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Zimmerman v. Sussex County Educational Services Commission

Supreme Court of New Jersey

April 30, 2019

Beryl Zimmerman and Judy Comment, Petitioners-Respondents,
v.
Sussex County Educational Services Commission, Sussex County, Respondent-Appellant.

          Argued January 14, 2019

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 453 N.J.Super. 464 (App. Div. 2018).

          Brent Pohlman argued the cause for appellant (Methfessel & Werbel, attorneys; Brent Pohlman, Boris Shapiro, and Eric L. Harrison, on the briefs).

          Donna Arons, Deputy Attorney General, argued the cause for respondent New Jersey Commissioner of Education (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel, and Eric Apar, Deputy Attorney General, on the brief).

          Louis P. Bucceri argued the cause for respondents Beryl Zimmerman and Judy Comment (Bucceri & Pincus, attorneys; Louis P. Bucceri, of counsel and on the brief).

          LaVecchia, J., writing for the Court.

         Within New Jersey's education statutes, the Tenure Act provides that tenured teachers shall not be "reduced in compensation." N.J.S.A. 18A:28-5. The legal issue in this appeal is whether tenured teachers who served in a part-time capacity pursuant to negotiated contracts that did not specify a minimum number of guaranteed hours suffered an impermissible reduction in compensation when their hours were reduced.

         The Sussex County Educational Services Commission (SCESC) provides special educational services pursuant to Chapter 192, Chapter 193, and the federal Individuals with Disabilities Education Improvement Act (IDEIA) to students in Sussex County enrolled in full-time, non-public schools. The number of hours that SCESC's part-time staff work is subject to the number of students and the needs of those students; both fluctuate from school year to school year. Because of the varying demand for services, part-time teachers are not contractually guaranteed a minimum number of hours.

         Two tenured part-time teachers for the SCESC, Judy Comment and Beryl Zimmerman, brought this action. They claimed their tenure rights were violated when, in the 2014-15 school year, their hours were substantially reduced. Moreover, their hours were limited to Chapter 192 instruction, and, pursuant to an SCESC directive, instruction groups required a minimum of three students. Due to the reduction in hours, they received substantially less annual compensation even though their hourly wages increased. They alleged that some of the work went to non-tenured teachers or to teachers with less seniority.

         The superintendent of the SCESC asserted that she implemented a directive that Chapter 192 services would no longer be provided in groups of fewer than three students unless requested by the student's child study team. She also asserted that if and when Zimmerman and/or Comment obtain required certifications, they may return to teaching Chapter 193 and IDEIA services. The record is bereft of further explanation of the reasons for the reduction of Comment's or Zimmerman's hours in the 2014-15 school year.

         In November 2014, Comment and Zimmerman filed verified petitions of appeal with the Commissioner of Education. The Commissioner concluded that the teachers did not have a tenure right to a specified number of hours during the 2014-15 school year. As held by the Commissioner, although the Tenure Act protects tenured teachers from reductions in compensation, unless part-time teachers have a contractually guaranteed minimum number of hours, the mere reduction of hours does not equate to a reduction in compensation. The Commissioner noted that the hourly rate paid to each teacher was not decreased.

         The Appellate Division held that the failure to include a minimum number of hours in the contracts did not deprive the teachers of tenure rights. 453 N.J.Super. 464, 469 (App. Div. 2018). The panel determined that "compensation" means more than hourly rate, id. at 476-77, and noted further that, although the teachers here had no right to a guaranteed minimum number of hours, they do have seniority rights, id. at 477. The panel explained how, if it knew the total number of hours available to be allocated among the SCESC teaching staff and the "seniority percentage," it could calculate whether Comment's or Zimmerman's tenure or seniority rights were violated by the assignment of hours to non-tenured or less-senior part-time teachers. Id. at 478-79. However, the record did not permit that assessment and, accordingly, the panel remanded. The Court granted the SCESC's petition for certification. 234 N.J. 121 (2018).

         HELD:

         Protection of compensation is not restricted to protection of the hourly rate of pay, and a remand is needed. A record must be created to allow the Commissioner to assess the SCESC's reasons for allocating work among its part-time teachers in a manner that severely reduced the number of hours afforded to the two tenured teachers and awarded work to non-tenured and less senior staff. The Court thus affirms the judgment of the Appellate Division but does not encourage a strict arithmetic calculation along the lines the panel has suggested.

         1. N.J.S.A. 18A:28-5 of the Tenure Act provides that tenured teachers "shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause." The Tenure Act is recognized and construed as remedial legislation. Spiewak v. Board of Education of Rutherford explained that the Tenure Act "makes tenure a mandatory term and condition of employment." 90 N.J. 63, 72 (1982). The Spiewak Court declared that part-time supplemental teachers were entitled to the rights and privileges of tenure, "if they meet the specific criteria in N.J.S.A. 18A:28-5." Id. at 84. Further, dismissal of tenured teachers when reducing the workforce shall be made on the basis of "seniority." N.J.S.A. 18A:28-10. The Court has not addressed the meaning of reduction in compensation in any setting resembling the instant matter. (pp. 14-17)

         2. The Appellate Division here concluded that protection of compensation is not restricted solely to protection of the hourly rate of pay, and the Court agrees. That construction is consistent with Spiewak's instruction that tenure rights are not subservient to contractual provisions. Concepts pertinent to the rights of tenured staff, and the seniority that comes with tenure, come into play. The Court has acknowledged the obligation of an employer to honor tenured staff's seniority rights over a non-tenured applicant and has held that a tenured part-time teacher has seniority rights in seeking a full-time position with identical responsibilities within his or her certification. Lichtman v. Bd. of Educ. of Ridgewood, 93 N.J. 362, 364 (1983). (pp. 17-19)

         3. Here, the focus is on work being divvied up among tenured and non-tenured part-time teachers, all of whom have the same caveat in their respective contractual provisions __ the amount of hours is dependent on the number and the needs of the SCESC's students. The total amount of work, and the nature of the educational services needed in any given school year, is beyond the SCESC's control. However, the SCESC's position is that its allocation of that work is not subject to review, so long as an individual teacher's respective hourly rate of pay is not reduced. That interpretation would allow an employer to take unreasonable action, such as reducing the tenured teachers' annual hours to nil, effectively creating a dismissal without cause contrary to N.J.S.A. 18A:28-5. An administrative agency, including a school board, is subject to having its decisions or actions reviewed under an arbitrary and capricious standard. If an employer such as the SCESC were to allocate the amount of hours that it has to assign to its certified teaching staff on an arbitrary and capricious basis, those actions remain subject to review and set-aside by the Commissioner of Education, should they be challenged. See N.J.S.A. 18A:6-9. (pp. 19-21)

         4. The Court affirms the Appellate Division's decision to remand. A record must be created to allow the Commissioner to assess under the arbitrary and capricious standard the SCESC's reasons for allocating work among its part-time teachers in a manner that severely reduced the number of hours afforded to the two tenured teachers and awarded work to non-tenured and less senior staff. The Court provides guidance as to what that record should contain. The record must identify the considerations that led to the work assignments allocated by the SCESC. That should include a determination of the certification requirements for the assignments, consideration of the geography of assignments and scheduling needs for the schools being serviced, whether unique educational continuity concerns of the students being serviced were involved in allocating assignments, and whether, all things considered, preference was given to tenured staff and senior staff. The Court adds that setting a minimum number of students for groups does not violate the arbitrary and capricious standard. (pp. 21-22)

         5. The Court rejects the teachers' asserted expectation of entitlement to the annual salary of their previous year of employment and does not encourage a strict arithmetic calculation along the lines the Appellate Division has suggested. There are legitimate management needs factoring into a just allocation of work. However, a just allocation in this setting must generally favor tenured and more senior staff over non-tenured and less senior staff. Finally, the Court urges the creation of a system by which the SCESC and like entities explain how work like this is allocated from year to year and why hours are being reduced. (pp. 22-23)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED and the matter is REMANDED to the Commissioner of Education.

          CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA's opinion.

          LaVecchia, Justice

         Within New Jersey's education statutes, the Tenure Act provides that tenured teachers shall not be "reduced in compensation." N.J.S.A. 18A:28-5. The legal issue in this appeal is whether tenured teachers who served in a part-time capacity pursuant to negotiated contracts that did not specify a minimum number of guaranteed hours suffered an impermissible reduction in compensation when their hours were reduced.

         Two tenured part-time teachers, who provided compensatory and remedial special education services to students through the Sussex County Educational Services Commission (SCESC), initiated this action. The teachers filed a petition of appeal with the Commissioner of Education, claiming their tenure rights were violated when, in the 2014-15 school year, their hours were substantially reduced and, consequently, they received less annual compensation. They alleged that some of the work went to non-tenured teachers or to teachers with less seniority.

         The Commissioner held against the teachers, reasoning that their tenure-right protection from a reduction in compensation was not violated because neither teacher's respective hourly rate was reduced nor could either teacher claim any contractually guaranteed minimum number of hours. The Appellate Division reversed that administrative decision, concluding that the Tenure Act protects more than the hourly rate of compensation of part-time teachers in such circumstances. The panel remanded with instructions for the creation of a more complete record concerning the allocation of work assignments in the 2014-15 school year.

         We granted the SCESC's petition for certification to consider its argument that, so long as there is no reduction in the hourly rate, when a contract does not guarantee a specified amount of hours, a management reallocation of work that reduces the hours of a part-time teacher does not create an impermissible reduction in compensation under the Tenure Act. For the reasons that follow, we affirm as modified the judgment of the Appellate Division and remand for further proceedings consistent with this opinion.

         I.

         We derive the following facts from the joint stipulation of facts and accompanying exhibits, ...


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