In Re the Closing of Jamesburg High School

The opinion of the Court was delivered by

CLIFFORD, J.

This case arises from an order of the Commissioner of Education, affirmed by the State Board of Education, which transferred tenured teachers previously employed at the now closed Jamesburg High School to the school districts of Monroe Township and Spotswood Borough. The issue is whether the Monroe and Spotswood districts can be required to treat the Jamesburg teachers as tenured faculty within their own systems. The Board of Education’s decision answering that question in the affirmative was reversed by the Appellate Division, 169 N.J.Super. 328 (1979). That court held that in the absence of an agreement between the sending and receiving school districts under N.J.S.A. 18A:28-6.1, Monroe and Spotswood could not be compelled to accept the displaced Jamesburg instructors. We granted certification to review the effect of N.J.S.A. 18A:28-6.1 and the inherent power of the Commissioner of Education to order such a transfer, 81 N.J. 334 (1979). Pending review we stayed the Appellate Division judgment. We now dissolve the stay, modify the judgment below to provide for a limited remand, and, as modified, affirm the judgment of the Appellate Division.

I

On April 4, 1979, the State Board of Education ordered the Jamesburg Board of Education to close its only high school. *544That order was issued after public hearings on the matter and pursuant to the Commissioner of Education’s determination that the school could not be operated in a thorough and efficient manner. At the State Board’s direction Jamesburg residents who had been enrolled as students in the school’s 9th through 12th grades were designated tuition pupils at the Monroe Township High School. By an agreement authorized by the Commissioner, the Helmetta Board of Education and the Spotswood Board of Education entered into a sending-receiving arrangement under which Helmetta residents who had been tuition students at Jamesburg High School were enrolled as tuition students in the Spotswood school system.1

On May 1,1979, the Commissioner found that upon the closing of Jamesburg High School, the tenured teachers employed at that facility should be transferred to the Monroe and Spotswood high schools in proportion to the number of Jamesburg students received by those districts.2 In the opinion of the Commissioner, the transfer was authorized by N.J.S.A. 18A:28-6.1. Stating *545that only a “strained and narrow statutory interpretation” would allow the absence of an agreement between Jamesburg and Monroe and Spotswood to preclude the transfer of the tenured Jamesburg instructors, the Commissioner declared “it was implicit legislative intent to grant protection in employment rights to [tenured] teaching staff members” in such cases.

The Commissioner’s order was unanimously upheld by the State Board of Education.3 Acknowledging that no statute expressly authorized the Commissioner to order the transfer of the Jamesburg teachers, the State Board held that such action was justified by the public policy underlying education law with respect to the rights of tenured teachers. Citing other statutes concerned with employment security for tenured teachers, the State Board found they evinced a policy designed to “protect teaching staff members in their tenure, seniority and pension rights as far as practicable.” See N.J.S.A. 18A:13-42, -49 and :28-15. Although the Board recognized that the “by agreement” language of N.J.S.A. 18A:28-6.1 distinguished it from statutes addressing compelled sending-receiving relationships, it found that the requirement of a sending-receiving agreement should not be interpreted to limit the application of the statute in the face of legislative concern with the rights of tenured teachers.

Applications by Monroe and Spotswood to stay the decision of the State Board were granted by the Appellate Division which, on its own motion, consolidated and accelerated the appeals. In re Closing of Jamesburg High School, 169 N.J.Super. 328 (1979). That court reversed and set aside the determinations of the Commissioner and the State Board of Education, concluding that the Commissioner lacked any authority, express or inherent, to transfer the instructors without the consent of the receiving districts. Id. at 333-34. Stating that “[administrative officers *546may exercise only such authority as is conferred by statute, expressly or by unavoidable implication,” id. at 334, the court found that N.J.S.A. 18A:28-6.1 did not confer such power. It noted that the words “by agreement with another board of education” had been inserted by amendment to the original draft of the statute, and ruled that in the absence of authority to the contrary, those words should be accorded their plain meaning. See id. at 331, 333. The Appellate Division determined that the disputed language v/as intended to limit the application of the statute to those situations in which the receiving district has consented to the transfer of the teachers. Id. at 333. To that end the court declared:

While a school district may be compelled to become a receiving district [for displaced students], N.J.S.A. 18A:38-8, there is no provision in the law which compels a receiving district against its will to also accept the transfer of teachers from a school which has closed in another district. The desirability of such a provision is clearly for the legislature and not the courts to determine. [Id. at 333-34.]

This Court stayed the Appellate Division judgment in order to maintain the Monroe and Spotswood teaching staffs in status quo for the 1979-80 school year.

II

Our discussion here necessarily begins with a review of the statute in question. Encaptioned “Tenure upon Discontinuance of School,” N.J.S.A. 18A:28-6.1 provides in pertinent part:

Whenever, heretofore or hereafter, any board of education in any school district in this state shall discontinue any high school, junior high school, elementary school or any one or more of the grades from kindergarten through grade 12 in the district and shall, by agreement with another board of education, send the pupils in such schools or grades to such other district, all teaching staff members who are assigned for a majority of their time in such school, grade or grades and who had tenure of office at the time such schools or grades are discontinued shall be employed by the board of education of such other district in the same or nearest equivalent position * * *. Teaching staff members so employed in such other district shall have their rights to tenure, seniority, pension and accumulated leave of absence, accorded under the laws of this State, recognized and preserved by the board of education of that district. [N.J.S.A. 18A:28-6.1 (emphasis added).]

Of central concern is the statute’s provision that upon the discontinuation of a school, specified students and tenured *547teachers from that school may be transferred “by agreement with another board of education” to another school district. In this case it is acknowledged that there was no agreement by the Monroe or Spotswood Boards of Education to accept the transfer of tenured teachers formerly employed at Jamesburg High School. Monroe and Spotswood contend that although they can be required to receive the students from Jamesburg, see N.J. S.A. 18A:38-8, they cannot be obligated to accept the tenured teachers without their consent. Counsel for the appellants argue that the legislative intent to protect the rights of tenured teachers, rather than the existence of an agreement, is controlling.

The Appellate Division found N.J.S.A. 18A:28-6.1 to be clear in its terms and operation. It held the authority to transfer tenured teachers under the statute is plainly conditioned upon a consensual relationship between the sending and receiving school districts. Absent such an agreement, a transfer may not be undertaken. We agree. The words of the statute require exactly what they say—an agreement between the concerned Boards of Education. The statement is unequivocal. Fundamental principles of statutory construction require that “[i]f the [statutory] language is plain, unambiguous and uncontrolled by other parts of the act or other acts upon the same subject the court cannot give it a different meaning.” C. D. Sands, 2A Sutherland Statutory Construction § 46.01 (4th ed. 1973). This standard of interpretation has been consistently employed by the courts of this State. See Fahey v. Jersey City, 52 N.J. 103, 107 (1968); Duke Power Co. v. Patten, 20 N.J. 42,49 (1955); Imbriacco v. State Civil Service Comm’n, 150 N.J.Super. 105, 109 (App.Div.1977); In re Public Hearings on the Amended Determination of the Commuter Operating Agency for Fiscal Year 1975-1976, 142 N.J.Super. 136, 158 (App.Div.), certif. den., 72 N.J. 457 (1976). It applies with equal force to resolve the question of construction presented in this case.

We find unpersuasive the appellants’ contentions that the expressed legislative intent favoring the rights of tenured teachers should control this Court’s interpretation of N.J.S.A. 18A:28-*5486.1. The statute’s design is clear: to provide employment protection to tenured educational instructors transferred by consensual arrangement to another school district, and to furnish the same protection to tenured teachers in the receiving district. However, that salutary objective cannot be secured by extending the law to situations in which it was not intended to apply. The statute’s requirement of a consensual arrangement is manifest. Such a construction in no way evades the purpose of the law. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 160 (1979); Hasbrouck Heights Hosp. Ass’n v. Borough of Hasbrouck Heights, 15 N.J. 447, 453 (1954). Rather, it recognizes the limitation on tenure protection which the legislature itself has chosen to impose. We do not perceive any intention on the part of the legislature to grant unqualified preservation of tenure rights in every instance of a school closing or formation of a sending-receiving relationship.

Our duty is to construe and apply the statute as enacted. We are not at liberty to presume the legislature intended something other than what it expressed by its plain language. This Court will not engage in conjecture or surmise which will circumvent the plain meaning of the act. Gangemi v. Berry, 25 N.J. 1, 10 (1957); Bravand v. Neeld, 35 N.J.Super. 42, 52 (App.Div.1955). Appellants’ recourse lies with the legislature, not with this Court.

Ill

Similarly without merit are the appellants’ contentions that the Commissioner of Education possesses fhe inherent authority under N.J.S.A. 18A:28-6.1 to order the transfer of the tenured Jamesburg teachers to the Monroe and Spotswood School Districts. In their view the grant of jurisdiction to the Commissioner “to hear and determine * * * all controversies and disputes arising under the school laws”, N.J.S.A. 18A:6-9, vests him with the power to fashion substantive rules pertaining to teacher tenure. Appellants claim that this jurisdiction, coupled with the demonstrated legislative concern regarding educational tenure, effectively justifies the Commissioner’s action in this case. They are mistaken.

*549Unlike the decision to close Jamesburg High School, the Commissioner’s determination to transfer the Jamesburg teachers to Monroe and Spotswood did not purport to be in any way grounded upon considerations of affording the students a thorough and efficient education. See N.J.S.A. 18A:7A-15; n. 1 supra at 544.4 At oral argument appellants conceded as much. Rather, the ruling was based on the Commissioner’s interpretation of N.J.S.A. 18A:28-6.1. In that regard he found that “N.J. S.A. 18A:28-6.1 does control in the instant matter [and that] it was the implicit legislative intent to grant protection in employment rights to teaching staff members with long and satisfactory service in such circumstances as here presented.”

Assessing the Commissioner’s findings we must first note that N.J.S.A. 18A:28-6.1 in fact does not support his action in the instant matter. As previously illustrated, supra at 546-547, the statute expressly requires an agreement between the involved Boards of Education. That prerequisite was conspicuously absent here, thus precluding sanction of the transfer under the statute.

We must reject also the notion that the Commissioner has the inherent authority under N.J.S.A. 18A:28-6.1 to order such a transfer. “[A]n administrative officer is a creature of legislation who must act only within the bounds of the authority delegated to him.” Elizabeth Fed. Sav. & Loan Ass’n v. Howell, 24 N.J. 488, 499 (1957). Where there exists reasonable doubt as to whether'such power is vested in the administrative body, the power is denied. Swede v. City of Clifton, 22 N.J. 303, 312 (1956). Although the declared purpose of N.J.S.A. 18A:28-6.1 is to provide employment security to tenured faculty, our reading of the statute reveals no indication that this objective can be achieved other than by the means provided—namely, consensual *550arrangement. Specifically, we fail to see any indication that the statute provides the Commissioner with the discretion to require such a result.

In holding the Commissioner was without the authority to compel the transfer in this case, the Appellate Division relied upon the decision of this Court in Burlington Cty. Evergreen Mental Hosp. v. Cooper, 56 N.J. 579 (1970). The reference is appropriate. In Cooper, the Court was presented with the question of whether the Public Employment Relations Law, N.J.S.A. 34:13A-1 et seq., granted the Public Employment Relations Commission the power to proscribe certain activities as constituting unfair labor practices in violation of the Act. The Commission maintained that such authority was inherent in its broad jurisdictional grant to prevent and settle labor disputes in the public and private sectors. Rejecting the Commission’s argument, the Court declared:

Whether PERC should be invested with authority to hear and decide unfair labor practice charges and to issue various types of affirmative remedial orders respecting them is an important policy question. In our judgment, a policy question of that significance lies in the legislative domain and should be resolved there. A court should not find such authority in an agency unless the statute under consideration confers it expressly or by unavoidable implication. [56 N.J. at 598.] 5

The reasoning in Cooper is applicable to the matter at hand. Whether the Commissioner or, for that matter, the State Board of Education can enlarge the bounds of existing protection of teachers’ tenure is “an important policy question.” Clearly, such power is not conferred by the express terms of N.J.S.A. 18A:28-6.1. Similarly, the grant of jurisdiction to the Commissioner and of supervisory power to the State Board does not by unavoidable implication vest either with the power to create substantive law governing teacher tenure. N.J.S.A. 18A:28-6.1 plainly does not *551provide for the transfer of the tenured teachers under the facts here presented and neither the Commissioner nor the State Board possesses the inherent authority under the statute to order such action.

Finally, we note that the invalid order of the State Board may have caused local school boards in Monroe and Spotswood to discharge instructors in their schools to accommodate tenured employees from Jamesburg. We therefore remand the matter to the Commissioner of Education to determine whether this has occurred, and to fashion any appropriate remedy. See N.J.S.A. 18A:6-9. To this limited extent we modify the judgment below. We do not retain jurisdiction.

The stay is dissolved. The judgment of the Appellate Division is modified to provide for a limited remand, and, as modified, is affirmed.

The Commissioner of Education purported to close Jamesburg High School pursuant to the authority vested in him under N.J.S.A. 18:7A-15; and the asserted authority for the order designating Monroe and Spotswood as the receiving districts for the Jamesburg students was N.J.S.A. 18A:38-8. These determinations, originating in a separate proceeding, were subsequently upheld by the Appellate Division in an unreported decision. Any implicit suggestion of the dissenters to the contrary notwithstanding, these prior determinations are not at issue here and we are not called upon to decide their propriety.

Additionally, no appellant has even cited N.J.S.A. 18A:7A-15, much less argued that that statute provides authority for the Commissioner’s order at issue in this case. Surely the better practice for an appellate court is to eschew consideration of issues not created by the record, not raised on appeal, and not argued by the parties. See United States Trust Co. v. State, 69 N.J. 253, 257 (1976), rev’d on other grounds, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92, rehearing den., 431 U.S. 975, 97 S.Ct. 2942, 53 L.Ed.2d 1073 (1977); Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973); see infra at 549.

Under the State Board’s order, 75% of the displaced Jamesburg students were sent to Monroe and the balance to Spotswood. In accordance with that distribution, twelve of the sixteen tenured Jamesburg teachers involved were sent to Monroe and the remaining four to Spotswood.

The affirmance of the Commissioner’s findings was subject to the modification of the State Board that if possible, qualifying teachers be afforded the right to remain in the Jamesburg school system, by filling available positions at the grade school level. See N.J.S.A. 18A:28-6.1.

The question of whether the Commissioner’s action in this case might be justified under his pervasive authority to provide for thorough and efficient education was neither raised by the Commissioner nor argued by the parties. N.J.S.A. 18A:7A—15; N.J.S.A. 18A:7A-5(c), (g). As it is beyond the scope of the appeal now before the Court, any determination of the issue would be inappropriate.

It should be noted that in 1974, the Public Employment Relations Commission was granted exclusive jurisdiction over unfair labor practices. L.1974 c. 123 § 1; see Patrolmen’s Benevolent Ass’n v. Montclair, 70 N.J. 130 (1976); N.J.S.A. 34:13A-5.4(c). The analysis employed by the Cooper Court, however, remains undisturbed and unimpaired. See Board of Trustees of Mercer Cty. College v. Sypek, 160 N.J.Super. 452, 462 (App.Div.), certif. den., 78 N.J. 327 (1978).