On appeal from the Commissioner of Education, Agency Docket No. 35-2/11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012
Before Judges Nugent and Ostrer.
Petitioner Taea Cross appeals from the final decision of the Acting Commissioner of Education (the Commissioner) upholding respondent Board of Education of the Borough of Elmwood Park's (the Board) termination of her employment as a bus driver/utility worker for the district. Cross contends that the Board terminated her in violation of her tenure rights. The Board contends that she was not a tenured employee. We affirm the Commissioner's final determination that Cross was not a tenured employee.
The Board hired Cross as a bus driver/utility worker in 2004. Beginning April 24, 2007, and annually thereafter, the Board re-appointed Cross for a one-year term until her employment was terminated on December 15, 2010, for unsatisfactory performance, including leaving students unattended on her bus.
Cross's responsibility as a bus driver included transporting students to and from school and school-sponsored activities, inspecting the buses, "reviewing" the bus at the conclusion of each trip, and cleaning and fixing the bus. Her responsibilities as a utility worker included transporting the mail throughout the school district, moving and delivering supplies and packages throughout the school district, removing trash, and cleaning about the school.
Following the Board's termination of her employment, Cross filed a petition with the Commissioner of Education seeking interim emergent relief. Her petition was transmitted to the Office of Administrative Law (OAL) as a contested case. During a subsequent conference, the parties agreed to proceed on a summary basis since neither party disputed any material facts. After receiving the parties' submissions, the Administrative Law Judge (ALJ) closed the record and issued an initial decision.
In his initial decision, the ALJ concluded that Cross was not entitled to temporary emergency relief and that she was not a tenured employee. As to the latter conclusion, the ALJ cited the tenure statute, N.J.S.A. 18A:17-3, which provides in pertinent part that "[e]very public school janitor of a school district shall, unless he is appointed for a fixed term, hold his . . . employment under tenure during good behavior . . . and shall not be dismissed . . . except for neglect, misbehavior or other offense . . . ." Interpreting the statute as permitting Boards of Education discretion to deny tenure by appointing janitors for a fixed-term, and relying upon the undisputed record that Cross's first fixed term contract began on April 24, 2007, "seven months short of her alleged and proposed date for attaining tenure," the ALJ concluded that Cross was employed under a fixed-term contract and therefore did not have tenure. Based upon that conclusion, the ALJ dismissed Cross's petition.
Cross filed exceptions to the ALJ's initial decision with the Commissioner who subsequently issued a final determination.
The Commissioner first noted that "bus drivers, in contrast to teaching staff members and janitorial employees," are not entitled to tenure. The Commissioner also noted that Cross did not assert "that the applicable collective bargaining agreement (CBA) bestows tenure upon bus drivers, per se."
Addressing Cross's argument that she had earned tenure as a janitorial employee or utility worker, the Commissioner noted that the "provisions of N.J.S.A. 18A:17-3 exclude from tenure those janitorial employees who are appointed for fixed-terms." Citing Board resolutions that indicated Cross's employment was renewed annually for a fixed-term, the Commissioner concluded that the annual renewal of Cross's contract for a fixed-term precluded tenure under the statute.
Having concluded that Cross was not entitled to statutory tenure, the Commissioner next determined that she was not entitled to tenure under her CBA. Noting that the parties did not dispute that Article VI of the CBA "bestows tenure rights after three years of satisfactory service for full-time custodial and maintenance personnel," the Commissioner concluded that as a part-time utility worker, Cross did not qualify for tenure under the CBA.
Lastly, the Commissioner rejected Cross's "past practice" argument that was based on the Board's treatment of another bus driver/utility worker as tenured. The Commissioner concluded that "[t]he achievement of tenure is dictated by statute[,] . . . [and if] the facts reveal that [Cross] did not meet the statutory criteria for tenure, she is foreclosed from ...