Judges Gaulkin, R.S. Cohen and D'Annunzio.
The opinion of the court was delivered by: Cohen, R.S, J.A.D.
On appeal from the State Board of Education.
This is an appeal from a decision of the State Board of Education holding that a local school board does not have the authority to employ a teacher who is not recommended by the chief school administrator. We reverse.
Mary Schneider was a non-tenured music teacher employed by the Carlstadt-East Rutherford Regional Board of Education ("local board"). When it came time for renewal of her contract -- a renewal which would give her tenure -- the chief school administrator *fn1 (CSA) recommended to the local board that Schneider should not be reemployed. The local board therefore did not offer her a new contract. After a public protest by the families of students and a resulting reconsideration, the local board reversed its decision and offered Schneider a new contract over the objection of the CSA. Joyce Rotondo, a member of the local board who did not attend the meeting at which the new decision was made, filed a petition with the Commissioner of Education seeking to set aside the decision as improper because it was contrary to the recommendation of the CSA.
The contested matter was heard by an administrative law judge, who concluded that the local board's decision was reasonable in the light of Schneider's positive evaluations and "the loyalty which she apparently engendered in the parents of her students." She also ruled that the local board was not bound to follow the CSA's recommendation, but rather was obligated only to consider it.
The Commissioner reversed the ALJ's initial decision. He relied on what he described as state policy, reflected in State Board regulations, "that, while boards of education are specifically authorized to ultimately select the persons who are employed in the district, the flow of candidates from which they choose is controlled by the CSA." The Commissioner did not address the meaning or effect of any statutory provisions on the subject.
The State Board of Education affirmed for the reasons the Commissioner expressed and without further comment.
We first examine the statutory background. In New Jersey, it is the Legislature that has the constitutional responsibility of providing a thorough and efficient system of public education. N.J. Const. (1844) art. IV, at 7, P6 (as amended in 1875); N.J. Const. (1947) art. VIII, @ IV, P1; Robinson v. Cahill (I), 62 N.J. 473, 509, 303 A.2d 273 (1973); Board of Educ. of Elizabeth v. City Council of Elizabeth, 55 N.J. 501, 505-06, 262 A.2d 881 (1970); Board of Educ. of East Brunswick Tp. v. Township Council of East Brunswick Tp., 48 N.J. 94, 103, 223 A.2d 481 (1966). The Legislature chose to fulfill its responsibility by creating a State Board of Education, the office of the Commissioner, and local school districts, and delegating to them portions of its constitutional responsibilities. East Brunswick, supra, 48 N.J. at 103-04. It is therefore necessary to consider the policies implicit in the framework the legislature established. Both State and local boards have the authority to adopt rules and regulations, but local board rules must be "not inconsistent with [the statute] or with the rules of the state board." N.J.S.A. 18A:11-1c.
N.J.S.A. 18A:27-1 provides:
No teaching staff member shall be appointed, except by a recorded roll call majority vote of the full membership of the board of education appointing him.
This provision has existed for over ninety years. See L. 1903 (2d Sp. Sess.), c. 1, at 68, p. 25. There is nothing in it, or in any other statutory provision, that affords the CSA a veto or other controlling role in the process of appointing teaching staff members. There is another part of the 1903 legislation which is also in the current law which gives the CSA exactly that controlling role in the appointment of assistant superintendents. L. 1903 (2d Sp. Sess.), c. 1, at 65, p. 24. It provides that a board of education "may, upon nomination of the superintendent, by a recorded roll call majority vote . . . appoint assistant superintendents of schools." N.J.S.A. 18A:17-16.
The difference between the sections is easily noted. Only the superintendent can propose an assistant superintendent. The board need not appoint the nominee, but it may not appoint someone the superintendent has not proposed. With respect to the appointment of teaching staff members, there is nothing to limit local boards to the candidates proposed by the superintendent.
A newer set of statutory provisions also affords a pertinent contrast. In 1975, legislation was enacted to govern school districts in cities of the first class with population over 325,000. L. 1975, c. 169; N.J.S.A. 18A:17A-1 et seq. Only Newark meets the population test. The statute was the response of the Legislature, the Governor and the Commissioner of Education "to the increasingly intolerable chaos infecting the Newark ...