On certification to the Superior Court, Appellate Division, whose opinion is reported at 261 N.J. Super. 549 (1993)
Pollock, Wilentz, Handler, O'hern, Garibaldi, Stein, Clifford
The opinion of the Court was delivered by POLLOCK, J.
The issue is whether respondent, Dorothy Kletzkin, a school psychologist, acquired tenure while on leave because of a work-related injury. The Commissioner of Education (the Commissioner), the New Jersey State Board of Education (the Board), and the Appellate Division, 261 N.J. Super. 549 (1993), all read the tenure statute, N.J.S.A. 18A:28-5, to require a finding that Kletzkin had acquired tenure. We granted the petition for certification of the Spotswood Board of Education (Spotswood), 133 N.J. Super. 443 (1993), and now affirm.
Kletzkin began employment with Spotswood as a learning-disabilities teacher consultant on January 13, 1986. Spotswood reclassified her as a school psychologist on October 22, 1986. She served in that capacity for the remainder of the 1986-87 school year and throughout the 1987-88 year. Spotswood rehired Kletzkin for the 1988-89 year. She continued to work as a school psychologist until November 17, 1988, when a work-related injury forced her to take an involuntary leave of absence. Pursuant to N.J.S.A. 18A:30-2.1, she continued to receive her full salary. On April 11, 1989, before Kletzkin's return to service, Spotswood terminated her employment.
The applicable statute, N.J.S.A. 18A:28-5(c), provides that teaching-staff members, which include school psychologists, receive tenure "after employment" for the equivalent of more than three academic years within a period of any four academic years. An academic year runs for the ten months between September 1 and June 30 of the school year. See N.J.S.A. 18A:1-1 (defining academic year as "the period between the time school opens in any school district or any board of education after the general summer vacation until the next succeeding summer vacation"). Thus, to obtain tenure, Kletzkin would have had to be "employed" for thirty months and one day over four academic years. At the time of her injury, she had served for slightly more than twenty-eight
months. The parties disagree whether she obtained tenure when the thirtieth month passed in January 1989 while she was disabled.
The Commissioner found in Kletzkin's favor, using a case-by-case subjective approach. Although the Board affirmed the finding that Kletzkin was entitled to tenure, it reasoned that Kletzkin's claim turned "solely on analysis of whether she satisfied the specific requirements of N.J.S.A. 18A:28-5." The Appellate Division affirmed, "substantially for the reasons set forth by the Board in its decision," 261 N.J. Super. at 552.
Tenure is a statutory right that depends on a teacher's satisfying specific statutory conditions. Spiewak v. Board of Educ., 90 N.J. 63, 72, 447 A.2d 140 (1982); Zimmerman v. Board of Educ., 38 N.J. 65, 72, 183 A.2d 25 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). Because of its remedial purpose, we construe the Act liberally. Spiewak, supra, 90 N.J. at 74. "Moreover, as the agency ultimately charged with implementation of the school laws, the Board's statutory interpretation is entitled to considerable weight, where not inconsistent with the statute and in harmony with the statutory purpose." Kletzkin, supra, 261 N.J. Super. at 553 (citing Bassett v. Board of Educ., 223 N.J. Super. 136, 142-43, 538 A.2d 395 (App. Div. 1988)). Although remaining vigilant to the "proper application of the school laws . . .," Dennery v. Board of Educ., 131 N.J. 626, 643, 622 A.2d 858 (1993), we also recognize that we should not interfere with the Board's decisions unless those decisions are "palpably arbitrary." Ibid.
The dispositive statute provides:
The services of all teaching staff members . . . shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause . . . after employment. . . for
[N.J.S.A. 18A:28-5 (emphasis added).]
Kletzkin maintains that "employment" includes periods of sick leave, that she obtained tenure while on such leave, and that Spotswood improperly terminated her. We agree. Our analysis begins with the plain language of the statute, which contemplates an ordinary employment relationship. "Since the wording of N.J.S.A. 18A:28-5 is clear and unambiguous, we will apply it as written in the absence of any evidence of a contrary legislative intent." Spiewak, supra, 90 N.J. at 74.
A teacher's employment begins with the actual performance of service, not the date of hiring. See Zimmerman, supra, 38 N.J. at 73-74; Carroll v. State Board of Educ., 8 N.J. Misc. 859, 862, 152 A. 339 (Sup. Ct. 1930). Further, "continuous employment" exists notwithstanding the "mere occasional absence of a teacher by reason of illness or excuse." Board of Educ. v. Wall, 119 N.J.L. 308, 309-10, 196 A. 663 (Sup. Ct. 1938). Spotswood hired Kletzkin for the school year spanning September 1, 1988, through June 30, 1989, and she started work under that employment contract. A teacher who performs services under a contract for the year is employed for the purposes of the statute, see Zimmerman, supra, 38 N.J. at 74, even if he or she takes an involuntary leave. Accordingly, Spotswood maintained the employment relationship with Kletzkin until it terminated her on April 11, 1989, approximately three months after she had become tenured. In sum, the termination occurred after Kletzkin became tenured in January 1989.
Another statute, N.J.S.A. 18A:30-2.1, confirms that the Legislature intended that a teacher's employment would continue during a period of involuntary sick leave. That statute provides:
Whenever any employee, entitled to sick leave under this chapter, is absent from his post of duty as a result of a personal injury caused by an accident arising out of and in the course of his employment, his employer shall pay to such employee the full salary or wages for the period of such absence for up to one calendar year
without having such absence charged to the annual sick leave or the accumulated sick leave provided in sections 18A:30-2 and 18A:30-3.
By referring to a teacher on sick leave as an "employee," and by requiring a school board to "pay to such employee the full salary or wages for the period of such absence," the statute recognizes that teachers are employed while on sick leave.
In other contexts, we have also recognized that an employee on a leave of absence remains an employee. See Ward v. Keenan, 3 N.J. 298, 310, 311, 70 A.2d 77 (1949) (holding police officer on leave of absence "does not lose his tenure during good behavior"; rather, "a leave of absence, instead of constituting a complete severance of responsibility, is analogous to the off duty period enjoyed daily by every police officer, except that it extends for a longer period"); see also Blinn v. Board of Trustees, 173 N.J. Super. 277, 278, 414 A.2d 263 (App. Div. 1980) (stating in pension case, "phrase 'leave of absence' itself 'connotes a continuity of the employment status'") (citations omitted). These analogous cases substantiate our Conclusion that Kletzkin continued her period of employment during her leave of absence.
We reject Spotswood's argument, embraced by the Dissent, that the statute requires that a teacher render a full thirty months of active service during the probationary period. In rejecting that argument, we recognize the importance of a probationary period as a means of assessing a teacher's performance. See Zimmerman, supra, 38 N.J. at 73 (stating that policy of tenure legislation "demands that permanent appointments be made only if the teachers are found suitable for the positions after a qualifying trial period"); see also Cammarata v. Essex County Park Comm'n, 26 N.J. 404, 412, 140 A.2d 397 (1958) (emphasizing that crucial test of park police officer's fitness is "how he fares on the job from day to day"). Kletzkin, however, was no stranger to the Board. It had ample opportunity to assess her over twenty-eight months during four school years. Nothing indicates that the Board had any reason to deny her tenure before she was injured on the job. Under the unusual circumstances of this case, we
conclude that Kletzkin's brief period of sick leave did not deprive the Board of its opportunity to evaluate her before she acquired tenure. In another case, a more extended leave of absence could lead to a different result. As the Board recognized, the happenstance that Kletzkin's leave occurred at the end of her probationary period ...