September 23, 2019
appeal from the Superior Court, Appellate Division, whose
opinion is reported at __ N.J.Super.__ (App. Div. 2018).
E. Rivera argued the cause for appellant (Scarinci &
Hollenbeck, attorneys; Ramon E. Rivera, of counsel and on the
briefs, and Shana T. Don and A.J. Barbarito, on the briefs).
Arons, Assistant Attorney General, argued the cause for
respondent New Jersey Commissioner of Education (Gurbir S.
Grewal, Attorney General, attorney; Joan M. Scatton, Deputy
Attorney General, on the letter brief).
William P. Hannan argued the cause for respondent Brenda
Miller (Oxfeld Cohen, attorneys; William P. Hannan, of
counsel and on the brief).
Court considers the Appellate Division's determination
that Brenda Miller's employment with the State Operated
School District of the City of Newark (District) was
terminated in violation of her tenure rights under N.J.S.A.
was hired by the District in 1998 and held various clerical
and secretarial titles until 2012, all of which were
classified titles under the Civil Service Act (Act).
Effective July 2012, the District reclassified Miller's
position to the unclassified title of Confidential Assistant.
Almost seventeen months later, the District sent Miller a
letter confirming the reassignment and advising her that her
new position was not governed by the Act. More than two years
later, Miller received a letter terminating her employment.
appealed her termination to the Commissioner of Education,
alleging it was unlawful because she had tenure under
N.J.S.A. 18A:17-2. The Commissioner determined Miller did not
earn tenure under N.J.S.A. 18A:17-2 while she served in
classified positions under the Act because N.J.S.A. 18A:28-2
provides that "[n]o person, who is in the classified
service of the civil service of the state pursuant to Title
11, Civil Service . . ., shall be affected by any provisions
of this chapter." The Commissioner concluded Miller
accrued credit toward tenure only during the period following
her 2012 transfer to the unclassified position and that
because she had not served in that position for three
consecutive years prior to her termination, she did not have
tenure rights under the statute. Miller appealed.
Appellate Division reversed, disagreeing with the
Commissioner's conclusion that Miller's
"employment in her Civil Service position could not be
considered in determining if she satisfied the time in
employment requirements for tenure under N.J.S.A.
18A:17-2." __ N.J.Super.__, __ (App. Div. 2018) (slip
op. at 12-13, 21).
appellate court noted that N.J.S.A. 18A:28-2 "renders
Chapter 28's tenure provisions inapplicable to persons
holding classified Civil Service positions."
Id. at __(slip op. at 13). The court explained,
however, that "Chapter 28 pertains exclusively to the
tenure rights of teaching staff members in public
school districts," and that, although "[t]he plain
language of N.J.S.A. 18A:28-2 exempts persons employed in
classified Civil Service titles from the 'provisions
of' Chapter 28, [it] does not exempt employees in
classified titles from the tenure provisions in other
chapters of Title 18A." Id. at __(slip op.
at 14) (emphases added). The court thus concluded that
N.J.S.A. 18A:28 "is inapplicable to tenure rights earned
under N.J.S.A. 18A:17-2," id. at __(slip op. at
15-16), and stressed that "N.J.S.A. 18A:17-2 does not
exempt secretarial employees in Civil Service positions from
its tenure protections," id. at __(slip op. at
the plain language of N.J.S.A. 18A:17-2 to determine
[Miller]'s entitlement to tenure," the court found
that Miller "had tenure under N.J.S.A. 18A:17-2 when she
was terminated," id. at __(slip op. at 16-17),
and that "the District violated [her] tenure rights
under N.J.S.A. 18A:17-2" by terminating her appointment,
id. at (slip op. at 20). In reaching that
conclusion, the court rejected the District's reliance on
two earlier decisions. Id. at __(slip op. at 18).
The appellate court was "convinced that application of
N.J.S.A. 18A:28-2 to employees not 'affected by'
Chapter 28 is inconsistent with the statute's plain
language." Id. at __(slip op. at 19).
The judgment of the Appellate Division is affirmed
substantially for the reasons expressed in the majority's
JUSTICE LaVECCHIA, dissenting, explains that the
Commissioner's decision in this matter was consistent
with the agency's longstanding interpretation of the
intersection of tenure rights accruing under Title 18A and
the protections afforded to classified workers under civil
service law, as well as with numerous decisions over a span
of decades that kept separate the rights accruing under each
statutory scheme. Noting that the Commissioner's
application of the relevant statutes through the years
reflects a reading of N.J.S.A. 18A:28-2's reference to
"chapter" different from that reached by the
appellate court here, Justice LaVecchia is of the view that
the Court should defer to the Commissioner's
interpretation, in accordance with principles of statutory
interpretation. Underscoring the practical concerns
associated with implementation of the Appellate
Division's holding, Justice LaVecchia concludes that the
interpretative issue found to exist in this matter should
have been left to the Legislature to resolve.
JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, SOLOMON,
and TIMPONE join in this opinion. JUSTICE LaVECCHIA filed a