Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n

• Decision Date: 30 April 2019
• Docket Number: 080861,A-75 September Term 2017
• Citation: 237 N.J. 465,206 A.3d 365
• Parties: Beryl ZIMMERMAN and Judy Comment, Petitioners-Respondents, v. SUSSEX COUNTY EDUCATIONAL SERVICES COMMISSION, Sussex County, Respondent-Appellant.
• Court: New Jersey Supreme Court

237 N.J. 465

206 A.3d 365

Beryl ZIMMERMAN and Judy Comment, Petitioners-Respondents,

v.SUSSEX COUNTY EDUCATIONAL SERVICES COMMISSION, Sussex County, Respondent-Appellant.

A-75 September Term 2017

080861

Supreme Court of New Jersey.

Argued January 14, 2019

Decided April 30, 2019

Brent Pohlman argued the cause for appellant (Methfessel & Werbel, attorneys; Brent Pohlman, Boris Shapiro, and Eric L. Harrison, Edison, on the briefs).

Donna Arons, Deputy Attorney General, argued the cause for respondent New Jersey Commissioner of Education (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel, and Eric Apar, Deputy Attorney General, on the brief).

Louis P. Bucceri, Clifton, argued the cause for respondents Beryl Zimmerman and Judy Comment (Bucceri & Pincus, attorneys; Louis P. Bucceri, of counsel and on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Within New Jersey's education statutes, the Tenure Act provides that tenured teachers shall not be "reduced in compensation."

N.J.S.A. 18A:28-5. The legal issue in this appeal is whether tenured teachers who served in a part-time capacity pursuant to negotiated contracts that did not specify a minimum number of guaranteed hours suffered an impermissible reduction in compensation when their hours were reduced.

Two tenured part-time teachers, who provided compensatory and remedial special education services to students through the Sussex County Educational Services Commission (SCESC), initiated this action. The teachers filed a petition of appeal with the Commissioner of Education, claiming their tenure rights were violated when, in the 2014-15 school year, their hours were substantially reduced and, consequently, they received less annual compensation. They alleged that some of the work went to non-tenured teachers or to teachers with less seniority.

The Commissioner held against the teachers, reasoning that their tenure-right protection from a reduction in compensation was not violated because neither teacher's respective hourly rate was reduced nor could either teacher claim any contractually guaranteed minimum number of hours. The Appellate Division reversed that administrative decision, concluding that the Tenure Act protects more than the hourly rate of compensation of part-time teachers in such circumstances. The panel remanded with instructions for the creation of a more complete record concerning the allocation of work assignments in the 2014-15 school year.

We granted the SCESC's petition for certification to consider its argument that, so long as there is no reduction in the hourly rate, when a contract does not guarantee a specified amount of hours, a management reallocation of work that reduces the hours of a part-time teacher does not create an impermissible reduction in compensation under the Tenure Act. For the reasons that follow, we affirm as modified the judgment of the Appellate Division and remand for further proceedings consistent with this opinion.

I.

We derive the following facts from the joint stipulation of facts and accompanying exhibits, except where otherwise noted.

The SCESC provides compensatory and remedial special educational services pursuant to Chapter 192, Chapter 193, and the federal Individuals with Disabilities Education Improvement Act (IDEIA) to students in Sussex County who are enrolled in full-time, non-public elementary and secondary schools.¹ See N.J.S.A. 18A:6-51 to -70 (establishing the means for boards of education to create an educational services commission). Chapter 192 services include "compensatory education in Basic Skills" and English as a Second Language (ESL) instruction. Chapter 193 and IDEIA services consist of remedial special education services.

The number of hours that SCESC's part-time staff work is subject to the number of students and the needs of those students; both fluctuate from school year to school year. Because of the varying demand for services, part-time teachers are not contractually guaranteed a minimum number of hours.

Judy Comment is a tenured part-time teacher who has an instructional certificate with endorsements as an elementary N-8 teacher, and as a K-12, "Highly Qualified English Teacher." The SCESC employed her on a part-time basis from the 1997-98 school year to the 2014-15 school year to provide Chapter 192, 193, and IDEIA-based instruction at various non-public schools in Sussex County. Her hours fluctuated each year. In her verified petition filed with the Commissioner, Comment states that her approximate hours for previous school years were as follows:

• From 1997-98 through 2010-11, 22-32 hours per week

• 2011-12, 17 hours per week

• 2012-13, 27.5 hours per week

• 2013-14, 29.75 hours per week

In or about September 2014, Comment learned that her schedule would be reduced to about five hours per week. The joint stipulation of facts, filed by the parties with the Commissioner, states that in the 2014-15 school year, Comment was assigned fewer hours per week than in the previous year; her hours were limited to Chapter 192 instruction; and, pursuant to an SCESC directive, instruction groups required a minimum of three students. Her annual income for the 2013-14 school year was $ 36,838.74. For the 2014-15 school year, her annual income dropped to $ 10,331.13. The hourly wage paid to her in 2013-14 was $ 32.98; in 2014-15, her hourly rate of pay rose to $ 33.79.

Beryl Zimmerman is also a tenured part-time instructor with the SCESC. She has an educational certificate with an endorsement as an elementary school teacher. The SCESC employed Zimmerman continuously on a part-time basis from the 2002-03 through the 2014-15 school years. Her hours fluctuated during her years of employment. Her verified petition states that her hours were approximately as follows:

• 2002-03, 3 hours per week

• 2003-04, 3 hours per week

• From 2004-05 through 2012-13, 29.75 hours per week

• 2013-14, 28 hours per week

The joint stipulation of facts states that prior to 2014-15, Zimmerman provided Chapter 192, 193, and IDEIA-based instruction, but in 2014-15 she was assigned fewer hours than the prior year and her hours were limited to Chapter 192 instruction. Also, per an SCESC directive, instruction groups required a minimum of three students. Her income for 2013-14 was $ 27,668.81, and her income for 2014-15 was $ 19,603.42. Her hourly pay for 2013-14 was $ 28.98 and for 2014-15 was $ 29.79.

The joint stipulation also reveals that three part-time non-tenured teachers provided Chapter 192 and 193 instruction during the 2014-15 school year. Two of them also provided IDEIA instruction during the 2014-15 school year.

In a sworn statement, the superintendent of the SCESC, Andrea Romano, provided additional factual assertions not included in the joint stipulation of facts. Prior to the 2014-15 school year, Romano implemented a directive that Chapter 192 services would no longer be provided in groups of fewer than three students unless requested by the classified student's child study team. During the 2013-14 school year, both Zimmerman and Comment had provided instruction in groups of fewer than three students, which had the effect of increasing the number of instructional hours that were provided.

Romano also asserted that Comment and Zimmerman had improperly provided Chapter 193 and IDEIA instruction during the 2013-14 school year because each lacked a "students with disabilities," "teacher of the handicapped," or relevant "Highly Qualified Teacher" certification. In her statement, Romano explained that providing Chapter 193 and IDEIA instruction by teachers lacking proper certification is "noncompliant with state law and the contracts with the local school districts." That said, Romano asserted that SCESC offered Comment, who did possess a "Highly Qualified Teacher" of English certification, the opportunity to teach English to classified students, but Comment declined. Romano contends that, if and when Zimmerman and/or Comment obtain the required certifications, they may return to teaching Chapter 193 and IDEIA services. Notably, Comment and Zimmerman contest Romano's assertion of their certification noncompliance.

The record is bereft of further explanation of the reasons for the reduction of Comment's or Zimmerman's hours in the 2014-15 school year. Thus, the record does not contain any information about: (1) how much of the reduction in the hours assigned to Comment and Zimmerman was due to the elimination of classes with fewer than three students; (2) the justification, if any, for using non-tenured teachers to teach Chapter 192, 193, and IDEIA classes while tenured teachers had their hours reduced; (3) the number of total hours available for all relevant Chapter 192, 193, and IDEIA classes compared with previous years; and (4) any other justification for the decrease in Comment's and Zimmerman's hours and the number of hours by which each of their schedules was reduced due to each justification.

II.

A.

In November 2014, Comment and Zimmerman (hereinafter "the teachers") filed separate verified petitions of appeal with the Commissioner, which were consolidated. See N.J.S.A. 18A:6-9 (vesting the Commissioner with jurisdiction over controversies and disputes arising under the school laws). Each petition alleged that the teacher's tenured status under N.J.S.A. 18A:28-5 and seniority rights under N.J.A.C. 6A:32-5.1 entitled her to maintain her 2013-14 level of employment over non-tenured and less senior teachers.

The Commissioner transferred the matter to the Office of Administrative Law as a contested case. The administrative law judge (ALJ) who was assigned to hear this matter issued an Initial Decision recommending the grant of summary judgment in favor of the SCESC. The ALJ's decision held that for a reduction of a part-time employee's hours to trigger tenure/seniority rights, there must be a guarantee of a minimum number of hours. Because here there was no contractually...