On appeal from the Commissioner of Education, Docket No. 133-6/10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...