Quinlan v. Board of Ed. of North Bergen Tp.

• Decision Date: 09 March 1962
• Docket Number: No. A--516,A--516
• Citation: 179 A.2d 161,73 N.J.Super. 40
• Parties: Ann A. QUINLAN, Petitioner-Respondent, v. The BOARD OF EDUCATION OF the TOWNSHIP OF NORTH BERGEN, Respondent-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 40

73 N.J.Super. 40

179 A.2d 161

Ann A. QUINLAN, Petitioner-Respondent, v. The BOARD OF EDUCATION OF the TOWNSHIP OF NORTH BERGEN Respondent-Appellant.

No. A--516.

Superior Court of New Jersey Appellate Division.

Argued Oct. 23, 1961.

Decided March 9, 1962.

Joseph V. Cullum, Union City, for respondent-appellant.

Melvin Gittleman, North Bergen, for petitioner-respondent (Capone & Gittleman, North Bergen, attorneys).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C. (temporarily assigned).

This is an appeal from a determination and judgment of the State Board of Education ordering the reinstatement of petitioner Ann A. Quinlan as a clerk in the employ of respondent Board of Education of the Township of North Bergen.

On December 9, 1948 petitioner was appointed 'a clerk in the Public School System' by the Board of Education of the Township of North Bergen. She continued to serve in that capacity until January 3, 1956 when, by resolution dated December 8, 1955, she was appointed 'Clerk-Attendance Officer in the Public School System.' On February 1, 1958 the then board adopted a resolution dismissing her 'for reasons of economy.' In the resolution she was referred to as an 'attendance officer in the Public School System' rather than as a clerk-attendance officer.

Petitioner subsequently filed a petition of appeal to the Commissioner of Education alleging that her appointment as clerk-attendance officer was supplemental to and not in substitution for her original appointment as clerk, and that thereafter she continued to perform the duties of a clerk as well as those of an attendance officer. The legal significance of her contention is that as a holder of a 'secretarial or clerical position' for three years she would enjoy tenure during good behavior, N.J.S.A. 18:6--27, whereas an attendance officer has no such tenure. She alleged that her dismissal was not made in good faith for reasons of economy but was in reprisal for her activity and support of a referendum to change the defendant board of education from a chapter 6 to a chapter 7 board, and thus was motivated by political considerations. She prayed that the resolution dismissing her be set aside as illegal and contrary to law, that she be reinstated to the position of clerk, and that her tenure rights be fixed and declared.

A hearing was conducted before the Assistant Commissioner of Education at which the plaintiff was the sole witness. She testified that she was appointed a clerk in 1948 and as a clerk-attendance officer in December 1955, effective January 3, 1956. She performed her duties until discharged on February 1, 1958. She asserted she worked both as a clerk and as an attendance officer. She estimated her work was divided 'half and half.' She did any clerical work she was asked to do. On one occasion she substituted for two days when another clerk was ill. She would often be called by Mr. Egan, her supervisor, to look up records in the vault or to locate high school records. She helped a Miss Gilligan in the office.

In support of her claim that reasons of economy did not motivate her dismissal, she testified that in the late fall of 1957 she had engaged in the campaign to change the board of education from a chapter 6 to a chapter 7 board. She offered three resolutions, two of them dated August 12, 1958 appointing two additional clerks (principal) in the school system, and one dated September 12, 1957, appointing a clerk in the office of the Superintendent of Schools. It was further made to appear that she had previously applied for a position as attendance officer; that after her appointment as clerk-attendance officer she had received a schedule referring to her as an attendance officer; that she was on the same salary schedule as other attendance officers in the system; that she had joined in a request for an increase in the attendance officers' salaries, and that in a letter to the School Superintendent she had signed as 'Attendance Officer Lincoln School No. 5.' She asserted that she considered her appointment of December 8, 1955 as 'clerk-attendance officer' to be a promotion.

The Commissioner of Education concluded that in order for petitioner to prevail she was required to show that her duties were preponderately those of a clerk, and in the absence of such proof he held that she was not protected by tenure. He thus found it unnecessary to consider the contention that her dismissal was not in good faith for reasons of economy. She thereupon appealed to the State Board of Education, which reversed the Commissioner and ordered plaintiff 'reinstated as a clerk as of February 1, 1958, at such salary as she was receiving as clerk prior to her appointment as clerk-attendance officer, effective January 3, 1956.' The present appeal followed.

The two questions presented for our determination are:

(1) Whether petitioner had tenure of office at the time of her discharge, and

(2) Whether in such case she was discharged in good faith for reasons of economy.

Although not conceded by the respondent board, we have no difficulty in concluding that at the time of her appointment as clerk-attendance officer, petitioner had tenure of office in her position as clerk. N.J.S.A. 18:6--27 gives tenure during good behavior and efficiency to all persons holding clerical positions under any board of education after three consecutive years of employment. She had thus qualified for tenure by her service as clerk from 1948 to 1955. Thereafter the board was precluded from dismissing her except for inefficiency, incapacity, unbecoming conduct or other just cause, and then only after written charges and a hearing thereon. We therefore turn to consideration of her status at the time of her discharge.

It is conceded that R.S. 18:14--43, N.J.S.A., providing for tenure for attendance officers for city school districts, did not apply to petitioner, but it is asserted that the tenure rights which she had earned as a clerk were not terminated by her subsequent appointment to the hybrid position of clerk-attendance officer; that such appointment was not in substitution for her original appointment as clerk, and thus that her tenure as a clerk continued notwithstanding.

On the contrary, respondent board contends that even though petitioner may have had tenure in her position as a clerk, her acceptance of the appointment as clerk-attendance officer and her subsequent acquiescence in respondent's alleged treatment of her as an attendance officer, amounted to a relinquishment of her status as a clerk with its concomitant tenure of office.

On this question the State Board determined factually that she had been serving as both clerk and attendance officer and therefore continued to retain her tenure as a clerk. In so doing the board held:

'In our view, the record indicates that from the time of her appointment as a clerk-attendance officer until her discharge, petitioner served as both a clerk and an attendance officer. If she functioned primarily as an attendance officer, she did so under orders, and not of her own volition as such. Her testimony was to the effect that 'whatever I was asked to do in the school system, I did.' The predominance of her function as an attendance officer was not a situation of her making, but depended upon the decision of her superiors. In her dual official capacity, she could have fulfilled the duties of either or both offices, depending upon her orders. She was not appointed as an attendance officer, but as a clerk-attendance officer and when she accepted the appointment, she manifested herself as being ready, willing and able to perform in either or both offices. * * * By accepting the appointment, she agreed not only to undertake the duties of an attendance officer, but also to continue to perform the duties of a clerk. The manner in which her working time was allotted to the two positions was not her decision or concern. The Board could have acceded to her express request by appointing her as an attendance officer exclusively. But it chose to preserve her status as a clerk, and to give her the additional post of attendance officer. If most or all of her subsequent activity concerned the latter office, she was simply following her instructions. She might as readily have spent all of her time as a clerk if her superiors had felt that her services were more urgently required in that capacity. Thus, within the limitations of her instructions, she continued to serve as a clerk. Upon her dismissal as an attendance officer, she was entitled to resume her clerical duties by virtue of her tenure rights in that position.'

In reviewing the determination of an administrative agency our power to make independent findings of fact where necessary is beyond question. R.R. 4:88--13, 1:5--4(b) and 2:5; Cullum v. Bd. of Education of Tp. of North Bergen, 15 N.J. 285, 294, 104 A.2d 641 (1954). But the determination of the agency carries with it the presumption of correctness, and on review of the facts we will not substitute our independent judgment for that of the board where its findings are supported by substantial evidence, i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion. In re Public Service Electric & Gas Co., 35 N.J. 358, 376, 173 A.2d 233 (1961); In re Greenville Bus Co., 17 N.J. 131, 110 A.2d 122 (1954); Maple Hill Farms, Inc. v. Division of New Jersey Real Estate Comm., 67 N.J.Super, 223, 226--227, 170 A.2d 461 (App.Div.1961). It is not our function to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence, and to resolve conflicts therein. Hornauer v. Division of Alcoholic Beverage Control, 40 N.J.Super. 501, 504, 123 A.2d 574 (App.Div.1956). When an administrative agency has acted within its authority, its actions will not generally be upset unless there is an...