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Breitwieser v. State-Operated School Dist. of City of Jersey City

January 25, 1996


On appeal from the State Board of Education.

Approved for Publication January 25, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

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

In this case a teacher has attempted to acquire tenure for service under a permanent certificate by tacking on an earlier period of service under an emergency certificate in a different field. The agency refused to permit tacking such periods of unrelated certification. We agree and affirm.

Appellant Joyce Breitwieser was appointed a full-time teacher of the handicapped with the Jersey City School District (District) effective September 1, 1989. In her employment contract, the District recognized that she held an "appropriate Teacher of the Handicapped certificate issued in New Jersey [which was] now in full force and effect." When appointed, Breitwieser held two New Jersey teaching certificates: an Emergency Certificate for Teacher of the Handicapped valid from September 12, 1989 to July1990, and a permanent certificate as Elementary School Teacher, issued in June 1989. She lacked 18 professional-education credits in the area of special education and did not qualify for a standard (permanent) certificate as Teacher of the Handicapped. She did not obtain or become eligible for a standard certificate as Teacher of the Handicapped during her employment with the District.

In March 1990, Breitwieser requested a transfer from her position as teacher of the handicapped to a position as a Chapter I elementary school teacher, stating "I am not qualified to teach the E.D. [emotionally disturbed] students.... I can see now that it was a mistake to take this position to begin with." Her request was granted and she was transferred to P.S. 3 on March 9, 1990. The District offered her contracts as an elementary school teacher for the 1990-91 and 1991-92 school years and she accepted. She was re-hired as elementary school teacher under contract for the 1992-93 school year. By letter dated December 14, 1992, the District advised her that she was terminated effective February 12, 1993, pursuant to the 60-day notice provision in her contract.

On January 6, 1993 Breitwieser filed a petition with the Commissioner of Education (Commissioner) seeking reinstatement as a teacher with the District, with back pay and other emoluments befitting tenure status. She moved for summary judgment and the District answered and cross-moved for summary judgment on January 21, 1993.

The case was assigned to Judge Weiss of the Office of Administrative Law in February 1993. He ruled in favor of the District in his initial decision of July 19, 1993. He held that Breitwieser's six-month service under the Emergency Certificate as Teacher of the Handicapped did not count in calculating the three-year service period required for tenure under N.J.S.A. 18A:28-5. In August 1993 the Commissioner rendered a final decision upholding Judge Weiss' initial decision. On June 1, 1994 the State Board of Education affirmed the Commissioner's decision for the reasons expressed by Judge Weiss.

The State Board is the agency charged by the legislature with implementing the school laws. The Board's decision is entitled to considerable weight. Bassett v. Oakland Bd. of Ed., 223 N.J. Super. 136, 142-43, 538 A.2d 395 (App. Div. 1988). A decision of the State Board on tenure should not be disturbed unless "palpably arbitrary" or in violation of the law, Kletzkin v. Spotswood Bd. of Ed., 136 N.J. 275, 278, 642 A.2d 993 (1994); Dennery v. Passaic Cty. Reg. H.S. Bd. of Ed., 131 N.J. 626, 643, 622 A.2d 858 (1993), or if unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 580, 410 A.2d 686 (1980); Campbell v. Dep't of Civil Service, 39 N.J. 556, 189 A.2d 712 (1963); Dore v. Bedminster Bd. of Ed., 185 N.J. Super. 447, 452, 449 A.2d 547 (App. Div. 1982). On this standard, we affirm the State Board's decision.

The right to tenure is created and governed entirely by statute. Spiewak v. Rutherford Board of Ed., 90 N.J. 63, 72-73, 76, 447 A.2d 140 (1982). N.J.S.A. 18A:28-5 sets forth the conditions under which public-school teaching staff earn tenure in New Jersey:

The services of all teaching staff members including all teachers, principals other than administrative principals, assistant principals, vice principals, assistant superintendents, and all school nurses including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, 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 and then only in the manner prescribed by subarticle B of article 2 of Chapter 6 of this title, after employment in such district or by such board for:

(a) Three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or

(b) Three consecutive academic years, together with employment at the beginning of the next ...

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