On appeal from a judgment of the New Jersey State Board of Education.
Bischoff, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Bischoff, P.J.A.D.
[190 NJSuper Page 355] The issue in this appeal is whether the reduction in petitioner's duties as a teacher from full-time to 7/10-time with a corresponding
reduction in salary violated his tenure and seniority rights.
In the 1978-79 school year respondent Board of Education of the Township of Cranbury (board) employed two full-time physical education teachers. Petitioner had been employed full-time in that capacity with the board for 21 years and Dora Bennett, a nontenured teacher employed in the same capacity, was in her third year of employment. Both teachers taught the same classes at the same time.
In April 1979 the board notified petitioner that as a result of a continued decline in enrollment, the resulting need for program reorganization and budget CAP constraints, his position for the 1979-80 school year would be reduced to 3 1/2 days a week and he would be paid seven-tenths of his full-time salary. The bona fides of the asserted reasons for the reduction in classes is not challenged.
Despite the recommendation of the principal to the contrary, the board determined to hire a second part-time teacher with the same reduced teaching load. Dora Bennett, the nontenured teacher, was hired for this part-time position. As in prior years, both teachers taught the same classes at the same time. The classes varied in size from a minimum of 15 to a maximum of 34, and it is undisputed that the same 3 1/2-day program could have been managed by a single teacher.
In August 1979 petitioner challenged the board's decision by filing a petition of appeal to the Commissioner of Education alleging that by reason of his tenure and seniority the board was required to retain him in a full-time position rather than employing both him and Dora Bennett as part-time teachers. The appeal was referred to an administrative law judge who held, after a hearing, that since the board had chosen to employ two 7/10-time teachers, it was obligated to retain petitioner as a full-time teacher. The administrative law judge recommended petitioner be reinstated to his full-time position and paid for his loss of salary (subject to mitigation for earnings received from alternative employment). The Commissioner adopted the recommendations
of the administrative law judge. On appeal to it, the State Board of Education reversed, stating:
The law is well established that unless the local board's action to reduce full-time positions to part-time was taken in bad faith or constituted an abuse of discretion, its determination to abolish or change positions may not be disturbed by the Commissioner of [ sic ] the Courts. [Citations omitted]. We do not find it arbitrary for a local board to decide when having to reduce its physical education program to have two part-time teachers rather than one full-time. Th [ sic ] tenure and seniority rights of an incumbent cannot prevail againt [ sic ] the authority of the board when exercised in good faith and with some rational basis. The mere fact that Petitioner was qualified to handle the entire physical education program on his own is not material; nor is the fact that the Board might have organized its physical education differently.
We were advised at oral argument that commencing with the school year 1980-81 the board reduced the number of physical education teachers to one, and petitioner was now teaching ...