Ascolese v. Board of Education of Township of North Bergen, 090319 NJSUP, A-2489-17T4
|Opinion Judge:||PER CURIAM.|
|Party Name:||PATRICIA ASCOLESE, Petitioner-Appellant, v. BOARD OF EDUCATION OF THE TOWNSHIP OF NORTH BERGEN, HUDSON COUNTY, GEORGE SOLTER, Superintendent, and STEVEN SOMICK, Business Administrator, Respondents-Respondents.|
|Attorney:||Casey R. Langel argued the cause for appellant (Genova Burns, LLC, attorneys; Angelo J. Genova and Casey R. Langel, of counsel and on the briefs). Kevin W. Hanly argued the cause for respondents Board of Education of Township of North Bergen, Hudson County, George Solter, and Steven Somick. Gurbi...|
|Judge Panel:||Before Judges Rothstadt and Natali.|
|Case Date:||September 03, 2019|
|Court:||Superior Court of New Jersey|
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 2, 2019
On appeal from the New Jersey Commissioner of Education, Docket No. 19-1/17.
Casey R. Langel argued the cause for appellant (Genova Burns, LLC, attorneys; Angelo J. Genova and Casey R. Langel, of counsel and on the briefs).
Kevin W. Hanly argued the cause for respondents Board of Education of Township of North Bergen, Hudson County, George Solter, and Steven Somick.
Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Laurie L. Fichera, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Rothstadt and Natali.
Petitioner Patricia Ascolese is the widow of the late Vincent Ascolese, who before his retirement in 2012 was an educator, coach and Assistant Superintendent in the Township of North Bergen's school district. She appeals from the December 27, 2017 final agency decision of the State Commissioner of Education (Commissioner) that adopted the September 27, 2017 Initial Decision of an Administrative Law Judge (ALJ), dismissing her petition against respondents the Board of Education of the Township of North Bergen (Board); George Solter, the Board's Superintendent; and Steven Somick, the Board's Business Administrator (BA).
The petition alleged that the Board improperly calculated petitioner's late husband's reimbursement for his uncompensated, unused sick and vacation days. In response to an application filed by the Board, the ALJ recommended that the petition be dismissed as untimely under the "ninety-day rule" set forth in N.J.A.C. 6A:3-1.3(i). The Commissioner adopted that recommendation, setting forth her reasons in a written decision. We affirm because we conclude the Commissioner's determination that the petition was untimely was supported by the evidence in the record and was legally correct.
The facts taken from the record as found by the ALJ and adopted by the Commissioner are summarized as follows. Vincent1 was employed by the Board from September 1973 to January 2012, when he retired. During his service, he accumulated 495 available, unused sick, vacation, and personal days.
Prior to the 2009-2010 school year, Vincent was diagnosed with cancer. Due to his illness, he was unable to perform his duties as Assistant Superintendent, but continued to coach football on a voluntary basis throughout the 2011 season.
Prior to March 25, 2010, Vincent met with the Board's counsel to discuss his available sick and vacation days. On March 25, 2010, the Board's counsel sent Vincent a copy of a memorandum to the district's superintendent confirming that Vincent planned on using seventy-six sick days from March 8, 2010 through the end of the school year on June 30, 2010.
In a later response to that memo, Vincent wrote to the Superintendent that he agreed that he had "accumulated 495 sick, personal and vacation days." Vincent also advised that he in fact used sick days from March 8, 2010 until June 30, 2010-a total of seventy-six days-due to his illness. He also stated that he planned to use vacation days from July 1, 2010 until December 31, 2010.
Vincent did not return to work in 2011, using additional sick days from January 1, 2011 through July 31, 2011. As of that date, he had 184 days left. On August 10, 2011, he sent another memorandum, clarifying that he used vacation days from July 1, 2010 until December 31, 2010. He stated that he used a total of 250 sick and vacation days during the 2010-2011 school year and, as of July 30, 2011, had 184 remaining days. He also stated his intent to retire as of January 6, 2012.2
At some point before August 30, 2012, Vincent met with Somick, the district's BA, to discuss his retirement. At that meeting, Somick advised Vincent that he would be paid $74, 553.92 for his outstanding unused time. According to Somick, Vincent agreed with the number of days outstanding and believed that the value of that time would be calculated in accordance with his contract with the Board.
On August 30, 2012, the Board sent Vincent a net check for $8, 564.62, representing $10, 000 in pre-tax earnings, which cleared on the same day. On July 11, 2013, it sent a second net check for $40, 127.35, representing $64, 563.92 in pre-tax earnings, which cleared on July 22, 2013. Each check was endorsed by Vincent and Patricia. Both checks' "codes" were "T - Termination," but were sent without any additional explanation or accompanying memoranda.
In the spring of 2014, Vincent's son, Michael, met with one of the Board's attorneys to discuss how the amounts for Vincent's unused time were calculated. When they could not agree on the calculation, they discussed using a mediator to calculate the amount and then submitting the issue to the County Superintendent...
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