Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d. Kilkenny, J.A.D. (dissenting).
The principal question here presented is whether the Board of Education of Bayonne effectively conferred tenure in office on petitioner, as superintendent of schools of that municipal school district, by a resolution of January 14, 1965 purporting to accomplish that object. The State Commissioner of Education has ruled in the affirmative; the State Board of Education, on appeal, in the negative. Petitioner appeals.
The statute requiring construction for determination of this appeal, N.J.S. 18A:28-5 (being N.J.S.A. 18:13-16 prior to the revision of the State Education Law, effective January 11, 1968) reads, in material part, as follows:
"The services of all teaching staff members including all teachers, principals, assistant principals, vice principals, superintendents, assistant superintendents, and all school nurses including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, * * * shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner
prescribed by subarticle B of article 2 of chapter 6 of this title, after employment in such district or by such board for:
(a) three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or
(b) three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(c) the equivalent of more than three academic years within a period of any four consecutive academic years; * * *." (Emphasis added)
The particularly critical language is that underscored above in subparagraph (a).
There were cross-motions for summary judgment before the State Commissioner. The following facts emerge from the proofs then adduced.
On June 25, 1964 the city board appointed petitioner superintendent of the Bayonne public schools. His contract commenced on July 1, 1964 and was to terminate on May 31, 1967, making a term of two years and 11 months, one month short of the three-year term for the acquisition of tenure under subparagraph (a) of the statute. See Board of Education, Manchester Tp. v. Raubinger, 78 N.J. Super. 90, 97 (App. Div. 1963). On January 14, 1965 the same city board that executed his contract rescinded it and, reciting that petitioner had efficiently performed his duties since appointment, granted him tenure by a unanimous vote. This grant was declared to be pursuant to N.J.S.A. 18:13-16(a), now N.J.S. 18A:28-5. The resolution did not purport to shorten the period of service requisite generally for attainment of tenure by superintendents of schools or any other category of school employee. Nor did it even declare that the period of service by petitioner was one of sufficient length to justify positing tenure thereon.
Some two years and four months later petitioner apparently was investigating the possibilities of employment elsewhere. Although it appeared that the city board then in office and petitioner had resolved the problem at a conference on May 13, 1967, the city board on May 29, 1967 held a special meeting at which a resolution was adopted, by a
vote of 6-3, rescinding the former city board's January 1965 resolution, declaring the original employment contract adopted on June 25, 1964 to be the only valid and subsisting contract between the parties and, as the term of that original contract was to expire within two days, declaring the office of superintendent of schools vacant as of June 1, 1967. The resolution undertook to justify this action by stating that one board cannot bind subsequent boards "in matters beyond the term of" the first board, nor hamper or deprive a subsequent board of its right to exercise discretion over the question of tenure. Thus, so it was resolved, the prior board's action was void because it deprived the present board of such discretion, because it attempted to usurp the present board's legal duty and obligation, and ...