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Francey v. Board of Educ. of City of Salem

January 9, 1996

ELLEN FRANCEY, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY OF SALEM, SALEM COUNTY, RESPONDENT-RESPONDENT.



On appeal from the State Board of Education.

Approved for Publication January 9, 1996.

Before Judges Havey, D'Annunzio and Conley. The opinion of the court was delivered by Conley, J.A.D.

The opinion of the court was delivered by: Conley

The opinion of the court was delivered by CONLEY, J.A.D.

Petitioner, a home economics teacher who acquired tenure with the Salem City Board of Education, was laid off when her position was abolished in a reduction in force (RIF) in 1989. Pursuant to N.J.S.A. 18A:28-12, she was placed on a preferred reemployment list. In April 1991, petitioner received an endorsement on her teaching certificate for elementary education. Several vacancies thereafter arose in the Salem City school system for elementary school teaching positions. Petitioner applied, asserting a right to preferred employment from the reemployment list. Disagreeing that her after-acquired endorsement for elementary education entitled her to preference pursuant to N.J.S.A. 18A:28-12, the local board of education hired, instead, nontenured teachers to fill the vacancies. Both the Acting Commissioner of Education and the State Board of Education affirmed that decision, construing N.J.S.A. 18A:28-12 to accord preferred reemployment rights based upon the scope of the RIF'd tenured teacher's teaching certificate and endorsements thereon as of the date of the lay-off determination.

Although a contrary interpretation of the statute is we agree with the administrative agencies' interpretation. In so agreeing, we acknowledge that when the issue is one of statutory interpretation, we are not bound to accept an administrative agency's interpretation. But we do, nonetheless, accord an agency's expertise "considerable weight." E.g., Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973); Bassett v. Board of Educ. of Oakland, Bergen County, 223 N.J. Supr. 136, 142 (App. Div. 1988). And see Dennery v. Board of Educ. of Passaic County, 131 N.J. 626, 642-43, 622 A.2d 858 (1993). We also recognize that when the meaning of a statute is plain on its face, ordinarily that meaning governs. See Lammers v. Board of Educ. of Point Pleasant, 134 N.J. 264, 272, 633 A.2d 526 (1993).

Here, the statute not only does not plainly mean what petitioner says it does, but it is entirely silent as to whether the reemployment protections it accords are to be fixed as of the date of the RIF decision or may thereafter be expanded by the addition of subsequent endorsements on a teacher's teaching certificate. Given the absence of a contrary legislative directive, we give considerable weight to the Commissioner's and State Board's expertise, particularly since we think their interpretation is well-supported by cogent education policy considerations and is not discordant with the underlying legislative objectives to be served by the Tenure Act. Cf. Board of Educ. of Manchester, Ocean County v. Raubinger, 78 N.J. Super. 90, 99-100, 187 A.2d 614 (App. Div. 1963).

N.J.S.A. 18A:28-12 provides in pertinent part:

If any teaching staff member shall be dismissed as a result of . . . [a reduction in force], such person 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 and he shall be reemployed by the body causing dismissal, if and when such vacancy occurs. [Emphasis added].

"Qualified," in its ordinary sense, means: "[to have] complied with the specific requirements or precedent conditions...." Webster's Third New International Dictionary Unabridged 1858 (3d ed. 1981). It is, moreover, well evident that possession of the appropriate certification deems one "qualified" for a vacancy within the context of N.J.S.A. 18A:28-12. See Mirandi v. Board of Educ. of West Orange, 1989 S.L.D. 3057, 3062; Bodine v. Board of Educ. of Burlington, Burlington County, 1989 S.L.D. 1053, 1058, aff'd by State Bd. of Educ., 1989 S.L.D. 1064. It is, further, by now clear that "qualified" within the scope of tenure rights means qualified as to the particular position in which a teacher has attained tenure and all other positions within the scope of the teacher's teaching certificate and endorsements thereto, Dennery v. Board of Educ. of Passaic County, supra, 131 N.J. at 634, 638; Ellicott v. Board of Educ. of Frankford, Sussex County, 251 N.J. Super. 342, 348, 598 A.2d 237 (App. Div. 1991), regardless of whether one has actual experience in that area, id. at 348-50; Capodilupo v. Board of Educ. of West Orange Tp., Essex County, 218 N.J. Super. 510, 513-15, 528 A.2d 73 (App. Div.), certif. denied, 109 N.J. 514 (1987).

That does not, however, address at what point the teacher must "qualify" for preferred rights to a vacancy. Petitioner argues that the use of the verb "shall" has a futuristic connotation. We cannot discern that from the language of the statute. "Shall" frequently is used by the Legislature to connote a mandate. No Illegal Points, Citizens for Drivers Rights, Inc. v. Florio, 264 N.J. Super. 318, 329, 624 A.2d 981 (App. Div.), certif. denied, 134 N.J. 479 (1993). That is consistent with the overall mandatory tone of the statute here. "Shall" has also been used to designate a tense or time. See Student Pub. Interest Research Group of N.J. v. Byrne, 86 N.J. 592, 598-99, 432 A.2d 507 (1981) ("shall have been" in the context of the New Jersey constitutional provision concerning salary increases for legislators during their term of office is the use of the future perfect tense identifying "that which must occur before the future event."). But as a commentator on statutory construction has observed:

"Shall," as used in statutes, is not only, in many cases, superfluous from the standpoint of good writing, but has too many meanings to make its unnecessary use safe. The courts, in following their well-defined policy of looking to the intent, rather than to the language, have variously held that "shall" is imperative, is directory, means "may," expresses a mandate, either permissive or peremptory, applies to the past, to the future, and to the present. [Dale E. Sutton, Use of "Shall" in Statutes, 4 J. Marshall L.Q. 204 (1938), reprinted in 2 Sutherland, Statutory Construction, at 763 (5th ed. 1992)].

Moreover, N.J.S.A. 18A:28-12 is a reemployment statute. It looks to the reestablishment of a prior employment relationship. That relationship does not logically exist for additional endorsements or teaching certifications acquired after the employment relationship ends.

We acknowledge that, generally, a liberal interpretation of the Tenure Act is favored. E.g., Spiewak v. Rutherford Bd. of Educ., 90 N.J. 63, 74, 447 A.2d 140 (1982). Such liberal interpretation is favored so as to properly effectuate the Act's beneficial purposes. Ibid; Bednar v. Westwood Bd. of Educ., 221 N.J. Super. 239, 241, 534 A.2d 93 (App. Div. 1987), certif. denied, 110 N.J. 512 (1988). When enacting the tenure laws for teachers, the Legislature was responding to concerns regarding those teachers who had devoted their efforts to an employment relationship with a local school district, and sought to protect such teachers from an arbitrary termination of that relationship. Such statutory rights were perceived to foster "a competent and efficient school system by affording to principals and teachers a measure of security in the ranks they hold after years of service." E.g., Viemeister v. Board of Educ. of Prospect Park, Passaic County, 5 N.J. Super. 215, 218, 68 A.2d 768 (App. Div. 1949). And see Wright v. Board of Educ. of East Orange, Essex County, 99 N.J. 112, 118, 491 A.2d 644 (1985) ("tenure 'prevents school boards from abusing their superior bargaining power ... in contract negotiations'. Spiewak v. Rutherford Bd. of Educ., 90 N.J. 63, 74, 447 A.2d 140 (1982). It Protects employees from ...


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