On appeal from the New Jersey State Board of Education.
Matthews, Morgan and Morton I. Greenberg. The opinion of the court was delivered by Matthews, P.J.A.D.
Petitioner, a tenured high school principal employed by the Plainfield Board of Education, challenges the determination of the State Board of Education that the local board could properly transfer her from her tenured position to the position of elementary school principal (for which she was equally qualified) and that such transfer took place without a reduction in salary. She contends, as she did below, that even though she initially suffered no reduction in salary, there was clearly a reduction in her future salary expectancy because the formula used by the local board to determine salary increments is a lower rate or ratio for elementary school principals than for high school principals. The State Board held that the prohibition against reduction in salary found in N.J.S.A. 18A:28-5 for tenured employees did not contemplate salary expectancy but rather referred only to the amount of compensation paid the tenured employee at the time of the transfer.
Petitioner had been employed by the board as principal of Plainfield High School from February 1972 through February 1976. This employment was categorized as a 12-month employment with a salary as of February 1976 of $32,560 a year.
Because of certain deficiencies in her performance, petitioner was transferred to the position of administrative assistant at the school district's central office, a nontenure-eligible position.
Petitioner served in that position until June 1976 when the board transferred her to the position of principal of Emerson Elementary School. Her salary was frozen at the amount she
was earning as principal of the high school. Under the board's formula for administrative positions, a high school principal's salary increment is calculated at a ratio of 1.76 times the base teacher's salary; an elementary school principal's salary is calculated at a ratio of 1.4.
Petitioner appealed to the Commissioner of Education on July 21, 1976. She alleged the initial transfer to administrative assistant and the subsequent transfer to elementary school principal were illegal and violative of her tenure status.
A hearing was held before a hearing examiner in June and August 1977. The hearing examiner filed a written report finding the initial transfer to the position of administrative assistant "procedurally faulty" in violation of N.J.S.A. 18A:25-1 which prohibits transfers of teaching staff members except by recorded roll call majority vote of the full membership of the board of education. The hearing examiner, however, found that despite this procedural irregularity the board later ratified the action, making it valid. The hearing examiner also found petitioner's transfer to elementary school principal to be proper and within the purview of discretion which may be exercised by the board, particularly because she suffered no salary reduction.
The Commissioner, however, disagreed with the hearing examiner's finding and conclusion with respect to both transfers. He found the first transfer illegal as violative of N.J.S.A. 18A:25-1 because the board did not have the authority to validate a transfer to a position with an unrecognized title. The Commissioner found that "a certificated tenure employee may not be unilaterally transferred without consent to other than a tenure-eligible position"-a description which the position of administrative assistant could not meet.
The Commissioner similarly determined that petitioner's subsequent unilateral transfer to an elementary school principalship was improper because the elementary school position had a grossly disproportionate salary expectation when compared to ...