PAULA MELNYK VS. BOARD OF EDUCATION OF THE DELSEA REGIONAL HIGH SCHOOL DISTRICT, ETC. (NEW JERSEY COMMISSIONER OF EDUCATION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1095-17T1
PAULA MELNYK,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF
THE DELSEA REGIONAL
HIGH SCHOOL DISTRICT,
GLOUCESTER COUNTY,
Respondent-Respondent.
________________________
Argued December 4, 2018 – Decided December 17, 2018
Before Judges Haas and Mitterhoff.
On appeal from the New Jersey Commissioner of
Education, Docket No. 161-7/15.
Hop T. Wechsler argued the cause for appellant
(Selikoff & Cohen, PA, attorneys; Keith Waldman, of
counsel and on the briefs; Hop T. Wechsler, on the
briefs).
Andrew W. Li argued the cause for respondent Board
of Education of the Delsea Regional High School
District (Parker McCay, PA, attorneys; Andrew W. Li,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Joan M.
Scatton, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Appellant Paula Melnyk appeals from the October 12, 2017 final decision
of the Commissioner of Education (Commissioner), adopting the initial decision
of the Administrative Law Judge (ALJ), and concluding that respondent Board
of Education of the Delsea Regional High School District (District) did not
violate appellant's tenure rights when it terminated her extracurricular
assignment as a teacher in the District's alternative education program. We
affirm.
We begin by summarizing the applicable legal principles governing the
issue presented in this appeal. A teaching staff member like appellant "is
entitled to tenure if (1) she works in a position for which a teaching certificate
is required; (2) she holds the appropriate certificate; and (3) she has served the
requisite period of time." Spiewak v. Summit Bd. of Educ., 90 N.J. 63, 74
(1982). Pursuant to N.J.S.A. 18A:28-5(a), teaching staff members acquire
tenure after employment by a board of education for:
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(1) Three consecutive calendar years, or any shorter
period which may be fixed by the employing board for
such purpose; or
(2) Three consecutive academic years, together with
employment at the beginning of the next succeeding
academic year; or
(3) The equivalent of more than three academic years
within a period of any four consecutive academic years.
"[T]enure is achieved in a specific 'position,' and the scope of the tenured
position is initially limited by the 'certificate' the teaching staff member must
hold to satisfy the prerequisite of qualifications for his or her employment."
Nelson v. Bd. of Educ. of Old Bridge, 148 N.J. 358, 366 (1997) (quoting Ellicott
v. Bd. of Educ., 251 N.J. Super. 342, 348 (App. Div. 1991)). Thus, a teacher
acquires title in a particular position for which he or she holds a certificate,
rather than based on the specific assignments he or she performs while in that
position.
In a long line of administrative decisions dating back over forty-seven
years, the Commissioner has held that a teacher, already having tenure based
upon his or her years of service in a particular position, may not also acquire
separate tenure in an extracurricular assignment they might also perform if the
teacher is not required to possess any certificate other than the one they already
hold in their tenured position, and they receive a stipend for this assignment
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which is not an "integral portion" of their salary for the tenured position. Dignan
v. Bd. of Educ. of the Rumson-Fair Haven Reg'l High School, 71 S.L.D. 336,
343 (Comm'r of Educ. July 29, 1971), aff’d, 74 S.L.D. 1376 (State Bd. of Educ.
Sept. 11, 1974), aff’d, 75 S.L.D. 1083 (App. Div. Oct. 10, 1975); see also
Manley v. Bd. of Educ. of Old Bridge, 2005 N.J. AGEN LEXIS 664, (Nov. 4,
2005), adopted by the Commissioner, 2005 N.J. AGEN LEXIS 1053 (Dec. 19,
2005) (stating that "no tenure protections flow from extracurricular positions
unless the position requires additional certification"). As the Commissioner
held in Dignan:
[A] board of education has the authority to assign and
reassign teachers to extra-classroom curricular duties in
addition to their regularly-scheduled classroom-
instruction assignment and to pay such additional
remuneration as it deems reasonable and appropriate
therefore[.] . . . [A]bsent a requirement for a certificate
other than that of a teacher, no tenure status accrues to
such assignments, and they are renewed or discontinued
at the discretion of the board.
[Id. at 343.]
With these well-established, governing principles in mind, we turn to the
specific, and undisputed, facts of this case. Since September 1991, the District
has employed appellant as a full-time special education teacher. Appellant holds
an Instructional Certificate with Teacher of the Handicapped and Elementary
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School Teacher endorsements. Appellant is tenured in this position. According
to appellant's 2014-15 teacher's contract, her annual salary was $82,874.
In September 2002, the District assigned appellant to teach special
education classes after her regular school day in an alternative education
program known as "BookBinders," which the District offered in accordance with
N.J.A.C. 6A:16-9.1 to -9.3. Alternative education programs, like BookBinders,
are "comprehensive educational program[s] designed to address the individual
learning, behavior, and health needs of students who are not succeeding in the
general education program or who have been mandated for removal from general
education[.]" N.J.A.C. 6A:16-1.3. Appellant does not assert that the District
required her to work in BookBinders; instead, it is clear from the record that her
assignment was voluntary.
To participate in this extra assignment, appellant did not need any
additional teaching certification; the Instructional Certificate with a Teacher of
the Handicapped endorsement was all that was required. The District paid
appellant $20 per hour for the time she worked in BookBinders after school and
in the evenings.1 With the exception of the 2009-10 school year during which
she was "taking a break" from this voluntary assignment, appellant performed
1
Appellant taught English classes during this period.
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these secondary duties until the end of the 2014-15 school year. At that time,
the District assigned another teacher to teach English in the program on an
hourly basis.
Appellant appealed the District's decision to replace her to the
Commissioner, and alleged that she had achieved separate tenure in her
BookBinders assignment, despite the fact that she was already tenured in her
full-time teaching member assignment. Therefore, appellant argued that the
District could not assign another teacher to work in the program after school in
her place. The Commissioner transmitted the matter to the OAL as a contested
case.
Because there was no dispute as to any of these material facts, the parties
filed cross-motions for summary decision pursuant to N.J.A.C. 1:1-12.5. The
ALJ framed the issue as "whether [appellant] separately acquired tenure in the
alternative education teacher position, such that she is entitled to reinstatement,
together with full back pay, benefits, and emoluments of the position with
interest, retroactive to June 2015[?]"
In answering this question in the negative, the ALJ reviewed the
Commissioner's prior decisions regarding extracurricular duties and
assignments, including Dignan. She observed that an already tenured teacher
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like appellant, who is assigned to an extracurricular position, does not have a
right to tenure in that position because a board of education has the authority to
assign and reassign teachers to extracurricular duties as it deems fit. Dignan, 71
S.L.D. at 343.
In determining that appellant was performing extracurricular duties when
she worked in BookBinders after school for an hourly stipend, the ALJ stated:
Traditionally, "extracurricular" is the word used
to describe school programs designed to enhance the
education of students outside of the classroom, or
regular curriculum, such as the school newspaper or
athletics. See Smith v. Bd. of Educ. of Paramus, 68
S.L.D. 62 (stating that "extracurricular or cocurricular
activities comprise all those events and programs which
are sponsored by the school and may reasonably be
characterized as a supplement to the established
program of studies in the classroom in order to enrich
the learning and self-development opportunities of
pupils"), aff’d, St[ate] Bd. of Educ. (Feb. 5, 1969).
However, the definition of "extracurricular" also
includes "lying outside one's regular duties or routine."
Merriam-Webster Online Dictionary, "extracurricular,"
https://www.merriam-webster.com/. Thus, while
[appellant] taught English inside a classroom during her
BookBinders assignment, the assignment was
extracurricular in the sense that it fell outside her usual
duties as a special education teacher during regular
school hours. Here, as in Dignan, . . . the position was
extracurricular and did not require additional
certification beyond [appellant's] teaching certificate.
Accordingly, [appellant] was not separately entitled to
tenure in the alternative education position.
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In addition to the fact that appellant did not need an additional
certification to participate in the extracurricular BookBinders program,
appellant's $20 per hour remuneration for "her extracurricular service was
established separately from her employment contracts." As the ALJ found,
Nothing in [appellant's] contract as a special education
teacher required her to participate in the alternative
program. Instead, for the 2014-2015 school year, she
received a salary of $82,874 for her teaching position
in the general education program, and she received
separate compensation of twenty dollars an hour for her
extracurricular duty as an English teacher in the
BookBinders program. Therefore, her compensation
for her work in the alternative program was not an
integral part of her contractual salary. . . .
Consequently, as [appellant's] former position in the
alternative program was neither engrafted onto her
primary tenured position nor compensated as an
integral part of her salary, [appellant] is not entitled to
back pay or other compensation.
Accordingly, the ALJ concluded that appellant "did not acquire tenure
rights in the BookBinders position because the assignment did not require a
certificate separate from the one under which she acquired tenure in her teaching
position and in the general education program and was extracurricular."
Appellant filed exceptions to the ALJ's initial decision and, on October 12, 2017,
the Commissioner adopted the ALJ's reasoning and concluded that appellant did
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not acquire tenure in the alternative education program position. This appeal
followed.
On appeal, appellant again argues, as she unsuccessfully did before the
Commissioner, that she had tenure in her "alternative program teaching
position" and, therefore, the District was powerless to assign another teacher to
work after school in the program. Based on our review of the record and
applicable law, we are not persuaded by appellant's contention, and affirm
substantially for the reasons articulated by the Commissioner. We add the
following comments.
Our standard of review of administrative determinations by the
Commissioner is limited. "[W]e will not reverse the determination of an
administrative agency unless it is arbitrary, capricious or unreasonable, or is not
supported by substantial credible evidence in the record as a whole." Kaprow
v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v.
Bd. of Educ., 131 N.J. 626, 641 (1993)). We limit our review "to a determination
of whether the [Commissioner's] decision is 'unreasonable, unsupported by the
record or violative of the legislative will.'" D.L. v. Bd. of Educ. of Princeton
Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting Capodilupo
v. Bd. of Educ. of W. Orange, 218 N.J. Super. 510, 515 (App. Div. 1987)).
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We are not bound by an administrative agency's legal opinions. Levine v.
State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v.
Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170
(1999)). Nonetheless, administrative decisions are cloaked with a "strong
presumption of reasonableness." Newark v. Natural Res. Council, 82 N.J. 530,
539 (1980). Additionally, the "agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility is ordinarily
entitled to our deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.
Super. 52, 56 (App. Div. 2001) (citing In re Progressive Cas. Ins. Co., 307 N.J.
Super. 93, 102 (App. Div. 1997)).
"The delegation of regulatory and administrative responsibility over
tenure to the [Commissioner] is based on the complexity and specialized nature
of the subject of teacher tenure." Dennery, 131 N.J. at 637 (citing Ellicott, 251
N.J. Super. at 350). Thus, our Supreme Court has cautioned that "the courts
cannot supplant educators; they are not at liberty to interfere with regulatory and
administrative judgments of the professionals in the field of public education
unless those judgments are palpably arbitrary or depart from governing law."
Id. at 643.
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Applying these standards, we discern no grounds to overturn the
Commissioner's reasoned decision. The salient facts of this case were
undisputed and, in light of the governing law, the Commissioner's legal
conclusions are unassailable.
Affirmed.
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