Nelson v. Board of Educ. of Tp. of Old Bridge

• Decision Date: 12 March 1997
• Citation: 148 N.J. 358,689 A.2d 1342
• Parties: , 116 Ed. Law Rep. 1062 G. Michael NELSON, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE TOWNSHIP OF OLD BRIDGE, Middlesex County, Respondent-Appellant.
• Court: New Jersey Supreme Court

Page 358

148 N.J. 358

689 A.2d 1342, 116 Ed. Law Rep. 1062

G. Michael NELSON, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE TOWNSHIP OF OLD BRIDGE, Middlesex County, Respondent-Appellant.

Supreme Court of New Jersey.

Argued Jan. 22, 1997.

Decided March 12, 1997.

Todd A. Wigder, Deputy Attorney General, for appellant New Jersey State Board of Education (Peter G. Verniero, Attorney General of New Jersey, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel).

Francis X. Journick, Jr., Woodbridge, for appellant Board of Education of the Township of Old Bridge, etc. (Wilentz, Goldman & Spitzer, attorneys; Harold G. Smith, of counsel).

Gail Oxfeld Kanef, Newark, for respondent (Balk, Oxfeld, Mandell & Cohen, attorneys).

Michael F. Kaelber, Trenton, for amicus curiae New Jersey School Boards Association (Susan E. Galante, Director, Legal Department, attorney; Mr. Kaelber and Ms. Galante, on the brief).

Nathanya G. Simon, Florham Park, submitted a brief on behalf of amicus curiae Bloomfield Board of Education (Schwartz Simon Edelstein Celso & Kessler, attorneys; Ms. Simon and Thomas Russo, on the brief).

The opinion of the court was delivered by

GARIBALDI, J.

This appeal requires the Court again to examine the laws governing tenure of educational personnel. G. Michael Nelson, respondent, who possesses an administrative certificate with separate principal and supervisor endorsements, seeks to transfer his tenure status achieved under his supervisor endorsement to his principal endorsement. We must determine whether the specific positions listed in N.J.S.A. 18A:28-5 are separately tenurable and, if so, whether tenure obtained under one endorsement to an administrative certificate may be transferred to another endorsement under that certificate.

I

In 1975, G. Michael Nelson was first employed as a teaching staff member by the Old Bridge Board of Education (Old Bridge). Nelson is the holder of an administrative certificate with separate supervisor and principal endorsements issued by the New Jersey Commissioner of Education (the Commissioner). Nelson received his administrative certificate with a supervisor endorsement in February 1978. He received the principal endorsement to his administrative certificate in July 1978.

On September 21, 1982, Old Bridge appointed Nelson to the position of Department Chairperson of Industrial Arts at Cedar Ridge High School. Nelson qualified for that position by reason of his supervisor endorsement to his administrative certificate. On September 15, 1985, Nelson achieved tenure in that position.

On May 29, 1990, Old Bridge eliminated Nelson's position of Chairperson of Industrial Arts as part of a reduction in force (RIF). Thereafter, Nelson was reassigned to the position of teacher of Industrial Arts for the 1990-1991 school year. Nelson has held that position since his reassignment. Nelson never served in the capacity of administrator, principal, or vice principal under his principal endorsement.

In October 1993, Old Bridge filled an elementary principal position at the Cooper Elementary School with a non-tenured individual. On December 2, 1993, Nelson filed a petition of appeal with the Commissioner claiming a tenure right to the principal position at the Cooper Elementary School, maintaining that the tenure he had achieved under his supervisor endorsement as Chairperson of Industrial Arts extended to that principal's position.

The matter was transferred to the Office of Administrative Law. Relying primarily on Dennery v. Board of Education, 131 N.J 626, 622 A.2d 858 (1993), the Administrative Law Judge (ALJ) granted summary judgment to Nelson and ordered Old Bridge to install Nelson as principal of the Cooper Elementary School. Nelson was also awarded an amount representing the difference in salary between his present position and the principal position from December 1993 until the date of his installation as principal.

The Commissioner reversed the ALJ's decision and granted summary judgment to Old Bridge. The Commissioner cited administrative precedent holding that under the Tenure Act "tenure is achieved in a particular 'position' " and that "tenure can accrue in [a separately tenurable position, such as principal] only as a result of actual work experience in the position." The Commissioner concluded that since Nelson never served in a principal's position, he could have no tenure claim to that position.

The Commissioner expressly rejected the ALJ's holding that Dennery changed those long-standing tenure principles. The Commissioner concluded that "the Dennery court did not address the separately tenurable positions specifically enumerated in N.J.S.A. 18:28-5, nor did it consider whether tenure could be transferred across endorsements to the administrative certificate at issue herein." Finally, the Commissioner noted that a contrary decision would disrupt sound educational policy by introducing chaos into the tenure rules.

The New Jersey State Board of Education (State Board) affirmed the Commissioner's decision. In an unpublished opinion, the Appellate Division panel reversed the State Board. The panel relied primarily on Dennery to conclude that Nelson's tenure under the supervisor endorsement of his administrative certificate was transferable to the principal endorsement of that same certificate. The court explicitly rejected the State Board's assertion that N.J.S.A. 18A:28-5 mandates that the positions listed in the Statute are separately tenurable. The court concluded that Dennery requires "that a tenured supervisor under an administrative certificate who satisfies the requirements for service as a principal must be appointed to that position over a non-tenured individual."

After Old Bridge and the State Board filed petitions for certification with this Court, the New Jersey Legislature enacted L. 1996, c. 58, which amended N.J.S.A. 18A:28-5, effective June 28, 1996 (the Amendment).

We granted Old Bridge's and the State Board's petitions for certification. 146 N.J. 499, 683 A.2d 202 (1996). ¹

II

The tenure of educational personnel is authorized by the Tenure Act, N.J.S.A. 18A:28-1 to -18. A person who is employed in the public schools must normally "hold[ ] ... a valid certificate to teach, administer, direct or supervise the teaching, instruction or educational guidance of ... pupils in such public schools." N.J.S.A. 18A:26-2. The State Board has implemented the certification requirement by authorizing three certificates that an educator may hold: instructional, administrative, and educational services. N.J.A.C. 6:11-2.3. An educator may hold more than one type of certificate. In addition to the three types of certificates, the State Board has also designated "special endorsements" under each type of certificate, which identify the educational subjects or assignments that share common traits. Ibid.

Employment in a specific assignment requires that an educator hold the appropriate endorsement. N.J.A.C. 6:11-6.1, -6.2. An individual may possess multiple endorsements under a certificate, qualifying that person to be employed in the positions covered by the respective endorsements. To obtain each separate endorsement, the candidate must meet certain specific requirements. In addition to certification, an educator must serve a probationary period in a given position under a designated certificate to achieve tenure.

Prior to the enactment of the Amendment, N.J.S.A. 18A:28-5 (Section 28-5), which establishes the guidelines for achieving tenure, read in pertinent part:

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 ... 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 ... shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation ... 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.

[N.J.S.A. 18A:28-5 (emphasis added).]

III

The interpretation of a statute by the administrative agency charged with its enforcement is entitled to great weight. See GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 306, 625 A.2d 468 (1993); Merin v. Maglaki, 126 N.J. 430, 436-37, 599 A.2d 1256 (1992). "[T]he ultimate administrative decision-maker in reviewing ... school matters is the State Board, whose final decision will not be upset unless unreasonable, unsupported by the record or violative of the legislative will." Capodilupo v. Board of Educ., 218 N.J.Super. 510, 515, 528 A.2d 73 (App.Div.), certif. denied, 109 N.J. 514, 537 A.2d 1300 (1987). As this Court noted in Dennery:

The Legislature intended that the State Board "promulgate specifications concerning categories of 'certification' " and that courts not intervene "unless the State Board's decision is palpably arbitrary." Agency regulations are accorded substantial deference based on the recognition that "certain subjects are within the peculiar competence of the agency."

[Dennery, supra, 131 N.J. at 637, 622 A.2d 858 (citations omitted).]

"The delegation of regulatory and administrative responsibility over tenure to the State Board is based on the complexity and specialized nature of the subject of teacher tenure." Ibid. (citing Ellicott v. Board of Educ., 251 N.J.Super. 342, 350, 598 A.2d 237 (App.Div.1991)).

In his decision below, which was explicitly adopted by the State...