Decided. As Corrected April 15 1993.: April 12, 1993.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 251 N.J. Super. 144 (1991).
Handler, Wilentz, Clifford, Pollock, O'hern, Garibaldi, Stein
The opinion of the court was delivered by
This case requires the Court once again to examine the complex laws governing teacher tenure. We are asked to review the standards that require educators to possess a professional certificate corresponding to a major area of educational responsibilities -- denominated as instructional, educational services, and administrative -- and to serve in a specific position included under a particular certificate for a probationary period to secure tenure protection under that certificate. The effect of those tenure requirements is that the requisite service in a specific position that confers tenure under one certificate does not automatically entitle an educator to tenure in a position under another certificate, even though the two positions may have some similar or overlapping functions.
The intricacy of the tenure scheme is illustrated by this case. Petitioner had obtained tenure as a high school guidance counselor. That position was included under the educational-services certificate. As a result of a departmental reorganization, the guidance-counselor position was eliminated and its functions incorporated into a newly-created position, that of class supervisor. The class supervisor's position was included under two certificates, namely, educational services and administrative. Petitioner thereafter became qualified to hold the administrative certificate. However, because she had not previously served in any position included under that certificate, she was denied appointment as a class supervisor, despite her tenured service as a guidance counselor under the educational-services certificate.
The question to be answered is whether the tenure requirements were validly applied under the circumstances of this case to deny a tenured educator an appointment to a new position under a different certificate for which she possessed the requisite credentials but under which she had previously accrued no actual work experience.
Petitioner, Elsa Dennery, was a guidance counselor employed by the Board of Education of Passaic Valley Regional High School, District One (the "Board" or "District"). She had served in that position for twenty-seven years when in 1989 the position was abolished. Petitioner had attained tenure in the position of guidance counselor under a certificate in the area of "educational services." Dennery also held a second certificate in the "instructional" area, but the guidance counselor position was not a position under that certificate.
In 1985, Dr. Louis Centolanza, Superintendent of the Board, sent out a survey to parents, guardians, and staff. The results were overwhelmingly critical of the guidance department. Based on the survey, the Superintendent recommended that the Board create a new Director of Pupil Services position. The function of that position would be to oversee the guidance department during the 1985-86 school year and to conduct a performance evaluation of the guidance staff.
In the spring of 1986, Dr. Centolanza issued a report. He recommended a wholesale restructuring of the guidance department. The restructuring would include the phasing out and elimination of guidance counselors and the creation of a new position, class supervisor. Each class supervisor would be responsible for advising and monitoring an entire class of pupils throughout their four years at the high school. Dr. Centolanza planned to hire one person each year to fill the class-supervisor positions. During the transition, the guidance counselors were to remain in their positions.
The position of class supervisor required two certificates, an administrative certificate and an educational-services certificate. The additional credential of an administrative certificate was required because the new position entailed more supervisory functions within the school than previously required of a guidance counselor. In addition to monitoring student performance, class supervisors would evaluate teachers and also administer in-school discipline.
In June 1986, Dr. Centolanza posted a notice for the position of class supervisor for the class of 1990. That position was filled by a former department head and industrial-arts teacher. The second position, supervisor of the class of 1991, was also posted and was filled by a former guidance counselor in the District. Both of the newly-appointed class supervisors possessed the two requisite certificates. At the time the vacancies were announced, Dennery had not yet obtained the required administrative certificate, and hence did not apply for either of those positions.
In May 1988, the District advertised for a supervisor for the class of 1992. Dennery applied for that position, although she had not yet obtained her administrative certificate when the vacancy was announced. However, she obtained that credential in July 1988. The position was awarded to another candidate, who was otherwise qualified by virtue of the necessary certificates, but who had not previously served on the teaching staff in the District.
The Board posted its final opening for a class supervisor for the class of 1993 in the spring of 1989. Dennery also applied for that position. Another candidate was selected to fill the vacancy. Dennery's position as a guidance counselor was subsequently abolished and her employment terminated in June 1989.
Dennery appealed her termination and the denial of her appointment to the position of class supervisor. The Office of Administrative Law heard Dennery's appeal in January 1990. The Administrative Law Judge ("ALJ") determined that Dennery's tenure rights were not transferable to the newly-created position and, further, that the positions were not similar. The Commissioner of Education ...