Decided: May 12, 1992; November 17, 1992, Decided.
On appeal from a Final Decision of the State Board of Education.
Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Petitioner, Catherine Lammers, appeals from a decision of the State Board of Education, reversing the decision of the Commissioner of Education who had largely adopted the administrative law Judge's determination that petitioner was entitled to payment for a year's salary for violation of her tenure rights. This case was originally argued in April, with an initial opinion issued in May. Thereafter the State Board of Education successfully moved for reconsideration. This opinion supersedes the opinion originally issued May 2, 1992.
Petitioner is a tenured English teacher, holding certificates to teach English in kindergarten through high school. As a high school English teacher, she was subject to a reduction in force (RIF) for the 1989-1990 school year. A temporary vacancy in a middle school English teacher position opened for 1989-1990
when the teacher holding that position applied for a year's maternity leave. A long-term substitute teacher was hired for the year, and petitioner was not considered for the job.
Although the school system makes arguments here concerning whether or not there was a "position" open for the year, it evidently turned petitioner down because she was not certified in elementary education. The middle school was departmentalized, but the district at that time mistakenly considered the middle school as part of its elementary system. It is clear, however, that N.J.A.C. 6:3-1.10(1) 19 and 20 classify departmentalized seventh and eighth grades as "secondary" rather than "elementary" for employee entitlement purposes. See the explanation of such classification in Cohen v. Emerson Bd. of Educ., 225 N.J. Super. 324, 327 n. 1, 542 A.2d 489 (App.Div.1988). This puts to rest the district's claim that petitioner should not have at least been considered for the job on the basis of seniority credits accumulated in the district's secondary schools.
The sole issue in the case, therefore, is whether a "vacancy" opened in a position when the teacher left for a year on maternity leave. N.J.S.A. 18A:28-12 provides that a teacher who has been dismissed as a result of a reduction in force "shall be and remain upon a preferred eligible list in the order of seniority for reemployment whenever a vacancy occurs in a position for which such person shall be qualified . . . ." (emphasis supplied).
The State Board concluded that a maternity leave of absence creating a year's opening did not create such a "vacancy," and therefore petitioner's rights were not violated when a long-term substitute was hired rather than a tenured teacher who had been subject to a reduction in force. The State Board stated, "It is well established, however, that an assignment which is temporarily unoccupied by an absent teaching staff member does not constitute a vacancy." The State Board cited as authority for this proposition Sayreville Educ. Ass'n v. Board
of Educ., 193 N.J. Super. 424, 474 A.2d 1091 (App.Div.1984). There we construed the statute authorizing the temporary appointment of an employee "during the absence, disability or disqualification" of a board of education employee. N.J.S.A. 18A:16-1.1. As quoted by the State Board, in Sayreville we construed the statute "as applying when the services of a substitute teacher are required because of the temporary absence, even if protracted, of a regular teacher whose return to duty is contemplated." 193 N.J. Super. at 428, 474 A.2d 1091. We there stated, however, that we did not construe the statute "as authorizing the use of a substitute to fill a vacant position on a long-term basis." Ibid. The court went on to explain that in the case of a vacancy in the position where the incumbent has been terminated, the person filling the position is not a substitute, and must be accorded all the benefits of a regular teacher. Id. at 428-429, 474 A.2d 1091. But this Discussion does not answer the question whether a qualified tenured teacher, terminated because of a reduction in force, should be given a hiring preference over a non-tenured substitute when there is a full year's temporary vacancy.
At the original oral argument petitioner's attorney attempted to draw a line between permissible use of a substitute for a week (or possibly even a month), and the impermissible use of a substitute for some unspecified longer period. He suggested that as the period became more protracted, the duties of the substitute would approach those of the regular classroom teacher, requiring increased supervision of the curriculum and not merely a "babysitting function." That distinction is unworkable. Depending upon the class being taught, the needs of the children, and the guidelines of the school district, even a short-term substitute may well perform all of the planning as well as the teaching functions of the regular teacher. The only guidance we find in the existing regulations is ...