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Impey v. Board of Educ. of Borough of Shrewsbury

August 14, 1995

GILLIAN IMPEY, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE BOROUGH OF SHREWSBURY, RESPONDENT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 273 N.J. Super. 429 (1994).

The opinion of the Court was delivered by Handler, J. Chief Justice Wilentz and Justices Pollock, O'hern, Garibaldi, Stein and Coleman join in Justice HANDLER's opinion.

The opinion of the court was delivered by: Handler

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

GILLIAN IMPEY V. BOARD OF EDUCATION OF THE BOROUGH OF SHREWSBURY (A-89-94)

Argued January 31, 1995 -- Decided August 14, 1995

HANDLER, J., writing for a unanimous Court.

The issue on appeal is whether a board of education has the authority to subcontract with a county educational services commission to provide speech correction services and, in doing so, whether the board may abolish the position of speech correctionist and terminate the employment of a tenured teacher without violating statutory tenure rights.

Gillian Impey was a tenured teacher employed by the Board of Education of the Borough of Shrewsbury (Board) as a part-time speech correctionist. Impey provided speech correction services for the pupils of the Shrewsbury School District. She had worked in the school district for about twenty years.

In July 1990, the Board voted to contract with the Educational Services Commission (ESC) of Monmouth County to provide speech correction services for the district's pupils during the 1990-91 school year, and to abolish Impey's position. Impey had an yearly salary of just over $20,000. The Board agreed to pay the Monmouth County ESC $8,000 to provide the equivalent speech correction services. Therefore, as a result of the subcontracting agreement with the Monmouth County ESC, the Board saved approximately $12,000. After voting to abolish Impey's position, the Board placed Impey on a preferred eligibility list for re-employment in her area of seniority.

An ESC is a duly established agency organized in accordance with statute for the purpose of carrying on programs of educational research and development and providing to public school districts such educational and administrative services as may be authorized pursuant to the Rules of the State Board of Education. The State Board of Education, on June 2, 1982, approved the Monmouth County ESC to provide special education services to public school districts pursuant to statute.

Impey filed a complaint with the Commissioner of Education (Commissioner), claiming that the Board's action violated her tenure, seniority and re-employment rights. She also asserted that the Board did not have the authority to enter into a subcontracting relationship with the Monmouth County ESC to provide speech correction services.

The matter was referred to the Office of Administrative Law (OAL). During the proceedings in the OAL, the parties stipulated to certain facts, including the fact that the Board's decision to abolish the position of Speech Correctionist and to contract with the Monmouth County ESC had no adverse impact on the program needs of the school district for such speech services.

On cross-motions for summary decision, the Administrative Law Judge (ALJ) ruled in favor of the Board. The Commissioner and the State Board of Education adopted the ALJ's determination. Thereafter, Impey filed a notice of appeal with the Appellate Division, which affirmed the decision of the State Board and Commissioner. The Supreme Court granted Impey's petition for certification.

HELD: A local board of education has the authority to contract with an educational services commission to provide speech correction services. In doing so, the board may abolish the existing speech correctionist position and terminate the employment of a tenured teacher for economic reasons without violating statutory tenure rights.

1. Boards of education have considerable latitude in providing essential educational services. A board of education has a statutory responsibility to provide suitable facilities and programs of education for all handicapped children, including those who are communication handicapped. A board of education may contract with an educational services commission for the provision of examination, classification and speech correction services. (pp. 5-8)

2. The Board was empowered to enter into the contract with the Monmouth County ESC for the provisions of educational services. The statutory and regulatory provisions enable an ESC to provide a wide range of educational services to local schools. Those enactments clearly authorize a local board of education to enter into a contract with an ESC to obtain speech correction services for its eligible pupils. (pp. 8-10)

3. The relevant regulation does not confer tenure protection to those who are certified special education providers. A tenured educator must be certified, but a certified educator need not be tenured. (pp. 10-12)

4. The determination of an administrative agency will not be reversed unless it is arbitrary, capricious, or unreasonable or it is not supported by substantial credible evidence in the record as a whole. (pp. 12-13)

5. As a tenured teacher, Impey was entitled to certain statutory protections. However, a local board of education has the authority to reduce its teaching force as long as that reduction is genuinely for reasons of economy. The determination to reduce the teaching force by abolishing positions need not eliminate the services that may be related to those positions. In this case, the parties stipulated that the subcontracting agreement with the Monmouth County ESC has had no adverse impact on the program needs of the school district for the speech services. Moreover, the Board's decision to abolish Impey's position and to contract with an ESC has resulted in a more economical delivery of those services in the district. Further, there is no indication that the services to be rendered by the Monmouth County ESC are inadequate or do not conform to the standards authorized by the Commissioner. Thus, there exists substantial credible evidence to justify the decisions of the Commissioner and the State Board of Education. The Board acted in good faith and complied with the tenure statute in reducing the number of employees within the district for reasons of economy. (pp. 12-17)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE HANDLER's opinion.

The opinion of the Court was delivered by HANDLER, J.

In this case, a local board of education, for reasons of economy, entered into a contract with a county educational services commission to provide speech correction services for the school district's pupils. Concomitantly, the board abolished the permanent part-time position and terminated the employment of a tenured part-time speech correctionist. The issues raised by those actions are whether a board of education has the authority to subcontract with a county educational services commission to provide speech correction services and, in doing ...


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