State of New Jersey OFFICE OF ADMINISTRATIVE LAW ORDER ON MOTION FOR EMERGENT RELIEF OAL DKT. NO. EDU 03062-16 AGENCY DKT. NO. 62-2/16 LORENZO RICHARDSON, Petitioner, v. VIDYA GANGADIN, CITY OF JERSEY CITY BOARD OF EDUCATION PRESIDENT, AND RAMON RIVERA, BOARD ATTORNEY, Respondents. ____________________________________ Lorenzo Richardson, pro se Stephen J. Edelstein, Esq., and Kyle J. Trent, Esq., for Vidya Gangadin (Schwartz Simon Edelstein & Celso, attorneys) Christina M. Michelson, Esq., for Ramon Rivera (Scarinci Hollenbeck, attorneys) BEFORE RICHARD McGILL, ALJ: Lorenzo Richardson (hereinafter “petitioner”) filed a petition with the Commissioner of Education seeking various forms of relief in regard to the renewal or New Jersey is an Equal Opportunity Employer OAL DKT. NO. EDU 03062-16 nonrenewal of the Superintendent’s contract which is due to expire on June 30, 2016. In conjunction with the petition, petitioner filed a motion for emergent relief. The matter was transmitted to the Office of Administrative Law on February 29, 2016, for determination as a contested case. City of Jersey City Board of Education (hereinafter “Board”) President Vidya Gangadin (hereinafter “respondent”) filed papers in opposition to the motion for emergent relief, and Ramon Rivera joined therein. An oral argument in regard to petitioner’s motion for emergent relief was conducted on March 8, 2016, at the Office of Administrative Law in Newark, New Jersey. Petitioner filed his motion for emergent relief pursuant to N.J.A.C. 6A:3-1.6(a). As set forth in N.J.A.C. 6A:3-1.6(b), the factors to consider in regard to an application for emergent relief are as follows: 1. The petitioner will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying the petitioner's claim is settled; 3. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and 4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. In his verified petition, petitioner made various factual assertions supported by exhibits. Respondent submitted a statement of facts supported by her certification with attached exhibits. The parties differ as to their conclusions and certain assertions as to motivations, but the statements of fact reflect essentially the same course of events. Respondent’s statement of facts is concise and accurate and is adopted herein. Net of emphasis, citations to certifications, conclusions and comments as to petitioner’s motivations the facts as set forth in respondent’s statement are as follows: -2- OAL DKT. NO. EDU 03062-16 The present dispute surrounds the Board’s continued employment of Dr. Marcia V. Lyles as its Superintendent of Schools. The Board hired Dr. Lyles as its Superintendent and executed a contract with a term from August 2012 through June 30, 2016. Petitioner Lorenzo Richardson is a member of the Board. Respondent Vidya Gangadin has served as Board President at all times relevant to the present action. Board Bylaw 9121, Election and Duties of President, vests authority in the Board President regarding the creation of the Board’s agendas. By Board practice, other Board members may contact the Board President prior to the creation and publication of an agenda to request that the President include an item. Additionally, under Board Bylaw 9323/9324, Agenda Preparation/Advance Delivery of Meeting Material, any Board member is free to make a motion during a regular meeting to add an item to the agenda of that meeting. Such a motion must be seconded by another Board member for it to be considered by the entire Board, and a majority of the Board voting and present must then agree to consider the item for it to be added to the agenda. Regular Board meetings are typically scheduled for the third Thursday of each month. On the third Tuesday of the month, the Board holds a caucus meeting during which time the Board members discuss what agenda items should be included on the regular meeting’s agenda. In addition to regular Board meetings, Board Bylaw 9321, Time, Place, Notification of Meetings, provides for special meetings “at the request of the president or upon a petition signed by a majority of the board members[.]” At the Board’s caucus meeting on December 15, 2015 to discuss the Agenda items for the December 17, 2015 Board meeting, petitioner and one other Board member, Gerald Lyons, requested that an item be added to the Agenda for the December 17, 2015 Board meeting which would nonrenew Superintendent Lyles’ contract. As per their request, the Agenda for the December 17, 2015 Board meeting included a Resolution addressing the nonrenewal of Superintendent Lyles’ contract. -3- OAL DKT. NO. EDU 03062-16 Neither Petitioner nor Mr. Lyons attended the regular Board meeting on December 17, 2015. Nor did either individual participate in that meeting via telephone conference, although that would be permitted by Board practice and policy. In their absence - because three (3) of the nine (9) board members have conflicts which prevent them from voting on resolutions involving the Superintendent’s contract – only four (4) Board members could participate in any vote regarding Dr. Lyles employment. Mr. Richardson and Mr. Lyons would have been able to vote if they had attended. Given the absence of both petitioner and Mr. Lyons from the Board’s December 17, 2015 meeting, Board President Gangadin exercised her authority as Board President and removed the item they requested addressing the nonrenewal of Superintendent Lyles’ contract from the agenda for that meeting. Although fully empowered to do so, none of the Board members attending the Board’s December 17, 2015 regular meeting made any motion to add an item to the agenda of that meeting to address the renewal or nonrenewal of Dr. Lyles’ contract. The Board did not address Dr. Lyles’ contract via any resolution on December 17, 2015. At the January 21, 2016 regular meeting, Mr. Lyons moved to place an item on the agenda which would have extended the Superintendent’s contract. Mr. Richardson seconded that motion, but the motion failed. Following the Board’s January 21, 2016 regular meeting, petitioner contacted Board President Gangadin via email on or about January 26, 2016. He requested the inclusion of an item on the agenda for the Board’s February 18, 2016 regular meeting which would renew the Superintendent’s contract, the opposite of his Resolution from December. Shortly after Board President Gangadin received petitioner’s email request, another Board member, Ellen Simon, who was apparently upset at perceived political “gamesmanship” being played by petitioner and Mr. Lyons regarding Dr. Lyles’ contract, requested that the original resolution calling for the nonrenewal of Dr. Lyles’ contract proposed by petitioner for inclusion on the December agenda should be included on the February agenda. -4- OAL DKT. NO. EDU 03062-16 After considering the agenda item requests by petitioner and Ms. Simon, Board President Gangadin declined to include either Resolution on the Board’s February 18, 2016 regular meeting agenda with the understanding that at the meeting a Resolution to put either item on the agenda could be made. A copy of the agenda for the Board’s February 18, 2016 regular meeting was made available to Board members and the public in advance of that meeting. During the Board’s February 18, 2016 regular meeting, petitioner made a motion to add an item to the agenda to renew Dr. Lyles’ contract. Board President Gangadin permitted petitioner an extended period of time to discuss his rationale in making said motion. No Board member seconded petitioner’s motion, and the motion failed. The Board did not address Dr. Lyles’ contract via any resolution on February 18, 2016. The Board never provided Dr. Lyles with written notice that she would not be reappointed at the end of her current contractual term. Consideration of petitioner’s motion for emergent relief will begin with the second factor which is whether the legal right underlying petitioner’s claim is settled. N.J.A.C. 6A:3-1.6(b). Petitioner relies on N.J.S.A. 18A:17-15, which provides that a board of education may by contract appoint a superintendent of schools “by the recorded roll call vote of the full membership of the board.” Both petitioner and respondent cite N.J.S.A. 18A:17-20.1, which provides as follows: At the conclusion of the term of the initial contract or of any subsequent contract as hereinafter provided, the superintendent shall be deemed reappointed for another contracted term of the same duration as the previous contract unless either: a. the board by contract reappoints him for a different term which term shall be not less than three nor more than five years, in which event reappointments thereafter shall be deemed for the new term unless a different term is again specified; or b. the board notifies the superintendent in writing that he will not be reappointed at the end of the current term, in which event his employment shall cease at the expiration of that term, provided that such notification shall be given prior to the expiration of the first or any subsequent contract by a length of time equal to 30 days for each year in the term of the current contract. -5- OAL DKT. NO. EDU 03062-16 A general principle of statutory interpretation is that a specific provision controls over a general one. This case involves a reappointment of a school superintendent. Because N.J.S.A. 18A:17-20.1 specifically relates to reappointments, it is the applicable statute in this case. In accordance with N.J.S.A. 18A:17-20.1, the superintendent is deemed reappointed, unless the board by contract appoints him to a different term or the board notifies the superintendent in writing that he will not be reappointed at the end of the current term. This statute further provides that such notification shall be given prior to the expiration of the contract by a length of time equal to thirty days for each year in the term of the contract. In this case, the term of the contract was effectively four years. Therefore, the notification would be required by March 1 or 2, 2016, which would be 120 (30 x 4) days prior to the expiration of the contract. Petitioner maintains that Board members must take responsibility for evaluating and appointing the Superintendent and that this cannot be done by default. Petitioner reasons that the Board members are required to vote on the reappointment. As relief, petitioner seeks an order of the Commissioner allowing the six non-conflicted Board members to convene a special meeting and vote on the Superintendent’s contract on or before the March 1, 2016, deadline. Alternatively, petitioner would have the Commissioner extend the statutory deadline to March 18, 2016, and mandate that the resolution proposed by petitioner and Mr. Lyons be placed on the March 17, 2016 Board meeting agenda to allow the six non-conflicted Board members to vote on the Superintendent’s contract. Petitioner’s arguments are inconsistent with N.J.S.A. 18A:17-20.1. This statue plainly contemplates that a superintendent may be deemed reappointed without a vote. In fact, action by the Board is necessary to prevent a Superintendent from being deemed to be reappointed to another contract term. It follows that petitioner has not demonstrated that the legal right underlying his claim is settled. Indeed, petitioner’s position is directly contrary to the provisions of N.J.S.A. 18A:17-20.1. -6- OAL DKT. NO. EDU 03062-16 Petitioner offers an alternative argument based upon N.J.S.A. 18A:17-20.1. Petitioner maintains that language in the Superintendent’s current contract provides written notice in accordance with N.J.S.A. 18A:17-20.1. The current contract contains a provision which states as follows: The Board agrees that by December 31, 2015 it shall notify the Superintendent in writing whether it desires to renew this Agreement for an additional period of time, and of the terms and conditions proposed for that period. Failure to notify the Superintendent by that date of an intention to renew will mean that an offer of renewal is not being made. Petitioner maintains that the Board did not so notify the Superintendent and that therefore the Superintendent had written notice that an offer of renewal was not being made. This argument is also inconsistent with N.J.S.A. 18A:17-20.1, which requires an affirmative act by the Board in the form of written notification. The Board cannot modify the requirements of the statute with terms in a contract. It follows that petitioner’s argument is without merit and that there is no legal right underlying this argument. Another consideration is whether petitioner will suffer irreparable harm if the requested relief is not granted. N.J.A.C. 6A:3-1.6(b)1. Harm is considered to be irreparable if it cannot be remedied by money damages. Moreover, the harm must be substantial and immediate; risk of harm alone is not sufficient. Here, petitioner’s views with respect to the renewal of the superintendent’s contract may not prevail, but there is no real harm to him. The next factor is whether petitioner has a likelihood of prevailing on the merits of the underlying claim. N.J.A.C. 6A:3-1.6(b)3. Here, petitioner lacks a legal theory to support his petition, as his contentions are contrary to N.J.S.A. 18A:17-20.1. It follows that petitioner has not demonstrated a likelihood of prevailing on the merits. The final requirement is that when the equities and interests of the parties are balanced, petitioner will suffer greater harm than respondent will suffer if the requested relief is not granted. N.J.A.C. 6A:3-1.6(b)4. Here, petitioner has not established that he will suffer any real harm in this case. Further, it must be noted that the individual who -7- OAL DKT. NO. EDU 03062-16 could suffer real harm is the Superintendent who was not named as a party in this proceeding. It follows that petitioner has not established that he will suffer greater harm, if the requested relief is not granted. In order to prevail on a motion for emergent relief, the movant must satisfy all four requirements under N.J.A.C. 6A:3-1.6(b). Here, petitioner does not satisfy any of the four requirements. Under the circumstances, I CONCLUDE that petitioner does not satisfy the applicable standard for emergent relief. Accordingly, it is ORDERED that petitioner’s request for emergent relief is denied. This order on application for emergency relief may be adopted, modified or rejected by the Commissioner of Education, who by law is authorized to make a final decision in this matter. The final decision shall be issued without undue delay, but no later than forty-five (45) days following the entry of this order. If the Commissioner of Education does not adopt, modify or reject this order within forty-five days, this recommended order shall become a final decision on the issue of emergent relief in accordance with N.J.S.A. 52:14B-10. March 9, 2016 DATE RICHARD McGILL, ALJ ljb -8- State of New Jersey OFFICE OF ADMINISTRATIVE LAW 33 Washington Street Newark, NJ 07102 (973) 648-6066 Fax No. (973) 648-2358 Richard McGill Administrative Law Judge March 9, 2016 David C. Hespe, Commissioner Department of Education 100 Riverview Plaza, 4th Floor P.O. Box 500 Trenton, NJ 08625-0500 Re: Lorenzo Richardson v. Vidya Gangadin and Ramon Rivera, Hudson County OAL Dkt. No. EDU 03062-16 Agency Dkt. No. 62-2/16 Dear Commissioner Hespe: Enclosed please find a copy of an order entered regarding an application for emergent relief in the above-mentioned matter. Pursuant to N.J.A.C. 1:1-12.6(j), this order will become effective in forty-five (45) days from the date of its entry unless, for good cause shown under N.J.A.C. 1:1-18.8(e), the time period is extended by the joint action of the Director of the Office of Administrative Law and the agency heard. Very truly yours, Richard McGill Administrative Law Judge RM/ljb Enclosure C: Lorenzo Richardson Stephen J. Edelstein, Esq. Christina M. Michelson, Esq. Robert J. Giordano, ALJ/MOD New Jersey is an Equal Opportunity Employer