Appellate Procedure Supreme Court reversed the judgment of the Appellate Division affirming the Commissioner’s 2013 order and remanded. The appeal involved the issue of appellate jurisdiction of an agency decision and the appropriate response by an appellate tribunal when it encounters an interlocutory order from which leave to appeal was neither sought nor granted. The issue arose in the context of a petition filed by a principal who was returned to the classroom due to a reduction-in-force (RIF), which included elimination of all vice-principal positions throughout the district.
The Commissioner’s September 2012 decision, which rejected the ALJ’s Initial Decision and remanded to the OAL for calculation of tenure and seniority rights, was an interlocutory order. Until the calculation was complete and adopted by the Commissioner, all of the issues presented by the petitioner remained unresolved. The order became a final decision from which an appeal could be filed as of right only when the Commissioner adopted the decision of the ALJ following the remand proceedings (2013). The failure by the Elizabeth Board to seek leave to appeal or to identify the September 2012 decision by date in its Notice of Appeal cannot be considered a waiver of its right to review that earlier, interlocutory order. The Appellate Division’s erred when it held that the Commissioner’s first decision was a final order from which the Elizabeth Board could have filed an appeal as of right and, having failed to do so, the panel concluded that the Elizabeth Board waived its right to appeal the Commissioner’s first decision. Supreme Court disagreed and reversed. Silviera-Francisco v. Board of Educ., 224 N.J. 126 (2016), Decided January 27, 2016