On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
[93 NJ Page 363] This case requires the Court to determine whether the seniority acquired by a tenured teacher employed as a part-time librarian entitles her to preference over a non-tenured teacher for appointment as a full-time librarian. Last term in Spiewak v. Rutherford Bd. of Ed., 90 N.J. 63 (1982), this Court decided that teachers occupying part-time positions could acquire tenure. The Court did not, however, explicitly resolve the possible differences between the legal concepts of tenure and seniority as they might affect the benefits and retroactive rights of teachers occupying part-time positions. Id. at 84. The Court must now decide whether the tenure and seniority statutes recognize varieties of seniority rights for teaching staff members holding positions with different time requirements.
We now hold that a tenured part-time teaching staff member with proper certification can claim, as against a non-tenured applicant, seniority rights in seeking appointment to a full-time position that is within the specific categories covered by the certification and that has responsibilities identical to those of the part-time position in which employment was actually held. Accordingly, we reverse the determination of respondent refusing to hire appellant as a full-time school librarian.
Appellant Shirley Lichtman was employed as a part-time librarian serving three days a week by the Ridgewood Board of Education from the beginning of the 1965-66 academic year through the end of the 1975-76 academic year.*fn1 Throughout her employment, appellant held a valid certificate as a "teacher librarian," which qualified her for both full-time and part-time positions.*fn2 Appellant's duties as a part-time librarian were identical to those of a full-time librarian.
In April 1976 the Superintendent of Schools of the Village of Ridgewood informed appellant that her position as a part-time librarian was being eliminated for the following school year. The superintendent recognized that appellant had tenure but limited such tenure to any "3/5 time" position. Nevertheless, appellant applied for a full-time librarian position that was then
open. She also requested the Board to review her employment status and seniority rights in light of her application. Upon review, the Board determined that appellant held no seniority rights for a full-time position. Accordingly, in July 1976 the Board rejected appellant's application and hired, instead, a non-tenured applicant for the full-time librarian position.
Appellant appealed to the Commissioner of Education claiming that the Board improperly determined her seniority rights. She also claimed that the Board's failure to hire her violated N.J.S.A. 18A:28-12.*fn3 A hearing examiner appointed by the Commissioner of Education conducted a hearing in April 1977. More than two years later, in May 1979, the examiner recommended that appellant be reinstated as a full-time librarian with back pay and other benefits. He ruled that an employee's seniority should be determined solely on the basis of category of certification and without regard to "full-time" or "part-time" employment. In June 1980 the Commissioner adopted the examiner's report and ordered appellant reinstated. 1980 S.L.D. 573 (Comm'r 1980). The local school board appealed to the State Board of Education, which reversed the Commissioner's decision. 1980 S.L.D. 585 (St.Bd.1980). We granted the petition for certification, 91 N.J. 538 (1982), following the affirmance of the State Board's decision by the Appellate Division.
The determination of seniority rights in this case is governed by N.J.A.C. 6:3-1.10(b), which ...