Lammers v. Board of Educ. of Borough of Point Pleasant

• Decision Date: 08 December 1993
• Citation: 633 A.2d 526,134 N.J. 264
• Parties: , 87 Ed. Law Rep. 177 Catherine LAMMERS, Petitioner-Respondent, v. BOARD OF EDUCATION OF the BOROUGH OF POINT PLEASANT, Respondent.
• Court: New Jersey Supreme Court

Page 264

134 N.J. 264

633 A.2d 526, 87 Ed. Law Rep. 177

Catherine LAMMERS, Petitioner-Respondent, v.BOARD OF EDUCATION OF the BOROUGH OF POINT PLEASANT, Respondent.

Supreme Court of New Jersey.

Argued Sept. 27, 1993.

Decided Dec. 8, 1993.

Arlene Goldfus Lutz, Deputy Atty. Gen., for appellant, State Bd. of Educ. (Fred DeVesa, Acting Atty. Gen., attorney; Mary C. Jacobson, Sr. Deputy Atty. Gen., of counsel).

Stephen B. Hunter, Somerville, for petitioner-respondent, Catherine Lammers(Klausner, Hunter, Cige & Seid, attorneys).

Richard A. Friedman, Trenton, for amicus curiae, New Jersey Educ. Ass'n (Zazzali, Zazzali, Fagella & Nowak, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

The primary question presented in this appeal is whether a teacher's one-year maternity leave creates a vacancy for purposes of N.J.S.A. 18A:28-12.We hold that it does not, and therefore reverse the judgment of the Appellate Division and reinstate the decision of the State Board of Education.

I.

The facts are undisputed.Plaintiff, Catherine Lammers, a tenured English teacher in the Point Pleasant Borough school system, lost her position as a result of a reduction in force (RIF).Pursuant to N.J.S.A. 18A:28-12, the Point Pleasant Borough Board of Education(local Board) placed Lammers on a preferred eligibility list for rehiring.Shortly thereafter, the local Board granted a one-year maternity leave of absence to another tenured English teacher, but did not hire Lammers to fill that position.Rather, the local Board hired a non-tenured teacher as a "long-term substitute" to fill that position.Lammers filed a petition of appeal with the Commissioner of Education, claiming that the local Board had violated N.J.S.A. 18A:28-12 when it did not rehire her.

The local Board contended that it had not violated Lammers' rights because the teacher's maternity leave had not created a vacancy within the meaning of N.J.S.A. 18A:28-12.After reviewing cross motions for summary decisions, an Administrative Law Judge (ALJ) determined that the local Board had violated Lammers' tenure rights.The Commissioner of Education adopted the ALJ's decision.The local Board then appealed to the State Board of Education(State Board), which reversed the Commissioner's decision.

The State Board found that the local Board was not required to hire Lammers for the position because no vacancy existed.Lammers appealed to the Appellate Division, which reversed the State Board's decision.The State Board then filed a motion for reconsideration, which was granted.In a revised opinion, the Appellate Division again concluded that the one-year maternity leave had created a "temporary vacancy," which constituted a vacancy within the meaning of N.J.S.A. 18A:28-12. 260 N.J.Super. 390, 616 A.2d 1293(1992).

We granted the State Board's petition for certification, 133 N.J. 438, 627 A.2d 1143(1993), and now reverse the judgment of the Appellate Division.

II.

We find that a one-year leave of absence does not create a vacancy or temporary vacancy under N.J.S.A. 18A:28-12.That section provides in pertinent part:

If any teaching staff member shall be dismissed as a result of [a RIF], such person shall be and remain upon a preferred eligible list in the order of seniority for reemployment whenever a vacancy occurs in a position for which such person shall be qualified and he shall be reemployed by the body causing dismissal, if and when such vacancy occurs * * *.(Emphasis added).

The Legislature's plain intent was that a RIFFED teacher's entitlement to a position arises only when a vacancy exists.The specific question we face now is whether a temporary one-year absence of a tenured teacher creates a vacancy.If it does not, then Ms. Lammers has no statutory entitlement to the position of the absent tenured teacher.

The interpretation of any statute necessarily begins with consideration of its plain language.The Legislature did not provide a definition of "vacancy" in the statute nor indicate that the word was to be given any special meaning.The word "vacancy" is not a technical word or a term of art.Absent a legislative intent to the contrary, such language should be given its ordinary meaning.E.g., Merin v. Maglaki, 126 N.J. 430, 434-35, 599 A.2d 1256, 1258(1992).

In Sayreville Education Ass'n v. Board of Education, 193 N.J.Super. 424, 474 A.2d 1091(1984), the Appellate Division was called on to determine whether a local board of education could fill a teaching staff vacancy occurring after the start of the academic year by appointing a substitute teacher for the balance of the year pursuant to N.J.S.A. 18A:16-1.1.To resolve that issue the court had to distinguish between absences and vacancies.N.J.S.A. 18A:16-1.1 provides for the hiring of temporary employees "to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee."(Emphasis added).

The Appellate Division in Sayreville found that N.J.S.A. 18A:16-1.1 applied "when the services of a substitute teacher are required because of the temporary absence, even if protracted, of a regular teacher whose return to duty is contemplated."193 N.J.Super. at 428, 474 A.2d at 1093(emphasis added).The court also explained that the plain meaning of N.J.S.A. 18A:16-1.1

clearly implies a temporary arrangement.That is, the 'place' which is the intended subject of the statute is the place of another which that other will reclaim when his period of absence is over.* * * If that other employee has, however, terminated his employment, then the place which the appointee (substitute) is filling is not the place of the other but rather a vacant place, and the statute ordinarily does not apply.

[Ibid.

(emphasis added).]

The implication drawn by the Appellate Division in Sayreville between a vacancy and an absence is unmistakable.An absence exists when the missing teacher is scheduled ultimately to return to the position.A vacancy exists when the teacher leaves the position permanently, as in the case of a resignation or a retirement.

The Sayreville court also found that Driscoll v. Board of Education, 165 N.J.Super. 241, 398 A.2d 97(App.Div.), aff'd o.b. 79 N.J. 126, 398 A.2d 90(1979), while "inapposite" because it involved a "temporarily available" teaching position filled by a substitute, "constitute[d] a persuasive demonstration of the reasons why a long-term substitute should not be deemed a teaching staff member."Sayreville, supra, 193 N.J.Super. at 433, 474 A.2d at 1096.The "temporary absence" in Driscoll to which the Sayreville court referred had been created when a tenured teacher took a one-and-one-half-year maternity leave.

The substitute teacher in Driscoll brought suit to compel the local board to employ her as a regular full-time teacher.The Appellate Division upheld the Board's decision.It found that the tenured teacher had not "abandoned" her position during the 1973-74 school year and that, indeed, "a unilateral determination [by the local board] that [the tenured teacher had] abandoned her position could have resulted in expensive litigation should [the tenured teacher] have sought to return during the balance of the school year."165 N.J.Super. at 247, 398 A.2d 97.

As noted in Sayreville, the "factual linchpin" of the Driscoll decision was that "the position in question was not vacant when the substitute teacher was appointed and did not actually become vacant until after the end of the academic year in question when its incumbent * * * resigned."Sayreville, supra, 193 N.J.Super. at 433, 474 A.2d at 1095(emphasis added)(citingDriscoll, supra, 165 N.J.Super. at 246-47, 398 A.2d at 99-100).

Thus, the court found that a one-and-one-half-year maternity leave, even when the status of the tenured teacher on leave was in question, did not create a vacancy that would trigger the protections of N.J.S.A. 18A:28-12.Rather, the Driscoll court simply treated the leave as a protracted absence, and the fill-in teacher as a substitute.

The language and reasoning in Sayreville and Driscoll concerning vacancies stands in accord with well-established law.In Fiscella v. Nulton, 22 N.J.Super. 367, 375, 92 A.2d 103, 107(App.Div.1952), the Appellate Division resorted to the Black's Law Dictionary (4th ed.) definition of "vacancy" in the case of an election, defining it as an existing office without an incumbent.See alsoBoard of Educ. of Newark v. Civil Serv. Comm'n, 98 N.J.L. 417, 422, 119 A. 875, 876(Sup.Ct.1922)(stating that vacancy arises where there is no qualified incumbent who has right to exercise functions of office), aff'd, 99 N.J.L. 106, 122 A. 807(E. & A.1923).Davis v. Davis, 57 N.J.L. 80, 30 A. 184(Sup.Ct.1894), also stands for the proposition that a vacancy exists where there is no legally qualified incumbent.Id. at 83, 30 A. at 185.

Other state courts interpreting similarly-worded education statutes have reached the same conclusion with regard to the meaning of vacancy.In Brewer v. Board of Educ., 51 N.Y.2d 855, 433 N.Y.S.2d 1009, 414 N.E.2d 389(1980), the local school board abolished the plaintiff-teacher's position and placed her on a preferred eligibility list.Id., at 856, 433 N.Y.S.2d at 1010, 414 N.E.2d at 390.Pursuant to a statute similar to N.J.S.A. 18A:28-12, the plaintiff was entitled to reinstatement when a "vacancy" opened in a position similar to the one she had held previously.Ibid.

A teacher in the plaintiff's former department went on a one-year sabbatical leave.Ibid.The local board, however, did not offer the plaintiff the position.Ibid.The Court of Appeals concluded that the position was not "vacant" within the meaning of the statute.Id., at 858, 433 N.Y.S.2d at 1011, 414 N.E.2d at 391.It stated:

The term 'vacancy' when used in this context connotes a position * * * for which there is no incumbent.Viewed in this light, it is evident that the term does not...