On appeal from a Final Decision of the State Board of Education.
Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.
Petitioner, Erica A. Cohen, has appealed from a decision of the State Board of Education determining that intervenor, Suzanne Carter, held seniority over petitioner in the position of secondary school speech correctionist in the respondent Emerson Board of Education school district. Carter and the school district have cross-appealed from certain seniority determinations in the event the particular points urged by petitioner result in a significant correction of her seniority.
Petitioner was reduced from a half-time elementary speech correctionist position to a .3 week elementary position. At the same time the Board retained Carter in a .6 week secondary position. (Each .1 week position represents a half day per week employment in the district). As will be explained, this appeal illustrates the hypertechnical distinctions made in the interpretation of the State Board of Education's seniority standards. See N.J.A.C. 6:3-1.10. Particularly implicated in this case are the separate seniority lists maintained for elementary and secondary positions. See N.J.A.C. 6:3-1.10(1) 15 and 16. The interpretation is made more difficult by regulations recognizing "district-wide" experience which effects seniority in both the
elementary and secondary categories. N.J.A.C. 6:3-1.10(1)15iv and 16iii. Also implicated in this case is the State Board's extrapolation to non-classroom teachers of the regulation granting secondary school seniority to seventh and eighth grade teachers in departmentalized schools.*fn1 Thus an anomalous result is reached in measuring seniority for a speech correctionist or other non-classroom teacher to whom students are sent for individualized instruction. Although the job is identical in a K-8 school with or without a departmentalized seventh and eighth grade, the speech correctionist in a school with departmentalization achieves the "district-wide" seniority entitling the teacher to possible job preference over a speech correctionist whose entire experience is in a high school with 9th through 12th grade students; a speech correctionist receives no such seniority for services performed in a non-departmentalized school.
In the case before us the two teachers have practically identical seniority histories.*fn2 Intervenor Carter had an undisputed total seniority credit, multiplying the portions of a year served by the portion of full-time employment in each year, of 3.085 years for the period January 21, 1980 through the end of the 1984 school year.*fn3 The State Board computed petitioner's seniority in the secondary category at 3.07 years, raised from
the originally-determined 2.988 years by the local board. Petitioner's service was entirely "district-wide" from February 1, 1981 through June 30, 1985, by virtue of her work with seventh and eighth grade students as part of a K-8 assignment. Petitioner contends that periods of additional service should have been included.
The Administrative Law Judge determined that petitioner acquired seniority, and therefore her hours could not be reduced to fewer than those offered to Carter for the 1984-1985 school year. In reviewing this decision, the Commissioner disagreed with some of the computations of petitioner's seniority, but agreed that her seniority exceeded that of Carter, entitling petitioner to back pay and a correction of her seniority record. On cross-appeals to the State Board of Education, the State Board reversed the Commissioner's decision finding the totals noted earlier. On this appeal petitioner first argues that her prior vested seniority rights, before an amendment of the State Board's regulations in September 1983, required that she be given a district-wide credit even for her earlier elementary school service.
Under N.J.S.A. 18A:29-9, a local board may for reason of economy or for other good cause reduce the number of positions available. Reductions in force must be made on the basis of seniority, N.J.S.A. 18A:282-10; and the Commissioner is given authority to establish the standards for determining seniority. N.J.S.A. 18A:28-13. The regulation discussed earlier constitutes the Commissioner's exercise of this power. Petitioner in effect argues that because she had undergone a reduction-in-force which shortened her hours during a ...