Carpenito v. Board of Educ.

731 A.2d 538, 322 N.J. Super. 522
CourtNew Jersey Superior Court Appellate Division
DecidedJune 29, 1999
StatusPublished
Cited by6 cases

This text of 731 A.2d 538 (Carpenito v. Board of Educ.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carpenito v. Board of Educ., 731 A.2d 538, 322 N.J. Super. 522 (N.J. Ct. App. 1999).

Opinion

731 A.2d 538 (1999)
322 N.J. Super. 522

Edward CARPENITO, Petitioner-Respondent,
v.
BOARD OF EDUCATION OF the BOROUGH OF RUMSON, MONMOUTH COUNTY, Respondent-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued June 16, 1999.
Decided June 29, 1999.

*539 J. Peter Sokol, for respondent-appellant (McOmber & McOmber, P.C., Red Bank, attorneys; Mr. Sokol, of counsel and on the brief).

Richard A. Friedman, for petitioner-respondent (Zazzali, Zazzali, Fagella & Nowak, attorneys; Rachel S. Flanagan, Long Branch, on the brief).

Arlene Goldfus Lutz, Deputy Attorney General, for the State Board of Education (John J. Farmer, Jr., Attorney General, attorney; Ms. Lutz, on the brief).

Cynthia J. Jahn, Director, Legal Department, for amicus curiae New Jersey School Boards Association (Michael F. Kaelber, Trenton, on the brief).

Before Judges KING, WALLACE and NEWMAN.

The opinion of the court was delivered by *540 NEWMAN, J.A.D.

This appeal raises the issue of a tenured teacher's seniority and tenure rights under the Tenure laws, N.J.S.A. 18A:28-1 to -18, when a board of education hires a non-tenured teacher to fill a position previously held by the tenured teacher before the position was abolished. The tenured teacher was not dismissed by the board, but transferred to a full-time teaching position of different subjects within the teacher's certification and without any loss of salary or other tangible benefits of employment. Under this scenario, the tenured teacher had no seniority rights to the former teaching position and the State Board of Education erred in so concluding. We, therefore, reverse, reinstating the non-tenured teacher to the position.

I.

Edward Carpenito (Carpenito) is a tenured teaching staff member employed by appellant, the Rumson Board of Education (Board), since January 22, 1974. Carpenito maintains an instructional certificate with endorsements to hold a position as principal and to teach English, social studies and sciences from kindergarten through twelfth grades. In the 1981-86 school years, Carpenito taught social studies and computers for grades six through eight. In the 1987-1993 school years, he essentially taught seventh-grade social studies. He also taught English in the 1989-90 school year and health in the 1992-93 school year.

The stipulated facts are as follows: Prior to the commencement of the 1993-94 academic year, Carpenito's seventh-grade social studies position was eliminated due to declining enrollment.[1] As a result of the elimination of that position, Carpenito was assigned to teach computer applications to seventh and eighth grade students, in addition to health and basic skills courses, on a full-time basis during the 1993-94 school years. During the 1994-95 and 1995-96 school years, Carpenito was assigned to teach computer applications to grades four through eight, as well as a basic skills course. Carpenito suffered no loss of salary or reduction of tangible employment benefits as a result of the transfer.

In April 1995, the Board posted a number of positions, including a reinstated seventh-grade social studies teaching position, the same designation previously taught by Carpenito. Carpenito applied for this position. In May 1995, a non-tenured teacher from outside the Rumson school district was appointed to the social studies teaching position.

On August 14, 1995, Carpenito filed a petition with the Commissioner of Education (Commissioner), alleging that his tenure and seniority rights had been violated when the Board failed to assign him to the reinstated social studies teaching position. The Board filed an answer, contending that, pursuant to N.J.S.A. 18A:25-1, it has an unfettered right to transfer teaching staff members between and among appropriate assignments subject only to the limitation that such assignments be consistent with the teaching staff member's instructional certificate and subject area endorsements.

The Commissioner determined that, because Carpenito's employment was not terminated, he did not suffer a reduction in salary, and was transferred to a teaching position for which he was properly certified, a reduction in force did not take place, and therefore, N.J.S.A. 18A:28-12, the seniority regulations, were not implicated. Instead, the Commissioner found *541 that the Board had acted pursuant to its managerial prerogative to transfer teaching staff members, and that petitioner had failed to establish that such transfer was otherwise improper.

Carpenito filed a notice of appeal with the State Board of Education (State Board). The State Board's Legal Committee (Committee) issued a decision, initially disagreeing with the Commissioner's determination that petitioner had not been subject to a reduction in force, but agreeing with the ultimate determination to dismiss the petition. The Committee concluded that petitioner was not entitled to the re-created position as against the non-tenured teacher, notwithstanding the fact that petitioner was serving as a teacher of social studies at the time of the transfer, reasoning that, even in the absence of a reduction in force, the Board could have reassigned petitioner without his consent from his social studies assignment to any other teaching assignment within the scope of his instructional certificate.

The Committee later issued a revised report, this time recommending that the Commissioner's decision be reversed. The Committee reasoned that "the Board could not appoint a tenured teacher to that position who had less seniority than [Carpenito] in the applicable category," ... "[n]or could the Board dilute petitioner's tenure rights by affording a non-tenured teacher `seniority' in that position."

The State Board, agreeing with the Committee's revised report, reversed the decision of the Commissioner and directed the Board to reassign Carpenito to the position teaching seventh-grade social studies. In reversing the Commissioner's decision, the State Board determined that a reduction in force occurred when the Board eliminated Carpenito's seventh-grade social studies teaching position prior to the 1993-94 school year. The State Board reasoned that:

This is not a case in which the Board, as it now urges, simply `transferred [petitioner] from one teaching position to another teaching position.' Rather, the Board acted to eliminate one social studies teacher pursuant to the authority granted it by N.J.S.A. 18A:28-9 prior to the commencement of that school year. The fact that petitioner's employment was ultimately continued in another full-time assignment without any reduction in his compensation does not nullify such action, although it may affect the relief to which he is entitled.

[ (citations omitted) ].

The State Board concluded that the Board's failure to place Carpenito on a preferred eligibility list in the order of seniority and reassign him to the reinstated social studies position violated his tenure and seniority rights. Citing to its decision affirming the Commissioner in Fallis v. Plainfield Board of Education, 1985 S.L.D. 281, and this court's decision in Bednar v. Westwood Board of Education, 221 N.J.Super. 239, 534 A.2d 93 (App.Div.1987), certif. denied, 110 N.J. 512, 541 A.2d 1371 (1988), the State Board determined that the Board could not appoint a tenured teacher, who had less seniority than Carpenito, to a position in the applicable category.

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