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O''Toole v. Forestal

Decided: June 30, 1986.

ANNETTE O'TOOLE, APPELLANT,
v.
LARRY FORESTAL, PRINCIPAL, PARTHENIA SMITH, DIRECTOR, MILLBURN SCHOOL FOR THE HEARING HANDICAPPED A/K/A NEW JERSEY REGIONAL DAY SCHOOL AT MILLBURN AND DIVISION OF FIELD SERVICES OF THE DEPARTMENT OF EDUCATION, RESPONDENTS



On appeal from a final decision of the State Board of Education.

Fritz, Gaynor and Baime. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

In this appeal, petitioner challenges the final determination of the State Board of Education affirming the Commissioner of Education's decision that the termination of petitioner's position as physical education teacher in the Regional Day School at Millburn (RDSM), a State operated school for hearing impaired children, was not arbitrary or done in bad faith, that petitioner had abandoned her tenure and seniority rights by refusing to accept a full-time position subsequently offered to her and that any claim to tenure pertained solely to RDSM and did not extend to other State operated schools for the handicapped. We agree with these conclusions and affirm the dismissal of appellant's petition.

Petitioner commenced employment as a physical education instructor at the Millburn School for the Hearing Handicapped in 1970. The school was then operated by the Millburn Board of Education. In 1971 the operation of the school was taken over by the State Department of Education and commencing with the 1982-83 school year it became a regional day school. Its name was then changed to the Regional Day School at Millburn. In January 1981, petitioner's part-time position as physical education teacher was reduced from three days a week to two days a week. This reduction in her part-time status was not challenged until November 5, 1982 when she filed the instant petition with the commissioner.

As a result of the Department of Education's determinations concerning the operating budget for RDSM and tuition charges, it was decided in July 1982 to terminate petitioner and four other teachers. The administrators of the school concluded the

elimination of petitioner's position would have a minimal impact on the school program as the required physical education could be taught by the classroom teachers. Petitioner was not offered a position at another regional day school because of the absence of any vacancies. The regional school in Jackson had hired a physical education teacher in June 1982, before petitioner's position was terminated, and the school administrator did not consider terminating that new teacher to permit petitioner's reassignment to the Jackson school.

Following the completion of the evidentiary hearing before the Administrative Law Judge, but before the record had been closed, petitioner was offered a full-time physical education instruction position covering both RDSM and the Regional Day School at Morris. A response from petitioner's attorney indicated that petitioner had relocated to Vermont and was unable to accept the position. Respondents thereupon moved for a dismissal of that portion of petitioner's claim seeking reinstatement to a teaching position in any regional day school and a determination that petitioner had abandoned her tenure rights. Petitioner filed no papers in opposition to this motion. She now asserts this was a tactical decision in pursuing her tenure rights in the proceedings then being conducted. The motion was denied by the Administrative Law Judge as he was reluctant to conclude that petitioner had abandoned these tenure rights in the absence of any direct confirmation from her. Rather, he found that the tenure and reemployment rights to her former position at RDSM had not been abandoned and that she should be afforded a reasonable time to accept or reject any offer of reemployment. This conclusion and recommendation was rejected by the commissioner and the board in its affirmance.

Petitioner now argues that as a "teaching staff member" of an educational institution for the handicapped directly operated by the State, her tenure and seniority rights are governed by N.J.S.A. 18A:60-1, and are not limited to the institution in which she was employed. She also challenges as discriminatory

and otherwise arbitrary, capricious and unreasonable respondents' decision to terminate her position. She claims as well that she has not abandoned her position nor her concomitant tenure and seniority rights by her refusal to accept the teaching positions offered her.

I

Petitioner's rights to tenure and reemployment in case of a reduction in force are governed by N.J.S.A. 18A:60-1, et seq. The pertinent ...


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