Lynch, Larner and Fulop. The opinion of the court was delivered by Lynch, P.J.A.D. Fulop, J.s.c., Temporarily Assigned (dissenting).
This is an appeal by the Waldwick Board of Education from a decision of the State Board of Education. The State Board affirmed a determination of the Commissioner of Education holding that Nicoletta Biancardi had acquired tenure in the Waldwick school system by reason of her employment in the system from April 27, 1970 to June 30, 1970 and her continued employment thereafter for the three academic years beginning in September 1970 and ending in June 1973. Two members of the State Board of Education dissented from the decision of the majority on the ground that respondent was employed merely as a "substitute teacher" in the spring of 1970.
We reverse substantially for the reasons stated in the dissenting opinion of Calvin J. Hurd, Esq. in the State Board of
Education, which was joined in by Mrs. Ruth Mancuso. However, we add the following comments.
The decision of our former highest court in Schulz v. State Bd. of Ed. , 132 N.J.L. 345 (E. & A. 1945), is binding upon us until overruled by competent authority. It was there held, as our dissenting colleague concedes, that time served as a "substitute teacher" is not to be counted toward tenure for the reason that such substitutes are not "teaching staff members" within the meaning of the tenure statute, now N.J.S.A. 18A:28-5.
The dissent herein accords the obeisance customarily given a finding of fact by an administrative agency to the finding by the Commissioner that respondent was hired not as a substitute but as a regular teacher in the period from April to June 1970. With due respect to our dissenting colleague we believe such deference is inappropriate here. As in Schulz there are no disputed facts in this case, and our task is to apply the law to these undisputed facts. Schulz, supra at 349. Where the issue is one of law the Commissioner's decision does not carry a presumption of validity, and it is for the court to decide whether his decision (and that of the State Board) is in accordance with the law. See Fanwood v. Rocco , 59 N.J. Super. 306, 315 (App. Div.), aff'd 33 N.J. 404 (1960); Kopera v. West Orange Bd. of Ed. , 60 N.J. Super. 288, 296 (App. Div. 1960). As was said in Mayflower Securities v. Bureau of Securities , 64 N.J. 85, 93 (1973): "An appellate tribunal is * * * in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue."
Here it is uncontroverted that (1) respondent wrote a letter dated May 18, 1970, expressing her desire for a "full time teaching position" in the upcoming year; respondent thus implicitly admitted that, as stated in the local board of education's resolution, she had been hired as a substitute to fill the two-month period of vacancy caused by the departure of a regular teacher; (2) she was not hired at the rate of pay established by the salary guide for a regular
teacher ($11,385 a year), but was paid at the rate of $40 a day; (3) she did not receive any of the benefits afforded a regular teacher, such as sick leave, paid holidays and vacation periods, and paid absences for attendance at teachers' conventions (indeed respondent was absent two days during the period from April to June 1970 and was not paid for those days); (4) respondent was not enrolled in the Teachers' Pension and Annuity Fund during the period in question. The Teachers' Pension and Annuity Law, N.J.S.A. 18A:66-1 et seq. , expressly provides that "No person shall be deemed a teacher within the meaning of this article who is a substitute teacher * * *." N.J.S.A. 18A:66-2(p). The fact that respondent was not enrolled in the pension plan is additional evidence that she knew she was taking a temporary appointment and was working as a substitute teacher.
The dissent cites Downs v. Hoboken Bd. of Ed. , 13 N.J. Misc. 853, 181 A. 688 (Sup. Ct. 1935), and Jersey City Bd. of Ed. v. Wall , 119 N.J.L. 308 (Sup. Ct. 1938), as authority for the proposition that it is the nature of the work that determines whether a teacher is working as a substitute or regular teacher. Downs and Wall are clearly distinguishable from the instant situation. In both cases the teachers involved were really regularly employed teachers, and use of the label "substitute" was a mere subterfuge to evade the tenure act. Schulz, supra , 132 N.J.L. at 353. Here there is no evidence or claim of such subterfuge or bad faith on the part of the Waldwick board of education. As the court said in Schulz:
[W]e think that the Downs decision assumes and that the Wall decision concedes the legality of employment and service in good faith, as substitute teacher and, further, the cleavage between the status of such a substitute teacher and that of a regularly employed teacher. The offense in the cited cases was the attempt to conceal the real situation by employing in the guise of substitute teachers those who were really teachers, doing the work of teachers. [132 N.J.L. at 353]
Respondent argues that in the April to June period she was doing the same work as a regular teacher. As the dissent in the State Board pointed out, all substitutes do the work of regulars when the need to perform those duties arises.
We recognize that in Schulz the teacher involved did not possess a Newark city teaching license. That factor was merely an added reason for the decision, expressed by the court after it had already reached its conclusion that the teacher was not entitled to tenure. 132 N.J.L. at 355. It is clear that the court based its decision on the independent grounds set forth in its opinion before it reached the question of the certificate.
It is undisputed that a board of education has the right to hire teachers as substitute teachers. N.J.S.A. 18A:29-16. Presumably when the Waldwick board hired respondent in that capacity it did so with knowledge of the decision in Schulz, supra , that such a hiring from April to June 1970 was not to be counted toward tenure. Respondent accepted the appointment as a "substitute" without protest, and it would be unfair to retroactively grant her tenure based on that appointment. We agree with the dissent in the State Board that to ascribe permanency to respondent's employment from April to June 1970 would effectively negate and contravene the local board of education's statutory authority to hire respondent as a substitute teacher.
For the foregoing reasons the decision of the State Board is reversed.
FULOP, J.S.C., Temporarily Assigned (dissenting). Plaintiff-respondent Nicoletta Biancardi is the holder of a permanent teacher's certificate authorizing her to teach in the public schools of the State of New Jersey in grades kindergarten through eight. Effective April 27, 1970 she was employed to teach first grade in a Waldwick school for the rest of the school year through June 30, 1970, in place of a ...