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Nelson v. Board of Educ. of Tp. of Old Bridge

March 12, 1997


On certification to the Superior Court, Appellate Division.

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

The opinion of the court was delivered by: Garibaldi

(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).

G. Michael Nelson v. Board of Education of the Township of Old Bridge (A-94/95-96)

Argued January 22, 1997 -- Decided March 12, 1997

GARIBALDI, J., writing for a unanimous Court.

In this appeal, the Court examines the laws governing tenure of educational personnel. The issue before the Court is whether the specific positions listed in N.J.S.A. 18A:28-5 are separately tenurable and, if so, whether tenure obtained under one endorsement to an administrative certificate may be transferred to another endorsement under that certificate.

Under the Tenure Act, N.J.S.A. 18A:28-1 to -18, which authorizes the tenure of educational personnel, a person who is employed in the public schools must normally hold a valid certificate to teach, administer, direct or supervise the teaching of pupils. The State Board of Education (State Board) has implemented the certification requirement by authorizing three certificates that an educator may hold. An educator may hold more than one type of certificate. In addition to the three types of certificates, the State Board has also designated "special endorsements" under each type of certificate, which identify the educational subjects or assignments that share common traits. An individual may possess multiple endorsements under a certificate, qualifying that person to be employed in the positions covered by the respective endorsements, so long as he or she meets specific requirements. In addition to certification, in order to achieve tenure, and educator must serve a probationary period in a given position under a designated certificate.

N.J.S.A. 18A:28-5 (Section 28-5) establishes the guidelines for achieving tenure. Prior to its amendment in June 1996, that section extended tenure protection to all teaching staff members, including all teachers, principals other than administrative principals, assistant principals, vice principals, assistant superintendents and all school nurses. That section was subsequently amended to extend tenure protection to those positions enumerated therein only by employment in that particular administrative or supervisory position and to limit the tenure only to that position.

G. Michael Nelson is the holder of an administrative certificate with separate supervisor and principal endorsements issued by the New Jersey Commissioner of Education (the Commissioner). In September 1982, Old Bridge appointed Nelson to the position of Department Chairperson of Industrial Arts at Cedar Ridge High School. He qualified for that position by reason of his supervisor endorsement to his administrative certificate. In September 1985, Nelson achieved tenure in that position. However, in May 1990, Old Bridge culminated Nelson's position of Chairperson of Industrial Arts as part of a reduction in force (RIF). Thereafter, Nelson was reassigned to the position of teacher of Industrial Arts for the 1990-1991 school year and has held that position since his reassignment. Nelson never served in the capacity of administrator, principal, or vice principal under the principal endorsement.

In October 1993, Old Bridge filled an elementary principal position at the Cooper Elementary School with a non-tenured individual. On December 2, 1993, Nelson filed a petition of appeal with the Commissioner claiming a tenure right to the principal position, maintaining that the tenure he had achieved under his supervisor endorsement as Chairperson of Industrial Arts extended to that principal's position. The matter was transferred to the Office of Administrative Law. Relying on Dennery v. Board of Education, 131 N.J. 626, 622 A.2d 858 (1993), the Administrative Law Judge (ALJ) granted summary judgment to Nelson and ordered Old Bridge to install Nelson as principal of the Cooper Elementary School.

Thereafter, the Commissioner reversed the ALJ's decision and granted summary judgment to Old Bridge. The Commissioner cited administrative precedent holding that, under the Tenure Act, tenure can accrue in a separately tenurable position, such as principal, only as a result of actual work experience in the position. Since Nelson never served in a principal's position, he could have no tenure claim to that position. The Commissioner further expressly rejected the ALJ's reliance on Dennery and noted that a contrary decision would disrupt sound educational policy. The State Board affirmed the Commissioner's decision.

Relying primarily on the Dennery case, the Appellate Division reversed the State Board, holding that Nelson's tenure under the supervisor endorsement of his administrative certificate was transferable to the principal endorsement of that same certificate. The panel explicitly rejected the State Board's assertion that Section 28-5 mandates that the positions listed int the Statute are separately tenurable.

After Old Bridge and the State Board filed petitions for certification with the Supreme Court, the New Jersey Legislature enacted the above-described amendment to Section 28-5.

The Supreme Court granted Old Bridge's and the State Board's petitions for certification.

HELD: The State Board's interpretation of N.J.S.A. 18A:28-5 as requiring service in the separately-listed positions before tenure can be achieved in them conforms to the Legislature's intent and represents a proper interpretation of the Statute and sound educational policy.

1. The interpretation of a statute by the administrative agency charged with its enforcement is entitled to great weight and will not be upset unless unreasonable, unsupported by the record or violative of the legislative will. (p. 7)

2. Prior to and after the Appellate Division decision in this case, every administrative decision has held that educators do not have bumping rights across the administrative certificate. (pp. 8-10)

3. Permitting an educator to transfer tenure rights to a separately-tenurable position, such as principal, is unsound public and education policy. (pp. 10-12)

4. Although courts favor the prospective application of statutes, that rule is to aid the court in the search for legislative intent. When the Legislature does not clearly express its intent to give a statute prospective application, a court must determine whether to apply the statute retroactively. (pp. 12-13)

5. Retroactive application of a statute is justified where the Legislature has declared such an intent; where the statute is curative; and where the expectations of those affected by the statute warrant retroactive application. (pp. 13-15)

6. Retroactive application of the amendment to Section 28-5 does not result in "manifest inJustice" or a loss of a "vested right." (pp. 15-17)

7. The determination of whether "manifest inJustice" exists requires a weighing of the public interest in the retroactive application of the statute against the affected party's reliance on the previous law, and the consequences of that reliance. (pp. 17-18)

The judgment of the Appellate Division is REVERSED.


The opinion of the Court was delivered by


This appeal requires the Court again to examine the laws governing tenure of educational personnel. G. Michael Nelson, respondent, who possesses an administrative certificate with separate principal and supervisor endorsements, seeks to transfer his tenure status achieved under his supervisor endorsement to his principal endorsement. We must determine whether the specific positions listed in N.J.S.A. 18A:28-5 are separately tenurable and, if so, whether tenure obtained ...

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