Zimmerman v. Board of Education of City of Newark

183 A.2d 25, 38 N.J. 65, 1962 N.J. LEXIS 157

• Court: Supreme Court of New Jersey
• Decided: June 29, 1962
• Status: Published

Opinions

The opinion of the court was delivered by

Schettino, J.

Appellant, Zimmerman, seeks reinstatement as a teacher with tenure in the Newark school system. His case was originally reviewed in Laba v. Newark Board of Education, 23 N. J. 364 (1957). But unlike the two other teachers involved in that ease, Zimmerman had not achieved tenure status at the time he was dismissed, as of May 20, 1955. He now argues primarily that we should order the Board to re-employ him even though his annual teaching contract expired on June 30, 1955 and was not renewed. In his view he is entitled to tenure because continued employment would have taken place but for the fact that he invoked before a congressional subcommittee the protection afforded by the Fifth Amendment. He further argues that he is now entitled to tenure because he was actually employed for three consecutive calendar years required by N. J. 8. A. 18 :13 — 16. In the alternative he asserts that he was employed for three consecutive academic years and that the period of litigation following his third academic year should be considered as a recognition by the Board of his continued status as an employee at the beginning of the required fourth academic year. The Board is estopped to deny this, he says, as it continued its investigation of him subsequent to his dismissal.

A brief summary of the events is as follows. Zimmerman and defendant Board of Education agreed by a writing on June 30, 1952, that he would begin teaching in the system on September 1, 1952. Similar agreements were made in the two succeeding years and he was considered a "satisfactory” teacher. On May 19, 1955, Zimmerman invoked the Eifth Amendment privilege against self-incrimination when he was called to testify before a subcommittee of the House Un-American Activities Committee in Newark. The questions he refused to answer were related to his Communist Party membership and association both past and present. After notice of suspension and based solely upon the charge that Zimmerman refused so to testify, the Board resolved on June 28, 1955 to dismiss him as of May 20, 1955. Zimmerman was successful in having that resolution reversed by this court in Loba but he was not granted reinstatement. .Instead, our opinion in that case recognized that a. person "who is now a. member of the Communist Party or who is now subject to its ideologies” should be dismissed (23 N. J., at p. 388) and that "the teachers’ conduct before the Congressional subcommittee reasonably calls for a fitness inquiry during which the teachers have a duty of cooperation and an affirmative burden in the establishment of their fitness.” 23 N. J., at p. 392.

The defendant Superintendent of Schools interviewed Zimmerman on May 16, 1957. Counsel for Zimmerman was present but was limited to the role of providing advice to Zimmerman when asked. Based upon the testimony at this hearing the Superintendent filed a report with the Newark Board of Education along with seven "supplementary charges.” Substantially for the reasons cited in the charges, the Superintendent recommended that Zimmerman "be not restored to his employment,” but that if the Board were to reinstate Zimmerman until the end of the 1954-55 school year, the Superintendent recommended that Zimmerman should not be re-employed thereafter.

Board hearings on the charges were held in November and December 1957. Zimmerman’s counsel was permitted to take part in the proceedings by examination and cross examination of witnesses. The Board, by resolution dated June 24, 1958, found him guilty of five of the supplemental charges and again dismissed him as of May 20, 1955. It expressly stated that it did not draw any inferences as to Zimmerman’s then present membership or subservience to the Communist Party.

On appeal the" State Commissioner of Education in part reversed the Board, holding that Zimmerman was entitled to his salary for the period between May 20, 1955 and June 30, 1955, citing Lowenstein v. Newark Board of Education, 33 N. J. 277 (1960), and in part affirmed, upholding defendant’s refusal to re-employ Zimmerman. Zimmerman appealed to the State Board of Education which affirmed the Commissioner’s determinations. Zimmerman appealed from the refusal to order re-instatement beyond the end of the 1955 academic year. While his appeal was pending before the Appellate Division, we certified the cause on our own motion.

No appeal was taken by the Newark Board of Education from the order for payment of salary for the period from May 20, 1955 to June 30, 1955. We shall consider, therefore, only the tenure claim.

It has been said that the purposes of an educational system are to further the best interests of the community at large, the teachers and especially the school children. Both the appointment of school teachers and the determination regarding their term of office are, subject to constitutional restrictions, within the power and control of the Legislature. Historically the employment relationship between a school teacher and the municipal school body has been one of master and servant, one subject to termination at will. Absent statutory provision a teacher was in a position similar to that of any other public employee whose employment was not protected by statute, i. e., his employment was subject to contract or the pleasure of his employer. 4 McQuillin, Municipal Corporations § 12.250, p. 305 (3 ed. 1949); 78 C. J. S. Schools and School Districts §§ 152-201 (1952). See Vitarelli v. Seaton, 359 U. S. 535, 539, 79 S. Ct. 968, 3 L. Ed. 2d 1012, 1016 (1959); Forkosch, Administrative Law § 116, pp. 177-78 (1956). In fact it was the right of either parly, i. e. the school administration or the teacher, subject to the below limitations to terminate service before statutory tenure rights became effective. Ahrensfield v. State Board of Education, 126 N. J. L. 543 (E. & A. 1941). We note in passing that such an unprotected employee relationship is not uncommon in our State today for many public employees are still in such an unprotected and uncertain employment status. New Jersey Civil Service Commission, Department Civil Service, Fifty Fourth Annual Report, 1960-1961, p. 16.

In People ex rel. v. Chicago, 278 Ill. 318, 116 N. E. 158, 160, L. R. A. 1917E, 1069 (Sup. Ct. 1917) the court stated the historically prevalent view:

“A new contract must be made each year with such teachers as [the board] desires to retain in its employ. No person has a right to demand that he or she shall be employed as a teacher. The board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever or for no reason at all. The board is responsible for its action only to the people of the city, from whom, through the mayor, the members have received their appointments. - * * Questions of policy are solely for the determination of the board, and when they have once been determined by it, the courts will not inquire into their propriety.”

Today, the powers of a board of education in appointment, transfer or dismissal are not so broad. They are limited by the Fourteenth Amendment of the United States Constitution. For example, in Morris v. Williams, 149 F. 2d 703, 708-09 (8 Cir. 1945), the court held that a custom or usage of a school board in discriminating against Fegro teachers of Little Rock in respect to salaries solely on account of color violates the Fourteenth Amendment. The board’s powers are also limited not only by the terms of the contract of employment but also by the New Jersey Constitution, by the Teacher’s Tenure Act, and by other statutory provisions such as the Law Against Discrimination, N. J. S. A. 18:25-l et seq. Cf. Downs v. Board of Education, Hoboken, 12 N. J. Misc. 345, 348, 171 A. 528 (Sup. Ct. 1934), affirmed on opinion below, 113 N. J. L. 401 (E. & A. 1934). Except as provided by the above limitations or by contract the Board has the right to employ and discharge its employees as it sees fit. Cf. Halfacre v. Board of Education of School Dist. No. 167, 331 Ill. App. 404, 73 N. E. 2d 124 (Sup. Ct. 1947).

In New Jersey, as well as elsewhere, today legislatures have provided that teachers may, by satisfying certain conditions, acquire permanent tenure so as to be subject to dismissal only for cause and in the manner provided by law. Such statutes changed the unlimited common-law right of boards of education to contract with teachers. In principle, civil service benefits and protection were accorded teachers by the legislatures. The objectives are to protect competent and qualified teachers in the security of their positions during good behavior, and to protect them, after they have undergone an adequate probationary period, against removal for unfounded, flimsy, or political reasons.

The defendant Board contends that tenure statutes should be construed strictly and in favor of school boards on the ground that such statutes create a new liability on the part of such boards and that the statutes should be given a construction which is most favorable to the general public, not a construction which will subordinate the paramount rights and welfare of the general public and of school children to those of the teachers. For emphasis it asserts that a teacher’s tenure is subordinate to the fundamental public policy of obtaining a better education for children (Jacobs v. School District of Wilkes-Barre Township, 355 Pa. 449, 50 A. 2d (Sup. Ct. 1947)) and that policy should guide a board’s exercise of power to grant or deny re-employment to a probationary teacher at the end of a pre-tenure employment. The fear is expressed that the statute will be interpreted to deprive school administrators of their power and responsibility for the administration of schools.

As we have already emphasized, teacher tenure is a statutory right imposed upon a teacher’s contractual employment status. In order to acquire the status of a permanent teacher under a tenure law and with it the consequent security of permanent employment, a teacher must comply with the precise conditions articulated in the statute. Moriarity v. Board of Education of Garfield, 133 N. J. L. 73 (Sup. Ct. 1945), affirmed 134 N. J. L. 356 (E. & A. 1946); Ahrensfield v. State Board of Education, supra; 78 C. J. S Schools & School Districts § 180, p. 1014 (1952).

In our State tenure status may be secured by a teacher only after employment for the probationary periods specified in N. J. S. A. 18:13-16 as follows:

“The services of all teachers * * * of the public schools * '* * shall be during good behavior and efficiency, (a) after the expiration of a period of employment of three consecutive calendar years in that district unless a shorter period is fixed by the employing board, or (b) after employment for three consecutive academic years together with employment at the beginning of the next succeeding academic year, or (e) after employment, within a period of any four consecutive academic years, for the equivalent of more than three academic years * * *.

An academic year, for the purpose of this section, means the period between the time school opens in the district after the general summer vacation until the next succeeding summer vacation.”

Once a teacher acquires tenure status, he cannot be dismissed “except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause” and certain procedural prerequisites are required. N. J. S. A. 18:13-17. See also N. J. 8. A. 18:3-23 et seq.

Inherent in the tenure legislation is the policy that a board’s duty to hire teachers requires more than merely appointing licensed instructors; it demands that permanent appointments be made only if the teachers are found suitable for the positions after a qualifying trial period. In essence this constitutes a “proving out” period. In another context, we said in Cammarata v. Essex County Park Comm’n., 26 N. J. 404, 412 (1958) :

“It is difficult to evaluate the character, industry, personality, and responsibility of an applicant from his performance on a written examination or through cursory personal interviews. Knowledge and intelligence do not alone [suffice] * * *. The crucial test of his fitness is how he fares on the job from day to day when suddenly-confronted by situations demanding a breadth of resources and diplomacy. Many intangible qualities must be taken into account, and, since the lack of them may not constitute good cause for dismissal under a tenure statute, the [employer] * * * is entitled to a period of preliminary scrutiny, during which the protection of tenure does not apply, in order that it may make pragmatically informed and unrestricted decisions as to an applicant’s suitability.”

The same thoughtful philosophy applies with manifold emphasis to the selection of school teachers. See Morris, supra, 149 F. 2d, at p. 708.

I.

"With the above authorities in view, we consider appellant’s contentions. He contracted with the defendant on June 30, 1952, to begin teaching on September 1, 1952. In his view recognition of his employment status up through June 30, 1955 would constitute “employment” for the required period. In practice many, if not most, teachers are hired far in advance of the time they are to begin teaching. Contracts are frequently entered into during one academic year anticipating an employment relationship at the commencement of the following academic year. Thus, if appellant’s interpretation of the word “employment” were to be adopted, tenure would be acquired in many instances before the teacher had completed teaching for three academic years. That interpretation would also shorten the length of the minimum probationary period specified in terms of “academic” years as the latter is defined in the last paragraph of N. J. S. A. 18:13-16, quoted above. Such a reading would clearly detract from the statutory purpose.

Our former Supreme Court had occasion to interpret the word “employment” contained in 'N. J. S. A. 18:13-16 under similar circumstances and held contrary to the position urged by ZimmeTman. Carroll v. State Bd. of Education, 8 N. J. Misc. 859, 152 A. 339 (Sup. Ct. 1930). There a teacher signed a one year teaching contract (and the Board approved it) on July 15, 1926, to begin teaching on September 7, 1926. Two subsequent annual teaching contracts were also entered into and each contained a provision that either party could terminate the agreement upon 30 days’ notice. The board served notice on July 15, 1929, that it would terminate the relationship as of August 15,. 1929. The court held that “employment” had not originally commenced until September 7, 1926, and, therefore, the teacher had not been employed for three calendar years. Compare Chalmers v. State Board of Education, 11 N. J. Misc. 781, 168 A. 236 (Sup. Ct. 1933).

We agree with this interpretation. Consequently, appellant was not employed for three calendar years prior to June 30, 1955, within the meaning of the statute. It follows that he is not entitled to tenure on that theory.

II.

Zimmerman’s next contention is based upon the testimony of the principal of the school in which Zimmerman taught. In the opinion of that witness “tenure” would normally follow automatically where a teacher had received satisfactory ratings for three academic years. Up to the point of the House subcommittee hearings, Zimmerman had received such ratings. But the argument overlooks the nature of the employment relationship between a teacher and the Board.

Except for statutory conditions, a teacher is retained solely on a contract basis during his probationary employment. At the expiration of an annual contract period, the employment relationship ceases to exist unless a new contract has been entered into. While some states provide for automatic re-employment or renewal of contract unless contrary notice is given, our statute does not so specify. And except to the extent of constitutional or statutory limitations, there is no legal duty on the part of a board to re-employ a teacher at the end of a contract term. Brooks v. School Dist. of Moberly, Mo., 267 F. 2d 733, 739 (8 Cir. 1959), cert. denied 361 U. S. 894, 80 S. Ct. 196, 4 L. Ed. 2d 151 (1959); Rees v. Murray City Board of Education, 6 Utah 2d 196, 310 P. 2d 387, 388 (Sup. Ct. 1957); Bourne v. Board of Education of City of Roswell, 46 N. M. 310, 128 P. 2d 733 (Sup. Ct. 1942); Knickerbocker v. Redlands High School Dist., 49 Cal. App. 2d 722, 122 P. 2d 289, 291 (D. Ct. App. 1942); Chase v. Mason, 216 App. Div. 562, 216 N. T. S. 205 (App. Div. 1925), aff’d 244 N. Y. 545, 155 N. E. 890 (Ct. App. 1926).

Accordingly, unless Zimmerman by an affirmative act of the Board was re-employed subsequent to June 30, 1955, he cannot be said to have been employed for three consecutive academic years “together with employment at the beginning of the next succeeding academic year.” N. J. S. A. 18:13-16. This statutory step had to take place, for, “it is axiomatic that the right of tenure does not come into being until the precise condition laid down in the statute has been met.” Ahrensfield, supra, 126 N. J. L., at p. 544.

We hold that Zimmerman is not entitled to tenure status upon this ground.

III.

If in 1955 after the 1954-1955 academic year the Board had decided to continue Zimmerman in its employ but stated in the resolution of employment that such employment should not constitute tenure, there could be no doubt that Zimmerman nevertheless would have tenure by operation of the statute. Recognition by the Board of an employment relationship continuing until 1957 would entitle Zimmerman to tenure.

Zimmerman contends that this is precisely what the Board did here, that the Board is now estopped to contend otherwise because it continued to hold hearings after June 30, 1955 and that, moreover, after each successive hearing the Board dismissed him as of May 30, 1955, the day after he relied upon his constitutional privilege before the House Committee. He concludes that he has been dismissed in violation of his tenure rights under N. J. 8. A. 18:13-16 essentially because he invoked his constitutional privilege.

Defendants counter by pointing out that all of the proceedings leading to the dismissal reviewed in Loba were completed before the end of the 1954-1955 school year. A schedule of these proceedings would indicate that notification of suspension was given on May 19, 1955; charges were filed on May 33, 1955; the determination to dismiss was made on June 23, 1955, effective May 20, 1955; and the formal resolution and findings are dated June 28, 1955. Defendants say they preferred charges and held formal hearings not because appellant was under tenure but because it was necessary to determine whether there was good cause for dismissing Zimmerman for the then academic year, 1954-1955. Defendants conceded that if there was not good cause shown for the dismissal during the academic year, Zimmerman was entitled to his salary until the end of his contract term, N. J. 8. A. 18:13-11, although he would not be entitled to continue as a practicing teacher in the school system.

Defendants further contend that Zimmerman himself caused the proceedings to extend beyond the 1954-1955 academic year by appealing from the action of the Board. An employment status after that academic year should not be spelled ont, they urge, merely because further hearings were necessitated by such appeals and by suggestions of this court. In their view, inasmuch as the Board was merely inquiring whether Zimmerman should be denied employee status for the remainder of his contract term, it would be anomalous to spell out of the entire proceedings an intention on defendants’ part to recognize a continuing employee relationship after the 1954-1955 academic year.

We need not decide whether recognition of a continuing employment relationship might be implied under some circumstances. Compare R. 8. 18 :13-5, 18:13-6 and 18:13-7. Here, the evidence does not support an inference of such recognition. Indeed the proof is to the contrary and the Board expressly denied any such intention.

In its brief filed in Laba the Board made the following statement (at page 2) :

“Appellant Zimmerman did not have ‘tenure’ (B. 8. 18:13-16) as did appellants Laba and Lowenstein. His employment had about six weeks to go at the time of his suspension on May 19, 1955 and his dismissal involves his status from that date to the end of the 1954-1955 school year. Throughout the proceedings, however, it has been assumed that his employment for that siw weeks period was subject to termination only under circumstances applicable if he had tenure (B. 8. 18:13-17).” (Emphasis added.)

And we expressly recognized in Laba that Zimmerman was in a different category than the other two defendants there who were at that time protected by the tenure laws. (23 N. J.j at p. 370) :

“[Mr. Zimmerman] began teaching in the public school system * * * in 1952 and had not acquired tenure protection when he was dismissed by the board. However, in view of the terms of B. 8. 18:13-11, all of the parties and the State Commissioner have, for present purposes, not differentiated his ease from the others.” (Emphasis supplied.)

These statements clearly limit the effect of that proceeding.

In the proceedings which followed Laba defendants repeatedly denied any employment relationship between Zimmerman and the Board. At the end of his report dated May 16, 1957 the defendant Superintendent stated:

“Note: Attention of the Board of Education is called to the fact that Mr. Perry Zimmerman had not acquired tenure as of the date of his suspension on May 19, 1955, and would not have acquired tenure even if he had remained in active teaching service to the end of the school year. Had that been the case, he would have completed only three years of teaching service. In order to acquire tenure it is necessary to have had more than three years of teaching service. Should the Board of Education determine for any reason to re-instate Mr. Perry Zimmerman for the period from May 19, 1955, to the end of the 1954-1955 school year, — the only period involved in the Board’s previous dismissal action, — the Superintendent wishes to make it clear that he does not recommend the re-employment of Mr. Perry Zimmerman for any further or additional period of time that would result in his acquisition of tenure in the Newark public school system.”

When on September 24, 1957 the Board ordered “further proceedings” in accordance with the “decision of the Supreme Court and the mandate thereon entered on February 4, 1957,” it was careful to include the following in its resolution:

“RESOLVED that the within resolution shall not be deemed to extend to the said Perry Zimmerman any employment or tenure status with the Board for any period beyond the 1954-1955 school year when the period of his probationary employment expired.”

And the Board’s resolution of June 24, 1958 setting forth its findings and conclusions on the supplementary charges contains the provision that:

“The adoption of this resolution is not intended to constitute an acknowledgment that Mr. Zimmerman had any employment or tenure status with the Board, and shall not be deemed to extend to him any such status, for any period beyond the 1954-1955 school year, when the period of his probationary employment expired.”

In view of these observations and disclaimers it would be patently unreasonable to spell out any implied recognition of an employment relationship.

The above statements also make it clear that the Board did not waive its right to deny Zimmerman’s employee status. Nor can we sustain Zimmerman’s argument that the Board is now estopped to deny an employment relationship. Even if we were to assume that the facts might give rise to an inference that the Board recognized Zimmerman as an employee, the doctrine of “estoppel” urged by Zimmerman requires an element of justifiable reliance upon the acts of another and resulting injury brought about by such reliance. Here the Board continually asserted that Zimmerman was dismissed on May 20, 1955 and repeated its disclaimer of any employment relationship after the 1954-1955 academic year. On these clear facts we think that Zimmerman could not justifiably rely on the Board’s actions in the belief that his continuing employment was recognized by the Board.

The decision of the State Board of Education is affirmed; no costs.