On certification to the Superior Court, Appellate Division, whose opinion is reported at 169 N.J. Super.. 328 (1979).
For modification and affirmance -- Justices Clifford, Schreiber, Handler and Pollock. For reversal -- Chief Justice Wilentz, Justices Sullivan and Pashman. The opinion of the Court was delivered by Clifford, J. Sullivan, J. (dissenting). Chief Justice Wilentz and Justice Pashman join in this opinion. Wilentz, C.J., dissenting. Justice Pashman joins in this opinion.
This case arises from an order of the Commissioner of Education, affirmed by the State Board of Education, which transferred tenured teachers previously employed at the now closed Jamesburg High School to the school districts of Monroe Township and Spotswood Borough. The issue is whether the Monroe and Spotswood districts can be required to treat the Jamesburg teachers as tenured faculty within their own systems. The Board of Education's decision answering that question in the affirmative was reversed by the Appellate Division, 169 N.J. Super. 328 (1979). That court held that in the absence of an agreement between the sending and receiving school districts under N.J.S.A. 18A:28-6.1, Monroe and Spotswood could not be compelled to accept the displaced Jamesburg instructors. We granted certification to review the effect of N.J.S.A. 18A:28-6.1 and the inherent power of the Commissioner of Education to order such a transfer, 81 N.J. 334 (1979). Pending review we stayed the Appellate Division judgment. We now dissolve the stay, modify the judgment below to provide for a limited remand, and, as modified, affirm the judgment of the Appellate Division.
On April 4, 1979, the State Board of Education ordered the Jamesburg Board of Education to close its only high school.
That order was issued after public hearings on the matter and pursuant to the Commissioner of Education's determination that the school could not be operated in a thorough and efficient manner. At the State Board's direction Jamesburg residents who had been enrolled as students in the school's 9th through 12th grades were designated tuition pupils at the Monroe Township High School. By an agreement authorized by the Commissioner, the Helmetta Board of Education and the Spotswood Board of Education entered into a sending-receiving arrangement under which Helmetta residents who had been tuition students at Jamesburg High School were enrolled as tuition students in the Spotswood school system.*fn1
On May 1, 1979, the Commissioner found that upon the closing of Jamesburg High School, the tenured teachers employed at that facility should be transferred to the Monroe and Spotswood high schools in proportion to the number of Jamesburg students received by those districts.*fn2 In the opinion of the Commissioner, the transfer was authorized by N.J.S.A. 18A:28-6.1. Stating
that only a "strained and narrow statutory interpretation" would allow the absence of an agreement between Jamesburg and Monroe and Spotswood to preclude the transfer of the tenured Jamesburg instructors, the Commissioner declared "it was implicit legislative intent to grant protection in employment rights to [tenured] teaching staff members" in such cases.
The Commissioner's order was unanimously upheld by the State Board of Education.*fn3 Acknowledging that no statute expressly authorized the Commissioner to order the transfer of the Jamesburg teachers, the State Board held that such action was justified by the public policy underlying education law with respect to the rights of tenured teachers. Citing other statutes concerned with employment security for tenured teachers, the State Board found they evinced a policy designed to "protect teaching staff members in their tenure, seniority and pension rights as far as practicable." See N.J.S.A. 18A:13-42, -49 and :28-15. Although the Board recognized that the "by agreement" language of N.J.S.A. 18A:28-6.1 distinguished it from statutes addressing compelled sending-receiving relationships, it found that the requirement of a sending-receiving agreement should not be interpreted to limit the application of the statute in the face of legislative concern with the rights of tenured teachers.
Applications by Monroe and Spotswood to stay the decision of the State Board were granted by the Appellate Division which, on its own motion, consolidated and accelerated the appeals. In re Closing of Jamesburg High School, 169 N.J. Super. 328 (1979). That court reversed and set aside the determinations of the Commissioner and the State Board of Education, concluding that the Commissioner lacked any authority, express or inherent, to transfer the instructors without the consent of the receiving districts. Id. at 333-34. Stating that "[a]dministrative officers
may exercise only such authority as is conferred by statute, expressly or by unavoidable implication," id. at 334, the court found that N.J.S.A. 18A:28-6.1 did not confer such power. It noted that the words "by agreement with another board of education" had been inserted by amendment to the original draft of the statute, and ruled that in the absence of authority to the contrary, those words should be accorded their plain meaning. See id. at 331, 333. The Appellate Division determined that the disputed language was intended to limit the application of the statute to those situations in which the receiving district has consented to the transfer of the teachers. Id. at 333. To that end the court declared:
While a school district may be compelled to become a receiving district [for displaced students], N.J.S.A. 18A:38-8, there is no provision in the law which compels a receiving district against its will to also accept the transfer of teachers from a school which has closed in another district. The desirability of such a provision is clearly for the legislature and not the courts to determine. [ Id. at 333-34.]
This Court stayed the Appellate Division judgment in order to maintain the Monroe and Spotswood teaching staffs in status quo for the 1979-80 school year.
Our discussion here necessarily begins with a review of the statute in question. Encaptioned "Tenure upon Discontinuance of School," N.J.S.A. 18A:28-6.1 provides in pertinent part:
Whenever, heretofore or hereafter, any board of education in any school district in this state shall discontinue any high school, junior high school, elementary school or any one or more of the grades from kindergarten through grade 12 in the district and shall, by agreement with another board of education, send the pupils in such schools or grades to such other district, all teaching staff members who are assigned for a majority of their time in such school, grade or grades and who had tenure of office at the time such schools or grades are discontinued shall be employed by the board of education of such other district in the same or nearest equivalent position * * *. Teaching staff members so employed in such other district shall have their rights to tenure, seniority, pension and accumulated leave of absence, accorded under the laws of this State, recognized and preserved by the board of education of that district. [ N.J.S.A. 18A:28-6.1 (emphasis added).]
Of central concern is the statute's provision that upon the discontinuation of a school, specified students and tenured
teachers from that school may be transferred "by agreement with another board of education" to another school district. In this case it is acknowledged that there was no agreement by the Monroe or Spotswood Boards of Education to accept the transfer of tenured teachers formerly employed at Jamesburg High School. Monroe and Spotswood contend that although they can be required to receive the students from Jamesburg, see N.J.S.A. 18A:38-8, they cannot be obligated to accept the tenured teachers without their consent. Counsel for the appellants argue that the legislative intent to protect the rights of tenured teachers, rather than the existence of an agreement, is controlling.
The Appellate Division found N.J.S.A. 18A:28-6.1 to be clear in its terms and operation. It held the authority to transfer tenured teachers under the statute is plainly conditioned upon a consensual relationship between the sending and receiving school districts. Absent such an agreement, a transfer may not be undertaken. We agree. The words of the statute require exactly what they say -- an agreement between the concerned Boards of Education. The statement is unequivocal. Fundamental principles of statutory construction require that "[i]f the [statutory] language is plain, unambiguous and uncontrolled by other parts of the act or other acts upon the same subject the court cannot give it a different meaning." C. D. Sands, 2A Sutherland Statutory Construction § 46.01 (4th ed. 1973). This standard of interpretation has been consistently employed by the courts of this State. See Fahey v. Jersey City, 52 N.J. 103, 107 (1968); Duke Power Co. v. Patten, 20 N.J. 42, 49 (1955); Imbriacco v. State Civil Service Comm'n, 150 N.J. Super. 105, 109 (App.Div.1977); In re Public Hearings on the Amended Determination of the Commuter Operating Agency for Fiscal Year 1975-1976, 142 N.J. Super. 136, 158 (App.Div.), certif. den., 72 N.J. 457 (1976). It applies with equal force to resolve the question of construction presented in this case.
We find unpersuasive the appellants' contentions that the expressed legislative intent favoring the rights of tenured teachers should control this Court's interpretation of N.J.S.A. 18A:28-6.1.
The statute's design is clear: to provide employment protection to tenured educational instructors transferred by consensual arrangement to another school district, and to furnish the same protection to tenured teachers in the receiving district. However, that salutary objective cannot be secured by extending the law to situations in which it was not intended to apply. The statute's requirement of a consensual arrangement is manifest. Such a construction in no way evades the purpose of the law. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 160 (1979); Hasbrouck Heights Hosp. Ass'n v. Borough of Hasbrouck Heights, 15 N.J. 447, 453 (1954). Rather, it recognizes the limitation on tenure protection which the legislature itself has chosen to impose. We do not perceive any intention on the part of the legislature to grant unqualified preservation of tenure rights in every instance of a school closing or formation of a sending-receiving relationship.
Our duty is to construe and apply the statute as enacted. We are not at liberty to presume the legislature intended something other than what it expressed by its plain language. This Court will not engage in conjecture or surmise which will circumvent the plain meaning of the act. Gangemi v. Berry, 25 N.J. 1, 10 (1957); Bravand v. Neeld, 35 N.J. Super. ...