NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5889-08T25889-08T2

IN THE MATTER OF THE SUSPENSION

OF THE TEACHING CERTIFICATE OF

MELISSA VAN PELT, GRAY CHARTER SCHOOL,

NEWARK, ESSEX COUNTY.

___________________________________

Argued April 27, 2010 - Decided

Before Judges Skillman, Gilroy and Simonelli.

On appeal from the New Jersey Department of Education, Docket No. 291-10/07.

William J. Koy argued the cause for appellant Melissa Van Pelt (Law Firm of William Koy, L.L.P., attorneys; Mr. Koy and William F. Koy, on the brief).

Cherie L. Adams argued the cause for respondent Gray Charter School (Adams Stern Gutierrez & Lattiboudere, LLC, attorneys; Ms. Adams and Erin E. McLaughlin, on the brief).

Cynthia Raymond Rimol, Deputy Attorney General, argued the cause for respondent Commissioner of Education (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Rimol and Joyce Atkins, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

GILROY, J.A.D.

Appellant Melissa Van Pelt appeals from the May 29, 2009 final decision of the Commissioner of Education that suspended her State teaching certificate for one year after appellant resigned from her teaching position at the Gray Charter School (the school) in Newark. The appeal requires us to address the correctness of the Commissioner's determination that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 equally apply to teaching staff members of charter schools as they do to teaching staff members of public schools. We conclude that the Commissioner correctly decided the applicability of the two statutes and affirm.

The school employed appellant as a non-tenured eighth-grade teacher during the 2006-2007 school year. On May 4, 2007, appellant signed an employment contract (the contract) agreeing to teach eighth grade at the school during the 2007-2008 school year. The contract contained the following provision: "Termination Upon Agreement[.] Upon the written agreement of both employee and the School (which agreement may be made by the Executive Director), this agreement shall immediately terminate." Verna Gray, the school's executive director, executed the contract on behalf of the school.

On August 13, 2007, two days prior to staff training at the school and eight days prior to the opening of the school for the 2007-2008 school year, appellant submitted a letter to Gray resigning from her teaching position explaining, "[d]ue to circumstances, I have decided to pursue other career opportunities." To the contrary, appellant resigned to accept a teaching position in the Woodbridge Township school district. In September 2007, the school filed a written request with the Department of Education seeking an order to show cause (OTSC) compelling appellant to explain why the Commissioner should not suspend appellant's teaching certificate "for unprofessional conduct pursuant to N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8." The request was supported by Gray's affidavit of September 20, 2007, in which she stated in relevant part: "[B]ecause of the number of resignations without the required notice, Gray Charter School was not able to open as scheduled on August 21, 2007. In addition, staff training scheduled for August 15, [2007,] had to be rescheduled at additional expense to the school." Lastly, Gray stated that appellant's resignation caused disruption in the students' academic programs.

The school filed applications for, and the Commissioner issued, OTSCs against seven other teachers who had resigned from their teaching positions at the school immediately prior to commencement of the 2007-2008 school year, directing them to show cause why their teaching certificates should not be suspended pursuant to the same two statutes as appellant. Six of the other teachers contested the OTSCs.

After appellant and the six other teachers filed answers, the OTSCs were transferred to the Office of Administrative Law (OAL) as contested cases. Appellant and the six other teachers argued that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 did not apply to charter school teachers. Additionally, appellant and several of the other teachers argued that N.J.S.A. 18A:28-8 did not apply to non-tenured teachers. Because of the similarity of the defenses, the Administrative Law Judge (ALJ) consolidated the cases for the limited purposes of deciding whether the two statutes applied to charter school teachers and whether N.J.S.A. 18A:28-8 applied to non-tenured teachers.

On June 6, 2008, the ALJ entered an order determining that the two statutes apply to charter schools, but that N.J.S.A. 18A:28-8 only applies to tenured teachers. Accordingly, the ALJ dismissed those parts of the OTSCs based on alleged violations of N.J.S.A. 18A:28-8 as to five non-tenured teachers, including appellant. On July 9, 2008, on interlocutory review granted, N.J.A.C. 1:1-14.10, the Commissioner adopted the ALJ's determinations. On August 14, 2008, the ALJ entered an order deconsolidating the seven cases for separate hearings on the merits.

On January 27, 2009, the school filed a motion for summary decision, arguing that the untimeliness of appellant's resignation from her teaching position at the school violated N.J.S.A. 18A:26-10. On April 14, 2009, the ALJ issued his initial decision concluding "that [appellant] ceased to perform her duties before the expiration of the term of her employment," contrary to the statute. Finding that the "timing of [appellant's] resignation was particularly problematic in that it occurred one week before the beginning of the school year[, and that appellant] offered no mitigating circumstances with respect to the length of the suspension," the ALJ determined that appellant's teaching certificate should be suspended for one year. On May 29, 2009, the Commissioner issued a final decision adopting the ALJ's initial decision.

On appeal, appellant argues the Commissioner erred in determining that she wrongfully resigned from her teaching position, contending her contract did not contain a 60-day notice of termination provision preventing her from resigning when she did. Appellant also argues that the Commissioner erred in determining that the circumstances warranted the maximum sanction of a one-year suspension of her teaching certificate. Underpinning the Commissioner's final decision is her July 9, 2008 decision adopting the ALJ's June 6, 2008 decision that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 apply to charter schools, but that the latter statute does not apply to non-tenured teachers. Accordingly, we first address the correctness of the Commissioner's August 2008 decision determining the applicability of the two statutes to charter schools.

I.

During the hearing before the ALJ concerning the applicability of the two statutes under which the school requested the Commissioner to suspend the teachers' teaching certificates, appellant and the other teachers argued that the two statutes only applied to public schools operated by boards of education and to approved private schools for the disabled, not to charter schools. The teachers contended the charter schools are governed by their own statutes and regulations, N.J.S.A. 18A:36A-1 to -18 and N.J.A.C. 6A:11-1.1 to -6.3, and the two statutes sought to be enforced against them were not incorporated therein. The ALJ rejected the teachers' argument and the Commissioner adopted the ALJ's decision. Because the question presented turns on our review of an administrative agency's interpretation of a statute, we review the general principles governing that task.

"Generally, courts afford substantial deference to an agency's interpretation of a statute that the agency is charged with enforcing." Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 420 (2009) (quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007)). However, being a strictly legal issue, an appellate court is not bound by an agency's construction of a statute, and an agency's determination will be reversed where "it is 'plainly unreasonable.'" Ibid. (quoting T.H. v. Div. of Development Disabilities, 189 N.J. 478, 490 (2007)). "An agency's . . . decision is plainly unreasonable and violates express or implied legislative direction if it gives 'a statute any greater effect than is permitted by the statutory language[,] . . . alter[s] the terms of a legislative enactment[,] . . . frustrate[s] the policy embodied in the statute . . . [or] is plainly at odds with the statute.'" Ibid. (quoting T.H., supra, 189 N.J. at 491).

In construing a statute, the role of the court is to determine the intent of the Legislature and, "generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). In deciphering the Legislature's intent, "[w]e apply to the statutory terms the generally accepted meaning of the words used by the Legislature." Patel, supra, 200 N.J. at 418. It is not the function of a court to "presume that the Legislature intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488 (2002).

"A clear and unambiguous statute is not open to construction or interpretation." Watt v. Mayor & Council of Franklin, 21 N.J. 274, 277 (1956). Indeed, the court must "'construe and apply the statute as enacted.'" DiProspero, supra, 183 N.J. at 492 (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). "If the plain language leads to a clear and unambiguous result, then our interpretive process is over." Richardson, supra, 192 N.J. at 195. Only if the statutory language is ambiguous and open to more than one interpretation should the court look to extrinsic evidence. DiProspero, supra, 183 N.J. at 492.

N.J.S.A. 18A:26-10 governs the suspension of a teacher's certificate for wrongfully ceasing to perform his or her duties:

Any teaching staff member employed by a board of education or an approved private school for the disabled, who shall, without the consent of the board or, in the case of an approved private school for the disabled, the board of directors of the school, cease to perform his duties before the expiration of the term of his employment, shall be deemed guilty of unprofessional conduct, and the commissioner may, upon receiving notice thereof, suspend his certificate for a period not exceeding one year.

As used in this section, "approved private school for the disabled" means a private entity approved by the Department of Education to provide special education and related services to students with disabilities who have been placed by the district board of education or charter school responsible for providing their education.

N.J.S.A. 18A:28-8 requires a tenured teacher to give sixty days written notice of his or her intention to resign from a teaching position:

Any teaching staff member, under tenure of service, desiring to relinquish his position shall give the employing board of education at least 60 days written notice of his intention, unless the board shall approve of a release on shorter notice and if he fails to give such notice he shall be deemed guilty of unprofessional conduct and the commissioner may suspend his certificate for not more than one year.

In determining that these statutes apply to teaching staff members of charter schools, the Commissioner reasoned that the Charter School Program Act of 1995 (CSPA), N.J.S.A. 18A:36A-1 to -18, explicitly provides that charter schools are public schools and are required to "operate in accordance with its charter and the provisions of law and regulation which govern other public schools." N.J.S.A. 18A:36A-11(a). The Commissioner rejected the teachers' argument that the provision directing charter schools to operate in accordance with the law governing public schools applies only to charter schools and not to charter school employees, because

this argument ignores that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 impose obligations on any person holding employment as a teaching staff member, since they flow . . . from certification and tenure status, respectively, and together seek to ensure that the education of public school students will not be compromised by the abrupt departure of any teaching staff member . . . . Since charter school employees are nowhere exempted from compliance with these statutes, there is no basis for concluding that the laws do not apply to them. Indeed, given the purpose of [the statutes], the very notion of charter school employees having no obligation in this regard flies in the face of the Legislature's intended scope of protection as well as sound educational policy and common sense.

Addressing the 2005 amendment to N.J.S.A. 18A:26-10 that extended its provisions to teachers at private schools for the disabled, the Commissioner determined that the purpose of the amendment, L. 2005 c. 74,