the provisions of this article.

"Seniority is a by-product of tenure and comes into play only if

tenure rights are reduced by way of dismissal or reduction in . .

. benefits."   Carpenito v. Bd. of Educ., 322 N.J. Super. 522, 531

(App. Div. 1999).

     A teacher's tenure and seniority rights are not unlimited.

N.J.S.A. 18A:28-4, provides that "[n]o teaching staff member shall

acquire tenure in any position in the public schools in any school

district or under any board of education, who is not the holder

of an appropriate certificate for . . . [the] position. . . ."    In

a similar vein, N.J.S.A. 18A:28-12 provides:

          If any teaching staff member shall be
          dismissed as a result of . . . [a reduction
          in force], such person shall be and remain
          upon a preferred eligible list in the order
          of seniority for reemployment whenever a
          vacancy occurs in a position for which such
          person shall be qualified and he shall be


                                 4                         A-3066-16T2
          reemployed by the body causing dismissal, if
          and when such vacancy occurs. . . .

          [(Emphasis added).]

Thus, a riffed teacher's right to exercise tenure and seniority

rights is restricted to positions for which the teacher holds the

appropriate certificate and endorsement during employment with the

school district.          Francey v. Bd. of Educ., 286 N.J. Super. 354,

360 (App. Div. 1996).

     Turning to the undisputed facts of Concato's situation, in

June 2015, his industrial arts position, in which he obtained

tenure, was reduced by the Board effective for the 2015-2016 school

year to a twenty-percent part-time position due to reasons of

economy and efficiency.            At the effective date of the Board's

action, Concato possessed a Standard Certificate for "Teacher of

Industrial Arts"; a Standard Certificate with an endorsement of

"Supervisor";       a    provisional   "Certificate     of   Eligibility     for

Principal";     a       Standard   Certificate   with   an   endorsement       of

"Elementary   School        Teacher    in   Grades   K-5";   and   a   Standard

Certificate with an endorsement of "Elementary School with Subject

Matter Specialization: Science in Grades 5-8".1              Employed by the

Board prior to April 23, 2014, he was eligible for a Standard


1
  Concato had never taught science in the District under his
elementary school science grades 5-8 certificate.


                                        5                               A-3066-16T2
Certification   with   Endorsement          of     Teacher   of   Technology       in

accordance with N.J.A.C. 6A:9B-10.6, but he failed to apply to the

State Board of Examiners to obtain the endorsement until several

months after he was riffed and while his petition of appeal was

pending.

      In his petition, Concato claimed that his tenure and seniority

rights were violated because the Board continued to employ tenured

and   non-tenured   teachers     with       less    seniority     in    twenty-two

assignments   for   which   he   was        qualified.2       The      dispute   was

transmitted as a contested matter to the Office of Administrative

Law, which resulted in the ALJ's initial decision after the

parties' submitted cross-motions for summary decision.                     The ALJ

rejected Concato's claims on the basis that he had no bumping

rights to any of the positions he was seeking.                The ALJ stated,

           [a]n    endorsement     titled    'Technology
           Education,'   found   at    N.J.A.C.   6A:9B-
           9.3(a)(8), authorizes the holder of this
           endorsement to teach, in all public schools,
           a variety of technical education courses, . .
           . but does not authorize the holder to teach


2
   He claimed to have seniority in the positions of: Project and
Performances; Research 4 Today; Robotics; Intro to Computer
Science; Engineering your World; TV Production I; TV Production
II; TV Production III; Advanced Media Project; Math Plus; Geometry
Lab; Algebra II Lab; Digital Imaging; Animation; Digital Arts
Major; Intro to Photography; Digital Illustration; Digital
Commercial Design; Advanced Placement Photography; Advanced
Photography; Painting and Printmaking; and World of Music and
Music Technology.

                                        6                                   A-3066-16T2
             'career and technical education programs'
             listed in N.J.A.C. 6A:9B-9.4(a) and (c).

             By means of a special 'grandfather' provision
             found at N.J.A.C. 6A:9B-10.6(b) an endorsement
             in 'Technical Education' is available to
             holders of an Industrial Arts endorsement who
             have been employed by a school district before
             April 23, 2004. These individuals can obtain
             the Technology Education endorsement upon
             his/her application to the Board of Education.
             N.J.A.C. 6A:9B-10.[6](b).

Because Concato failed to possess a Technology Endorsement at the

time of the RIF, the ALJ ruled he was not entitled to use it

thereafter to bump anyone employed in a position requiring that

endorsement.        And since Concato never served in a position in

which   he    had    to    possess     the       Standard    Certificate     with    an

Endorsement     in        Elementary     Education          with   Subject     Matter

Specification in Science grades 5-8, he had no rights to the

positions requiring that endorsement.

    In adopting the ALJ's initial decision, the Commissioner

reasoned:

             The   ALJ   thoroughly   and   comprehensively
             conducted an analysis of each course –
             examining the curriculum, the endorsements the
             Board states are required, as well as
             petitioner's arguments – prior to making a
             determination on each course as to the
             necessary endorsement and whether petitioner
             has the required credentials to teach the
             course.   As the ALJ found that petitioner
             lacked the certifications and endorsements to
             teach these twenty-two courses, there was no
             need for the ALJ to analyze the seniority of

                                             7                                A-3066-16T2
          those teachers who were assigned to teach
          them.

     On appeal, Concato argues the ALJ and Commissioner erred in

finding that he not did not have tenure and seniority rights to

other teaching positions at the time of the RIF based on his

Industrial Arts endorsement and his eligibility to obtain his

Technology Education endorsement.   We disagree.   Based upon our

standard of review, we are convinced that the Commissioner's

Decision – concurring with the ALJ's findings and conclusions and

adopting his summary decision – was correct substantially for the

reasons set forth therein.

     Affirmed.




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