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Joanne C. Burger v. Board of Education of the Borough of Maywood


June 5, 2012


On appeal from the Commissioner of Education, Docket No. 133-6/10.

Per curiam.


Submitted April 25, 2012

Before Judges Cuff and Lihotz.

Petitioner Joanne Burger, a tenured employee working for respondent Board of Education of the Borough of Maywood (the Board), appeals from the May 19, 2011 final decision of the Commissioner of Education (Commissioner), dismissing her petition seeking to replace a full-time non-tenured employee when the hours of her position were reduced. Burger argues the Board violated her tenure rights when it reduced her weekly work hours by forty percent, while continuing the full-time employment of a non-tenured Administrative Assistant to the Superintendent of Schools (administrative assistant). We disagree and affirm.

The facts are set forth in the parties' stipulation presented during the proceedings before the agency. In April 2003, Burger began her employment with the Board working as a ".5 10-Month Secretary." Later, the Board hired her as a "Full-Time Child Study Team Secretary for the 2003-2004 school year," a position she maintained each subsequent school year until the 2009-2010 school year. As a result of a reduction in force, the Board confirmed the appointment of the Maywood Education Association Secretarial Staff for the 2010-2011 school year, which included Burger's designation as a "part-time 10[-]Month Secretary (.6)." The decrease in employment hours resulted in a corresponding decrease in her benefits and salary. Burger executed an annual contract accepting this position.

On June 24, 2010, Burger filed a verified petition before the Commissioner. Relevant to the matters on appeal, she alleged the Board was barred from reducing her hours of employment as a tenured secretary while preserving the full-time hours of the non-tenured administrative assistant.

The controversy was transferred to the Office of Administrative Law for a hearing. The parties prepared and accepted a joint stipulation of facts. Thereafter, cross-motions for summary disposition were filed.*fn1 Based on the stipulated facts, the Administrative Law Judge (ALJ) concluded the Board "did not violate [Burger]'s tenure rights when it reduced her time and compensation while maintaining [the non-tenured administrative assistant] as a full-time employee, because their positions [we]re not substantially similar." In his review of the two employment positions at issue, the ALJ noted significant distinctions between the job responsibilities, concluding the two positions were not substantially similar.

Board secretaries were covered by a collective negotiation agreement secured through negotiations between the Board and the Maywood Education Association. The Child Study Team (CST), which worked with teachers and students, was comprised of the Director of Special Services, the District Social Worker, a Learning Consultant, and the School Psychologist. During the ten-month school year, two secretaries served the CST.

In 2009, Burger and a co-worker created a six-page list of employment responsibilities they performed for the CST, which included, among other things, taking dictation, typing various documents, printing special needs student schedules, distributing teacher materials, copying, updating databases, preparing new student folders, general scheduling, drafting letters, setting agendas, calling schools, setting Board motions, distributing mail, updating staffing charts, checking student individual education plans against student schedules, scheduling parent meetings, managing employee timesheets, monitoring receipt of periodic reports, and reminding teachers when reports were overdue.

The administrative assistant was a confidential employee and, along with the secretary to the school business administrator, was employed on a twelve month basis under a separate employment contract and excluded from the collective negotiation agreement. The administrative assistant was the sole staff member in the Superintendent's office.

The responsibilities of an administrative assistant were defined in a job posting issued by the Central Office of Administration, and included: coordinating workflow in the school system; performing secretarial duties including typing scheduling, fielding telephone calls, filing, etc.; supervising the activities of other secretarial and clerical personnel assigned to the Superintendent's office; maintaining district-wide personnel records; facilitating new-student registrations and residency checks; maintaining a filing system; scheduling workshops and conferences for the Superintendent; overseeing the hiring, qualification, and scheduling of substitute teachers; preparing and submitting of all State reports; preparing all Board communications, agendas, and minutes; facilitating background checks for new hires and substitutes; preparing conference and workshop materials and purchases; acting as a liaison and "voice of the district" at all times, with the public, parents, and the district attorney; and performing other duties as assigned by the Superintendent.

The ALJ found that the "Job Goal" of the administrative assistant was "[t]o serve as the superintendent's confidential secretary" and was "not similar in form or substance to the duties of [Burger,]" who was one of two secretaries for the CST. Further, the ALJ found the administrative assistant was a "stand in" for the Superintendent when he or she was out of the office. Because the "positions are not substantially similar[,]" the ALJ concluded the Board had not violated Burger's tenure rights.

On May 19, 2011, the Commissioner's final decision accepted the ALJ's factual findings and concluded the Board did not violate Burger's tenure rights when it reduced her time and compensation pursuant to a reduction in force while maintaining a non-tenured incumbent in the position of administrative assistant. The Commissioner accepted the differences between the respective staff positions as found by the ALJ, and remarked the jobs did not include "identical responsibilities." The Commissioner stated Burger's position was secretarial and the administrative assistant position included secretarial work, but also required supervisory tasks, including the coordination of school-wide and district-wide administrative activities. This appeal followed.

The principles governing judicial review of administrative agency actions are well established. A court will not reverse an agency's decision "unless: '(1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record.'" ZRB, LLC v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 531, 549 (App. Div. 2008) (quoting Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007)). See also Prado v. State, 186 N.J. 413, 427 (2006); In re Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001).

Further, "a 'strong presumption of reasonableness'" is accorded to administrative agency actions. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (quoting City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). Generally, we afford substantial deference to an agency's interpretation of the statute it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). "[C]courts ordinarily recognize that an agency's specialized expertise renders it particularly well-equipped to understand the issues and enact the appropriate regulations pertaining to the technical matters within its area." In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 465 (App. Div.), certif. denied, 188 N.J. 489 (2006) (citations and internal quotation marks omitted). Generally, courts should defer to actions that are consistent with an agency's legislative grant of power, and this power is to be liberally construed so that the agency may carry out its statutory responsibilities. Lewis v. Catastrophic Illness in Children Relief Fund, 336 N.J. Super. 361, 370 (App. Div.) (citing N.J. State League of Muns. v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999)), certif. denied, 168 N.J. 290 (2001).

Nevertheless, while we respect an agency's expertise, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 381-82 (2002) (citations and internal quotation marks omitted).

However, this standard of deference does not require abdication of the judiciary's role in assuring the agency's action properly comports with its legislative mandate. No deference is given to its legal conclusions, which we review de novo. See City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010).

On appeal, Burger argues she achieved tenure, pursuant to N.J.S.A. 18A:17-2, and was entitled, "by virtue of her tenure[,] to continue in a full-time position of employment over [the non-tenured administrative assistant]." Burger maintains the duties of the administrative assistant position were substantially similar to her own secretarial duties. Consequently, she claims the Commissioner's decision to deny her a "bump" into the administrative assistant position was error because it violated her tenure rights.

N.J.S.A. 18A:17-2 sets forth tenure qualifications for state secretaries, teachers, school administrators, and clerical employees.*fn2 N.J.S.A. 18A:6-10 provides no tenured secretary "shall be dismissed or reduced in compensations . . . except for inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing[.]"

Tenure protects employees from unfounded dismissals. Zimmerman v. Newark Bd. of Educ., 38 N.J. 65, 71 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed 2d 502 (1983). Tenure statutes are "designed to aid in the establishment of a competent and efficient school system by affording to [covered employees] a measure of security in the ranks they hold after years of service." Viemeister v. Bd. of Educ. of Prospect Park, 5 N.J. Super. 215, 218 (App. Div. 1949). Further, tenure laws "should be given liberal support, consistent, however, with legitimate demands for governmental economy." Ibid.

N.J.S.A. 18A:17-2 expresses the exceptions to the continued employment of a tenured secretarial employee. Important to our discussion is that nothing prevents a "reduction of the number of any such [tenured] persons holding such offices . . . under the conditions and with the effect provided by law." N.J.S.A. 18A:6-10. See also Jamison v. Morris Sch. Dist. Bd. of Educ., 198 N.J. Super. 411, 415 (App. Div. 1985) (recognizing reduction in force, if done for reasons of economy, is entirely within the authority of a school board); Klinger v. Bd. of Educ. of Cranbury, 190 N.J. Super. 354, 357 (App. Div. 1982) (stating school boards may abolish tenured teachers as part of a reductions in force, if done for reasons of economy), certif. denied, 93 N.J. 277 (1983).

The parties agree Burger, as a tenured employee, must be preferred for appointment to another similar secretarial position over a non-tenured employee. The dispute is whether the administrative assistant position is reasonably similar to her secretarial position, such that the Board violated her tenure rights when it declined to place her in that job. See e.g., Dennery v. Bd. of Educ. of the Passaic Cnty. Reg'l High Sch. Dist. #1, 131 N.J. 626, 639-40 (1993) ("When the duties of the position in which a teaching-staff member has acquired tenure are substantially identical to those of the position that the person seeks, a local school board may not sidestep an educator's tenure rights by simply renaming the position or tacking on additional meaningless requirements.").

Burger also acknowledges she does not have the right to assume just any position held by a non-tenured employee and agrees the positions must be substantially similar, as the tenured employee must be fully qualified for the position. See Kearny Bd. of Educ. v. Horan, 11 N.J. Misc. 751, 754 (1933). Finally, both sides concede the titles of the two positions alone are not dispositive; the actual duties of the positions control that comparison. Quinlan v. Bd. of Educ. of N. Bergen, 73 N.J. Super. 40, 50 (App. Div. 1962).

The Commissioner rejected Burger's argument insisting the administrative assistant was a secretarial position. While acknowledging the position employs secretarial skills and the employee performs secretarial functions, the Commissioner discerned the mere overlap of some functions was insufficient to conclude the positions were similar. The Commissioner examined the remaining responsibilities of an administrative assistant, noting an administrative assistant must perform supervisory functions and coordinate district-wide activities. Further, on behalf of the Superintendent, the assistant must assume the face of the school district, and interface on behalf of the Superintendent with all parents, teachers, administrators, new employees, new students, the Board, the district attorney, and other members of the public.

Based on our review of the record and applicable law, we conclude the Commissioner's finding that the distinctions between the secretarial position Burger held and the job of administrative assistant she sought were sufficiently dissimilar that the Board did not violate Burger's tenure rights when it did not allow her to assume that position.

Finally, although the Commission's decision appears to have adopted a more restrictive standard, requiring the two positions to be identical, we conclude that articulation, although erroneous, was harmless. The Commissioner undeniably adopted the findings of the ALJ, who determined the positions were not substantially similar.


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