On certification to the Superior Court, Appellate Division, whose opinions are reported at 180 N.J. Super. 312 (1981) (A-131/132) and at 180 N.J. Super. 321 (1981) (A-133/134). On certification to the State Board of Education (A-159).
For affirmance and remandment in Spiewak and Hamilton Tp. Supplemental Teachers Ass'n and reversal in Anderson -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler and O'Hern. Opposed -- None. The opinion of the Court was delivered by Pashman, J.
[90 NJ Page 66] Today we decide whether public school teachers who provide remedial and supplemental instruction to educationally handicapped children may acquire tenure. This question requires us to interpret and apply the tenure statute, N.J.S.A. 18A:28-5. The Court also considers a recent Appellate Division decision, Point Pleasant Beach Teachers' Ass'n v. Callam, 173 N.J. Super. 11, certif. den. 84 N.J. 469 (1980), which has been subject to contradictory interpretations in the state agencies and courts below. We overrule Point Pleasant and hold that remedial and supplemental instructors acquire tenure if they meet the qualifications in the statute.
FACTS AND PROCEDURAL HISTORY
A. Spiewak v. Rutherford Board of Education
Rita Spiewak has worked for the Rutherford Board of Education since 1971 as a "Beadleston" supplemental instructor.*fn1 She holds an appropriate teaching certificate issued by the State Board of Examiners, as required by N.J.S.A. 18A:26-2. Spiewak provides special educational assistance on a tutorial basis to students with learning disabilities. These children are identified by a professionally staffed child study team that produces a "prescription" for appropriate academic assistance suited to each student's individual needs. N.J.S.A. 18A:46-3.
Spiewak has been employed by the Rutherford Board of Education for each academic year since 1971. Her teaching duties typically have started two or three days after opening day in September and ended two or three days before the official close of the school year in June. When Spiewak was first hired in 1971, she taught for three hours each day. Her employment expanded to between four and five hours in her second year and to six hours by 1975. She was not assigned certain ancillary duties required of most regular teachers, such as homeroom, hall duty or playground supervision. These responsibilities were not required of a number of tenurable teaching staff positions, such as teachers of art, music and physical education, as well as guidance counselors and school psychologists.
Except for the 1973-1974 academic year when she received an annual contract, Spiewak has been paid by the hour. She receives no pay for a scheduled instruction period if a student is absent or fails to appear, and no pay whenever school is unexpectedly
closed. Until 1976, she was not compensated for any time devoted to lesson preparation, record keeping or report making. She has never received sick leave, personal days, health insurance, holiday pay, vacations or pension benefits. Her rate of pay is significantly lower than the effective hourly rate received by contract teachers paid in accord with the salary guide.
Peggy Dabinett began work as a supplemental teacher at Rutherford in the spring of 1969. She has been employed by the board regularly and without interruption since then. Like Spiewak, she holds a state-issued teaching certificate appropriate to her position. Her teaching duties, method of instruction and workload are identical to Spiewak's, as are her compensation and terms of employment.
The board has retained two other supplemental instructors under contract. They are not parties to this case. They are eligible for tenure and the higher pay scale required by the contract. Their duties are not materially different from those of Spiewak and Dabinett. The Superintendent of Schools admitted that the school board employs some supplemental teachers on an hourly basis rather than a contract basis solely for economic reasons.
Patricia O'Reilly has been employed by the Rutherford Board as a remedial reading teacher since 1973. The board compensates her with federal funds received for that purpose under Title I of the Elementary and Secondary Education Act, 20 U.S.C.A. § 236 to § 241-1 (Title I). Like Spiewak and Dabinett, O'Reilly holds a state-issued certificate appropriate to her position. Her duties are similar to those of Spiewak and Dabinett. Since 1974 she has provided 25 hours of instruction per week. Her schedule requires her to be present in school from 8:30 a.m. until 3:00 p.m., the entire period for which students are in attendance. She works the full academic year. Her compensation and other terms of employment are identical to those of Spiewak and Dabinett, except that she receives Blue Cross/Blue Shield benefits.
Spiewak, Dabinett and O'Reilly filed a petition with the Commissioner of Education pursuant to N.J.S.A. 18A:6-9 on January 7, 1977. They sought a declaration of their employment status and tenure eligibility, as well as prorated salary and benefits. The Administrative Law Judge issued an initial decision on October 26, 1979. He held that petitioners were teaching staff members entitled to tenure under N.J.S.A. 18A:28-5. He further found that these teachers were entitled only to the salary and emoluments offered by the board and accepted by them, with the exception of sick leave, which was statutorily mandated for all steadily employed persons by N.J.S.A. 18A:30-2.
The Commissioner of Education rendered his decision on December 18, 1979. Although he generally accepted the findings of the Administrative Law Judge, the Commissioner concluded that the petitioners were not only eligible to attain tenure but also entitled to all the emoluments and benefits afforded other teaching staff members employed by the board although on a prorated basis. He noted that sick leave cannot under law be prorated.
The school board appealed to the State Board of Education. While that appeal was pending, the Appellate Division decided Point Pleasant Beach Teachers' Ass'n v. Callam, 173 N.J. Super. 11, certif. den., 84 N.J. 469 (1980). In that case, the Appellate Division upheld a board of education's refusal to grant tenure to teachers who staffed the district's remedial reading program. That program was funded by Title I, 20 U.S.C.A. §§ 236 to 241-1. The court held that the teachers in that case could not be considered "teaching staff members" within the meaning of N.J.S.A. 18A:1-1 and 18A:28-5 since they had been hired on a temporary basis.
Following the decision in Point Pleasant, the State Board of Education reversed the Commissioner's decision in Spiewak on July 2, 1980. The State Board based its reversal on Point Pleasant. However, the State Board did not explain why it concluded that Point Pleasant mandated such a result.
On appeal, the Appellate Division reversed the State Board of Education and reinstated the Commissioner's determination. 180 N.J. Super. 312 (1981). The court found that the teachers' employment qualified them as "teaching staff members" presumptively eligible for tenure under N.J.S.A. 18A:28-5. The court interpreted Point Pleasant to hold that
where employment is offered and accepted on a temporary basis and where its temporary nature is understood by both employer and employee to be one of its essential predicates, such employment cannot then be relied on by the employee as the basis of tenure. [180 N.J. Super. at 318]
The court found that the source of funding for the teachers' salary had no independent significance but was merely indicative of the intent of the parties on the nature of the employment. Id. Applying that test, the Appellate Division found that although the parties may initially have understood their employment to be temporary, it had in fact become regular and continuous. The court remanded the case to the Commissioner to determine when tenure accrued and what retroactive benefits were owed to petitioners.
This Court granted the State Board of Education's petition for certification on November 10, 1981, 88 N.J. 502 (1981).
B. Hamilton Tp. Supplemental Teachers Ass'n v. Hamilton Tp. Board of Education
Petitioners here are twenty-six Beadleston supplemental instructors employed by the Hamilton Township Board of Education. They all hold the required state-issued teaching certificates. Their duties are identical to those performed by Spiewak and Dabinett. Their compensation and terms of employment differ from Spiewak's and Dabinett's in the single respect that they receive ten paid sick days per year.
On September 24, 1979, an Administrative Law Judge found that petitioners were regularly employed teachers in programs required by State statute and the State Constitution. He further found that they fell within the statutory definition of "teaching staff member," N.J.S.A. 18A:1-1. Based on these
findings, the judge concluded that any petitioner who had served the requisite length of time had acquired tenure under N.J.S.A. 18A:28-5.
The Commissioner of Education affirmed the Administrative Law Judge's initial decision on November 30, 1979. As in Spiewak, the State Board of Education reversed on October 3, 1980 on the basis of Point Pleasant.
The Appellate Division reversed and held that petitioners were eligible for tenure. 180 N.J. Super. 321 (1981). The court found the Hamilton Tp. situation indistinguishable from Point Pleasant with one exception, which it found to be dispositive. The court concluded that the Hamilton Tp. teachers, unlike those in Point Pleasant, were not employed in a federally funded program. Since they were not employed in programs contingent on uncertain federal funding, they were therefore entitled to tenure under N.J.S.A. 18A:28-5. The court suggested that Title I teachers could not receive tenure under N.J.S.A. 18A:28-5 because of the tenuous nature of their federal funding. This conclusion contradicts the assertion of the Appellate Division in Spiewak that Title I teachers are eligible for tenure under some circumstances. See 180 N.J. Super. at 318.
This Court granted the State Board of Education's petition for certification on November 10, ...