Ellicott v. Board of Educ. of Tp. of Frankford, Sussex County

• Decision Date: 24 October 1991
• Citation: 598 A.2d 237,251 N.J.Super. 342
• Parties: , 70 Ed. Law Rep. 880 Barbara ELLICOTT, Petitioner-Respondent, v. BOARD OF EDUCATION OF the TOWNSHIP OF FRANKFORD, SUSSEX COUNTY, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 342

251 N.J.Super. 342

598 A.2d 237, 70 Ed. Law Rep. 880

Barbara ELLICOTT, Petitioner-Respondent, v. BOARD OF EDUCATION OF the TOWNSHIP OF FRANKFORD, SUSSEX COUNTY, Respondent-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 24, 1991.

Decided Oct. 24, 1991.

Frank N. D'Ambra, for respondent-appellant (Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, attorneys; Frank N. D'Ambra of counsel and on the briefs with James L. Plosia, Jr.) Newark.

Stephen B. Hunter, for petitioner-respondent Barbara Ellicott (Klausner, Hunter & Cige, attorneys; Stephen B. Hunter of counsel and on the brief) Somerville.

Robert J. Del Tufo, Atty. Gen. of New Jersey, for respondent State Bd. of Educ. (Marlene Zuberman, Deputy Atty. Gen., on the statement in lieu of brief).

Before Judges O'BRIEN, HAVEY and CONLEY.

The opinion of the court was delivered by

HAVEY, J.A.D.

Respondent Frankford Township Board of Education (Local Board) appeals from a determination by the State Board of Education (State Board) upholding petitioner Barbara Ellicott's entitlement to a newly created full-time position as a learning disabilities teacher-consultant (LDTC). The State Board concluded that, with the exception of the position of school nurse, ¹ petitioner enjoyed tenure in all positions for which her educational services certificate qualified her, including the LDTC position, despite the fact that she had not served the requisite probationary period under N.J.S.A. 18A:28-5 in that position. Thus, the State Board determined that petitioner, by virtue of a reduction in force (RIF), was entitled to the LDTC position over that of a nontenured teaching staff member. We agree and affirm.

Petitioner holds an educational services certificate with speech correctionist (speech language-specialist) and LDTC endorsements on the certificate. She has worked in the Frankford Township school system since March 1, 1981. She was employed both as a speech correctionist and LDTC for approximately one year during various periods between March 1981 and June 1982. Thereafter, she worked as a speech correctionist for four days per week until the 1986-87 term, when her work week was reduced to two days.

In June 1988, the Local Board created a full-time LDTC position for the 1988-89 school year. Petitioner claimed an entitlement to the position by virtue of her tenure status. However, the Local Board hired a nontenured teaching staff member, Patricia Pasierb, to fill the position.

Petitioner filed a petition with the Commissioner of Education asserting her tenure right to the LDTC position. The Administrative Law Judge (ALJ) determined that since the LDTC position fell within petitioner's educational services certificate, and she held the requisite LDTC endorsement, she was tenured in the "position" of LDTC. However, the ALJ concluded that petitioner was not entitled to assert her tenure right because she had not been subject to a RIF occurring contemporaneously with the creation of the LDTC position. The Commissioner, while adopting the ALJ's initial decision, did so on a different ground. He concluded that the LDTC was a separate, tenurable position from speech correctionist and, since petitioner had accumulated only one year of service as an LDTC, she had not satisfied the requisite statutory period under N.J.S.A. 18A:28-5 to acquire tenure in that position. The State Board reversed the Commissioner, finding that petitioner's tenure was achieved by virtue of service under the educational services certificate since 1981. It reasoned that because petitioner was authorized and qualified for assignment as an LDTC by virtue of her LDTC endorsement, she was entitled to the position following a RIF as against the nontenured teaching staff member. ²

The Local Board argues that petitioner is not entitled to employment as an LDTC, as against the nontenured teaching staff member, since she did not achieve tenure under the LDTC endorsement. We disagree. We are satisfied that the State Board's determination is both factually supported and consistent with the legislative will. See Capodilupo v. Board of Educ. of West Orange, 218 N.J.Super. 510, 515, 528 A.2d 73 (App.Div.), certif. denied, 109 N.J. 514, 537 A.2d 1300 (1987); Dore v. Board of Educ. of Tp. of Bedminster, 185 N.J.Super. 447, 453, 449 A.2d 547 (App.Div.1982).

Tenure is conferred by statute, N.J.S.A. 18A:28-1 to -18, which "should be liberally construed to achieve its beneficent ends." Spiewak v. Board of Educ. of Rutherford, 90 N.J. 63, 74, 447 A.2d 140 (1982). N.J.S.A. 18A:28-5 defines with specificity the conditions under which teaching staff members are entitled to the security of tenure. It provides that the services of "all teaching staff members including ... teachers ... and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners," shall be under tenure upon satisfying one of the requisite statutory probationary terms set forth in the statute. (Emphasis added). Thus, tenure is achieved by a teaching staff member who serves the probationary period either in a specifically designated "position," such as a teacher, or in "positions which require them to hold appropriate certificates...." While "position" is not defined by the act, "teaching staff member" is defined as a staff member who holds "office, position or employment" which requires that he or she "hold a valid ... certificate...." N.J.S.A. 18A:1-1. (Emphasis added). Also, N.J.S.A. 18A:28-4 provides that "[n]o teaching staff member shall acquire tenure in any position ... who is not the holder of an appropriate certificate for such position...." (Emphasis added).

As the State Board properly observed, what is clear from the statutory scheme is that tenure is achieved in a specific "position," and the scope of the tenured position is initially limited by the "certificate" the teaching staff member must hold to satisfy the prerequisite of qualifications for his or her employment. The statute does not require service of the probationary term under a specific "endorsement." Because the legislative will is expressed by the plain language of the statute, we will "not engage in conjecture or surmise which will circumvent the plain meaning of the act." In re Closing of Jamesburg High School, 83 N.J. 540, 548, 416 A.2d 896 (1980).

The State Department of Education regulations provide for three types of regular certifications: instructional; administrative, and educational services. N.J.A.C. 6:11-2.3. The Board of Examiners may issue for each teaching, administrative or educational services position a "special endorsement" under the appropriate certificate. Id. Under each certification there are numerous "special endorsements" required for teaching staff member assignments in specific fields. For example, N.J.A.C. 6:11-11.3 to -11.20 enumerate various endorsements under the educational services certificate, including LDTC and speech correctionist. A teaching staff member holding an educational services certificate is qualified to serve in any assignment under that certificate for which he or she holds the requisite endorsement. Also, teachers holding an instructional certificate are authorized and qualified for service under the certificate for which the member possesses the appropriate endorsement. N.J.A.C. 6:11-6.1 to -8.7. Thus, unlike the statutory language under N.J.S.A. 18A:28-5, which predicates tenure to a particular "position" upon the acquisition of a "certificate," the regulations enumerate endorsements under the certificates which, if acquired, qualify the teaching staff member to be assigned to the endorsement position.

We have already upheld a State Board determination, in a different setting, that a teaching staff member has tenure in all positions for which his instructional certificate qualifies him. In Capodilupo, the State Board distinguished seniority rights under N.J.S.A. 18A:28-9 (which provides a mechanism for ranking tenured teaching staff members so that reductions can be effected in an equitable fashion) from tenure rights under N.J.S.A. 18A:28-5. 218 N.J.Super. at 514-15, 528 A.2d 73. See also Lichtman, 93 N.J. at 368, n. 4, 461 A.2d 158. We endorsed the State Board's determination that a tenured teacher is entitled to retention as against a nontenured teacher regardless of seniority, in the event of a RIF. Capodilupo, 218 N.J.Super. at 514-15, 528 A.2d 73. We held that "a tenured teacher seeking reinstatement within the endorsements on his or her certificate is entitled to preference in a RIF as against a non-tenured applicant with the same certification." Id. at 515, 528 A.2d 73 (emphasis added). This was so despite the fact that the tenured teacher had no "demonstrable experience" under the endorsement. Id. at 513, 528 A.2d 73. See also Bednar v. Westwood Bd. of Educ., 221 N.J.Super. 239, 534 A.2d 93 (App.Div.1987), certif. denied, 110 N.J. 512, 541 A.2d 1371 (1988) (the Tenure Act "surely does not contemplate use of the concept of seniority to justify retaining a non-tenured teacher in a position within the certificate of a dismissed tenured teacher"). 221 N.J.Super. at 242, 534 A.2d 93 (emphasis added). The State Board's determination here is entirely consistent with the Capodilupo and Bednar holdings.

The Local Board urges that even if...