On appeal from the New Jersey State Board of Education.
Furman, Cohen and Skillman. Skillman, J.s.c. (temporarily assigned), dissenting.
We held in Maxfield v. Board of Education of the Township of Ridgewood, Docket No. A-2946-81T3, an unreported decision dated April 20, 1983, that petitioner Maxfield was tenure-eligible at the time of respondent board of education's decision not to rehire her for the 1976-1977 school year.
In its brief before us, the State Board of Education concedes that petitioner "would have achieved tenure prior to her dismissal" if our substantive holding in Spiewak v. Rutherford Bd. of Ed., 180 N.J. Super. 312 (App.Div.1981), aff'd 90 N.J. 63 (1982), is applied to her case. Nevertheless, petitioner's ten year quest for the tenure status she is entitled to under N.J.S.A. 18A:1-1 and 18A:28-5 was again thwarted by the State Board in September 1985, in reliance upon Rutherford Educ. Ass'n v. Bd. of Educ., 99 N.J. 8 (1985), decided April 11, 1985.
Our remand to the State Board on petitioner's first appeal was on April 20, 1983. The purpose of the remand was to determine when, not if, petitioner had achieved tenure status and her entitlement, if any, to retroactive benefits and emoluments.
The Supreme Court denied certification of our decision at 94 N.J. 591 (1983), decided July 13, 1983.
Thereafter, the State Board held no hearing, reached no fact findings and rendered no decision until after the Supreme Court decision in Rutherford, which declared that teachers not employed at the time of its decision in Spiewak were not entitled retroactively to tenure. In opposing the present appeal by petitioner, respondent board of education relies solely on the Rutherford declaration of limited retroactivity.
At the time of our remand on petitioner's first appeal, the appeals consolidated in Rutherford were pending before the Appellate Division. The factual backgrounds of several were distinguishable from petitioner's.
Several of the Rutherford teachers had served in federally-funded Title I teaching positions, not, as petitioner here, in state-funded supplemental and special services teaching positions. Several of them had been barred from tenure by the State Board on administrative appeals subsequent to the Supreme Court decision in Spiewak, not, as petitioner here was, prior to the Supreme Court decision in Spiewak.
As the State Board acknowledged on petitioner's first appeal, during the one year period between our decision and the Supreme Court's in Spiewak its "ordinary remedy" was to grant tenure status to and order reinstatement of supplemental and special services teacher but not to federally-funded Title I teachers, who had been held tenure-ineligible in Point Pleasant Beach Teachers' Ass'n v. Callam, 173 N.J. Super. 11 (App.Div.1980), certif. den. 84 N.J. 469 (1980). On the first appeal before us the State Board confessed error in not applying our Spiewak decision to petitioner, whose administrative appeal was decided contrary to its "ordinary remedy," during that one year interval.
Notwithstanding our unequivocal holding and remand on petitioner's first appeal, the State Board chose to wait, apparently for the decision of our ...