Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
The question for determination here is whether a person holding a position with a local board of education is entitled to full payment of salary for the entire period of his illegal dismissal, without mitigation, under N.J.S.A. 18:5-49.1. The matter is one of first impression.
Upon recommendation of the State Commissioner of Education, the State Board of Education on May 4, 1956 approved a superintendency for the school district of Jefferson Township, Morris County, the district having met all the requirements of the rule governing such approvals. Respondent board of education appointed appellant superintendent of schools of Jefferson Township on April 9, 1957, and a two-year contract was entered into providing for his employment from July 1, 1957 to June 30, 1959. Before the expiration of this agreement, respondent, by resolution adopted January 14, 1958, voted to cancel it and to issue a new contract under which appellant was to be employed from January 15, 1958 to January 15, 1961, at a salary increase from $8,500 to $10,000. The reason given for this action by its proponents was to insure continuity of administration during the ensuing period when school plan expansion would be a matter of major concern. The contract called for by the resolution was duly executed and appellant continued to carry on his duties as township superintendent of schools.
A change in the membership of respondent board ensued, with the result that at a special meeting held June 30, 1960 the board adopted a resolution cancelling the January 15, 1958 contract. When appellant informed the board that he
was available for work and intended to continue in his employment, it passed a motion ordering him to vacate his office, and on July 1, 1960 actually changed the locks on the administration office. On July 6, 1960 appellant received a registered letter from the secretary of the board advising him of the foregoing action. Appellant was paid his salary to and through June 30, 1960. He promptly appealed to the State Commissioner of Education, under R.S. 18:3-14, to hear and determine the legality of respondent's action, praying that its cancellation of his contract be declared void and of no effect and that it be directed to reinstate him as superintendent of schools with full payment of salary from July 1, 1960.
The State Commissioner of Education held a full hearing on October 20 following. At this hearing appellant failed to disclose that he had been employed since September 15, 1960 by the board of education of School District No. 9, Elmsford, New York, as district principal at a salary of $14,000 on a 12-month basis. Respondent learned of this employment after the hearing and immediately moved to dismiss the appeal on the ground that the issue had become moot. The motion was argued February 3, 1961, at which time evidence was received disclosing appellant's Elmsford employment.
The Commissioner handed down his decision on April 28, 1961. He denied the motion to dismiss, holding that even if it were assumed that appellant abandoned his claim as of September 15, 1960, when he began his employment in Elmsford, there still remained a justiciable issue as to the period from July 1 to September 15. He thereupon decided that (1) appellant had acquired tenure under the provisions of N.J.S.A. 18:13-16, having continued in employment for three consecutive calendar years; (2) he was entitled to be reinstated in his position and paid his salary from the date of dismissal, but in order to assert this right he must be ready and able to resume his duties; (3) appellant's failure to resume his duties immediately upon notice of the Commissioner's determination would constitute an abandonment of his position as of the date of assuming employment in New
York, September 15, 1960; (4) in such event, respondent would be relieved of any duty to reinstate appellant as superintendent of schools; and (5) respondent would be required to pay appellant only the salary he would have earned had he continued in its employment from July 1 to September 14, 1960.
Appellant failed to resume his duties as ordered by the Commissioner. Instead, he took an appeal to the State Board of Education from that part of the Commissioner's determination which limited his right to back pay for the period from July 1 to September 14, 1960. His claim before the State Board was that he was entitled to back pay from July 1, 1960 to the date of the Commissioner's determination, April 28, 1961, even though during that period he was employed in Elmsford, N.Y. In the brief filed with the State Board, appellant stated that he "does not intend to resume his position as superintendent of schools of Jefferson Township."
The arguments made by appellant before the State Board of Education are essentially those projected in this court. The State Board concluded that the right to recover "compensation" under N.J.S.A. 18:5-49.1 is subject to mitigation to the ...