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

NOT FOR PUBLICATION WITHOUT THE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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