Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D.
The issue presented in this case is whether appellant guidance counsellors, employed for more than three academic years in an adult evening high school, working three hours a night for two evenings a week, may become tenured in such positions pursuant to N.J.S.A. 18A:28-5. Appellants are already tenured in their full-time employment in other school districts.
Appellant Fitts began his evening school job with respondent Board of Education of the Camden County Vocation School (board) on October 16, 1968, and appellant
Capella began on October 21, 1968. Thereafter they served on the two evenings a week basis throughout the intervening school years until their services were terminated on June 26, 1973. They thereupon filed a petition with the Commissioner of Education seeking an order declaring that they were tenured in their positions with the board and directing their reinstatement in those positions.
The hearing examiner assigned to hear the petitions found that petitioners had met the statutory requirements for tenure in their positions with the board but left to the Commissioner the determination as to whether petitioners, being tenured in other full-time public school positions, may also possess a tenured status in their part-time positions as guidance counsellors for the board.
The Commissioner, noting that accredited adult evening high schools must necessarily be operated on a more flexible basis than are regular public high schools and that to confer tenure on part-time instructors would impede that flexibility, concluded that the "over-protection petitioners seek would be a disservice to the schools * * * and is not intended by the school laws." The State Board of Education affirmed for the reasons expressed by the Commissioner in his decision.
We respect the Commissioner's expertise in this area and accept his finding of the impracticability of tenure being conferred on part-time employees in an adult evening high school. We affirm his decision. But we do so because we also conclude that analysis of the pertinent sections of the Education Law, N.J.S.A. 18A:1-1 et seq. , read in pari materia , evinces a legislative intent not to confer tenure in the part-time positions here involved.
It is true that the tenure statute (N.J.S.A. 18A:28-5) provides that "all" teaching staff members, occupying a position which requires possession of an appropriate certificate, employed for three consecutive academic years, and re-employed at the beginning of the fourth succeeding academic year, are entitled to tenure. Since, appellants say, they have
the necessary certificate and have been employed for the stated period of time, they literally come within the terms of the statute. But the use of the word "all" prefixed to teaching staff members does not literally mean all persons who teach. Thus it was held by our former highest court that the phrase "all teachers" then in the tenure statute did not include a substitute teacher who had the appropriate certificate, even though she was employed for more than three academic years with re-employment in the next succeeding such year. Schulz v. State Bd. of Ed. , 132 N.J.L. 345 (E. & A. 1944). The court there said:
There was nothing new in the use of the word "all" viz., "all teachers", in the 1940 amendment; that terminology had been in the statute from the very beginning, ch. 243, P.L. 1909, and the amendment merely preserved, in that respect, the structure of the statute as it had always been. That the legislative mind was not a stranger to the distinction between teachers and substitute teachers is shown by the precise language in the 1919 amendment (ch. 80, P.L. 1919) incorporating the pension fund feature in the general public school statute of 1903 (ch. 1, P.L., Special Session): "No person shall be deemed a teacher within the meaning of this article who is a substitute teacher * * *" (R.S. 18:13-25). We find significance in the legislative recognition, in any respect, of "substitute teachers" as a class distinct from "teachers" and particularly in a respect which carries in favor of teachers a benefit or a protection which is denied to substitute teachers. The pension fund legislation and the tenure act (ch. 243, P.L. 1909) were not isolated statutes; they were both enacted as integral parts of the same school law and therefore may be said to be in pari materia. So, also, ch. 142, P.L. 1942, incorporated within chapter 13 (re teachers) of title 18, Revised Statutes, which grants certain sick leave and the retained benefit of minimum unused sick leave absences to teachers "who are steadily employed by the board of education on a yearly appointment or who are protected in their positions under the provisions of sections 18:13-16 to 18:13-19 of the Revised Statutes" appears to exclude substitute teachers serving on a daily or monthly basis. And it will hardly be argued that R.S. 18:13-118, which provides for ...