Sayreville Educ. Ass'n, on Behalf of Rucki v. Board of Educ. of Borough of Sayreville, Middlesex County

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PRESSLER
• Citation: Sayreville Educ. Ass'n, on Behalf of Rucki v. Board of Educ. of Borough of Sayreville, Middlesex County, 474 A.2d 1091, 193 N.J.Super. 424 (N.J. Super. App. Div. 1984)
• Decision Date: 12 April 1984
• Parties: , 17 Ed. Law Rep. 523 In the Matter of SAYREVILLE EDUCATION ASSOCIATION, on Behalf of Joann RUCKI, Josephine Marchesi and Deborah Farley, Petitioners-Appellants, v. BOARD OF EDUCATION OF the BOROUGH OF SAYREVILLE, MIDDLESEX COUNTY, Respondent-Respondent.

Page 424

193 N.J.Super. 424

474 A.2d 1091, 17 Ed. Law Rep. 523

In the Matter of SAYREVILLE EDUCATION ASSOCIATION, on Behalf of Joann RUCKI, Josephine Marchesi and Deborah Farley, Petitioners-Appellants, v. BOARD OF EDUCATION OF the BOROUGH OF SAYREVILLE, MIDDLESEX COUNTY, Respondent-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Feb. 15, 1984.

Decided April 12, 1984.

Arnold S. Cohen, Newark, for petitioners-appellants (Rothbard, Harris & Oxfeld, Newark, attorneys; Arnold S. Cohen of counsel and on the brief).

Casper P. Boehm, Jr., Sayreville, for respondent-respondent (Boehm & Campbell, Sayreville, attorneys; Casper P. Boehm, Jr. on the brief).

Irwin I. Kimmelman, Atty. Gen. of New Jersey, filed a Statement in Lieu of Brief on behalf of respondent-respondent State Bd. of Educ. (June Kanter, Deputy Atty. Gen., on the Statement). Before Judges BOTTER, PRESSLER and O'BRIEN.

The opinion of the court was delivered by

PRESSLER, J.A.D.

The question raised by this appeal from a final determination of the State Board of Education (State Board) is whether a local board of education may fill a teaching staff vacancy occurring after commencement 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. We conclude that the long-term substitute-teacher technique may not be used to fill a vacancy and therefore we reverse the contrary holding of the Board.

The factual context of this controversy is substantially undisputed. Appellant JoAnn Rucki was hired by respondent Sayreville Board of Education (board) on February 17, 1981 to replace a teacher who had resigned earlier that month. Appellants Josephine Marchesi and Deborah Farley were hired by the Board on March 2, 1981, one to replace a teacher who had retired and the other to replace a teacher who had resigned. Each of the three held an appropriate regular certificate. Although each was hired without written contract, each asserted the understanding that she would be employed in her respective teaching assignment for the balance of the school year. And each agreed to accept a per diem salary of $56 per day in accordance with the existing collective negotiation agreement which stipulated that salary for a so-called long-term substitute teacher.

As substitute teachers, appellants were denied the statutory and contractual benefits available to regular teaching staff members, including accumulation of tenure credit pursuant to N.J.S.A. 18A:28-5, paid sick leave pursuant to N.J.S.A. 18A:30-2, paid public holidays pursuant to N.J.S.A. 18A:25-3, membership in the Teachers Pension and Annuity Fund pursuant to N.J.S.A. 18A:66-2(p ), and the various benefits provided for regular teaching staff members by the negotiated contract between the board and the teachers' association. Appellants' basic contention on this appeal, rejected both by the Commissioner of Education and the State Board, is that they were improperly categorized as long-term substitute teachers since they were each hired to fill a vacancy for the balance of the school year. We are satisfied that appellants are correct in this contention.

N.J.S.A. 18A:1-1 defines a teaching staff member as:

... a member of the professional staff of any district or regional board of education, or any board of education of a county vocational school, holding office, position or employment of such character that the qualifications, for such office, position or employment, require him to hold a valid and effective standard, provisional or emergency certificate, appropriate to his office, position or employment, issued by the state board of examiners and includes a school nurse.

Appellants are, literally, within this definition. Nevertheless, we recognize that this definition is qualified by N.J.S.A. 18A:16-1.1, which provides for temporary employment of substitute teachers. We acknowledge that a person properly employed pursuant to N.J.S.A. 18A:16-1.1 is not entitled to the status and the consequent benefits of teaching staff membership. See Spiewak v. Rutherford Bd. of Ed., 90 N.J. 63, 77, 447 A.2d 140 (1982). Thus, the only issue before us is whether, in the circumstances here, appellants were properly classified as substitute teachers under the statute.

N.J.S.A. 18A:16-1.1 provides in full that:

In each district the board of education may designate some person to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee subject to the provisions of section 18A:17-13.

The act of any person so designated shall in all cases be legal and binding as if done and performed by the officer or employee for whom such designated person is acting but no person so acting shall acquire tenure in the office or employment in which he acts pursuant to this section when so acting.

We construe the authorization of this provision as applying 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. We do not construe it as authorizing the use of a substitute to fill a vacant position on a long-term basis. This interpretation, in our view, accords with the plain meaning of the statutory provision. The phrase, "to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee," 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. The substitute is appointed to act for the other during that period. If that other employee has, however, terminated his employment, then the place which the appointee is filling is not the place of the other but rather a vacant place, and the statute ordinarily does not apply. This interpretation is, moreover, in accord with the observation in Spiewak v. Rutherford Bd. of Ed., supra, 90 N.J. at 77, 447 A.2d 140 that the exception to the tenure statute which N.J.S.A. 18A:16-1.1 constitutes "is limited to employees hired to take the place of an absent teacher." Again the implication is clear that the place for which the temporary substitute teacher was hired is not vacant but only temporarily unoccupied by its incumbent.

Clearly, a local board of education could not indefinitely fill a vacancy by the statutory substitute technique, no matter how financially advantageous it might be. Nor could it use that technique to fill a vacancy for a full academic year. Any such attempt would constitute an obvious effort to circumvent the school laws and would be condemned as such. Cf. Jersey City Bd. of Educ. v. Wall, 119 N.J.L. 308, 196 A. 663 (Sup.Ct.1938); Downs v. Hoboken Bd. of Educ., 13 N.J.Misc. 853, 181 A. 688 (Sup.Ct.1935).

We perceive no basis on which to distinguish between filling a vacancy for a full academic year and filling a vacancy for a substantial part of an academic year. The role the teacher plays in terms of the extent and scope of responsibility for his class is virtually the same in either case, as are his duties and the way in which he functions as part of the faculty. It is therefore obviously unfair to deny that teacher the same benefits to which all of his colleagues, doing the same job, are entitled.

We do not, moreover, see how the filling of a vacancy by appointment of a regular staff member for less than a full academic year could prejudice the legitimate interests either of the board or of the public in promoting sound educational policy. First, it must be pointed out that unlike many other public employments, teachers are not subject to provisional appointment. The board is given the opportunity by statute to evaluate a teacher hired by it as an "unknown quantity" on an annual basis before making its tenure decision and is not required to renew the annual contract of or to grant tenure to a not-yet-tenured teacher with whom it is dissatisfied. The operation of this statutory scheme is not affected in any material way by the fact that a teacher is initially hired for part of an academic year rather than for a full academic year.

While we recognize the necessity for a local board to have some reasonable flexibility in order to deal with potential reduction in force problems and the scheduling impact of long-term absences, we are nevertheless satisfied that our interpretation of N.J.S.A. 18A:16-1.1 does not interfere with those needs. As the Supreme Court said in Spiewak v. Rutherford Bd. of Ed., supra, 90 N.J. at 79-80, 447 A.2d 140, in responding to a similar argument:

... First, the Legislature has determined that the utility of tenure to improving education outweighs any costs in decreased "flexibility." That is a policy determination that has been made by the Legislature. It is not proper for courts to override that determination on the basis of their independent policy conclusions. Second, the tenure statute in no way deprives a school board of flexibility. A board can deny tenure to a teacher simply by dismissing her before she has completed the required years of service. Finally, the Legislature has expressly provided that tenured teachers may be dismissed if the board deems it advisable to reduce the number of teaching positions for economic reasons or because of reduction in the number of pupils or other good cause.

We also point out that nontenured teachers are, by virtue of N.J.S.A. 18A:27-10, accorded the statutory right to receive notice by April 30 of whether or not they are to be rehired for the next succeeding...