Cohen v. Emerson Bd. of Educ.

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: DREIER
• Citation: Cohen v. Emerson Bd. of Educ., 542 A.2d 489, 225 N.J.Super. 324 (N.J. Super. App. Div. 1988)
• Decision Date: 31 May 1988
• Parties: , 47 Ed. Law Rep. 219 Erica A. COHEN, Petitioner-Appellant, v. EMERSON BOARD OF EDUCATION, Respondent-Cross-Appellant, v. Suzanne CARTER, Intervenor-Cross-Appellant.

Page 324

225 N.J.Super. 324

542 A.2d 489, 47 Ed. Law Rep. 219

Erica A. COHEN, Petitioner-Appellant, v. EMERSON BOARD OF EDUCATION, Respondent-Cross-Appellant, v. Suzanne CARTER, Intervenor-Cross-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 2, 1988.

Decided May 31, 1988.

Stephen B. Hunter, Somerville, for petitioner-appellant (Klausner, Hunter & Oxfeld, attorneys; Stephen B. Hunter, of counsel and on the brief).

Irving C. Evers, Livingston, for respondent-cross-appellant (Schwartz, Pisano, Simon & Edelstein, attorneys; Irving C. Evers, of counsel and on the brief).

Alfred F. Maurice, Hackensack, for intervenor-cross-appellant (Alfred F. Maurice, on the brief).

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

Before Judges DREIER and BAIME.

The opinion of the court was delivered by

DREIER, J.A.D.

Petitioner, Erica A. Cohen, has appealed from a decision of the State Board of Education determining that intervenor, Suzanne Carter, held seniority over petitioner in the position of secondary school speech correctionist in the respondent Emerson Board of Education school district. Carter and the school district have cross-appealed from certain seniority determinations in the event the particular points urged by petitioner result in a significant correction of her seniority.

Petitioner was reduced from a half-time elementary speech correctionist position to a .3 week elementary position. At the same time the Board retained Carter in a .6 week secondary position. (Each .1 week position represents a half day per week employment in the district). As will be explained, this appeal illustrates the hypertechnical distinctions made in the interpretation of the State Board of Education's seniority standards. See N.J.A.C. 6:3-1.10. Particularly implicated in this case are the separate seniority lists maintained for elementary and secondary positions. See N.J.A.C. 6:3-1.10(1) 15 and 16. The interpretation is made more difficult by regulations recognizing "district-wide" experience which effects seniority in both the elementary and secondary categories. N.J.A.C. 6:3-1.10(1)15iv and 16iii. Also implicated in this case is the State Board's extrapolation to non-classroom teachers of the regulation granting secondary school seniority to seventh and eighth grade teachers in departmentalized schools. ¹ Thus an anomalous result is reached in measuring seniority for a speech correctionist or other non-classroom teacher to whom students are sent for individualized instruction. Although the job is identical in a K-8 school with or without a departmentalized seventh and eighth grade, the speech correctionist in a school with departmentalization achieves the "district-wide" seniority entitling the teacher to possible job preference over a speech correctionist whose entire experience is in a high school with 9th through 12th grade students; a speech correctionist receives no such seniority for services performed in a non-departmentalized school.

In the case before us the two teachers have practically identical seniority histories. ² Intervenor Carter had an undisputed total seniority credit, multiplying the portions of a year served by the portion of full-time employment in each year, of 3.085 years for the period January 21, 1980 through the end of the 1984 school year. ³ The State Board computed petitioner's seniority in the secondary category at 3.07 years, raised from the originally-determined 2.988 years by the local board. Petitioner's service was entirely "district-wide" from February 1, 1981 through June 30, 1985, by virtue of her work with seventh and eighth grade students as part of a K-8 assignment. Petitioner contends that periods of additional service should have been included.

The Administrative Law Judge determined that petitioner acquired seniority, and therefore her hours could not be reduced to fewer than those offered to Carter for the 1984-1985 school year. In reviewing this decision, the Commissioner disagreed with some of the computations of petitioner's seniority, but agreed that her seniority exceeded that of Carter, entitling petitioner to back pay and a correction of her seniority record. On cross-appeals to the State Board of Education, the State Board reversed the Commissioner's decision finding the totals noted earlier. On this appeal petitioner first argues that her prior vested seniority rights, before an amendment of the State Board's regulations in September 1983, required that she be given a district-wide credit even for her earlier elementary school service.

I

Under N.J.S.A. 18A:29-9, a local board may for reason of economy or for other good cause reduce the number of positions available. Reductions in force must be made on the basis of seniority, N.J.S.A. 18A:282-10; and the Commissioner is given authority to establish the standards for determining seniority. N.J.S.A. 18A:28-13. The regulation discussed earlier constitutes the Commissioner's exercise of this power. Petitioner in effect argues that because she had undergone a reduction-in-force which shortened her hours during a period when former regulations were in effect, any seniority she then had vested must now be credited to her. Formerly, seniority was based upon certification in a particular area, not upon actual service. Since petitioner was certified in both the elementary and secondary categories of speech correctionist, she contends that she had district-wide (elementary and secondary) seniority.

To answer this argument it is enough to say that petitioner has not lost any seniority. Under the new regulations it is merely placed within the categories of actual service. This interpretation of the Commissioner's statutory mandate, applicable to all seniority questions determined after the operative date of the amended rules, cannot be said to be arbitrary or capricious and appears to be a reasonable exercise of administrative rulemaking power. See Hill v. Bd. of Ed., West Orange, 1985 S.L.D. ---- (Commissioner, January 16, 1985), aff'd by St. Bd. of Ed., 1985 S.L.D. ---- (May 1, 1985), aff'd App.Div.1986 (A-4355-84T1), certif. den. 104 N.J. 443, 517 A.2d 433 (1986); contra Felper v. Bd. of Ed., 1985 S.L.D. ---- (Commissioner, January 28, 1985). ⁴ In the case before us, the State Board of Education firmly endorsed the Hill decision and rejected petitioner's arguments. Felper was expressly overruled. We find no basis to depart from the Board's decision in this regard.

II

Petitioner next claims that she was entitled to seniority credits not only for nine unused sick days that were applied to her 1980-1981 maternity leave, but also to an additional 30 days' credit. Respondent contends that petitioner was not entitled to the nine days of sick leave, but we find no basis for that conclusion. Sick days may be applied to a maternity leave, and there is no question that petitioner had been employed in the preceding school year and indicated that she intended to return after her maternity leave. The fact that the sick days were applied to the initial nine days of the term was based on the happenstance of the time of her pregnancy. Had the leave been from October through February rather than September through January there could have been no such argument. It certainly would have been more disruptive to the system for petitioner to have taught for a day or a week in September and then taken her sick leave and the balance of her maternity leave.

III

The 30-day unpaid absence credit, however, presents a more difficult problem. N.J.A.C. 6:3-1.10(b) provides, in part:

[P]eriods of unpaid absences not exceeding 30 calendar days aggregate in one academic or calendar year ... shall be credited toward seniority. All other unpaid absences or leaves of absence shall not receive seniority credit.

The State Board interprets this provision as permitting 30 days of unpaid absences to be counted towards seniority; but if 31 days are taken during the school or calendar year, the entire 31-day period is then excluded. We deem this interpretation to be arbitrary. The rule by its terms applies whether the period in excess of 30 days is taken in nine intervals of three days and one of four or one period of thirty-one days. ⁵ The State Board agreeing with the Administrative Law Judge but disagreeing with the Commissioner, stated:

Such interpretation is consistent with the purpose of the seniority system to insure equitable determinations on the basis of actual service, and we find that to broaden the exception provided by N.J.A.C. 6:3-1.10(b) would undermine that purpose.

We accept the State Board's statement of purpose: "equitable determinations on the basis of actual service." This purpose, however, is not implemented by the Board's interpretation. If the Board were to measure two employees' service, one who had 31 days of unpaid leave in a year and another 30 days, the employee with 30 days would be given a full year's credit, while the employee with 31 days would be given approximately .9 years (if a 10-month contract) or .917 years (if a 12-month contract); the actual work days lost would be computed. The difference in the two employees' actual service would have been but one day, yet their records would not accurately reflect this difference. This conclusion would violate the Board's articulated standard of "equitable determination" based upon "active service." If the Board has determined that 30 days' aggregate leave within a year is sufficiently inconsequential not to affect an employee's seniority rights, then the rule should be equitably applied to those who have taken more or less than that period.

Applying this determination to petitioner's case, she should have received, as she did, the first nine days of the academic year as paid leave, applying the balance of her accumulated sick pay. The next 30 days would have been properly...