ASSOCIATION OF SCHOOL ADM'RS v. SCHUNDLER

t of departure prior to the completion of the contract term. Such a payment may not exceed the remaining salary due under the contract, or three months pay for each year remaining on the contract, whichever is the lesser. With respect to superintendents and untenured assistant superintendents, we apply the same analysis to this provision as we did to 3.1(e)(3): superintendents have no vested right in the continuation of any particular contractual terms into future contracts, and thus the regulation is not a taking of any property rights, and untenured assistant superintendents have no vested right to any particular level of benefit or compensation.

The record before us does not make clear the extent to which, if any, assistant superintendents with tenure work under an employment contract. Clearly, a tenured assistant superintendent who does not have an employment contract is not affected by this regulation. There was reference at oral argument to some assistant superintendents working under one-year contracts. The regulation as adopted has no adverse effect in such an instance. We decline to address the regulation in further detail with respect to tenured assistant superintendents in light of this factual vacuum.

C

The next regulation at issue is N.J.A.C. 6A:23A-3.1(e)(5), which prohibits a district from providing supplemental benefits to a superintendent or assistant superintendent that duplicate benefits available through an existing group plan. We apply the same analysis to this regulation with respect to superintendents and untenured assistant superintendents as we did to N.J.A.C. 6A:23A-3.1(e)(3) and (4). They have no vested right in the continuation of such benefits.

We can perceive no analytical justification, however, for drawing a distinction with respect to its impact upon assistant superintendents who have achieved tenure and the impact of N.J.A.C. 6A:23A-3.1(e)(3); both effect a reduction in the overall compensation of a tenured assistant superintendent, contrary to N.J.S.A. 18A:28-5.

D

In our judgment, the next challenged regulation, N.J.A.C. 6A:23A-3.1(e)(6), is not comparable to the preceding regulations. This regulation was adopted following passage of N.J.S.A. 18A:30-3.5, which provides that a school district "shall not pay supplemental compensation . . . for accumulated unused sick leave in an amount in excess of $15,000" The regulation restates this limitation, includes the statute's further direction that payment for accumulated unused sick leave may only be made at the time of retirement and adds the further provision that payment may not be made to the employee's estate or beneficiaries in the event the employee dies prior to retirement.

To the plaintiffs' argument that the regulation constitutes a taking of a property interest, the State responds only that superintendents do not have a property interest in maintaining into the future existing contractual terms. That, however, over-looks the fact that the regulation purports to bar a district from paying a superintendent the value of accumulated unused sick leave that exceeded $15,000 that existed at the time the regulation was promulgated. We agree that the regulation can validly prohibit an agreement that would permit the future accumulation of unused sick leave in an amount in excess of $15,000. The State has not presented any authority, however, to support the view that a superintendent can be deprived of existing accumulated unused sick leave in excess of $15,000 other than the history of some abuses of that benefit recited in Davy, supra, 409 N.J.Super. at 474, 978 A.2d 295. Nor has it provided any authority to support the language which forfeits this sum in the event the individual dies prior to the official date of retirement.

The record before us does not disclose the breakdown between superintendents who have accumulated unused sick leave having a value in excess of $15,000 and those superintendents who have not. As to the latter, the cap upon such a benefit is an entirely permissible effort to limit and restructure spending by a school district. As to the former, however, we agree with plaintiffs that those superintendents cannot be deprived of the benefit they had accrued prior to the enactment of N.J.A.C. 6A:23A-3.1(e)(6).

This latter conclusion applies equally to assistant superintendents without regard to their tenure status. To the extent they have accrued accumulated unused sick leave, they cannot be deprived of that benefit. With respect to those assistant superintendents who have achieved tenure, we consider the limitation on accumulation of unused sick leave in the future to be distinguishable from the attempt to restrict payment for items such as FICA taxes or disability premiums. That regulation would result in a direct reduction in an employee's compensation; this regulation merely limits the ability to accrue a benefit in the future.

Our colleague suggests that our discussion of this issue is unnecessary in light of the passage of N.J.S.A. 18A:30-3.6. In our view, this statute, effective May 21, 2010, only partially moots the issue. We retain this portion of the opinion in light of the possibility that a superintendent or assistant superintendent with accumulated sick leave in excess of $15,000 may have died in the period between the adoption of N.J.A.C. 6A:23A-3.1(e)(6) and the effective date of May 21, 2010. The record before us does not indicate whether that eventuality may have occurred.

E

Certain contractual benefits payable to a superintendent are calculated on a per diem basis. Prior to the adoption of these regulations, such benefits were calculated on the basis of a school year of 240 days. N.J.A.C. 6A:23A-3.1(e)(8) specifies, however, that such calculations must be based upon a 260-day work year. The inevitable result of this change is to lower the amount due.

The regulation, however, is prospective only; it would reach only future contracts or those individuals whose current contract does not specify a method for per diem calculation. It does not divest an administrator of any express contractual entitlement, and thus there is no constitutional violation.

A similar challenge was mounted in Davy, supra, and we rejected it, saying:

Quite obviously, the standard is rationally based on a five-day work week for fifty-two weeks. As applied to twelve-month employees, this standard is neither arbitrary nor unreasonable or of the type that requires specific statutory support. Indeed, it is difficult to posit a different measure of per-diem rate for twelve-month employees.

[ Davy, supra, 409 N.J.Super. at 491, 978 A.2d 295.]

F

Plaintiffs also challenge N.J.A.C. 6A:23A-3.1(e)(9), which sets specific guidelines for contractual provisions for the payment of bonuses. Bonuses must not only be reasonable, they must also be tied to the "achievement of measurable specific performance objectives" As with 3.1(e)(3), (4), (5) and (8), the regulation does not purport to interfere with existing contract terms for bonuses, and it is thus valid.

G

The final regulation at issue in this section of plaintiffs' argument is N.J.A.C. 6A:23A-3.1(e)(11), which reduces the amount that an individual may be reimbursed for mileage from the prior $0,485 per mile to $0.31 per mile. To the extent an individual has a contract with a district which sets the rate of reimbursement, the regulation cannot overturn that contractual agreement. We are aware of no principle which would hold that an employee has a vested right to retain a specified level of mileage reimbursement into the future for miles not yet driven. We can perceive no constitutional infirmity with the regulation.

III

Plaintiffs also assert that certain of these regulations are unconstitutionally vague. We disagree.

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972). "[T]he constitutional ban on vague laws is intended to invalidate regulatory enactments that fail to provide adequate notice of their scope and sufficient guidance for their application." State v. Cameron, 100 N.J. 586, 591, 498 A.2d 1217 (1985) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972)). The ban on vague laws "is essentially a due process concept grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979). The law must be "sufficiently clear and precise so that the ordinary person has notice and an adequate warning of the prohibited conduct." Binkowski v. State, 322 N.J.Super. 359, 380-81, 731 A.2d 64 (App.Div. 1999) (citing State v. Lee, 96 N.J. 156, 165-66, 475 A.2d 31 (1984)). To succeed on a facial challenge of vagueness, such as plaintiffs present here, "`the complainant must demonstrate that the law is impermissibly vague in all applications.'" Binkowski supra, 322 N.J.Super. at 381, 731 A.2d 64 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct 1186, 1193, 71 L.Ed.2d 362, 371 (1982)).

It is fundamental that administrative regulations must . . . be sufficiently definite to inform those subject to them as to what is required. At the same time, regulations must be flexible enough to accommodate the day-to-day changes in the area regulated.

[ N.J. Ass'n of Health Care Facilities v. Finley, 83 N.J. 67, 82, 415 A.2d 1147, appeal dismissed and cert. denied, 449 U.S. 944, 101 S.Ct. 342, 66 L.Ed.2d 208 (1980).]

In this portion of their argument, plaintiffs focus on three regulations, the first of which is N.J.A.C. 6A:23A-3.1(e)(1), which states:

Contracts for each class of administrative position shall be comparable with the salary, benefits and other emoluments contained in the contracts of similarly credentialed and experienced administrators in other districts in the region with similar enrollment, academic achievement levels and challenges, and grade span.

Plaintiffs assert that this regulation cannot pass constitutional muster because the terms "comparable" and "region" are not defined, and thus the regulation is facially vague. We fail to see how the term "comparable" is anything other than a common-sense term, requiring no regulatory definition. See A.M.S. ex rel. A.D.S. v. Bd. of Educ. of Margate, 409 N.J.Super. 149, 976 A.2d 402 (App.Div. 2009).

Nor do we consider the term "region" facially vague. The regulation speaks to the obligation of the executive county superintendent to review administrative contracts. The region can only encompass the county within which the executive county superintendent has authority to act. The regulation recognizes, moreover, that not all areas within a particular county have the same demographics, resources, and challenges. It appropriately authorizes the executive county superintendent to recognize those distinctions when reviewing administrative contracts.

That the term "region" refers to "county" is further buttressed by the initial paragraph of N.J.A.C. 6A;23A-3.1, paragraph (a), which confers upon the executive county superintendent the authority to

review and approve [employment contracts and amended and extended employment contracts], for all superintendents, deputy superintendents, assistant superintendents and school business administrators in school districts, county vocational school districts, county special services school districts and other districts, except charters, within the county under the supervision of the Executive County Superintendent[.] (Emphasis added.)

Plaintiffs also challenge on vagueness grounds N.J.A.C. 6A:23A-3.1(e)(9), which provides in pertinent part that contractual provisions for bonus payments must be "reasonable relative to the established performance objectives. . . ." Plaintiffs complain there is no definition of "reasonable." We have, however, recognized that the term "reasonably" is not unconstitutionally vague as it is "`measured by common understanding [and] fairly and adequately convey[s] [its] meaning to all concerned.'" Sheeran v. Progressive Life Ins. Co., 182 N.J.Super. 237, 248, 440 A.2d 469 (App.Div. 1981) (quoting Laba v. Newark Bd. of Educ., 23 N.J. 364, 384, 129 A.2d 273 (1957)).

The final regulation challenged on grounds of vagueness is N.J.A.C 6A:23A-3.1(e)(4), which provides in pertinent part that a contract cannot contain a provision for "payment as a condition of separation from service that is deemed by the Executive County Superintendent to be . . . excessive in nature." Plaintiffs complain that the regulation does not define the term excessive. Their argument, however, overlooks the balance of the regulation, which we set forth earlier, which contains a specific measure by which to judge a separation payment.

IV

Plaintiffs raise an additional constitutional argument; they assert the regulations violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Here, plaintiffs point to N.J.A.C. 6A:23A-3.1(e)(1), which, as we noted earlier, requires administrative contracts to be comparable to other administrative contracts in the region. Plaintiffs argue that this regulation differentiates between administrators and members of a collective bargaining unit, such as teachers, and thus creates an impermissible classification. We disagree.

The equal protection clause, and its New Jersey counterpart, N.J. Const, art. I, ¶ 1, do not prohibit all classifications. If the classification does not involve a fundamental right or a suspect class, it must only be rationally related to a legitimate state interest. Greenberg v. Kimmelman, 99 N.J. 552, 564, 494 A.2d 294 (1985). In that context, a classification carries with it a strong presumption of validity. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101-02, 124 L.Ed.2d 211, 222 (1993).

High level administrators, such as plaintiffs, are not similarly situated to members of a collective bargaining unit such as teachers. The regulation, moreover, is rationally related to a legitimate state interest, reducing the level at which school spending has increased. Finally, to the extent plaintiffs challenge this regulation on the basis that it limits the ability of school districts in poorer regions to attract administrators from wealthier regions, plaintiffs do not have standing to raise that contention. We perceive no violation of the equal protection clause.

V

Plaintiffs also argue that the regulations are invalid as contravening certain existing New Jersey statutes. The first statute to which they point is the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 to -18.1. We have already addressed earlier in this opinion our analysis of the challenge to a reduction in compensation for tenured employees. We shall not restate it here.

In addition, plaintiffs contend that these regulations conflict with N.J.S.A. 18A:30-3.5, which imposes limits on the payment by a board of education to an officer or employee for accumulated unused sick leave, and N.J.S.A. 18A:30-9, which imposes limits on the payment by a board of education to an officer or employee for accrued vacation leave. Each statute concludes with a definition of officer or employee which specifically excludes "a person who is employed or appointed in the regular or normal course of employment or appointment procedures and consented to or approved in a general or routine manner appropriate for and followed by the political subdivision, or the agency or instrumentality thereof." Plaintiffs argue that superintendents and assistant superintendents are appointed in the regular course of business and approved by vote of the particular board of education and thus do not fit within the scope of the statute, which is restricted to officers and employees. Plaintiffs contend that in light of this statutory exclusion, the Commissioner lacked the authority to include superintendents and assistant superintendents within the regulatory scope.

A similar argument was put forth on behalf of school business administrators in Davy, supra, 409 N.J. Super. 467, 978 A.2d 295, and we rejected it. Judge Grail closely examined the relevant statutory provisions. In addition to noting that the construction offered by the business administrators would result in a statute having no practical effect, id. at 483, 978 A.2d 295, she also pointed out that the statutory provisions governing the appointment of business administrators indicate that such appointments "are not fairly to be deemed to be among those made `in a general or routine manner'" Id. at 489, 978 A.2d 295. Similar language appears in the statute controlling the appointment of a superintendent, N.J.S.A. 18A:17-15, warranting the same conclusion: it is not an appointment made in a general or routine manner.

We acknowledge that the statute governing the appointment of assistant superintendents, N.J.S.A. 18A:17-16, does not contain those same limitations. We are unable to conclude, however, that assistant superintendents are excluded from the statute's scope. A regulation will be set aside if it "`alters the terms of the statute and frustrates the policy embodied in it'" In re Agricultural, Aquacultural Horticultural Water Usage Certification Rules, N.J.A.C. 7:20A-1.1 et seq., 410 N.J.Super. 209, 223, 981 A.2d 99 (App.Div. 2009) (quoting Adopted Amendments to N.J.A.C. 7:7A-2.b, supra, 365 N.J.Super. at 265, 839 A.2d 60). Here, to exclude assistant superintendents would frustrate the legislative purpose while including them furthers that purpose.

Plaintiffs' argument that an earlier observation in the course of proceedings in federal court on the question of whether superintendents and assistant superintendents are officers or employees constitutes the law of the case rests upon a fundamentally erroneous perception of the scope of that principle. In re Estate of Stockdale, 196 N.J. 275, 311, 953 A.2d 454 (2008); Toto v. Princeton Twp., 404 N.J.Super. 604, 617-18, 962 A.2d 1150 (App.Div. 2009). Their arguments on this line lack merit. R. 2:11-3(e)(1)(E).

The final aspect of plaintiffs' argument that portions of these regulations are invalid because they conflict with statutory provisions addresses N.J.A.C. 6A:23A-5.2(a)(2)(iv) and N.J.A.C. 6A:23A-5.2(a)(4), which deal with contact with legal counsel and selection of legal counsel. These particular regulations affect school districts, not these plaintiffs, and they thus lack standing to raise the question.

VI

Plaintiffs' final argument is that the regulations are ultra vires and void because, they assert, the Commissioner lacked the authority to issue them. We disagree.

The Commissioner of Education has primary jurisdiction to hear and determine all controversies under the school laws. Bower v. Bd. of Educ. of City of E. Orange, 149 N.J. 416, 420, 694 A.2d 543 (1997); see N.J.S.A. 18A:6-9. The Legislature specifically authorized the Commissioner, through the office of executive county superintendent, to review contracts under the school laws. N.J.S.A. 18A:7-8(j). The regulations at issue were promulgated in response to that statutory authorization. Finally, we deem plaintiffs' remaining contention, that the regulations in some manner violate what they refer to as New Jersey's tradition of "home rule" and are thus invalid, to lack any merit. R. 2:11-3(e)(1)(E).

In sum, we uphold the authority of the Commissioner in adopting these regulations. We find, however, that N.J.A.C. 6A:23A-3.1(e)(3), (4), (5), (6) improperly serve to deprive certain administrators of vested rights and to reduce the compensation of tenured assistant superintendents.