On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Handler, Garibaldi and Stein. Concurring in part; dissenting in part -- Justice O'Hern. The opinion of the Court was delivered by Garibaldi, J. O'Hern, J., concurring in part and dissenting in part.
At issue is whether teachers in State non-correctional human services facilities are eligible to acquire tenure under N.J.S.A. 18A:7B-11 of the State Facilities Education Act of 1979 The Appellate Division held that they were. We disagree.
Respondents, Barbara Lukas, Alfred Pierce, Herbert Gaiss, and Audrey Williams, were employed in teaching or supervisory positions at New Lisbon School, Woodbridge State School, Marlboro Psychiatric Hospital, and Greystone Psychiatric Hospital, respectively. The New Jersey Department of Human Services is responsible for operating the educational facilities within these institutions pursuant to the State Facilities Education Act of 1979 (the Act), N.J.S.A. 18A:7B-1 to -13.
Respondents were laid off or displaced from their positions. They filed petitions with the Commissioner of Education contending that their respective discharges were in violation of their tenure rights. The Department of Human Services and the specific institutions filed an answer denying that the teachers were entitled to tenure protection. Pursuant to N.J.S.A. 52:14F-1, the matter was transferred to the Office of Administrative Law.
Respondents filed a motion for partial summary judgment and a notice for class action certification for them to represent all certified teaching staff members employed in institutions
administered according to the terms of the Act. There are twenty-seven State institutions that employ teachers who are subject to the Act. No district or regional boards of education are involved.
The Department of Human Services filed a cross-motion for summary judgment or dismissal. In his Initial Decision, the Administrative Law Judge granted the Department's motion for summary judgment, dismissing the petition. He also denied class action certification.
The Commissioner of Education affirmed the findings and determination of the Administrative Law Judge, and the State Board of Education affirmed the decision of the Commissioner. The Appellate Division, however, reversed the findings that the teachers had no right to achieve tenure and remanded the case for a determination of whether the tenure requirements were in fact met. We granted the State's petition for certification, 101 N.J. 222 (1985).
It is well-established that in New Jersey the right to tenure is statutory. A legislative source for tenure rights is essential. Spiewak v. Rutherford Bd. of Educ., 90 N.J. 63, 72 (1982); Zimmerman v. Newark Bd. of Educ., 38 N.J. 65, 70-72 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). As with most teachers in the state, the tenure eligibility of the teachers in Spiewak and Zimmerman was determined under the Tenure Act, N.J.S.A. 18A:28-1 to -15. Because the teachers in this case were not employed by "any school district or under any board of education," the Tenure Act does not apply. Here the teachers claim tenure rights under the State Facilities Education Act, N.J.S.A. 18A:7B-11.
To determine whether the respondents are entitled to tenure under the present statutory scheme, an examination of the prior statutory scheme is necessary. In 1972 the Legislature determined "that it is in the best interests of the State of New
Jersey to provide a program of educational advancement to residents of the State's institutions." L. 1972, c. 187. To accomplish that goal, the Legislature enacted N.J.S.A. 30:4AA-1 to -8, which established within the Department of Institutions and Agencies a statewide school district known as the Garden State School District (the District).*fn1
N.J.S.A. 30:4AA-2 provided that:
The district shall be composed of such correctional, charitable, hospital, relief, training and other institutions and noninstitutional agencies within the Department of Institutions and Agencies as the commissioner thereof shall determine. Establishment of the school district provided hereunder shall be in two phases. Phase 1 shall include the correctional institutions in the Department of Institutions and Agencies. Phase 2 shall include the institutions for mental health, State hospitals, charitable institutions and other institutions and agencies within the Department of Institutions and Agencies. Implementation of Phase 2 shall not commence until after the passage of 90 days after the Commissioner of Institutions and Agencies has advised the Commissioner of Education of the Commissioner of Institutions and Agencies['] [sic] intention to begin Phase 2. . . .
Pursuant to N.J.S.A. 30:4AA-2, the Commissioner of Institutions and Agencies implemented Phase 1, which included only the correctional institutions in the Department of Institutions and Agencies. Upon 90 days notice to the Commissioner of Education, the Commissioner of Institutions and Agencies had discretion to implement Phase 2, which would have included the noncorrectional institutions. Since he did not exercise that discretion, Phase 2 was never implemented. The District therefore was composed solely of the correctional institutions within the Department of Institutions and Agencies.
At the same time that the new school district was created, the Legislature enacted N.J.S.A. 30:4AA-6, which provided that: "In all respects and for all purposes, . . . the State school district for institutions shall be considered a local education
authority." There is no dispute that teachers employed in the District were granted tenure rights by N.J.S.A. 30:4AA-6.*fn2 This provision, however, did not grant tenure status to the teachers who were employed in the institutions that were not incorporated into the District, i.e., the non-correctional institutions. For purposes of this ...