January 30, 2018
appeal from the New Jersey Commissioner of Education.
P. Bucceri argued the cause for appellants (Bucceri &
Pincus, attorneys; Louis P. Bucceri and Gregory T. Syrek, of
counsel and on the briefs).
R. Pohlman argued the cause for respondent Sussex County
Educational Services Commission (Methfessel & Werbel,
attorneys; Boris Shapiro and Eric L. Harrison, on the brief).
S. Grewal, Attorney General, attorney for respondent the
Commissioner of Education (Eric L. Apar, Deputy Attorney
General, on the statement in lieu of brief). 
Judges Fisher, Fasciale, and Sumners.
appeal from a final agency decision by the Commissioner of
Education (the Commissioner), we address three legal
questions related to the rights that Beryl Zimmerman and Judy
Comment (collectively petitioners) enjoy pursuant to the New
Jersey Tenure Act (the Tenure Act), N.J.S.A. 18A:28-1 to -18.
Petitioners worked as part-time tenured teachers for the
Sussex County Educational Services Commission (SCESC).
Petitioners provided remedial instruction to eligible
students in non-public schools.
parties resorted to litigation after the SCESC reduced
petitioners' annual income by decreasing their work
hours. The Commissioner concluded that their tenure and
seniority rights under the Tenure Act did not protect them
from that reduction because their collective bargaining
agreement (CBA) and employment contracts omitted a guaranteed
minimum number of work hours. Specifically, the Commissioner
determined that the decrease in work hours did not reduce
their compensation or trigger their seniority rights under
the Tenure Act. In reaching this conclusion, the Commissioner
focused only on petitioners' hourly rates, which did not
decrease, rather than also considering their seniority status
and actual reduction in annual income.
first question is whether the failure to include language in
the contracts that guaranteed petitioners a minimum number of
hours deprived them of their tenure and seniority rights
under the Tenure Act. We hold that the omission of that
information from those documents does not deprive petitioners
of those rights. Once petitioners obtained tenure, the Tenure
Act required that tenure be a mandatory condition of their
employment. The failure to guarantee a minimum number of
hours in the contract documents cannot strip petitioners of
their tenure rights, specifically the protection against
reduction in compensation. To hold otherwise would render
their undisputed tenure and seniority status meaningless. We
therefore reverse the Commissioner's decision that
petitioners are without protection under the Tenure Act.
remaining two issues, whether the reduction in hours reduced
petitioners' compensation under N.J.S.A. 18A:28-5 and
whether the reduction in hours triggered petitioners'
seniority rights, we remand for further proceedings
consistent with this opinion. We do so because the
Commissioner upheld findings reached by an administrative law
judge (ALJ), who adjudicated those issues on an incomplete
record using limited stipulations of fact on motions for
remand proceedings will give the agency the opportunity to
exercise its technical expertise in the first instance. On
remand, we direct the ALJ to apply the term
"compensation" by considering the practical effect
of the reduction in hours on petitioners' annual income.
We also instruct the ALJ to determine whether the decrease in
hours resulted in a reduction in force (RIF), and if so,
devise the appropriate remedy. Doing so will enable further
meaningful judicial review if need be.
SCESC provides educational auxiliary and remedial support and
programs in the non-public school setting. The record is
unclear, but at some point, SCESC employed ten part-time
teachers on a ten-month term to provide these educational
services. Some of them, like petitioners, were tenured, and
some were not. Petitioners each provided three categories of
Legislature codified the first category of educational
services in N.J.S.A. 18A:46A-1 to -17 (Chapter 192, or
Chapter 192 services). Chapter 192 services, which the State
funds, are available to eligible students enrolled full-time
in non-public elementary and secondary schools. The
Legislature declared the public policy behind Chapter 192
services in N.J.S.A. 18A:46A-1, which provides:
The Legislature hereby finds and determines that the welfare
of the State requires that present and future generations of
school age children be assured opportunity to develop to the
fullest their intellectual capacities. It is the intent of
this Legislature to [e]nsure that the State shall furnish on
an equal basis auxiliary services to all pupils in the State
in both public and nonpublic schools.
services" means "compensatory education services
for the improvement of students' . . . communication
skills; supportive services for acquiring communication
proficiency in the English language for children of limited
English-speaking ability; and home instruction
services." N.J.S.A. 18A:46A-2(c). "Compensatory
education services" means
preventive and remedial programs offered during the normal
school day, or in programs offered beyond the normal school
day or during summer vacation, which are integrated and
coordinated with programs operated during the regular school
day and year. The programs shall be approved by the State
Board of Education, supplemental to the regular programs and
designed to ...