Bassett v. Board of Educ. of Borough of Oakland, Bergen County

• Decision Date: 24 February 1988
• Citation: 223 N.J.Super. 136,538 A.2d 395
• Parties: , 45 Ed. Law Rep. 723 Linda BASSETT, Petitioner-Respondent, Cross-Appellant, v. BOARD OF EDUCATION OF the BOROUGH OF OAKLAND, BERGEN COUNTY, Respondent- Appellant, Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 136

223 N.J.Super. 136

538 A.2d 395, 45 Ed. Law Rep. 723

Linda BASSETT, Petitioner-Respondent, Cross-Appellant, v. BOARD OF EDUCATION OF the BOROUGH OF OAKLAND, BERGEN COUNTY,

Respondent- Appellant, Cross-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 9, 1988.

Decided Feb. 24, 1988.

Stephen R. Fogarty, for respondent-appellant, cross-respondent (Fogarty & Hara, attorneys; Stephen R. Fogarty, Rutherford, of counsel and on the brief).

Gregory T. Syrek, for petitioner-respondent, cross-appellant (Bucceri & Pincus, attorneys; Gregory T. Syrek, Clifton, of counsel and on the brief).

W. Cary Edwards, Atty. Gen. of New Jersey, for respondent State Bd. of Educ. (Marlene Zuberman, Deputy Atty. Gen., Trenton, on the statement in lieu of brief).

Zazzali, Zazzali & Kroll, for amicus curiae New Jersey Educ. Ass'n (Paul L. Kleinbaum, Newark, on the brief).

Before Judges PRESSLER, BILDER and GIBSON.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

This appeal involves a question arising under the school laws. N.J.S.A. 18A:28-5 prohibits the reduction in compensation of tenured teachers except for inefficiency, incapacity or unbecoming conduct. Petitioner Linda Bassett was a full-time tenured teacher whose position was eliminated by reason of a reduction in force but who was offered and accepted reassignment to a part-time position in the same instructional area. The issue before us is whether N.J.S.A. 18A:28-5 requires that she be compensated proportionally to the full-time salary to which she would have been entitled but for the reduction in force or whether she may be paid at the substantially lesser hourly rate provided for in the collective negotiation agreement for hourly-rate teachers.

Petitioner was first employed as a full-time reading teacher by the Oakland Board of Education (Oakland) in September 1974. She taught continuously until March 1980 when she commenced an approximately three-and-a-half year approved maternity leave of absence. By the time she started her leave, she had achieved tenure and obtained State Board certification as an art teacher, a reading teacher, a reading specialist, and a supervisor. Her salary for the 1979-1980 school year was commensurate with step 8 1/2 of the teachers salary guide negotiated as part of the collective negotiation agreement. Prior to petitioner's anticipated return to her employment in September 1983, her full-time reading-teacher position was eliminated because of a reduction in force. She was accordingly offered and accepted reassignment as a "part-time Supplemental and Compensatory Education Teacher," ¹ to teach reading for specifically designated school periods each day. Although her initial assignment required her to teach only two fifty-minute periods daily, she was, almost immediately after the start of the 1983 school year, assigned to teach three such periods each day. That assignment continued with little change until February 17, 1984, when she was assigned to teach four periods daily. The regular school day has six periods.

The parties agree that had petitioner returned to full-time employment in September 1983 she would have been paid at step 9 1/2 of the salary guide, receiving an annual compensation of $24,699. The salary which she was actually paid was the hourly rate of $10.80 in accordance with the collective negotiation agreement then in force which prescribed an hourly rate for "hourly rate teachers." Petitioner objected, claiming that unless her part-time position were compensated proportionally to the full-time position, she would suffer a salary reduction in violation of N.J.S.A. 18A:28-5. Oakland disagreed, and petitioner accordingly filed a verified petition seeking relief with the Commissioner of Education.

The matter proceeded as a contested case heard by an administrative law judge. Both he, the Commissioner, and ultimately the State Board of Education concluded that payment of the hourly rate contravened petitioner's statutory protection as a tenured teacher against salary reduction. Oakland appeals from that determination. Petitioner cross-appeals from the State Board's directive respecting the manner of calculating her proportional salary and from the denial of both pre- and post-judgment interest. We affirm the State Board on the ruling appealed from by Oakland. With respect to the cross-appeal, we affirm the State Board's denial of prejudgment interest but reverse the denial of post-judgment interest and its directive respecting the calculation of petitioner's proportional entitlement.

We address first Oakland's contention that the State Board erred in requiring petitioner to be paid for her part-time teaching at the rate prescribed for full-time teachers at step 9 1/2. We note first that the collective negotiation contract provides for three categories of teachers. Paragraph 4 of Article III prescribes an hourly rate for teachers who are therein designated as "hourly rate teachers" and sets a slightly higher rate for those teaching for four or more years than for those in their first three years. Paragraph 5 of Article III prescribes the rate for "part-time teachers," providing that

Part-time teachers who are compensated based on the attached salary guides * * * shall be compensated at the rate of 1/6 per teaching period per day and shall be paid on a pro-rata basis for all additional required time.

The salary guides referred to are those applicable to full-time teachers, the third category. We further note that the contract does not define either the category of hourly-rate teachers or the category of part-time teachers or the distinction between them. The only difference on the face of the contract appears to be the salary to which each is entitled.

Oakland argues, in substance, that since petitioner's full-time position was eliminated, there was no impediment to its rehiring her as an hourly-rate teacher. It argues further that the parties to the collective negotiation agreement had the legal right to agree to different pay schedules for the hourly-rate and part-time categories. Hence, it contends, petitioner was accorded the full extent of her statutory right by being paid consistently with a valid contract. It asserts that any other result would violate the contract and impair the integrity of the negotiation process.

The State Board agreed that the separate categorization of hourly-rate and part-time teachers and the disparate salary schedules applicable to each does not, as a general proposition, contravene either the express provision or the intent of the school laws. ² It held, however, that as applied to this petitioner, the hourly-rate payment constituted a reduction in compensation proscribed by N.J.S.A. 18A:28-5. It concluded, therefore, that since the statutory mandate prevails over inconsistent contractual provision, the hourly-rate prescription of the contract was unenforceable in this case. It reasoned as follows:

It is not disputed that Petitioner achieved tenure prior to commencing her leave of absence in 1980. We emphasize that upon her return to active employment, she was not "transferred" within the meaning of N.J.S.A. 18A:28-6 from one...