On appeal from State Board of Education.
Allcorn, Morgan and Horn. Allcorn, P.J.A.D. (dissenting).
The question presented in this appeal by appellant Board of Education of the City of Clifton, Passaic County (local board), is whether petitioner Joan Driscoll, who was appointed as a substitute teacher in the City of Clifton school system, was entitled to be considered as a teaching staff member (N.J.S.A. 18A:1-1) with all the emoluments, rights and privileges which follow such position under the circumstances of this case.
The Commissioner of Education (Commissioner) following a contested administrative hearing substantially adopted the hearing examiner's recommendation and held that petitioner was entitled to the emoluments, rights and privileges of a
teaching staff member as of October 15, 1973. The State Board of Education (State Board) affirmed. The local board then instituted this appeal pursuant to R. 2:2-3(a)(2).
The operative facts are not controverted. Plaintiff, holder of a standard teaching certificate in New Jersey, applied in January or February 1973 to the local board for a teaching position in the Clifton school system. In August she was offered and agreed to accept employment as a substitute teacher, when called upon to perform such duties. At no time was she offered a position as a regular teacher.
Meanwhile a tenured teacher, Elena Voss, had received maternity leave from the local board, to be effective through August 1974. Later Voss thought she could get a teaching position in a school she desired, so she sought to shorten the period of her maternity leave and made a request to teach at the school commencing September 1973. Instead the local board notified her that she was to teach at School No. 15, because there were no openings at the school she preferred. Then she requested that her maternity leave be once again extended through August 1974. This was denied and she was notified to report to teach commencing on September 5, 1973, the day before school began. When she did not report petitioner was called and agreed to teach as a substitute starting the following day, September 6. On and from that day she worked continuously during the ensuing school year ending June 11, 1974, except for one and one-half days when she was ill. She was paid the usual rate for substitute teachers of $23 a day. During the course of the year she was not paid for holidays or for the one and one-half days that she was absent on account of illness. Petitioner, however, performed all the activities of a regular teacher.
On September 13, 1973 the school board wrote Voss a letter, which in part stated:
Therefore, please notify this office immediately following receipt of this communication that you will report within two working days to your 1973-74 assignment to avoid the necessity of taking the legal steps outlined. However, due to your past service, should you desire to resign, a letter to that effect received within the time period outlined will be accepted without prejudice and your personnel record noted that the matter of resignation was voluntary on your part.
Voss did not respond. The Board took no action as to Voss, as it indicated in the letter that it might do. Finally, in August 1974 Voss resigned by letter, giving as a reason that she was moving to New York with her husband.
Petitioner learned when she commenced to work only that she was substituting for Voss. She was not told of the above letter or that Voss had not responded to it. In August 1974, under the authority of N.J.S.A. 18A:6-9, plaintiff initiated these proceedings by the filing of a petition with the Commissioner to compel the Board to recognize her as a regular full-time teacher for the 1973-1974 school year, to provide her retroactively with the emoluments to which a regular full-time teacher was entitled and to employ her for the 1974-1975 school year by virtue of N.J.S.A. 18A:27-10. As stated, the Commissioner agreed with petitioner's views as to her right to be retroactively regarded as a full-time staff teacher and to be paid accordingly by the local board, but only from October 15, 1973 instead of September 6, 1973. The Commissioner rejected petitioner's right to be employed as a regular staff teacher for the following school year for a reason unrelated to petitioner's primary claim. We need not discuss this aspect since petitioner has filed no cross-appeal challenging the Commissioner's rejection of this secondary relief.
Before proceeding with the merits of the issue projected in this case, we note that the Attorney General has submitted a statement in lieu of brief on behalf of the State Board, ...