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Shelko v. Board of Education of Mercer County Special Services School District

Decided: August 7, 1984.

LOIS SHELKO, APPELLANT,
v.
BOARD OF EDUCATION OF THE MERCER COUNTY SPECIAL SERVICES SCHOOL DISTRICT, MERCER COUNTY, RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz, and Justices Handler, O'Hern and Garibaldi, JJ. For affirmance -- Justices Clifford, Schreiber and Pollock. The opinion of the Court was delivered by O'Hern, J. Pollock, J., dissenting. Justices Clifford and Schreiber join in this opinion.

O'hern

[97 NJ Page 415] The narrow issue in this case is whether a teacher in a local special educational program that is taken over by a county special services district enjoys the tenure protection of N.J.S.A. 18A:28-16, even though other programs of the district continue to be locally administered thereafter. That statute protects the tenure rights of teachers transferred to Educational Services Commissions, Jointure Commissions, or other described agencies. The question arises because the statute, in guaranteeing that "all * * * tenure * * * rights of all teaching staff members * * * shall be recognized and preserved by the agency

assuming operational control," speaks in terms of a school, not a school program. We hold that the statute applies when a local school program is taken over by a county special services school district.

Specifically, the question here is whether petitioner acquired tenure with the Mercer County Special Services School District by virtue of having served as a teacher in the Ewing Township school system for two years and then in the Mercer County district for the next two years, during all of which time she was assigned to the same special education program. The Administrative Law Judge (ALJ), the Commissioner of Education, the State Board of Education, and the Appellate Division have reached varying determinations on the issue, and the case is not free from difficulty.

In 1976, Lois Shelko was hired by the Ewing Township Board of Education as a teacher in its "Project Child" program, providing instruction to multiply-handicapped infants, pre-schoolers and kindergartners. All funds for the program came from state or federal grants. For many years, Ewing had been the local education agency in Mercer County that applied for the funds for the program, which served the needs of the educationally-handicapped young of Mercer County. Such programs are highly specialized, beyond the normal capacity of local school districts, and are appropriate for regional delivery.

In 1977, concerned parents encouraged Mercer County to create a special services school district to deliver such educational programs for the handicapped. Peter Buermann, the director of the Ewing program, acted as consultant to the new county district and helped draw up the application to the State Department of Education for the necessary funding. The funds were thereafter made available to the Mercer district.

On Buermann's recommendation, the Mercer district hired Lois Shelko for the 1978-79 school year. The only question is whether her years of employment with Ewing may be tacked on

to her years with Mercer, thus giving her tenure of employment.

As noted, the question has not been resolved without difficulty at the various levels of decision. The ALJ recommended against tenure because he did not think that the consultant, Buermann, had authority to bind the nascent special services school district. In his view, under N.J.S.A. 18A:28-16, Ewing had "consciously and affirmatively" to agree that Mercer "would 'take over' the program of the former." The Commissioner of Education disagreed, finding there was a "tacit understanding and agreement" that the petitioner's program was being transferred with Ewing's cooperation to the new jurisdiction. The State Board of Education divided on the issue, agreeing with the ALJ that the course of events did not establish an agreement that the program was being transferred with Ewing's cooperation to the Mercer district; four members opposed the decision. The Appellate Division divided on the issue: The majority found that no agreement existed and that the word "school" in the statute did not include a "school program." The dissenting judge disagreed with such a narrow interpretation of "school," and recommended a remand to decide whether an agreement existed between Ewing and Mercer.*fn1 We now reverse primarily because we view teacher tenure as a matter of status, not of contract. See Spiewak v. Board of Educ. of Rutherford, 90 N.J. 63 (1982). Regardless of the subjective considerations of her two successive employers,

petitioner met the objective criteria of the statute and is entitled to tenure.

I.

Provision for regional delivery of educational services has implications for teacher tenure. As the forms of governance have altered, the Legislature has adopted varying responses. To illustrate: L. 1951, c. 128 and L. 1955, c. 240 guaranteed the tenure rights of any high school or junior high school teacher in the constituent districts taken over by a regional district, N.J.S.A. 18A:13-42; L. 1952, c. 236, § 20 protected teachers in the event of any change in the method of government of the school district or school districts by which they were employed on the date of such change, N.J.S.A. 18A:28-15; and L. 1967, c. 31 sought to preserve teachers' rights upon the creation of a new regional district, N.J.S.A. 18A:28-6.1.

County special services school districts were first authorized by L. 1971, c. 271. Under that law, a county's board of chosen freeholders may establish a district for the education and treatment of handicapped children. The act, commonly referred to as the Beadleston Act, N.J.S.A. 18A:46-29 to -46, defines a handicapped child in the language of N.J.S.A. 18A:46-1 as "any child who is mentally retarded, visually handicapped, auditorily handicapped, communication handicapped, neurologically or perceptually impaired, orthopedically handicapped, chronically ill, emotionally disturbed, socially maladjusted, multiply handicapped, or pre-school handicapped." The State Board of Education is authorized to prescribe rules and regulations for the organization, management, and control of such special services schools. N.J.S.A. 18A:46-30.

Again concerned by the implications for teacher tenure, the Legislature specifically addressed the effects of the takeover of local programs by a county special services district in L. 1973, c. 267, § 1, effective November 29, 1973:

Whenever an Educational Services Commission, a Jointure Commission, the Commissioner of Education, the State Board of Education, the Chancellor, the

State Board of Higher Education or the board of trustees of any State college, or any officer, board or commission under his, its or their authority shall undertake the operation of any school previously operated by a school district in this State, all accumulated sick leave, tenure and pension rights of all teaching staff members in said school shall be recognized and preserved by the agency assuming operational control of the school, and any periods of prior employment in such school district shall count toward the acquisition of tenure to the same extent as if all of such employment had been under the Educational Services Commission, Jointure Commission, the Commissioner of Education, the State Board of Education, the Chancellor, the State Board of Higher Education or the board of trustees of any State college, as the case may be. [ N.J.S.A. 18A:28-16.]

As originally introduced, the bill provided that "all teaching staff members shall continue in their respective positions * *." S. No. 411, 195th Leg., 2d Sess. (1973). In his conditional veto, Governor Cahill concluded that this provision, read literally, might be interpreted to require the retention of teachers even if their position was not necessary in the new regionalized school district, or if the teacher no longer wished to continue working in that capacity. He also distinguished between tenure and seniority rights, and believed that the

most appropriate way of dealing with the reemployment rights of non-tenured teachers is to amend this bill to require that they must be given notice of whether they will be offered a contract for the coming academic year on or before April 30, in accordance with P.L. 1971, c. 436 ([ N.J.S.A. ] 18A:27-10 et seq.). This would give the non-tenured teachers the same rights they would have had if no transfer were to occur, while preserving the rights of the employer to decide whether to rehire a probationary teacher.

The bill was enacted with his recommendation and the pattern that he predicted was essentially followed in this case, with a slight variation due to the overlapping sequence of time involving the creation of the school district. Mrs. Shelko, though not tenured after working two years in Ewing, was offered contracts for the two succeeding years with Mercer.

Why then did the State Board of Education not apply the statute specifically enacted to deal with the situation presented? In its decision and in its legal committee's report, the Board emphasized the source of the funds for ...


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