Kaprow v. Board of Educ. of Berkeley Tp.

• Decision Date: 25 March 1992
• Citation: 604 A.2d 640,255 N.J.Super. 76
• Parties: , 73 Ed. Law Rep. 718 Maurice S. KAPROW, Petitioner-Appellant, v. BOARD OF EDUCATION OF BERKELEY TOWNSHIP, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 76

255 N.J.Super. 76

604 A.2d 640, 73 Ed. Law Rep. 718

Maurice S. KAPROW, Petitioner-Appellant, v. BOARD OF EDUCATION OF BERKELEY TOWNSHIP, Respondent-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Feb. 4, 1992.

Decided March 25, 1992.

John J. Ross, Freehold, for petitioner-appellant (Lomurro, Davison, Eastman & Munoz, Freehold, attorneys, John J. Ross and Suzette N. Berrios, Somerville, on the brief).

Milton H. Gelzer, Toms River, for respondent Board of Educ. of Berkeley Tp. (Gelzer, Kelaher, Shea, Novy & Carr, attorneys, Kathleen W. Hofstetter, on the brief).

Arlene Goldfus Lutz, Deputy Atty. Gen., for respondent State Bd. of Educ. (Robert J. Del Tufo, Atty. Gen., attorney, Mary C. Jacobson, Deputy Atty. Gen., of counsel, Arlene Goldfus Lutz, on the brief).

Charles W. Hutchinson, Jr., Toms River, for respondent-intervenor Robert Ciliento (Gilmore & Monahan, attorneys, Charles W. Hutchinson, on the brief).

Stephen B. Hunter, Somerville, for respondent-intervenor Elementary Teaching Staff Members (Klausner, Hunter & Cige, attorneys, Stephen B. Hunter, of counsel and on the brief).

Gregory P. McGuckin, Forked River, for respondent-intervenor Sheila C. McGuckin (Dasti, Murphy & Wellerson, attorneys, Gregory P. McGuckin, on the brief).

Wayne J. Oppito, Trenton, for respondent-intervenors Paul Polito and Arlene Lippincott.

Before Judges MICHELS, O'BRIEN and HAVEY.

O'BRIEN, J.A.D.

Maurice S. Kaprow, a tenured assistant superintendent previously employed by the defendant Board of Education of Berkeley Township (Local Board) appeals from a decision of the State Board of Education (State Board) dismissing as untimely his petition claiming rights to several positions in the school district by virtue of his tenure. We affirm.

On October 5, 1976, Kaprow was hired by the Local Board as an Assistant Superintendent in Charge of Curriculum. At that time, he had an administrative certificate issued pursuant to N.J.A.C. 6:11-2.3 with endorsements as a school administrator, principal and supervisor under N.J.A.C. 6:11-9.3(a)(b) and (c). ¹

On October 5, 1979, Kaprow acquired tenure in the position of Assistant Superintendent under N.J.S.A. 18A:28-5. From February 10 through September 1, 1980, Kaprow served as Acting Superintendent of Schools, Chief Administrator for the district. During the summers of 1977 through 1980, he served as principal of the summer school.

On February 5, 1980, the Local Board changed Kaprow's job title to Assistant Superintendent, and effective June 30, 1981, his employment was terminated as a result of a reduction in force (RIF) pursuant to N.J.S.A. 18A:28-9. At that time, he was the only person tenured as an Assistant Superintendent in the school district. In response to his written request to be kept apprised of positions to which he would be entitled by virtue of his tenure, Kaprow was advised by letter of September 22, 1981 from the Local Board's attorney As you were the only Assistant Superintendent at the time of the abolishment of the position, it is clear that you would have the right to that position in the event of its being re-established. With respect to your being notified of the re-creation of the position of Assistant Superintendent or of a position of same responsibility, but perhaps by a different title, the Board Secretary would write to your last address on record. For the moment, we consider your August 31, 1981 letter setting forth your address as P.O. Box 1734, Maitland, Florida 32751, as your present address.

At no time thereafter was Kaprow advised as to any position for which he might qualify by virtue of his tenure, although he states his address has not changed.

On February 23, 1988, Kaprow inquired of the Local Board's secretary whether any administrative appointments had been made by the Local Board subject to his RIF. On the same day, the Board secretary advised Kaprow that Robert Ciliento had been appointed Assistant Superintendent of Administrative Services on September 9, 1986, which position he held until July 1, 1987, at which time he was appointed Superintendent of Schools, and that on July 1, 1987, the Local Board had appointed Sheila McGuckin to the position of District Supervisor of Elementary Education.

On February 28, 1988, petitioner replied to the Board secretary's letter asserting his right to the positions of Assistant Superintendent and/or District Supervisor of Elementary Education, in which he stated:

The duties which I performed as Assistant Superintendent have been transferred to a new position entitled District Supervisor of Elementary Education.

He sought the Board's compliance with the statutes respecting tenure by reinstating him retroactively with full back pay and benefits. Since he received no response to that letter, Kaprow wrote a second letter on April 25, 1988, again asserting his claim and soliciting resolution of the matter amicably. However, he stated,

I do not feel that any constructive purpose will be served in an adversarial approach. Therefore, I would appreciate hearing from the Board by May 16, 1988.

The Local Board did not respond to this letter by May 16, 1988, the date fixed. However, its attorney wrote a letter to Kaprow dated June 14, 1988, replying to both the February 28 and April 25, 1988 letters. The attorney acknowledged that in September 1986 Ciliento was appointed Assistant Superintendent for Administrative Services, allegedly with "substantially different duties than you had previously performed." When the Superintendent's position became vacant, Ciliento was appointed to that position and no one has been appointed to the temporary position of Assistant Superintendent for Administrative Services. Counsel stated:

I am sure you are aware that the generic term "assistant superintendent" is really meaningless until we look to the duties performed by the officeholder.

The duties that were assigned to you during your term as Assistant Superintendent continue to be distributed among the building principals and other supervisory personnel. There is no equivalent to the former position, hence, there would be no basis for your reinstatement in the District especially retroactively with full pay and benefits.

Kaprow filed his verified petition with the Commissioner of Education (Commissioner) on August 1, 1988, asserting his claim to the position of Assistant Superintendent in Charge of Administrative Services and/or District Supervisor of Elementary Education. Pursuant to N.J.S.A. 52:14B-1 to 15 and N.J.S.A. 52:14F-2, it was referred to the Office of Administrative Law for disposition. Kaprow amended his petition on January 4, 1989, alleging for the first time that the 1981 RIF was improper and not for the purposes articulated by the Local Board and asserting his right to various other positions which the Local Board had filled with nontenured people.

The Local Board answered the petition and moved to compel joinder of necessary parties. Thereafter, the Administrative Law Judge (ALJ) permitted several other parties to intervene. On October 12, 1989, the ALJ granted partial summary judgment, concluding that Kaprow was not entitled to the positions of teacher, principal and/or superintendent, but that there was a factual issue as to his right to the positions of Assistant Superintendent of Administrative Services and District Supervisor of Elementary Education.

The Commissioner reviewed the initial decision of the ALJ and considered the exceptions filed by the parties and rendered his decision on November 29, 1989, agreeing with much of the ALJ's decision. He agreed that petitioner's claim to the position of Superintendent and various elementary school positions was properly dismissed since tenure "attaches to the position in which the requisite service was rendered." His service as Acting Superintendent of Schools for several months was insufficient for him to acquire tenure in that position and:

The Commissioner rejects as unfounded in law and contrary to sound educational policy the notion that tenure attaches to every endorsement on every certificate held by a teaching staff member regardless of the position in which he or she acquired tenure.

However, the Commissioner disagreed with the ALJ that insufficient evidence had been presented to support petitioner's claims regarding the abolition of his original position, concluding instead that his claim was untimely. As to petitioner's claim of tenure as a principal, the Commissioner found that his service would have attached to his tenure as Assistant Superintendent, and furthermore that he had not served a sufficient length of time to acquire tenure under N.J.S.A. 18A:28-5 or 6.

As to petitioner's contention concerning the position of District Supervisor of Elementary Education, the Commissioner said:

Second, the Commissioner disagrees with the ALJ that petitioner might have an entitlement to the position of District Supervisor of Elementary Education based on a possible identity of duties with petitioner's former position. The position of supervisor is, by virtue of a distinct certificate pursuant to N.J.A.C. 6:11-10.4 [now 6:11-9.3] a separately tenurable one in which petitioner has never served, so that petitioner would have no more right to Intervenor McGuckin's position than to the superintendency or an elementary teaching position. This claim should have been dismissed and the Commissioner hereby dismisses it, as a matter of summary judgment.

Finally, the Commissioner agreed with the ALJ that Kaprow acquired tenure as an Assistant Superintendent. However,

[The ALJ] errs in specifying that petitioner acquired tenure only in the position of Assistant Superintendent for Curriculum. Tenure accrues in the positions enumerated in N.J.S.A. 18A:28-5, so that petitioner's tenure is not limited to curriculum positions, but would include any assistant superintendency within the scope of his certificate as set forth...