Alexander Cardillo v. Board of Education of the City of Paterson, Etc.

NOT FOR PUBLICATION WITHOUT THE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-3322-23

ALEXANDER CARDILLO,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF

THE CITY OF PATERSON,

PASSAIC COUNTY,

Respondent-Respondent.

_____________________________

Argued December 3, 2025 – Decided January 15, 2026

Before Judges Gummer, Vanek and Jacobs.

On appeal from the New Jersey Commissioner of

Education, Docket No. 290-10/22.

Juan C. Fernandez argued the cause for appellant

(Fernandez Garcia, LLC, attorneys; Juan C. Fernandez,

of counsel and on the briefs).

Colin Klika, Deputy Attorney General, argued the

cause for respondent Commissioner of Education

(Matthew J. Platkin, Attorney General, attorney;

Vijayasri G. Aryama, Deputy Attorney General, on the

statement in lieu of brief).

Kyle J. Trent argued the cause for respondent Board of

Education of the City of Paterson (Apruzzese,

McDermott, Mastro & Murphy, PC, attorneys; Kyle J.

Trent, of counsel and on the brief).

PER CURIAM

Petitioner Alexander Cardillo appeals the May 15, 2024 final decision of

the New Jersey Commissioner of Education (the Commissioner) granting the

motion of the Board of Education of the City of Paterson (the Board) to dismiss

his petition. We affirm.

I.

We previously decided an appeal arising from Cardillo's Law Division

complaint filed against the Board and other defendants. Cardillo v. State

Operated Sch. Dist. for City of Paterson (Cardillo I), No. A-3397-21 (App. Div.

Feb. 29, 2024), certif. denied, 257 N.J. 599 (2024). We incorporate the facts set

forth in Cardillo I by reference, recounting only salient facts for context of our

decision.

Cardillo was a non-tenured library media specialist employed by the

Board from 2015 to 2019 when his contract was not renewed as the result of a

reduction in force (RIF). Cardillo I, slip op. at 3. Before we reached our

decision in Cardillo I, Cardillo filed a petition with the New Jersey Department

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of Education (DOE), alleging "the District [1] violated and continues to violate

[District Policy 3146 (the Policy)] as it hires new personnel and calls back and/or

replaces library media specialists with less experience." Cardillo claimed the

Board had hired another individual to a similar position without first offering

the position to him.

In the petition, Cardillo relied on the Policy along with portions of the

transcripts of Board employees' depositions taken in the Law Division action.

Cardillo asserted that the deposition testimony provided by the District

Superintendent, Human Resources representative, and the Vice Principal and

Union Representative demonstrates the Policy regarding RIFs applied to both

tenured and non-tenured faculty. On its face, the Policy governs the

administration and implementation of RIFs and does not extend recall rights or

seniority to non-tenured employees.

The Board moved to dismiss Cardillo's petition in lieu of filing an answer.

The DOE transferred the matter to the Office of Administrative Law (OAL) for

a hearing. An Administrative Law Judge (ALJ) entered an initial decision

granting the Board's motion substantially because it found "[Cardillo] as a

former non[-]tenured staff member does not have recall/callback rights, and

1

Cardillo appears to use "the District" synonymously with "the Board."

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3

therefore does not have a cause of action." Petitioner filed exceptions to the

ALJ's decision. On May 15, 2024, the Commissioner adopted the ALJ's initial

decision and determined in a final agency decision that Cardillo failed to state a

claim upon which relief could be granted.

This appeal followed. Cardillo asserts the Commissioner erred by

granting the Board's motion without oral argument and in reliance on Board

employee testimony not referenced in his petition.

II.

A.

"[A]n appellate court reviews agency decisions under an arbitrary and

capricious standard." Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237

N.J. 465, 475 (2019). "An agency's determination on the merits 'will be

sustained unless there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record.'" Saccone v. Bd. of Trs.,

Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). To determine

whether an agency's action meets this standard, appellate courts consider the

following:

(1) whether the agency's action violates express or

implied legislative policies, that is, did the agency

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follow the law; (2) whether the record contains

substantial evidence to support the findings on which

the agency based its action; and (3) whether in applying

the legislative policies 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.

[Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle

Comm'n, 234 N.J. 150, 157 (2018) (quoting In re

Stallworth, 208 N.J. 182, 194 (2011)).]

The Commissioner analogized the Board's motion filed under N.J.A.C.

6A:3-1.5(g) to a motion to dismiss for failure to state a claim under Rule 4:6-

2(e). In doing so, the Commissioner applied decisional law governing the

procedural standards for deciding Rule 4:6-2(e) motions. In considering a Rule

4:6-2(e) motion, courts "must examine 'the legal sufficiency of the facts alleged

on the face of the complaint,' giving the [petitioner] the benefit of 'every

reasonable inference of fact.'" Baskin v. P.C. Richard & Son, LLC, 246 N.J.

157, 171 (2021) (quoting Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,

Hyman & Stahl, PC, 237 N.J. 91, 107 (2019)).

The test for determining the adequacy of a pleading is "whether a cause

of action is 'suggested' by the facts." Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive Co.,

109 N.J. 189, 192 (1988)). If a complaint states no claim affording relief, the

action should be dismissed. Dimitrakopoulos, 237 N.J. at 107.

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When deciding a motion to dismiss, courts are generally constrained to

"the pleadings themselves." Ibid. (quoting Roa v. Roa, 200 N.J. 555, 562

(2010)). "Allegations in the complaint, exhibits attached to the complaint,

matters of public record, and documents that form the basis of a claim" may also

be considered. Jersey City United Against the New Ward Map v. Jersey City

Ward Comm'n, 478 N.J. Super. 132, 145 (App. Div. 2024) (quoting Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005)).

B.

We are unpersuaded the Commissioner's final agency decision dismissing

Cardillo's petition was arbitrary, capricious, or unreasonable because no cause

of action was suggested by the facts as pleaded.

Seniority under the New Jersey Tenure Act (the Tenure Act), N.J.S.A.

18A:28-1 to -18, was "created by Chapter 28 of Title 18A, a chapter which deals

only with the various aspects of tenure." Bednar v. Westwood Bd. of Educ., 221

N.J. Super. 239, 242 (App. Div. 1987); see N.J.S.A. 18A:28-5; N.J.A.C. 6:3-

1.10(b). The Tenure Act "does not purport to create employment rights for non-

tenured employees." Ibid. Non-tenured teachers are not protected by the Tenure

Act because the statute "does not create or authorize the Commissioner to create

competing rights for non-tenured teachers." Ibid.

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"[N]on-tenured teachers whose contracts are not renewed by reason of a

RIF are not entitled to the reemployment rights conferred by Chapter 28." Ibid.

Thus, we have held "[t]he determination not to renew the contract of a non[-

]tenured teacher is a discretionary matter for the local board, and where it results

from a reduction in force there exists no right of reemployment." Bd. of Educ.

of City of Englewood v. Englewood Teachers' Ass'n, 150 N.J. Super. 265, 270

(App. Div. 1977); see also Bd. of Educ. v. Wyckoff Educ. Ass'n, 168 N.J. Super.

497, 499 (App. Div. 1979) (recognizing school boards hold the right to decline

to renew contracts of non-tenured teachers).

It is undisputed tenure had not been conferred on Cardillo at the time the

RIF was implemented and his contract was not renewed. Therefore, as Cardillo

concedes, he had no statutory right to be recalled when the Board rehired for a

similar position. Cardillo instead relies on the deposition testimony referenced

in his petition, which he claims demonstrates a right to be recalled predicated

on the Board employees' prior application of the Policy.

The Commissioner's decision adopting the ALJ's finding was not

arbitrary, capricious, or unreasonable. The ALJ found the Board employees'

testimony did not demonstrate the Board had applied the Policy to extend recall

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rights to non-tenured employees. This conclusion was based on substantial

evidence in the record before the ALJ.

We are also unconvinced the Commissioner's final agency decision should

be vacated because it was based on additional deposition testimony of two Board

employees beyond the deposition excerpts referenced in Cardillo's petition.

Although Cardillo had appended only portions of the deposition transcripts to

his petition, the ALJ was entitled to review the entire transcripts as "documents

that form[ed] the basis of [the] claim." Jersey City United, 478 N.J. Super. at

145.

Even if the deposition testimony had created a factual issue as to the

Board's application of the Policy, the Commissioner's decision to dismiss

Cardillo's petition does not meet the arbitrary or capricious standard. Because

non-tenured employees do not have any recall rights under New Jersey law and

the Board's Policy also does not create them, Bednar, 221 N.J. Super. at 242,

any Board employee action to the contrary would be void as ultra vires. Meyers

v. State Health Benefits Comm'n, 256 N.J. 94, 101 (2023) (holding "a

governmental entity cannot be estopped from refusing to take an action that it

was never authorized to take under the law—even if it had mistakenly agreed to

that action").

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Finally, we are unpersuaded the ALJ's exercise of discretion to deny oral

argument and decide the Board's motion on the papers was arbitrary, capricious

or unreasonable. See N.J.A.C. 1:1-12.2(d) (stating "[a]ll motions in writing

shall be decided on the papers unless oral argument is directed by the judge") .

The process employed was authorized under the administrative code governing

OAL proceedings, N.J.A.C. 1:1 to -21. That a prior ALJ scheduled oral

argument on other motions does not limit the discretion of a subsequently

assigned ALJ to decide the Board's motion on the papers pursuant to N.J.A.C.

1:1-12.2(d).

Affirmed.

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