On appeal from a final decision of the Commissioner of Education, Docket No. 233-7/06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
Petitioner Sophia Giacomazzi appeals from a decision by the Commissioner of Education (Commissioner) rendered on June 13, 2008, holding that she was not employed in a tenure-eligible position during the 2002-2003 school year. We affirm.
The facts underlying this appeal are as follows. Petitioner was hired by respondent South Orange-Maplewood Board of Education (Board) as a substitute teacher on October 14, 2001, to fill the position of tenured high school English teacher, Nelson Trias, who was then on active military duty. Plaintiff held the substitute position for the remainder of the 2001-2002 school year and was paid the daily rate for a long-term substitute.
In May 2002, petitioner applied for a certificate and license as an English teacher through the alternate provisional teacher program. In May 2002, she was hired for the 2002-2003 school year as a continuing replacement for Trias. Her salary for that year was to be $35,000. Her contract specifically indicated that the 2002-2003 school year would not be considered toward tenure.
In October 2002, Trias returned to his position, although he had originally been expected to be on leave for the entire 2002-2003 school year. Another English teacher, Ann Wessel- Dwyer, had requested personal leave for the 2002-2003 school year and another substitute teacher was hired to cover her classes.
Petitioner continued to cover Trias' classes in order to avoid disruption for the students, and Trias was assigned to cover Wessel-Dwyer's classes. Petitioner remained in the substitute position for the 2002-2003 school year. The Board maintains that if Wessel-Dwyer had not taken a leave of absence, Trias would have been assigned to his original classes and petitioner's employment would have been terminated.
At the beginning of the next school year, 2003-2004, another English teacher retired. Petitioner was hired as a permanent teacher to fill this vacancy and was subsequently rehired for the 2004-2005 and the 2005-2006 school years.
In April 2006, however, the Board notified petitioner that her position would not be renewed for 2006-2007 and, because she was a non-tenured teacher, she did not have a claim on the position. Plaintiff was given the opportunity to discuss the non-renewal with the superintendent and an opportunity to appear before the Board to argue for her position. After both meetings, the superintendent confirmed that her contract would not be renewed.
Thereafter, petitioner filed an appeal with the Commissioner of Education, claiming that she had earned tenure between October 2001 and May 2006. The Board responded and the parties cross-moved for summary judgment. The Administrative Law Judge (ALJ) decided in favor of petitioner, holding that she had tenure in the position. In her June 13, 2008 decision, however, the Commissioner rejected the ALJ's recommendation, found that petitioner did not earn tenure and dismissed the petition.
In this appeal, petitioner argues that (1) she served the requisite period to earn tenure; (2) case law mandates that tenure laws be liberally construed; (3) she never replaced anyone after Trias returned; and (4) nothing in the tenure law requires that the district establish a formal vacancy before a staff member can accrue tenure.
The Commissioner undertook an independent review of the record in rejecting the ALJ's decision and determined that although there were teachers on temporary leave during the 2002-2003 school year, there were no actual vacancies in the English department until June 2003 and therefore no tenure-track positions to which petitioner could lay claim; respondent Board has the discretion to modify teaching assignments and locations; and petitioner's claim that by continuing her assignment to teach the same courses in the same rooms for the remainder of the school ...