Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D. Gaulkin, S.j.a.d. (dissenting).
Defendant Board of Education (Pine Hill board) appeals from a final decision of the State Board of Education (State Board) which affirmed a decision of the Acting Commissioner of Education (Commissioner) that petitioner Gladys M. Canfield has tenure as a teacher and is to be reinstated immediately "with all such rights as she would have enjoyed had she not been deprived of her employment."
Four written contracts of employment on forms provided by the Commissioner pursuant to N.J.S.A. 18:13-7 were entered into between the Pine Hill board and petitioner. The first, dated December 12, 1962, provided for petitioner's employment as a teacher from November 19, 1962 to June 30, 1963; the second, dated April 15, 1963, for her employment from September 1, 1963 to June 30, 1964; the third, dated April 14, 1964, for her employment from September 1, 1964 to June 30, 1965, and the fourth, dated April 20, 1965, for her employment from September 1, 1965 to June 30, 1966.
The fourth contract contained the following provision:
"It is hereby agreed by the parties hereto that this contract may at any time be terminated by either giving to the other 60 days' notice in writing of intention to terminate the same, but that in the absence of any provision herein for a definite number of days' notice, the contract shall run for the full term named above."
An identical paragraph appeared in each of the first three contracts except that the notice period provided therein was 30 instead of 60 days.
On November 15, 1965 the Pine Hill board wrote a letter to Mrs. Canfield reading as follows:
"The Board of Education of the Borough of Pine Hill herein notifies you that as of November 15, 1965 they are terminating your teaching contract, to take effect immediately, with this District, giving you two months pay."
Enclosed with the letter was a check for two months' pay which petitioner promptly returned, asserting that she had tenure.
The Commissioner and the State Board, which adopted the Commissioner's decision, ruled that petitioner has tenure under clause (c) of N.J.S.A. 18:13-16 which provides in pertinent part as follows:
"The services of all teachers, * * * shall be during good behavior and efficiency, (a) after the expiration of a period of employment of 3 consecutive calendar years in that district unless a shorter period is fixed by the employing board, or (b) after employment for 3 consecutive academic years together with employment at the beginning of the next succeeding academic year, or (c) after employment, within a period of any 4 consecutive academic years, for the equivalent of more than 3 academic years, some part of which must be served in an academic year after July 1, 1940; * * *.
An academic year, for the purpose of this section, means the period between the time school opens in the district after the general summer vacation until the next succeeding summer vacation."
The Pine Hill board does not dispute the Commissioner's determination that since petitioner's employment began on November 19, 1962, "employment on November 20, 1965 would provide for her the equivalent of more than 3 academic years within the period of 4 consecutive academic years beginning with the 1962-1963 academic year." But it does dispute the Commissioner's ruling that
"* * * petitioner's employment did not terminate on November 15, 1965, as respondent [the Pine Hill board] purported to accomplish, but barring any intervening rights, would have terminated 60 days thereafter. Thus, petitioner was in fact employed on November 20 and thereafter, and thereby acquired tenure of employment in respondent's schools."
The Commissioner held that the contract of employment could not be terminated without 60 days' prior notice; that while "a board of education may terminate the services of a teacher when ...