Breitwieser v. State-Operated School Dist. of City of Jersey City, Hudson County, STATE-OPERATED
| Citation | 286 N.J.Super. 633,670 A.2d 73 |
| Decision Date | 25 January 1996 |
| Docket Number | STATE-OPERATED |
| Parties | , 106 Ed. Law Rep. 751 Joyce BREITWIESER, Petitioner-Appellant, v.SCHOOL DISTRICT OF the CITY OF JERSEY CITY, HUDSON COUNTY, Respondent-Respondent. |
| Court | New Jersey Superior Court – Appellate Division |
Feintuch, Porwich & Feintuch, Jersey City, for appellant (Philip Feintuch, of counsel; Alan S. Porwich, on the brief).
Charlotte Kitler, General Counsel, State-Operated School District of Jersey City, for respondent (Ms. Kitler, on the brief).
Deborah T. Poritz, Attorney General of New Jersey, for State Board of Education (Nancy Kaplen, Deputy Attorney General, on the brief).
Before Judges KING, KLEINER and HUMPHREYS.
The opinion of the court was delivered by
KING, P.J.A.D.
In this case a teacher has attempted to acquire tenure for service under a permanent certificate by tacking on an earlier period of service under an emergency certificate in a different field. The agency refused to permit tacking such periods of unrelated certification. We agree and affirm.
Appellant Joyce Breitwieser was appointed a full-time teacher of the handicapped with the Jersey City School District (District) effective September 1, 1989. In her employment contract, the District recognized that she held an "appropriate Teacher of the Handicapped certificate issued in New Jersey [which was] now in full force and effect." When appointed, Breitwieser held two New Jersey teaching certificates: an Emergency Certificate for Teacher of the Handicapped, valid from September 12, 1989 to July 1990, and a permanent certificate as Elementary School Teacher, issued in June 1989. She lacked 18 professional-education credits in the area of special education and did not qualify for a standard (permanent) certificate as Teacher of the Handicapped. She did not obtain or become eligible for a standard certificate as Teacher of the Handicapped during her employment with the District.
In March 1990, Breitwieser requested a transfer from her position as teacher of the handicapped to a position as a Chapter I elementary school teacher, stating Her request was granted and she was transferred to P.S. 3 on March 9, 1990. The District offered her contracts as an elementary school teacher for the 1990-91 and 1991-92 school years and she accepted. She was re-hired as elementary school teacher under contract for the 1992-93 school year. By letter dated December 14, 1992, the District advised her that she was terminated effective February 12, 1993, pursuant to the 60-day notice provision in her contract.
On January 6, 1993 Breitwieser filed a petition with the Commissioner of Education (Commissioner) seeking reinstatement as a teacher with the District, with back pay and other emoluments befitting tenure status. She moved for summary judgment and the District answered and cross-moved for summary judgment on January 21, 1993.
The case was assigned to Judge Weiss of the Office of Administrative Law in February 1993. He ruled in favor of the District in his initial decision of July 19, 1993. He held that Breitwieser's six-month service under the Emergency Certificate as Teacher of the Handicapped did not count in calculating the three-year service period required for tenure under N.J.S.A. 18A:28-5. In August 1993 the Commissioner rendered a final decision upholding Judge Weiss' initial decision. On June 1, 1994 the State Board of Education affirmed the Commissioner's decision for the reasons expressed by Judge Weiss.
The State Board is the agency charged by the legislature with implementing the school laws. The Board's decision is entitled to considerable weight. Bassett v. Oakland Bd. of Ed., 223 N.J.Super. 136, 142-43, 538 A.2d 395 (App.Div.1988). A decision of the State Board on tenure should not be disturbed unless "palpably arbitrary" or in violation of the law, Kletzkin v. Spotswood Bd. of Ed., 136 N.J. 275, 278, 642 A.2d 993 (1994); Dennery v. Passaic Cty. Reg. H.S. Bd. of Ed., 131 N.J. 626, 643, 622 A.2d 858 (1993), or if unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 580, 410 A.2d 686 (1980); Campbell v. Dep't of Civil Service, 39 N.J. 556, 189 A.2d 712 (1963); Dore v. Bedminster Bd. of Ed., 185 N.J.Super. 447, 452, 449 A.2d 547 (App.Div.1982). On this standard, we affirm the State Board's decision.
The right to tenure is created and governed entirely by statute. Spiewak v. Rutherford Board of Ed., 90 N.J. 63, 72-73, 76, 447 A.2d 140 (1982). N.J.S.A. 18A:28-5 sets forth the conditions under which public-school teaching staff earn tenure in New Jersey:
The services of all teaching staff members including all teachers, principals other than administrative principals, assistant principals, vice principals, assistant superintendents, and all school nurses including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner prescribed by subarticle B of article 2 of Chapter 6 of this title, after employment in such district or by such board for:
(a) Three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or
(b) Three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(c) The equivalent of more than three academic years within a period of any four consecutive academic years. (emphasis added).
N.J.S.A. 18A:1-1 defines a "teaching staff member" as
a member of the professional staff of any district or regional board of education, or any board of education of a county vocational school, holding office, position or employment of such character that the qualifications for such office, position or employment, require him to hold a valid and effective standard, provisional or emergency certificate, appropriate to his office, position or employment, issued by the state board of examiners and includes a school nurse. 1
N.J.S.A. 18A:28-4 provides that "[n]o teaching staff member shall acquire tenure in any position in the public schools in any school district or under any board of education, who is not the holder of an appropriate certificate for such position, issued by the state board of examiners."
The State Board has promulgated comprehensive regulations to govern the certification of public-school educational personnel. Dennery, supra, 131 N.J. at 643, 622 A.2d 858. The State Board of Examiners issues three categories of educational certificate: the Instructional Certificate, the Administrative Certificate, and the Educational Services Certificate. N.J.A.C. 6:11-2.3. The State Board has also designated "special endorsements" under each category of certificate. Those endorsements coincide with the educational subjects or positions that share common attributes and are grouped under a particular certificate. Dennery, supra, 131 N.J. at 633, 622 A.2d 858. A person may possess multiple endorsements under one category of certificate. Id. at 634, 622 A.2d 858.
There are also three types of certificate. The first type is the standard certificate, a permanent certificate issued to persons who have met all requirements for State certification. N.J.A.C. 6:11-4.1. We use the terms "standard certificate" and "permanent certificate" interchangeably. The second type is the provisional certificate, which is a temporary one-year certificate issued to those who have met the requirements for initial employment as part of a state-approved district training program or residency leading to standard certification. N.J.A.C. 6:11-4.2. The third type is the emergency certificate, which is issued only in the field of educational services, teacher of the handicapped, teacher of the blind and partially-sighted, and teacher of the deaf and hard-of- N.J.A.C. 6:11-4.3. Emergency certificates are issued only on the application of a public-school district when the district is unable to locate a suitable standard-certified teacher due to unforeseen shortages or other extenuating circumstances. N.J.A.C. 6:11-4.3(b).
We must construe the tenure statute so as to accomplish the intendment of the legislature. Sperry & Hutchinson Co. v. Margetts, 15 N.J. 203, 209, 104 A.2d 310 (1954). While we have said that the tenure statute should be given "liberal support" consistent with "legitimate demands for governmental economy," Viemeister v. Board of Ed. of Borough of Prospect Park, 5 N.J.Super. 215, 68 A.2d 768 (App.Div.1949) (Jacobs, S.J.A.D.), a teacher does not have a right to tenure without meeting the precise requirements of the tenure statute. Zimmerman v. Newark Board of Ed., 38 N.J. 65, 72, 183 A.2d 25 (1962), cert. denied, 371 U.S. 956, 83 S.Ct. 508, 9 L.Ed.2d 502 (1963); Moriarity v. Garfield Board of Ed., 133 N.J.L. 73, 42 A.2d 465 (Sup.Ct.1945), aff'd, 134 N.J.L. 356, 46 A.2d 734 (E. & A. 1946); Ahrensfield v. State Bd. of Ed., 126 N.J.L. 543, 19 A.2d 656 (E. & A.1941); Hansen v. Runnemede Board of Ed., 1983 S.L.D. 1240, 1253 (A.L.J.), aff'd, 1983 S.L.D. 1256 (Comm'r of Ed.); Ulozas v. Matawan Board of Ed., 1975 S.L.D. 604.
Breitwieser correctly frames the issue in this case as: "whether a teaching staff member can acquire tenure for...
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