NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5649-11T2
JUDITH A. DINAPOLI, APPROVED FOR PUBLICATION Petitioner-Respondent, January 22, 2014 v. APPELLATE DIVISION BOARD OF EDUCATION OF THE TOWNSHIP OF VERONA, ESSEX COUNTY,
Respondent-Appellant. _____________________________________
Argued March 12, 2013 – Decided January 22, 2014
Before Judges Messano, Lihotz and Mantineo.
On appeal from the Commissioner of Education, Agency Docket No. 140-6/11.
Michael J. Gross argued the cause for appellant (Kenney, Gross, Kovats & Parton, attorneys; Mr. Gross, of counsel; Daniel R. Roberts, on the briefs).
Paul E. Griggs argued the cause for respondent Judith A. DiNapoli (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Mr. Griggs, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Daniela Ivancikova, Deputy Attorney General, on the statement in lieu of brief). The opinion of the court was delivered by
MANTINEO, J.S.C. (temporarily assigned)
Respondent Board of Education of the Township of Verona
(Board) appeals the final decision of the Commissioner of
Education (Commissioner) finding petitioner Judith DiNapoli
(DiNapoli) retained her secretarial tenure rights and could
"bump" a non-tenured employee when her then position of
assistant school business administrator was eliminated.
Following our review, we conclude the Commissioner’s decision
was unauthorized by the applicable statutory scheme.
Accordingly we reverse.
In March of 1977, DiNapoli commenced employment with the
Board as a bus driver/coordinator, an hourly, non-tenurable
position. DiNapoli was then appointed to the position of
accounts payable/transportation secretary on August 1, 2003,
which she held until October 24, 2006, and acquired tenure as a
secretary.
Thereafter, DiNapoli agreed to be reassigned as the
assistant to the school business administrator, which was a non-
certified position. She held that position from October 25,
2006 until June 30, 2009.
DiNapoli again consented to reassignment on July 1, 2009,
accepting the position of assistant school business
2 A-5649-11T2 administrator. This was a twelve-month position requiring
administrative certificate endorsement by the school’s business
administrator. During a reduction in force, the Board abolished
that position. On March 1, 2011, DiNapoli was given sixty days
pay and released from employment.
Thereafter, DiNapoli filed a petition of appeal with the
Commissioner alleging the Board violated her tenure rights by
not employing her in a secretarial or clerical position held by
a non-tenured employee after her position as assistant business
administrator was eliminated. The Board filed an answer to the
petition and the matter was transmitted to the Office of
Administrative Law (OAL) for a hearing as a contested case
pursuant to N.J.S.A. 52:14F-1 to -13. The parties agreed to
resolve the dispute by submitting cross-motions for summary
disposition with a joint stipulation of facts and legal issues
and a joint exhibit list.1 The parties stipulated the issue for
determination as follows: “[Was DiNapoli] entitled to bumping
rights to a secretarial or clerical position following the
1 Motions for summary decision before administrative law judges are governed by N.J.A.C. 1:1-13.1 et seq. N.J.A.C. 1:1-13.2(a) provides that a decision on a motion for summary decision "shall be rendered if the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law."
3 A-5649-11T2 elimination of the Assistant Business Administrator position on
March 1, 2011?"
The Administrative Law Judge (ALJ) held DiNapoli retained
her secretarial tenure rights when assigned to the position of
assistant school business administrator and should have been
returned to a clerical or secretarial position held by a non-
tenured employee when the Board eliminated her current position.
The Commissioner affirmed the decision. This appeal followed.
I.
Our scope of review of an administrative agency's final
determination is limited. In re Carter, 191 N.J. 474, 482
(2007). We "may reverse only if we conclude that the decision
of the administrative agency is arbitrary, capricious or
unreasonable, or is not supported by substantial credible
evidence in the record as a whole." J.D. v. N.J. Div. of
Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.
2000) (citations omitted). "The burden of demonstrating that
the agency's action was arbitrary, capricious or unreasonable
rests upon the [party] challenging the administrative action."
In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif.
denied, 188 N.J. 219 (2006); see also Barone v. Dep't of Human
Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super.
276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (holding
4 A-5649-11T2 "[w]here action of an administration agency is challenged, a
presumption of reasonableness attaches to the action of an
administrative agency and the party who challenges the validity
of that action has the burden of showing that it was arbitrary,
unreasonable or capricious") (internal quotation marks omitted).
This standard governs appellate review of administrative
decisions involving "disputes arising under school laws."
Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591
(1993) (citing Dennery v. Bd. of Educ., 131 N.J. 626, 641
(1993); Dore v. Bd. of Educ., 185 N.J. Super. 447, 452 (App.
Div. 1982)).
Our limited review of administrative agency decisions is
informed by three inquiries:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency 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.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]
However, the deference does not require abdication of the
judiciary's role in assuring the agency's action properly
5 A-5649-11T2 comports with its legislative mandate. We review the agency's
legal conclusions de novo. City of Atl. City v. Trupos, 201
N.J. 447, 463 (2010). While we respect an agency's expertise
and will "defer to the specialized or technical expertise of the
agency charged with administration of a regulatory system," In
re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008),
we are "in no way bound by the agency's interpretation of a
statute or its determination of a strictly legal issue."
Mayflower Sec. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973).
"[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the
statute." Matturri v. Bd. of Trs. of the Jud. Ret. Sys., 173
N.J. 368, 381-82 (2002) (internal citations and quotation marks
omitted).
II.
On appeal, the Board suggests that whether secretaries
retain tenure status after transferring to a certificated
position is a question of first impression. The Board submits
that a secretary forfeits her tenure upon promotion to a non-
secretarial certificated position, as there is no legislative
authority which permits the retention of secretarial tenure
rights.
6 A-5649-11T2 DiNapoli disputes the Board's characterization of the
issue, arguing the right of a tenured employee to bump a non-
tenured one is well-settled. DiNapoli urges the court to find
that the tenure rights she acquired through her employment as a
secretary were not relinquished when she left her position to
become the assistant school business administrator.
Tenure rights are statutory and not contractual.
Zimmerman, supra, 38 N.J. at 72. N.J.S.A. 18A:17-2 defines the
conditions under which secretarial employees of a board of
education are entitled to the security of tenure. The objective
of such tenure statutes is to protect competent and qualified
employees, after a probationary period from being removed for
"unfounded, flimsy, or political reasons." Zimmerman v. Newark
Bd. of Educ., 38 N.J. 65, 71 (1962), certif. denied, 371 U.S.
956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). To acquire the
security of tenure, the precise conditions enunciated in the
applicable statute must be met. See Picogna v. Bd. of Educ. of
Twp. of Cherry Hill, 143 N.J. 391, 400 (1996) ("[t]enure arises
only upon compliance with the precise conditions articulated in
the statute"); Kletzkin v. Bd. of Educ. of the Borough of
Spotswood, 136 N.J. 275, 278 (1994) ("[t]enure is a statutory
right that depends on a teacher’s satisfying specific statutory
conditions"); Zimmerman, supra, 38 N.J. at 72 ("[i]n order to
7 A-5649-11T2 acquire the status of a permanent teacher under a tenure law . .
. a teacher must comply with the precise conditions articulated
in the statute"). Tenure "arises only by the passage of time
fixed by the statute . . . ." Canfield v. Bd. of Educ. of Pine
Hill Borough, 97 N.J. Super. 483, 490 (App. Div. 1967) (Gaulkin,
J., dissenting), rev'd on dissent 51 N.J. 400 (1968). The
employee shoulders the burden of establishing entitlement to
tenure protection, which ordinarily must be clearly proven. Id.
at 493.
In interpreting statutes, a court's goal is to effectuate
the legislative intent. TAC Assocs. v. N.J. Dept. of Envtl.
Prot., 202 N.J. 533, 540 (2010). In order to accomplish this
goal, the court first looks to the plain meaning of the statute.
Praxair Tech, Inc. v. Dir., Div. of Taxation, 201 N.J. 126, 136
(2009). It is fundamental for the court to apply the law as
written, according to its plain language. Pizzullo v. N.J.
Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). Where the language is
clear, we may not look beyond the statutory terms to determine
the legislative intent. State v. Churchdale Leasing, Inc., 115
N.J. 83, 101 (1989). Courts are not permitted to "rewrite a
plainly-written enactment of the Legislature [or] presume that
the Legislature intended something other than that expressed by
way of the plain language." O'Connell v. State, 171 N.J. 484,
8 A-5649-11T2 488 (2002). Courts should be extremely reluctant to add terms
to a statute, lest they usurp the Legislature's authority. See
Craster v. Newark Bd. of Comm'rs, 9 N.J. 225, 230 (1952)
(holding that courts "should not write in an additional
qualification which the Legislature pointedly omitted in
drafting its own enactment"). Finally, "construing or
interpreting a clear and unambiguous statute is simply not
permissible." MacMillan v. Dir., Div. of Taxation, 180 N.J.
Super. 175, 177 (App. Div. 1981), (internal quotation marks
omitted), aff'd, 89 N.J. 216 (1982).
The Board argues N.J.S.A. 18A:17-2 authorizes tenure to be
maintained only while the employee serves in a secretarial
position, office or employment. That statute provides:
a. Any secretary, assistant secretary, school business administrator or business manager of a board of education of any school district who has or shall have devoted his full time to the duties of his office and has or shall have served therein for three consecutive calendar years, and
b. Any person holding any secretarial or clerical position or employment under a board of education of any school district or under any office thereof, after
1. The expiration of a period of employment of three consecutive calendar years in the district or such shorter period as may be fixed by the board or office employing him, or
9 A-5649-11T2 2. Employment for three consecutive academic years, together with employment at the beginning of the next succeeding academic year, an academic year being the period between the time when school opens in the district after the general summer vacation and the beginning of the next succeeding summer vacation, and
c. Any person, who has acquired, or shall hereafter acquire, tenure in any secretarial or clerical office, position or employment under the board of education of a school district and has been appointed district clerk or secretary, or shall hereafter be appointed secretary of said district, as such secretary, shall hold his office, position or employment under tenure during good behavior and efficiency and shall not be dismissed or suspended or reduced in compensation, except for neglect, misbehavior or other offense and only in the manner prescribed by subarticle B of article 2 of chapter 6 of this title.
Ibid.
Initially, we find the plain language of the statute does
not support the Commissioner's determination that DiNapoli
retained her tenure rights upon transfer to a certificated
position. Nor does N.J.S.A. 18A:17-2 reflect a legislative
design to provide secretaries, who have relinquished their
positions for non-secretarial certificated employment, the right
to retain tenure. Rather, the language of N.J.S.A. 18A:17-2
limits the retention of tenure to the time during which the
employee holds her secretarial office, position or employment.
The Commissioner's conclusion that secretarial staff maintain
10 A-5649-11T2 tenure upon transfer to non-secretarial positions is unfounded
under the express terms of the statute. Once DiNapoli
voluntarily transferred to the assistant school business
administrator position, she no longer held her "office, position
or employment" as a secretary and, absent expressed statutory
authority, she relinquished her right to "bump back" into a
secretarial position.
"The Legislature is presumed to be familiar with its own
enactments, with judicial declarations relating to them, and to
have passed or preserved cognate laws with the intention that
they be construed to serve a useful and consistent purpose."
St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005)
(citations omitted). Indisputably, if the Legislature had
intended for a secretary, who acquired tenure pursuant to
N.J.S.A. 18A:17-2 (b) or (c), to retain tenure upon
relinquishment of his or her secretarial position, it would have
provided for such protection in the statute, similar to the
provisions found in other tenure retention provisions.
For example, N.J.S.A. 18A:28-5 provides, in relevant part:
[t]he services of all teaching staff members employed in the positions of teacher, principal . . . shall be under tenure during good behavior . . . and shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming. . . .
11 A-5649-11T2 Also in this regard, the Legislature enacted N.J.S.A. 18A:28-6
and 18A:17-20.4, which afford tenure retention rights to
teachers and superintendents notwithstanding promotion or
transfer. N.J.S.A. 18A:28-6 specifies a tenured teaching staff
member, after transfer or promotion, whose new position is
terminated before tenure in that position is achieved
"shall be returned to his [or her] former position at the salary
which he [or she] would have received had the transfer or
promotion not occurred[.]" Also, N.J.S.A. 18A:17-20.4 provides
similar protection for those promoted to superintendents, who
"shall retain all tenure rights accrued in any position which
was previously held by the superintendent in the district."
These provisions represent the Legislature's intent to
preserve tenure for certain employees who transferred or were
promoted to a different position prior to achieving tenure in
that position. N.J.S.A. 18A:17-2 does not contain a similar
tenure retention provision regarding tenured secretarial
employment, thus reflecting the Legislature's decision not to
afford such rights.2 "When the Legislature has carefully
2 This is not the only instance where secretaries are afforded less rights than other school employees. For instance, the seniority preferences and recall lists available to teachers are not available to secretaries. See, e.g., Ferronto v. Bd. of Educ. of the Twp. of Weymouth, et al., EDU 8774-02, final (continued)
12 A-5649-11T2 employed a term in one place and excluded it in another, it
should not be implied where excluded." In re Plan for the
Abolition of the Council on Affordable Housing, 214 N.J. 444,
470 (2013) (internal quotation marks and citations omitted).
The fact that the Legislature limited secretarial tenure to
the period of time an employee "holds [his or her secretarial]
office, position or employment" precludes a finding that
DiNapoli retained her tenure rights after being transferred to a
non-secretarial position. See N.J.S.A. 18A:17-2.
DiNapoli argues N.J.S.A. 18A:28-6 and 18A:17-20.4 are
inapposite because they do not address tenure retention but
rather focus on seniority preservation. We disagree.
In our review of statutory enactments, we must read
statutes dealing with the same subject matter in pari materia
and construe them together as a "unitary and harmonious whole."
Lacy, supra, 185 N.J. at 14-15 (citations omitted). "Statutes
in pari materia are to be construed together when helpful in
resolving doubts or uncertainties and the ascertainment of
legislative intent[,]" and "it is basic in the construction of
legislation that every effort should be made to harmonize the
(continued) decision, (February 1, 2006), http://njlaw.rutgers.edu/collections/oal/search.html>.
13 A-5649-11T2 law relating to the same subject matter." State v. Green, 62
N.J. 547, 554-55 (1973).
In determining whether legislative enactments "actually
'concern the same object,'" a court should consider "whether
both statutes were included in one enactment, whether the proofs
required overlap, and whether they are 'designed to serve the
same purpose and objective[.]'" Marino v. Marino, 200 N.J. 315,
330 (2009) (quoting 2B Sutherland Statutory Construction § 51:3
(7th ed. 2008)). Both N.J.S.A. 18A:17-2 and 18A:28-6 were
enacted at the same time. See L. 1967, c. 271. N.J.S.A.
18A:17-20.4 was enacted subsequently. See L. 1991, c. 267, § 8.
We are satisfied that all three statutes concern the same
object, namely, the accrual and retention of tenure by school
district employees, and are designed to serve the same purpose
and objective. "When the Legislature expressly includes a
requirement in one section and excludes that same requirement in
other subsections of the same general statute, we need not
strain to import that requirement where it is not." In re
Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004).
When considered together, it is obvious the Legislature did not
intend to afford secretaries tenure preservation upon transfer
or promotion from secretarial employment as they did not adopt a
provision providing for tenure retention in the legislation.
14 A-5649-11T2 III.
We next consider the Commissioner's determination that
Given v. East Windsor Regional School District, 1978 S.L.D. 43
(Comm. Jan. 30, 1978), aff'd, 1978 S.L.D. 46 (St. Bd. Of Educ.
June 7, 1978), aff'd, 1979 S.L.D. 832 (App. Div. May 18, 1979)
controls the within matter.
In Given, the petitioner was employed as a tenured clerk
before accepting a position as secretary within the district.
After working as a secretary for approximately twenty-two
months, Given was involuntarily returned to a clerical position.
Ibid. Given appealed to the Commissioner for an order declaring
that she was a tenured secretary and therefore not subject to
reassignment as a clerical employee. Ibid. Given argued that
the transfer and the reduction in compensation violated her
tenure rights as a secretary which she contended she acquired
immediately upon her promotion to the position. Id. at 44. The
Board conceded that Given had earned tenure as a clerk, but
denied that she had served the requisite probationary period to
earn tenure as a secretary. Ibid. In rejecting petitioner's
argument, the Commissioner upheld the action of the Board in
reassigning petitioner to a clerical position, finding:
there exists a legitimate interest for a local board to have a probationary period for clerical and secretarial employees in its employ who receive a promotion. The
15 A-5649-11T2 Commissioner opines that to hold otherwise would work hardship on both the board and the employee if instant tenure were to accrue to a promotional position made in good faith by the board. A clerk or secretary so promoted would likely be required to demonstrate greater technical skills in order to properly discharge more complex responsibilities and must have a probationary period in which to adequately adjust to the new position. The fact that the Legislature has not established a specific statutory probationary period for clerks and secretaries who have been promoted, such as exists in N.J.S.A. 18A:28- 6 for certificated personnel, does not obviate the need for such a probationary period. The Commissioner holds that a tenured clerk or secretary, upon promotion to another position within the school district, must satisfy the precise conditions enunciated in N.J.S.A. 18A:17- 2(b) and (c) to achieve a tenure status in the new position. The Commissioner further holds that tenure rights accrued in a school system in any clerical or secretarial position prior to promotion shall not be negated by such promotion and shall remain as a continuing entitlement to such employee.
[Id. at 45.]
The Commissioner's ruling in Given applies only in the
limited situations where a secretary or clerk is promoted to
another secretarial or clerical position. This is implicit from
the language of the opinion, which required that a promoted
clerk or secretary "must satisfy the precise conditions
enunciated in N.J.S.A. 18A:17-2(b) and (c)," since those
conditions only pertain to clerical and secretarial employees.
16 A-5649-11T2 Ibid. (emphasis added). That portion of the decision upon which
the Commissioner relied in this case, i.e., "that tenure rights
accrued in a school system in any clerical or secretarial
position prior to promotion shall not be negated by such
promotion and shall remain as a continuing entitlement to such
employee," was dicta, since it had no effect upon the outcome of
the case.
More importantly, Given did not address the issue presented
here, namely, whether the tenure achieved under N.J.S.A. 18A:17-
2, is retained when the tenured secretary accepts a certificated
position and leaves her tenured secretarial employment. In
addressing this issue we look to Colon-Serrano v. Plainfield Bd.
of Educ., 2007 WL 4644775 (N.J. Adm.) (Colon-Serrano I), aff'd
in part, rev'd in part, 2008 WL 1795250 (N.J. Adm.) (Colon-
Serrano II), aff'd, 2008 WL 2971334 (N.J. Adm.) (Colon-Serrano
III) for guidance.
In Colon-Serrano, the petitioner was employed by the
district in the clerical position of attendance aide and
obtained tenure pursuant to N.J.S.A. 18A:17-2. Colon-Serrano I,
supra, at *1. Thereafter, the petitioner transferred to a
classroom aide position, which was neither clerical nor tenure
eligible. Ibid. The petitioner held her position as classroom
aide from 1994 until the district failed to renew her contract
17 A-5649-11T2 in 2006. Ibid. The petitioner then sought to return to a
clerical position held by a non-tenured or less senior clerical
employee. Ibid. When the Board refused to return the
petitioner to a clerical title, she filed a petition with the
Commissioner seeking reinstatement on the basis of her prior
accrued tenure. Ibid.
The ALJ concluded the petitioner earned tenure in the
clerical position of attendance aide and ordered the Board to
place petitioner in a clerical position held by a non-tenured or
less senior employee. Id. at *3. On review, the Commissioner
agreed that the petitioner had acquired tenure as a clerical
employee, but rejected the conclusion that the petitioner, "who
voluntarily left her tenured position in 1994 to accept the
separate and non[-]tenurable position of classroom aide . . . is
now entitled to 'bump back' into a clerical position held by a
non[-]tenured or less senior clerical employee . . ." Colon-
Serrano II, supra, at *2. The Commissioner specifically found:
N.J.S.A. 18A:17-2 provides that clerical employees who acquire tenure "shall hold [their] office, position or employment under tenure during good behavior and efficiency and shall not be dismissed or suspended or reduced in compensation except for neglect, misbehavior or other offense and only in the manner prescribed by [the Tenure Employees Hearing Law]." . . . In this matter, however, the employment from which the petitioner was dismissed was neither her tenured clerical employment nor an extension
18 A-5649-11T2 or "hybrid" continuation of such [3] employment, but rather a clearly distinct, non[-]clerical, and non[-]tenured classroom aide position to which she voluntarily transferred in 1994. . . . Under these circumstances, when the petitioner was advised in July 2006 that her contract would not be renewed, the protections of N.J.S.A. 18A:17-2 were no longer applicable; in the absence of express legislative provision for retention of accrued tenure rights upon transfer to a position which is not tenure eligible, the petitioner must be deemed to have relinquished the protections associated with her clerical tenure upon acceptance of the nonprotected position of classroom aide.
[Id. at *2 (alteration in original).]
This case is factually similar to Colon-Serrano in that
DiNapoli left her tenured secretarial position to pursue the
non-secretarial certificated position of assistant school
business administrator. Once DiNapoli abandoned her employment
as a secretary, she relinquished the tenure rights she had
3 The Commissioner specifically distinguished the facts from those presented in Keaney v. Bd. of Educ. of the Twp. of Bloomfield, EDU 5881-03, initial decision (July 28, 2005), http://njlaw.rutgers.edu/collections/oal/search.html> and adopted, Comm'r, final Decision (August 31, 2005), http://njlaw.rutgers.edu/collections/oal/search.html> (the Commissioner adopted the ALJ's initial decision which found petitioner "never knowingly and intelligently waived his tenure as a janitorial employee when he assumed the title of supervisor of maintenance" in which he still maintained his janitorial duties); and Quinlan v. Bd. of Educ. of N. Bergen Twp., 73 N.J. Super. 40, 47-48 (App. Div. 1953) (holding petitioner's tenure as a clerk was not terminated by the board's unilateral appointment of her as clerk-attendance officer where she continued to perform clerical duties as well as those of an attendance officer).
19 A-5649-11T2 accrued therein. Although Colon-Serrano's new position was not
tenure eligible and DiNapoli's position was, that fact alone
cannot support a dissimilar result, as there was no discussion
by the Commissioner in Colon-Serrano about how, if at all, that
fact affected his finding. Further, there was no reference by
the Commissioner to any statutory authority that would support
the disparate treatment of secretaries who transfer into non-
tenurable positions versus those who transfer into tenure
eligible positions. There is no basis in N.J.S.A. 18A:17-2 for
such a distinction. In finding Colon-Serrano had forfeited her
tenure rights, the Commissioner focused on the fact that the
petitioner was no longer employed in the clerical employment
that had been the source of her tenure, and was instead engaged
in a "distinct, nonclerical . . . position[.]" Id. at *2.
Additionally, there is nothing in the record in Colon-
Serrano, other than the petitioner's acceptance of a non-
tenurable position, to demonstrate an intention to relinquish
her clerical tenure rights, yet the Commissioner found she
forfeited the tenure protections she had acquired by way of her
transfer. We too must find DiNapoli abandoned her tenure rights
when she accepted a transfer to a non-secretarial certificated
position.
20 A-5649-11T2 Here, the Commissioner adopted the ALJ's conclusion that
the decision in Colon-Serrano expanded without distinction upon
the decision in Given but offered no basis or support for that
conclusion. We disagree with the ALJ’s determination, as it is
clear the decision in Colon–Serrano limited Given's holding.
Simply stated, Given and Colon-Serrano cannot be reconciled
unless Given is limited to situations where clerks and
secretaries are promoted or transferred to other clerical or
secretarial positions.
We also reject the Commissioner's restrictive
interpretation of Lange v. Bd. of Educ. Of Borough of Audubon,
26 N.J. Super. 83 (App. Div. 1953). The Commissioner merely
stated Lange was "inapposite to the instant controversy [,]"
without meaningful discussion. However, we conclude Lange
offers further support for the conclusion that DiNapoli
relinquished her secretarial tenure.
In Lange, the petitioner was employed by the Audubon Board
of Education, beginning her service as a teacher in 1912. Id.
at 84. In 1914, she was transferred, with her consent, to the
position of principal in which she served from 1914 until 1927.
Ibid. In June 1927, she was assigned by the Board of Education
to the position of "Supervisor to Supervise Grade Schools," and
served in that capacity until the position was abolished in June
21 A-5649-11T2 1944 for reasons of economy and diminution in the number of
pupils. Ibid. Thereafter, she served as a teaching principal
in one of the grade schools until September 18, 1944, when it
was discovered that there had been no vacancy in such position
and Lange was returned to a teaching position. Id. at 85.
In 1951, a vacancy arose in a principal position and Lange
applied asserting rights to the position by virtue of her prior
service as principal. Ibid. She was not appointed to the
position and appealed, arguing that under the then Teachers'
Tenure Law, R.S. 18:13-16, 17, 19 and 20, she did not lose her
tenure as principal when she accepted the position of
"Supervisor to Supervise Grade Schools," and "when the
[supervisor] position was abolished in 1944, she was entitled to
appointment to fill the next available principalship." Ibid.
The Board of Education contended Lange "lost any tenure she may
have had as a principal under the Teachers['] Tenure Law by
accepting the position of supervisor." Ibid. The State
Commissioner of Education affirmed the Board's determination and
Lange appealed. Ibid.
At the time Lange served as principal, she was protected by
tenure. The original Teachers' Tenure Law was enacted in 1909,
see L. 1909, c. 243, p. 398; however, it was not until
amendments enacted in 1935 that the concept of seniority was
22 A-5649-11T2 introduced and given prospective effect. See L. 1935 c. 126. p.
331; Lange, supra, 26 N.J. Super. at 85-86 (citing Downs v. Bd.
of Educ. of Hoboken, 126 N.J.L. 11, 13 (Sup. Ct. 1940), aff'd,
Schlank v. Bd. of Educ. of Hoboken, 127 N.J.L. 602 (E. & A.
1942)); Werlock v. Woodbridge, 1939-1949 Comp. School Law
Decisions, p. 107 (1948), aff'd on other grounds, 5 N.J. Super.
140 (App. Div. 1949).
Important for our purposes here is the court's discussion
of Lange's relinquishment of her principalship, and the rights
connected therewith. Specifically the court found:
The record is barren of any protest or expression of dissatisfaction by plaintiff respecting her change of status from principal to supervisor. Nor does it appear that any proceeding was initiated by her to test the local board's action or that the appellant at any time protested or took any action indicating dissatisfaction with the action of the local board voiding the principalship held by her for a brief period of time in 1944. We think, therefore, it is a reasonable inference that she surrendered her principalship in 1927 voluntarily. The appellant concedes that one may voluntarily relinquish a position, . . . but asserts that tenure rights may not be waived while keeping the position.
. . . .
This appeal might well be disposed of on the ground of laches. Notwithstanding the fact that by accepting the position of supervisor, she surrendered her position as principal, thereby constituting a dismissal as such principal and thereafter limiting
23 A-5649-11T2 her tenure rights to the classification of a teacher . . . .
[Lange, supra, 26 N.J. Super. at 86-89 (citations omitted).]
In this case, we disagree with the Commissioner's
conclusion that Lange is not relevant. Lange involved
consideration of whether the petitioner retained her tenure
rights in the position of principal after she voluntarily
transferred from principal to supervisor, a separate tenurable
position. We found Lange "waived whatever rights she may have
acquired to the position of principal[,]" possessed no seniority
rights with respect to a principal position and had no claim to
be on a preferred eligibility list for her service as principal
from 1914 to 1927. Id. at 87. The Commissioner here failed,
however, to consider our specific holding in his analysis.
Like Lange, DiNapoli did not protest or express
dissatisfaction with her transfer or promotion to the position
of assistant school business administrator. Moreover, like
Lange, she voluntarily transferred from her tenured secretarial
position to another tenure eligible position. When the holding
in Lange is applied to these facts, DiNapoli must be found to
have relinquished her secretarial tenure upon promotion to the
position of assistant school business administrator. Just as
Lange had no claim to a principal position that became available
24 A-5649-11T2 in 1951, DiNapoli cannot be said to have the right to "bump
back" to a secretarial position held by a non-tenured employee.
IV.
DiNapoli concedes that an individual may voluntarily
relinquish a position, but argues she may not waive her tenure
rights while keeping her position. Lange, supra, 26 N.J. Super.
at 88. Nevertheless, she argues that at the time she accepted
the promotion and subsequent transfer to the position of
assistant school business administrator, she did not relinquish,
waive or forfeit her position as secretary. There is no support
for this argument in the record before us. There is nothing to
suggest that either party considered the transfers or promotions
temporary assignments. In fact, in order for DiNapoli to become
the assistant school business administrator she needed to obtain
the appropriate certification credentials. She obtained the
certification, thus evidencing her intention to remain in the
position as assistant school business administrator, not
secretary. Certainly, the facts support the conclusion that
DiNapoli relinquished her secretarial position upon her
acceptance of the promotion or transfer to the position of
assistant school business administrator.
DiNapoli further argues that since she was "assigned" to
the positions of assistant to the business administrator and
25 A-5649-11T2 assistant school business administrator, she did not waive or
voluntarily relinquish her position as a secretary. We also
find this argument meritless. A voluntary resignation equates
to abandonment of tenure rights. Kimless V. Twp. of Woodbridge
Bd. of Educ., 1978 S.L.D. 651, 656 (1978) (citations omitted)
("Such [a] holding is consistent with previous rulings of the
Commissioner wherein it was held petitioners voluntarily
resigned teaching position which constituted abandonment of
their rights to a tenure claim"). Despite DiNapoli's suggestion
to the contrary, she could only have been transferred or
promoted with her consent. Thus, when DiNapoli voluntarily
assumed the position of assistant to the business administrator
and then accepted a promotion to the position of assistant
school business administrator, she relinquished her secretarial
position and tenure rights.
Reversed.
26 A-5649-11T2