                        NOT FOR PUBLICATION WITHOUT THE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-1032-15T3

KIMBERLYNN JURKOWSKI,

        Petitioner-Appellant,

v.

BOARD OF EDUCATION OF
THE CITY OF ATLANTIC CITY,
ATLANTIC COUNTY, AND DONNA
HAYE, SUPERINTENDENT,

     Respondents-Respondents.
——————————————————————————————————-

              Argued January 19, 2017 – Decided July 12, 2017

              Before Judges Lihotz and Hoffman.

              On appeal from the Department of Education,
              Docket No. 252-9/14.

              Wesley L.       Fenza     argued     the    cause    for
              appellant.

              James J. Panzini argued the cause for
              respondents Board of Education of the City of
              Atlantic City, Atlantic County and Donna Haye
              (Jackson Lewis P.C., attorneys; Mr. Panzini,
              on the brief; Diane M. Shelley, of counsel and
              on the brief).

              Christopher S. Porrino, Attorney General,
              attorney   for   respondent   Department   of
              Education (Geoffrey N. Stark, Deputy Attorney
              General, on the statement in lieu of brief).
PER CURIAM

      Petitioner Kimberlynn Jurkowski appeals from the September

28,   2015   decision   of    the   Commissioner   of    the   Department    of

Education (Commissioner), adopting the order of the Office of

Administrative Law (OAL) granting summary decision in favor of

respondents, Board of Education of the City of Atlantic City (A.C.

Board), Atlantic County, and Donna Haye, Superintendent.                In her

petition, Jurkowski sought reinstatement of her employment with

the A.C. Board and back pay.         We affirm.

      We begin by summarizing the relevant facts and procedural

history.     According to petitioner, the A.C. Board hired her as an

educational media specialist in October 2005, and she received

tenure in 2008.       In 2005, petitioner's son began kindergarten in

the Hamilton Township School District, and in 2008, her daughter

began kindergarten in the same district.                 Both children had

difficulties in school and petitioner sought additional services

for them from the Hamilton Township Board of Education (Hamilton

Board).

      In January 2010, petitioner reached a settlement with the

Hamilton     Board,   which   agreed   to   provide     her    son   with   home

instruction; however, no teacher was available to provide the home

instruction at that time.           A month later, petitioner suggested

Midge Spencer, who owned a business called Bridges Educational
                          2                            A-1032-15T3
Consulting Services, as a homebound instructor for her son.                    The

Hamilton    Board     approved     Spencer,   and     she     began   providing

instruction to petitioner's son.         In September 2010, the Hamilton

Board also approved Spencer to provide homebound instruction to

petitioner's daughter.           According to petitioner, "Ms. Spencer

would give me invoices to sign for her tutoring services.               I often

signed batches of them at a time because I did not see her every

day."

     At some point in 2011, Spencer stopped providing tutoring

services to petitioner's children; petitioner and her children

then moved to another school district.                 Notwithstanding this

development,    Spencer      continued   to   submit    invoices      signed    by

petitioner to the Hamilton Board, fraudulently representing the

hours she spent with petitioner's children.                 On July 25, 2012,

petitioner was arrested and charged with conspiracy, N.J.S.A.

2C:5-2(a)(1); theft by deception, N.J.S.A. 2C:20-4(a); forgery,

N.J.S.A. 2C:21-1(a)(2); and falsifying or tampering with records,

N.J.S.A. 2C:21-4(a).

     By letter, petitioner promptly informed the A.C. Board's

superintendent of the criminal charges.              On August 7, 2012, the

superintendent      suspended    petitioner   with     pay,   based    upon    the

pending    charges.     In    December   2012,   petitioner      informed      the

superintendent she had been indicted.         Effective January 14, 2013,

                                   3                                    A-1032-15T3
the A.C. Board suspended petitioner without pay based upon her

indictment.

     Petitioner     applied    for   Pretrial   Intervention   (PTI)   in

February   2013,   but   the   prosecutor   rejected   her   application.

Petitioner proceeded to trial in October 2013.           On October 23,

2013, at the end of a two-day trial, the judge dismissed two

conspiracy charges and the jury returned a guilty verdict on the

remaining charges, theft by deception and falsifying records.          In

accordance with Rule 3:21-5, the trial judge did not enter a

judgment of conviction at that time.

     By letter dated October 30, 2013, the superintendent advised

petitioner that based upon the jury verdict, her employment with

the A.C. Board was terminated, effective October 23, 2013, pursuant

to N.J.S.A. 2C:51-5(a)(8).1          On November 5, 2013, petitioner

informed the New Jersey Department of Higher Education of her

intentions to appeal the jury verdict as well as the termination

of her employment.

     On December 6, 2013, petitioner filed a motion to set aside

the jury verdict.    Before the trial court decided the motion, the

prosecutor consented to petitioner's admission into PTI on the

condition she forfeit her current employment.          When asked by the


1
    N.J.S.A. 2C:51-5(a)(8) provides that a person convicted of a
third-degree crime will automatically have his or her professional
license suspended.
                            4                              A-1032-15T3
trial   judge     if   the   terms      were   agreeable    with    petitioner,

petitioner's counsel stated he went over the PTI terms with his

client and acknowledged "[this] matter[] involves a potential

revocation of a teacher's license.             She understands also that the

present position, however, would be one of the conditions, I guess,

in addition to the usual conditions of pre-trial intervention."

The   trial    judge   postponed       sentencing   pending   the    successful

completion of PTI.       The judge then stated, "[S]he will forfeit

current employment only, and I understand that . . . probably is

mooted because I believe she's unemployed at the present time, is

that correct?"      Petitioner's counsel responded,

              She's at least suspended on her present
              employment in any way, and just so the record
              is clear, she agrees that that would remain
              and not be contested . . . because this
              reserves her right[,] the whole purpose to
              attempt to take her position later on
              regarding her teacher's license based on the
              absence of a judgment of conviction here,
              assuming that she does the pre-trial regiment.

      Petitioner completed PTI on June 16, 2014, resulting in the

dismissal of the charges against her.            On June 17, 2014, plaintiff

sent a letter to the superintendent seeking reinstatement of her

employment and back pay, claiming this was in accordance with

their discussion at a July 2012 meeting.                   The superintendent

responded on July 16, 2014, denying petitioner's request for



                                   5                                    A-1032-15T3
reinstatement based upon her acceptance of the PTI condition

requiring she forfeit her employment.

     On September 12, 2014, petitioner filed a petition with the

Commissioner seeking reinstatement of her employment and back pay

from the A.C. Board.           The Commissioner treated the petition as a

contested case, pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A.

52:14F-1 to -13, and transferred the matter to the OAL on October

23, 2014.

     Before       the   OAL,     petitioner   argued     she    was    under     the

impression, when she entered PTI, the condition requiring she

forfeit   her     current      employment   was   moot   as    she    was   already

terminated by the A.C. Board, pursuant to the superintendent's

October     30,    2013     letter.     However,     a    certification         from

petitioner's criminal defense attorney, H. Robert Boney, Jr.,

directly contradicted petitioner's claimed understanding of the

PTI agreement:

            I fully explained in detail to [petitioner]
            that by accepting the conditions to enter PTI,
            she was no longer entitled to reinstatement
            to seek her position with the Atlantic City
            Board of Education. Instead, she could seek
            employment with the Atlantic City Board of
            Education or any other School District but the
            Board of [E]ducation was not required to hire
            her into her prior position or any other
            position.

     The A.C. Board filed a motion for summary decision, which an

Administrative Law Judge (ALJ) granted on June 29, 2015.                    The ALJ
                            6                                               A-1032-15T3
concluded, absent a judgment of conviction, the A.C. Board could

not terminate plaintiff's employment without the proper tenure

charges and due process protections.         The ALJ found the A.C. Board

incorrectly equated a jury verdict as the "legal equivalent of a

judgment of conviction and forfeiture" when the superintendent

sent   her    October   30   letter.   Therefore,    petitioner     remained

employed by the A.C. Board at the time she entered into the PTI

program and agreed to forfeit her current employment.

       Petitioner filed exceptions to the ALJ's decision, and the

Commissioner issued a final decision dated September 28, 2015.

The Commissioner accepted and adopted the ALJ's findings of fact

and determination, upholding the order granting summary decision

in favor of respondents.        This appeal followed.

       On appeal, petitioner argues that (1) she was not employed

with the A.C. Board when she forfeited her current employment, (2)

the A.C. Board's interpretation of the PTI agreement was contrary

to her reasonable expectations, and (3) summary decision in this

matter was premature.

       We    have   carefully   considered    the   record   and    conclude

petitioner's arguments are entirely without merit.                 We affirm

substantially for the reasons set forth in the final decision of

the Commissioner.        R. 2:11-3(e)(1)(D).        We add the following

comments.

                                 7                                   A-1032-15T3
       It is well established that "[i]n light of the executive

function of administrative agencies, judicial capacity to review

administrative actions is severely limited."               In re Musick, 143

N.J. 206, 216 (1996).           We will intervene "only in those rare

circumstances in which an agency action is clearly inconsistent

with its statutory mission or other state policy."                Ibid.

       Our review of a final decision of an administrative agency

is limited to three inquiries: (1) whether the agency's action is

consistent    with    the   applicable      law;     (2)   whether   there       is

substantial credible evidence in the record to support the factual

findings upon which the agency acted; and (3) whether, in applying

the law to the facts, "the agency clearly erred in reaching a

conclusion that could not reasonably have been made on a showing

of the relevant factors."             Ibid. (citing Campbell v. Dep't of

Civil Serv., 39 N.J. 556, 562 (1963)).

       Furthermore, when reviewing an agency's factual finding, "an

appellate court may not 'engage in an independent assessment of

the evidence as if it were the court of first instance.'"                   In re

Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157

N.J.   463,   471    (1999)).      The    findings    of   fact    made    by    an

administrative agency are binding on appeal if they are supported

by substantial, credible evidence.           Id. at 656-57 (citing Close

v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

                                  8                                       A-1032-15T3
     We are satisfied the record contains sufficient credible

evidence to support the Commissioner's determination to adopt the

summary decision of the ALJ as the final agency decision and to

dismiss   petitioner's   appeal.         The   record   fully    supports   the

conclusion petitioner remained employed by the A.C. Board on the

date she entered PTI as the superintendent's October 30, 2013

letter was procedurally defective.

     We also reject petitioner's argument that summary decision

should not have been granted prior to the completion of discovery.

Petitioner simply argues there are "likely" many documents in

support of her position, falling short of demonstrating with any

degree of particularity the need for discovery.

      Notably, the ALJ stated he addressed the motion before him

solely on the legal issues.           Our Supreme Court has held, "Purely

legal questions . . . are questions of law particularly suited for

summary judgment."   Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,

555 (2015).    Therefore, the Commissioner correctly concluded the

ALJ properly decided the summary decision motion based upon the

legal questions presented.

     We are satisfied that the Commission's decision was not

arbitrary,    capricious,    or       unreasonable.     Any     arguments   not

specially addressed lack sufficient merit to warrant discussion

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

                                  9                                    A-1032-15T3
Affirmed.




            10   A-1032-15T3
