On appeal from State Board of Education.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
The question raised by this appeal from a final determination of the State Board of Education (State Board) is whether a local board of education may fill a teaching staff vacancy occurring after commencement of the academic year by appointing a substitute teacher for the balance of the year pursuant to N.J.S.A. 18A:16-1.1. We conclude that the long-term substitute-teacher technique may not be used to fill a vacancy and therefore we reverse the contrary holding of the Board.
The factual context of this controversy is substantially undisputed. Appellant JoAnn Rucki was hired by respondent Sayreville Board of Education (board) on February 17, 1981 to replace a teacher who had resigned earlier that month. Appellants Josephine Marchesi and Deborah Farley were hired by the Board on March 2, 1981, one to replace a teacher who had retired and the other to replace a teacher who had resigned. Each of the three held an appropriate regular certificate. Although each was hired without written contract, each asserted the understanding that she would be employed in her respective teaching assignment for the balance of the school year. And each agreed to accept a per diem salary of $56 per day in accordance with the existing collective negotiation agreement
which stipulated that salary for a so-called long-term substitute teacher.
As substitute teachers, appellants were denied the statutory and contractual benefits available to regular teaching staff members, including accumulation of tenure credit pursuant to N.J.S.A. 18A:28-5, paid sick leave pursuant to N.J.S.A. 18A:30-2, paid public holidays pursuant to N.J.S.A. 18A:25-3, membership in the Teachers Pension and Annuity Fund pursuant to N.J.S.A. 18A:66-2(p), and the various benefits provided for regular teaching staff members by the negotiated contract between the board and the teachers' association. Appellants' basic contention on this appeal, rejected both by the Commissioner of Education and the State Board, is that they were improperly categorized as long-term substitute teachers since they were each hired to fill a vacancy for the balance of the school year. We are satisfied that appellants are correct in this contention.
N.J.S.A. 18A:1-1 defines a teaching staff member as:
Appellants are, literally, within this definition. Nevertheless, we recognize that this definition is qualified by N.J.S.A. 18A:16-1.1, which provides for temporary employment of substitute teachers. We acknowledge that a person properly employed pursuant to N.J.S.A. 18A:16-1.1 is not entitled to the status and the consequent benefits of teaching staff membership. See Spiewak v. Rutherford Bd. of Ed., 90 N.J. 63, 77 (1982). Thus, the only issue before us is whether, in the circumstances here, appellants were properly classified as substitute teachers under the statute.
N.J.S.A. 18A:16-1.1 provides in full that:
In each district the board of education may designate some person to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee subject to the provisions of section 18A:17-13.
The act of any person so designated shall in all cases be legal and binding as if done and performed by the officer or employee for whom such designated person is acting but no person so acting shall acquire tenure in the office or ...