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Zimmerman v. Sussex County Educational Services Commission

Superior Court of New Jersey, Appellate Division

February 13, 2018

BERYL ZIMMERMAN and JUDY COMMENT, Petitioners-Appellants,

          Argued January 30, 2018

         On appeal from the New Jersey Commissioner of Education.

          Louis P. Bucceri argued the cause for appellants (Bucceri & Pincus, attorneys; Louis P. Bucceri and Gregory T. Syrek, of counsel and on the briefs).

          Brent R. Pohlman argued the cause for respondent Sussex County Educational Services Commission (Methfessel & Werbel, attorneys; Boris Shapiro and Eric L. Harrison, on the brief).

          Gurbir S. Grewal, Attorney General, attorney for respondent the Commissioner of Education (Eric L. Apar, Deputy Attorney General, on the statement in lieu of brief). [1]

          Before Judges Fisher, Fasciale, and Sumners.


          FASCIALE, J.A.D.

         In this 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.

         The 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.

         The 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.

         On the 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 summary disposition.

         The 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.


         The SCESC provides educational auxiliary and remedial support and programs in the non-public school setting.[2] 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 educational instruction.

         The 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.

         "Auxiliary 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 ...

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