Judith A. Dinapoli v. Board of Education of the Township Of verona, Essex County

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5649-11T2

JUDITH A. DINAPOLI,

APPROVED FOR PUBLICATION

Petitioner-Respondent,

January 22, 2014

v.

APPELLATE DIVISION

BOARD OF EDUCATION OF THE

TOWNSHIP OF VERONA, ESSEX

COUNTY,

Respondent-Appellant.

_____________________________________

Argued March 12, 2013 – Decided January 22, 2014

Before Judges Messano, Lihotz and Mantineo.

On appeal from the Commissioner of

Education, Agency Docket No. 140-6/11.

Michael J. Gross argued the cause for

appellant (Kenney, Gross, Kovats & Parton,

attorneys; Mr. Gross, of counsel; Daniel R.

Roberts, on the briefs).

Paul E. Griggs argued the cause for

respondent Judith A. DiNapoli (Lindabury,

McCormick, Estabrook & Cooper, P.C.,

attorneys; Mr. Griggs, of counsel and on the

brief).

Jeffrey S. Chiesa, Attorney General,

attorney for respondent Commissioner of

Education (Daniela Ivancikova, Deputy

Attorney General, on the statement in lieu

of brief).

The opinion of the court was delivered by

MANTINEO, J.S.C. (temporarily assigned)

Respondent Board of Education of the Township of Verona

(Board) appeals the final decision of the Commissioner of

Education (Commissioner) finding petitioner Judith DiNapoli

(DiNapoli) retained her secretarial tenure rights and could

"bump" a non-tenured employee when her then position of

assistant school business administrator was eliminated.

Following our review, we conclude the Commissioner’s decision

was unauthorized by the applicable statutory scheme.

Accordingly we reverse.

In March of 1977, DiNapoli commenced employment with the

Board as a bus driver/coordinator, an hourly, non-tenurable

position. DiNapoli was then appointed to the position of

accounts payable/transportation secretary on August 1, 2003,

which she held until October 24, 2006, and acquired tenure as a

secretary.

Thereafter, DiNapoli agreed to be reassigned as the

assistant to the school business administrator, which was a non-

certified position. She held that position from October 25,

2006 until June 30, 2009.

DiNapoli again consented to reassignment on July 1, 2009,

accepting the position of assistant school business

2 A-5649-11T2

administrator. This was a twelve-month position requiring

administrative certificate endorsement by the school’s business

administrator. During a reduction in force, the Board abolished

that position. On March 1, 2011, DiNapoli was given sixty days

pay and released from employment.

Thereafter, DiNapoli filed a petition of appeal with the

Commissioner alleging the Board violated her tenure rights by

not employing her in a secretarial or clerical position held by

a non-tenured employee after her position as assistant business

administrator was eliminated. The Board filed an answer to the

petition and the matter was transmitted to the Office of

Administrative Law (OAL) for a hearing as a contested case

pursuant to N.J.S.A. 52:14F-1 to -13. The parties agreed to

resolve the dispute by submitting cross-motions for summary

disposition with a joint stipulation of facts and legal issues

and a joint exhibit list.1 The parties stipulated the issue for

determination as follows: “[Was DiNapoli] entitled to bumping

rights to a secretarial or clerical position following the

1

Motions for summary decision before administrative law judges

are governed by N.J.A.C. 1:1-13.1 et seq. N.J.A.C. 1:1-13.2(a)

provides that a decision on a motion for summary decision "shall

be rendered if the papers and discovery which have been filed,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the

moving party is entitled to prevail as a matter of law."

3 A-5649-11T2

elimination of the Assistant Business Administrator position on

March 1, 2011?"

The Administrative Law Judge (ALJ) held DiNapoli retained

her secretarial tenure rights when assigned to the position of

assistant school business administrator and should have been

returned to a clerical or secretarial position held by a non-

tenured employee when the Board eliminated her current position.

The Commissioner affirmed the decision. This appeal followed.

I.

Our scope of review of an administrative agency's final

determination is limited. In re Carter, 191 N.J. 474, 482

(2007). We "may reverse only if we conclude that the decision

of the administrative agency is arbitrary, capricious or

unreasonable, or is not supported by substantial credible

evidence in the record as a whole." J.D. v. N.J. Div. of

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.

2000) (citations omitted). "The burden of demonstrating that

the agency's action was arbitrary, capricious or unreasonable

rests upon the [party] challenging the administrative action."

In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif.

denied, 188 N.J. 219 (2006); see also Barone v. Dep't of Human

Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super.

276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (holding

4 A-5649-11T2

"[w]here action of an administration agency is challenged, a

presumption of reasonableness attaches to the action of an

administrative agency and the party who challenges the validity

of that action has the burden of showing that it was arbitrary,

unreasonable or capricious") (internal quotation marks omitted).

This standard governs appellate review of administrative

decisions involving "disputes arising under school laws."

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); Dore v. Bd. of Educ., 185 N.J. Super. 447, 452 (App.

Div. 1982)).

Our limited review of administrative agency decisions is

informed by three inquiries:

(1) whether the agency's action violates

express or implied legislative policies,

that is, did the agency follow the law; (2)

whether the record contains substantial

evidence to support the findings on which

the agency based its action; and (3) whether

in applying the legislative policies to the

facts, the agency clearly erred in reaching

a conclusion that could not reasonably have

been made on a showing of the relevant

factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25

(1995) (citing Campbell v. Dep't of Civil

Serv., 39 N.J. 556, 562 (1963)).]

However, the deference does not require abdication of the

judiciary's role in assuring the agency's action properly

5 A-5649-11T2

comports with its legislative mandate. We review the agency's

legal conclusions de novo. City of Atl. City v. Trupos, 201

N.J. 447, 463 (2010). While we respect an agency's expertise

and will "defer to the specialized or technical expertise of the

agency charged with administration of a regulatory system," In

re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008),

we are "in no way bound by the agency's interpretation of a

statute or its determination of a strictly legal issue."

Mayflower Sec. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973).

"[I]f the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the

agency's answer is based on a permissible construction of the

statute." Matturri v. Bd. of Trs. of the Jud. Ret. Sys., 173

N.J. 368, 381-82 (2002) (internal citations and quotation marks

omitted).

II.

On appeal, the Board suggests that whether secretaries

retain tenure status after transferring to a certificated

position is a question of first impression. The Board submits

that a secretary forfeits her tenure upon promotion to a non-

secretarial certificated position, as there is no legislative

authority which permits the retention of secretarial tenure

rights.

6 A-5649-11T2

DiNapoli disputes the Board's characterization of the

issue, arguing the right of a tenured employee to bump a non-

tenured one is well-settled. DiNapoli urges the court to find

that the tenure rights she acquired through her employment as a

secretary were not relinquished when she left her position to

become the assistant school business administrator.

Tenure rights are statutory and not contractual.

Zimmerman, supra, 38 N.J. at 72. N.J.S.A. 18A:17-2 defines the

conditions under which secretarial employees of a board of

education are entitled to the security of tenure. The objective

of such tenure statutes is to protect competent and qualified

employees, after a probationary period from being removed for

"unfounded, flimsy, or political reasons." Zimmerman v. Newark

Bd. of Educ., 38 N.J. 65, 71 (1962), certif. denied, 371 U.S.

956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). To acquire the

security of tenure, the precise conditions enunciated in the

applicable statute must be met. See Picogna v. Bd. of Educ. of

Twp. of Cherry Hill, 143 N.J. 391, 400 (1996) ("[t]enure arises

only upon compliance with the precise conditions articulated in

the statute"); Kletzkin v. Bd. of Educ. of the Borough of

Spotswood, 136 N.J. 275, 278 (1994) ("[t]enure is a statutory

right that depends on a teacher’s satisfying specific statutory

conditions"); Zimmerman, supra, 38 N.J. at 72 ("[i]n order to

7 A-5649-11T2

acquire the status of a permanent teacher under a tenure law . .

. a teacher must comply with the precise conditions articulated

in the statute"). Tenure "arises only by the passage of time

fixed by the statute . . . ." Canfield v. Bd. of Educ. of Pine

Hill Borough, 97 N.J. Super. 483, 490 (App. Div. 1967) (Gaulkin,

J., dissenting), rev'd on dissent 51 N.J. 400 (1968). The

employee shoulders the burden of establishing entitlement to

tenure protection, which ordinarily must be clearly proven. Id.

at 493.

In interpreting statutes, a court's goal is to effectuate

the legislative intent. TAC Assocs. v. N.J. Dept. of Envtl.

Prot., 202 N.J. 533, 540 (2010). In order to accomplish this

goal, the court first looks to the plain meaning of the statute.

Praxair Tech, Inc. v. Dir., Div. of Taxation, 201 N.J. 126, 136

(2009). It is fundamental for the court to apply the law as

written, according to its plain language. Pizzullo v. N.J.

Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). Where the language is

clear, we may not look beyond the statutory terms to determine

the legislative intent. State v. Churchdale Leasing, Inc., 115

N.J. 83, 101 (1989). Courts are not permitted to "rewrite a

plainly-written enactment of the Legislature [or] presume that

the Legislature intended something other than that expressed by

way of the plain language." O'Connell v. State, 171 N.J. 484,

8 A-5649-11T2

488 (2002). Courts should be extremely reluctant to add terms

to a statute, lest they usurp the Legislature's authority. See

Craster v. Newark Bd. of Comm'rs, 9 N.J. 225, 230 (1952)

(holding that courts "should not write in an additional

qualification which the Legislature pointedly omitted in

drafting its own enactment"). Finally, "construing or

interpreting a clear and unambiguous statute is simply not

permissible." MacMillan v. Dir., Div. of Taxation, 180 N.J.

Super. 175, 177 (App. Div. 1981), (internal quotation marks

omitted), aff'd, 89 N.J. 216 (1982).

The Board argues N.J.S.A. 18A:17-2 authorizes tenure to be

maintained only while the employee serves in a secretarial

position, office or employment. That statute provides:

a. Any secretary, assistant secretary,

school business administrator or business

manager of a board of education of any

school district who has or shall have

devoted his full time to the duties of his

office and has or shall have served therein

for three consecutive calendar years, and

b. Any person holding any secretarial or

clerical position or employment under a

board of education of any school district or

under any office thereof, after

1. The expiration of a period of employment

of three consecutive calendar years in the

district or such shorter period as may be

fixed by the board or office employing him,

or

9 A-5649-11T2

2. Employment for three consecutive academic

years, together with employment at the

beginning of the next succeeding academic

year, an academic year being the period

between the time when school opens in the

district after the general summer vacation

and the beginning of the next succeeding

summer vacation, and

c. Any person, who has acquired, or shall

hereafter acquire, tenure in any secretarial

or clerical office, position or employment

under the board of education of a school

district and has been appointed district

clerk or secretary, or shall hereafter be

appointed secretary of said district, as

such secretary, shall hold his office,

position or employment under tenure during

good behavior and efficiency and shall not

be dismissed or suspended or reduced in

compensation, except for neglect,

misbehavior or other offense and only in the

manner prescribed by subarticle B of article

2 of chapter 6 of this title.

Ibid.

Initially, we find the plain language of the statute does

not support the Commissioner's determination that DiNapoli

retained her tenure rights upon transfer to a certificated

position. Nor does N.J.S.A. 18A:17-2 reflect a legislative

design to provide secretaries, who have relinquished their

positions for non-secretarial certificated employment, the right

to retain tenure. Rather, the language of N.J.S.A. 18A:17-2

limits the retention of tenure to the time during which the

employee holds her secretarial office, position or employment.

The Commissioner's conclusion that secretarial staff maintain

10 A-5649-11T2

tenure upon transfer to non-secretarial positions is unfounded

under the express terms of the statute. Once DiNapoli

voluntarily transferred to the assistant school business

administrator position, she no longer held her "office, position

or employment" as a secretary and, absent expressed statutory

authority, she relinquished her right to "bump back" into a

secretarial position.

"The Legislature is presumed to be familiar with its own

enactments, with judicial declarations relating to them, and to

have passed or preserved cognate laws with the intention that

they be construed to serve a useful and consistent purpose."

St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005)

(citations omitted). Indisputably, if the Legislature had

intended for a secretary, who acquired tenure pursuant to

N.J.S.A. 18A:17-2 (b) or (c), to retain tenure upon

relinquishment of his or her secretarial position, it would have

provided for such protection in the statute, similar to the

provisions found in other tenure retention provisions.

For example, N.J.S.A. 18A:28-5 provides, in relevant part:

[t]he services of all teaching staff members

employed in the positions of teacher,

principal . . . shall be under tenure during

good behavior . . . and shall not be

dismissed or reduced in compensation except

for inefficiency, incapacity, or conduct

unbecoming. . . .

11 A-5649-11T2

Also in this regard, the Legislature enacted N.J.S.A. 18A:28-6

and 18A:17-20.4, which afford tenure retention rights to

teachers and superintendents notwithstanding promotion or

transfer. N.J.S.A. 18A:28-6 specifies a tenured teaching staff

member, after transfer or promotion, whose new position is

terminated before tenure in that position is achieved

"shall be returned to his [or her] former position at the salary

which he [or she] would have received had the transfer or

promotion not occurred[.]" Also, N.J.S.A. 18A:17-20.4 provides

similar protection for those promoted to superintendents, who

"shall retain all tenure rights accrued in any position which

was previously held by the superintendent in the district."

These provisions represent the Legislature's intent to

preserve tenure for certain employees who transferred or were

promoted to a different position prior to achieving tenure in

that position. N.J.S.A. 18A:17-2 does not contain a similar

tenure retention provision regarding tenured secretarial

employment, thus reflecting the Legislature's decision not to

afford such rights.2 "When the Legislature has carefully

2

This is not the only instance where secretaries are afforded

less rights than other school employees. For instance, the

seniority preferences and recall lists available to teachers are

not available to secretaries. See, e.g., Ferronto v. Bd. of

Educ. of the Twp. of Weymouth, et al., EDU 8774-02, final

(continued)

12 A-5649-11T2

employed a term in one place and excluded it in another, it

should not be implied where excluded." In re Plan for the

Abolition of the Council on Affordable Housing, 214 N.J. 444,

470 (2013) (internal quotation marks and citations omitted).

The fact that the Legislature limited secretarial tenure to

the period of time an employee "holds [his or her secretarial]

office, position or employment" precludes a finding that

DiNapoli retained her tenure rights after being transferred to a

non-secretarial position. See N.J.S.A. 18A:17-2.

DiNapoli argues N.J.S.A. 18A:28-6 and 18A:17-20.4 are

inapposite because they do not address tenure retention but

rather focus on seniority preservation. We disagree.

In our review of statutory enactments, we must read

statutes dealing with the same subject matter in pari materia

and construe them together as a "unitary and harmonious whole."

Lacy, supra, 185 N.J. at 14-15 (citations omitted). "Statutes

in pari materia are to be construed together when helpful in

resolving doubts or uncertainties and the ascertainment of

legislative intent[,]" and "it is basic in the construction of

legislation that every effort should be made to harmonize the

(continued)

decision, (February 1, 2006),

http://njlaw.rutgers.edu/collections/oal/search.html>.

13 A-5649-11T2

law relating to the same subject matter." State v. Green, 62

N.J. 547, 554-55 (1973).

In determining whether legislative enactments "actually

'concern the same object,'" a court should consider "whether

both statutes were included in one enactment, whether the proofs

required overlap, and whether they are 'designed to serve the

same purpose and objective[.]'" Marino v. Marino, 200 N.J. 315,

330 (2009) (quoting 2B Sutherland Statutory Construction § 51:3

(7th ed. 2008)). Both N.J.S.A. 18A:17-2 and 18A:28-6 were

enacted at the same time. See L. 1967, c. 271. N.J.S.A.

18A:17-20.4 was enacted subsequently. See L. 1991, c. 267, § 8.

We are satisfied that all three statutes concern the same

object, namely, the accrual and retention of tenure by school

district employees, and are designed to serve the same purpose

and objective. "When the Legislature expressly includes a

requirement in one section and excludes that same requirement in

other subsections of the same general statute, we need not

strain to import that requirement where it is not." In re

Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004).

When considered together, it is obvious the Legislature did not

intend to afford secretaries tenure preservation upon transfer

or promotion from secretarial employment as they did not adopt a

provision providing for tenure retention in the legislation.

14 A-5649-11T2

III.

We next consider the Commissioner's determination that

Given v. East Windsor Regional School District, 1978 S.L.D. 43

(Comm. Jan. 30, 1978), aff'd, 1978 S.L.D. 46 (St. Bd. Of Educ.

June 7, 1978), aff'd, 1979 S.L.D. 832 (App. Div. May 18, 1979)

controls the within matter.

In Given, the petitioner was employed as a tenured clerk

before accepting a position as secretary within the district.

After working as a secretary for approximately twenty-two

months, Given was involuntarily returned to a clerical position.

Ibid. Given appealed to the Commissioner for an order declaring

that she was a tenured secretary and therefore not subject to

reassignment as a clerical employee. Ibid. Given argued that

the transfer and the reduction in compensation violated her

tenure rights as a secretary which she contended she acquired

immediately upon her promotion to the position. Id. at 44. The

Board conceded that Given had earned tenure as a clerk, but

denied that she had served the requisite probationary period to

earn tenure as a secretary. Ibid. In rejecting petitioner's

argument, the Commissioner upheld the action of the Board in

reassigning petitioner to a clerical position, finding:

there exists a legitimate interest for a

local board to have a probationary period

for clerical and secretarial employees in

its employ who receive a promotion. The

15 A-5649-11T2

Commissioner opines that to hold otherwise

would work hardship on both the board and

the employee if instant tenure were to

accrue to a promotional position made in

good faith by the board. A clerk or

secretary so promoted would likely be

required to demonstrate greater technical

skills in order to properly discharge more

complex responsibilities and must have a

probationary period in which to adequately

adjust to the new position. The fact that

the Legislature has not established a

specific statutory probationary period for

clerks and secretaries who have been

promoted, such as exists in N.J.S.A. 18A:28-

6 for certificated personnel, does not

obviate the need for such a probationary

period. The Commissioner holds that a

tenured clerk or secretary, upon promotion

to another position within the school

district, must satisfy the precise

conditions enunciated in N.J.S.A. 18A:17-

2(b) and (c) to achieve a tenure status in

the new position. The Commissioner further

holds that tenure rights accrued in a school

system in any clerical or secretarial

position prior to promotion shall not be

negated by such promotion and shall remain

as a continuing entitlement to such

employee.

[Id. at 45.]

The Commissioner's ruling in Given applies only in the

limited situations where a secretary or clerk is promoted to

another secretarial or clerical position. This is implicit from

the language of the opinion, which required that a promoted

clerk or secretary "must satisfy the precise conditions

enunciated in N.J.S.A. 18A:17-2(b) and (c)," since those

conditions only pertain to clerical and secretarial employees.

16 A-5649-11T2

Ibid. (emphasis added). That portion of the decision upon which

the Commissioner relied in this case, i.e., "that tenure rights

accrued in a school system in any clerical or secretarial

position prior to promotion shall not be negated by such

promotion and shall remain as a continuing entitlement to such

employee," was dicta, since it had no effect upon the outcome of

the case.

More importantly, Given did not address the issue presented

here, namely, whether the tenure achieved under N.J.S.A. 18A:17-

2, is retained when the tenured secretary accepts a certificated

position and leaves her tenured secretarial employment. In

addressing this issue we look to Colon-Serrano v. Plainfield Bd.

of Educ., 2007 WL 4644775 (N.J. Adm.) (Colon-Serrano I), aff'd

in part, rev'd in part, 2008 WL 1795250 (N.J. Adm.) (Colon-

Serrano II), aff'd, 2008 WL 2971334 (N.J. Adm.) (Colon-Serrano

III) for guidance.

In Colon-Serrano, the petitioner was employed by the

district in the clerical position of attendance aide and

obtained tenure pursuant to N.J.S.A. 18A:17-2. Colon-Serrano I,

supra, at *1. Thereafter, the petitioner transferred to a

classroom aide position, which was neither clerical nor tenure

eligible. Ibid. The petitioner held her position as classroom

aide from 1994 until the district failed to renew her contract

17 A-5649-11T2

in 2006. Ibid. The petitioner then sought to return to a

clerical position held by a non-tenured or less senior clerical

employee. Ibid. When the Board refused to return the

petitioner to a clerical title, she filed a petition with the

Commissioner seeking reinstatement on the basis of her prior

accrued tenure. Ibid.

The ALJ concluded the petitioner earned tenure in the

clerical position of attendance aide and ordered the Board to

place petitioner in a clerical position held by a non-tenured or

less senior employee. Id. at *3. On review, the Commissioner

agreed that the petitioner had acquired tenure as a clerical

employee, but rejected the conclusion that the petitioner, "who

voluntarily left her tenured position in 1994 to accept the

separate and non[-]tenurable position of classroom aide . . . is

now entitled to 'bump back' into a clerical position held by a

non[-]tenured or less senior clerical employee . . ." Colon-

Serrano II, supra, at *2. The Commissioner specifically found:

N.J.S.A. 18A:17-2 provides that clerical

employees who acquire tenure "shall hold

[their] office, position or employment under

tenure during good behavior and efficiency

and shall not be dismissed or suspended or

reduced in compensation except for neglect,

misbehavior or other offense and only in the

manner prescribed by [the Tenure Employees

Hearing Law]." . . . In this matter,

however, the employment from which the

petitioner was dismissed was neither her

tenured clerical employment nor an extension

18 A-5649-11T2

or "hybrid" continuation of such

[3]

employment, but rather a clearly distinct,

non[-]clerical, and non[-]tenured classroom

aide position to which she voluntarily

transferred in 1994. . . . Under these

circumstances, when the petitioner was

advised in July 2006 that her contract would

not be renewed, the protections of N.J.S.A.

18A:17-2 were no longer applicable; in the

absence of express legislative provision for

retention of accrued tenure rights upon

transfer to a position which is not tenure

eligible, the petitioner must be deemed to

have relinquished the protections associated

with her clerical tenure upon acceptance of

the nonprotected position of classroom aide.

[Id. at *2 (alteration in original).]

This case is factually similar to Colon-Serrano in that

DiNapoli left her tenured secretarial position to pursue the

non-secretarial certificated position of assistant school

business administrator. Once DiNapoli abandoned her employment

as a secretary, she relinquished the tenure rights she had

3

The Commissioner specifically distinguished the facts from

those presented in Keaney v. Bd. of Educ. of the Twp. of

Bloomfield, EDU 5881-03, initial decision (July 28, 2005),

http://njlaw.rutgers.edu/collections/oal/search.html> and

adopted, Comm'r, final Decision (August 31, 2005),

http://njlaw.rutgers.edu/collections/oal/search.html> (the

Commissioner adopted the ALJ's initial decision which found

petitioner "never knowingly and intelligently waived his tenure

as a janitorial employee when he assumed the title of supervisor

of maintenance" in which he still maintained his janitorial

duties); and Quinlan v. Bd. of Educ. of N. Bergen Twp., 73 N.J.

Super. 40, 47-48 (App. Div. 1953) (holding petitioner's tenure

as a clerk was not terminated by the board's unilateral

appointment of her as clerk-attendance officer where she

continued to perform clerical duties as well as those of an

attendance officer).

19 A-5649-11T2

accrued therein. Although Colon-Serrano's new position was not

tenure eligible and DiNapoli's position was, that fact alone

cannot support a dissimilar result, as there was no discussion

by the Commissioner in Colon-Serrano about how, if at all, that

fact affected his finding. Further, there was no reference by

the Commissioner to any statutory authority that would support

the disparate treatment of secretaries who transfer into non-

tenurable positions versus those who transfer into tenure

eligible positions. There is no basis in N.J.S.A. 18A:17-2 for

such a distinction. In finding Colon-Serrano had forfeited her

tenure rights, the Commissioner focused on the fact that the

petitioner was no longer employed in the clerical employment

that had been the source of her tenure, and was instead engaged

in a "distinct, nonclerical . . . position[.]" Id. at *2.

Additionally, there is nothing in the record in Colon-

Serrano, other than the petitioner's acceptance of a non-

tenurable position, to demonstrate an intention to relinquish

her clerical tenure rights, yet the Commissioner found she

forfeited the tenure protections she had acquired by way of her

transfer. We too must find DiNapoli abandoned her tenure rights

when she accepted a transfer to a non-secretarial certificated

position.

20 A-5649-11T2

Here, the Commissioner adopted the ALJ's conclusion that

the decision in Colon-Serrano expanded without distinction upon

the decision in Given but offered no basis or support for that

conclusion. We disagree with the ALJ’s determination, as it is

clear the decision in Colon–Serrano limited Given's holding.

Simply stated, Given and Colon-Serrano cannot be reconciled

unless Given is limited to situations where clerks and

secretaries are promoted or transferred to other clerical or

secretarial positions.

We also reject the Commissioner's restrictive

interpretation of Lange v. Bd. of Educ. Of Borough of Audubon,

26 N.J. Super. 83 (App. Div. 1953). The Commissioner merely

stated Lange was "inapposite to the instant controversy [,]"

without meaningful discussion. However, we conclude Lange

offers further support for the conclusion that DiNapoli

relinquished her secretarial tenure.

In Lange, the petitioner was employed by the Audubon Board

of Education, beginning her service as a teacher in 1912. Id.

at 84. In 1914, she was transferred, with her consent, to the

position of principal in which she served from 1914 until 1927.

Ibid. In June 1927, she was assigned by the Board of Education

to the position of "Supervisor to Supervise Grade Schools," and

served in that capacity until the position was abolished in June

21 A-5649-11T2

1944 for reasons of economy and diminution in the number of

pupils. Ibid. Thereafter, she served as a teaching principal

in one of the grade schools until September 18, 1944, when it

was discovered that there had been no vacancy in such position

and Lange was returned to a teaching position. Id. at 85.

In 1951, a vacancy arose in a principal position and Lange

applied asserting rights to the position by virtue of her prior

service as principal. Ibid. She was not appointed to the

position and appealed, arguing that under the then Teachers'

Tenure Law, R.S. 18:13-16, 17, 19 and 20, she did not lose her

tenure as principal when she accepted the position of

"Supervisor to Supervise Grade Schools," and "when the

[supervisor] position was abolished in 1944, she was entitled to

appointment to fill the next available principalship." Ibid.

The Board of Education contended Lange "lost any tenure she may

have had as a principal under the Teachers['] Tenure Law by

accepting the position of supervisor." Ibid. The State

Commissioner of Education affirmed the Board's determination and

Lange appealed. Ibid.

At the time Lange served as principal, she was protected by

tenure. The original Teachers' Tenure Law was enacted in 1909,

see L. 1909, c. 243, p. 398; however, it was not until

amendments enacted in 1935 that the concept of seniority was

22 A-5649-11T2

introduced and given prospective effect. See L. 1935 c. 126. p.

331; Lange, supra, 26 N.J. Super. at 85-86 (citing Downs v. Bd.

of Educ. of Hoboken, 126 N.J.L. 11, 13 (Sup. Ct. 1940), aff'd,

Schlank v. Bd. of Educ. of Hoboken, 127 N.J.L. 602 (E. & A.

1942)); Werlock v. Woodbridge, 1939-1949 Comp. School Law

Decisions, p. 107 (1948), aff'd on other grounds, 5 N.J. Super.

140 (App. Div. 1949).

Important for our purposes here is the court's discussion

of Lange's relinquishment of her principalship, and the rights

connected therewith. Specifically the court found:

The record is barren of any protest or

expression of dissatisfaction by plaintiff

respecting her change of status from

principal to supervisor. Nor does it appear

that any proceeding was initiated by her to

test the local board's action or that the

appellant at any time protested or took any

action indicating dissatisfaction with the

action of the local board voiding the

principalship held by her for a brief period

of time in 1944. We think, therefore, it is

a reasonable inference that she surrendered

her principalship in 1927 voluntarily. The

appellant concedes that one may voluntarily

relinquish a position, . . . but asserts

that tenure rights may not be waived while

keeping the position.

. . . .

This appeal might well be disposed of

on the ground of laches. Notwithstanding

the fact that by accepting the position of

supervisor, she surrendered her position as

principal, thereby constituting a dismissal

as such principal and thereafter limiting

23 A-5649-11T2

her tenure rights to the classification of a

teacher . . . .

[Lange, supra, 26 N.J. Super. at 86-89

(citations omitted).]

In this case, we disagree with the Commissioner's

conclusion that Lange is not relevant. Lange involved

consideration of whether the petitioner retained her tenure

rights in the position of principal after she voluntarily

transferred from principal to supervisor, a separate tenurable

position. We found Lange "waived whatever rights she may have

acquired to the position of principal[,]" possessed no seniority

rights with respect to a principal position and had no claim to

be on a preferred eligibility list for her service as principal

from 1914 to 1927. Id. at 87. The Commissioner here failed,

however, to consider our specific holding in his analysis.

Like Lange, DiNapoli did not protest or express

dissatisfaction with her transfer or promotion to the position

of assistant school business administrator. Moreover, like

Lange, she voluntarily transferred from her tenured secretarial

position to another tenure eligible position. When the holding

in Lange is applied to these facts, DiNapoli must be found to

have relinquished her secretarial tenure upon promotion to the

position of assistant school business administrator. Just as

Lange had no claim to a principal position that became available

24 A-5649-11T2

in 1951, DiNapoli cannot be said to have the right to "bump

back" to a secretarial position held by a non-tenured employee.

IV.

DiNapoli concedes that an individual may voluntarily

relinquish a position, but argues she may not waive her tenure

rights while keeping her position. Lange, supra, 26 N.J. Super.

at 88. Nevertheless, she argues that at the time she accepted

the promotion and subsequent transfer to the position of

assistant school business administrator, she did not relinquish,

waive or forfeit her position as secretary. There is no support

for this argument in the record before us. There is nothing to

suggest that either party considered the transfers or promotions

temporary assignments. In fact, in order for DiNapoli to become

the assistant school business administrator she needed to obtain

the appropriate certification credentials. She obtained the

certification, thus evidencing her intention to remain in the

position as assistant school business administrator, not

secretary. Certainly, the facts support the conclusion that

DiNapoli relinquished her secretarial position upon her

acceptance of the promotion or transfer to the position of

assistant school business administrator.

DiNapoli further argues that since she was "assigned" to

the positions of assistant to the business administrator and

25 A-5649-11T2

assistant school business administrator, she did not waive or

voluntarily relinquish her position as a secretary. We also

find this argument meritless. A voluntary resignation equates

to abandonment of tenure rights. Kimless V. Twp. of Woodbridge

Bd. of Educ., 1978 S.L.D. 651, 656 (1978) (citations omitted)

("Such [a] holding is consistent with previous rulings of the

Commissioner wherein it was held petitioners voluntarily

resigned teaching position which constituted abandonment of

their rights to a tenure claim"). Despite DiNapoli's suggestion

to the contrary, she could only have been transferred or

promoted with her consent. Thus, when DiNapoli voluntarily

assumed the position of assistant to the business administrator

and then accepted a promotion to the position of assistant

school business administrator, she relinquished her secretarial

position and tenure rights.

Reversed.

26 A-5649-11T2