concurring in part and dissenting in part.
Plaintiffs have never been given their day in court on their claims to tenure based upon employment by the Garden State School District. I must dissent from the majority’s disposition of those claims without hearing the evidence. The issue is simply not ripe for adjudication by us.
Preliminarily, I note that with respect to the one issue decided by the Appellate Division, I agree with the majority that the State Facilities Education Act, and particularly N.J.S.A. 18A:7B-11, does not perforce grant tenure to teaching-staff members employed in state facilities. I agree that its purpose and effect was to preserve the tenure rights of teaching-staff members previously employed by the Garden State School District. Where I disagree with the majority is in its conclusion that it can resolve without hearing or proof the question whether these plaintiffs were employed by the Garden State School District, a status that could confer tenure.
Plaintiffs’ complaint alleges that each was employed in an institution that was “part of the Garden State School District.” The State moved to dismiss the petition or, in the alternative, for summary judgment, based on the grounds that “res judicata and collateral estoppel bar relitigation of the ultimate issues *136in this matter.” The State relied upon an unpublished companion decision in Ward v. State of New Jersey, Appellate Division Docket No. A-296-82T3 (decided September 29, 1983), holding that teachers employed in educational programs by the Department of Human Services were not entitled to tenure eligibility. The State asserted that since an employee representative participated in that case and the matter had been resolved adversely to the teachers involved, these similarly-situated plaintiffs were barred by the decision.
. The Administrative Law Judge accepted this position and granted the State’s motion. Hence we must look to the Ward record to determine whether correct principles of law were employed in resolving the teachers’ claims.
In the Ward case, the Administrative Law Judge’s findings recognized that, at least insofar as their positions were federally funded, the teachers were employees of the Garden State School District. He found:
The Garden State School District interviewed, hired, supervised and dismissed teachers for the Department of Corrections, determined the certificates required for teachers, conducted teacher workshops, approved calendars, and required reports of educational programs carried in the ten correctional institutions. Only in respect to Title I programs did the Garden State School District become similarly involved with educational programs in the Department of Human Services.
[Ward v. State of New Jersey, OAL Nos. EDU 182-7/78, EDU 1075-81 (Feb. 16, 1982), slip op. at 7, aff'd, App. Div. A-296-82T3 (1983) (emphasis supplied).]
However, he relied upon discredited principle when he concluded:
It is well settled that not all teaching staff members employed by public school districts can attain tenure, although they may perform teaching duties and be holders of certificates issued by the State Board of Examiners. Capella v. Bd. of Ed. of Camden County Voc. Tech. Sch., 145 N.J.Super. 209 (App.Div.1976); Point Pleasant Beach Teachers Ass’n v. Callam, 173 N.J.Super. 11 (App.Div.1980); Biancardi v. Waldwick, 139 N.J.Super. 175 (App.Div.1976), aff'd 73 N.J. 37 (1977).
[Ward, supra, OAL, slip op. at 10.]
These precedents were specifically overruled or limited by our decision in Spiewak v. Rutherford Bd. of Educ., 90 N.J. 63 *137(1982), where we explained that once teaching staff members are employed by a public school district, the source or manner of funding is irrelevant to their legal status. Id. at 82. The language of Spiewak is unflinching on this point. The Court notes that “[b]y focusing on the contractual relations between the parties and not the statutory criteria for tenure, the court in Point Pleasant overlooked the authority which holds that tenure is a legal right governed by statute rather than contract.” Spiewak, supra, 90 N.J. at 76.
I am not impressed by the final point the Administrative Law Judge made in Ward that there is no evidence that the Commissioner of Institutions and Agencies ever formally adopted the second phase of the development of the Garden State School District. Ward, supra, OAL, slip op. at 11. The reader will search in vain the two opinions of the Attorney General dealing with tenure rights of teaching-staff members of the Garden State School District for any reference to this concept of phasing-in the employees. Comparable Tenure Benefits Under N.J.S.A. SOfAA-l et seq., Op. N.J. Att’y Gen. Sept. 11, 1975; Tenure Status of Certificated Teachers, Supervisors or Instructors Assigned to the Garden State School District, Op.N.J.Att’y Gen. Sept. 18, 1980. In his latter opinion, the Attorney General recapitulated the status of the law:
In summary, employees of the [Garden] State school district were eligible to attain tenure when the district was within the Department of Institutions and Agencies in conformity with the requirements of N.J.S.A. 18:28-5. Similarly, employees were tenure eligible when the district was transferred to the Department of Education pursuant to the conditions set forth in N.J.S.A. 18A:60-1. Additionally, tenure could only be attained by those employed in educational programs equivalent to those required in local school districts. Finally, section 14 of the State Facilities Education Act preserves the status of those who had attained tenure prior to the abolition of the State school district, but does not provide an independent basis for certificated employees of the Office of Education in the Department of Human Services and Corrections to acquire tenure in the future. These employees should be afforded the employment protections generally available to State employees.
[Op.N.J.Att’y Gen., Sept. 18, 1980, at 7-8.]
Hence the question is simply this: whether the plaintiffs were employees of “the State School District.” As to that, we *138know from the AU’s findings in Ward that at least insofar as their positions were federally funded, they were employees of the District because of his finding that the District “hired, supervised and dismissed teachers * * * in respect to Title I programs * * *.” Ward, supra, OAL, slip op. at 7. It is of no moment whether the Commissioner thought that the teachers were not tenure-eligible because Phase 2 had not been formally implemented. If Spiewak v. Rutherford Bd. of Educ., supra, 90 N.J. 63, teaches us anything, it is that tenure is a matter of status and not of contract. Hence the subjective mental attitude of the Commissioner is immaterial.
If the State used the Garden State School District as the employer to federally fund educational programs, it implemented Phase 2 in fact, if not in name. It cannot have it both ways. “[Government must ‘turn square corners.’ ” F.M. C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985) (quoting Gruber v. Mayor of Raritan Tp., 73 N.J.Super. 120 (App.Div.), aff'd, 39 N.J. 1 (1962)). I realize that perhaps only a few teachers in our State institutions for the developmentally-disabled will be able to meet the stringent requirements for tenure eligibility under N.J.S.A. 18A:60-1 to -15. For they must prove not only that they met the required years of uninterrupted service, but also that they were employed under a teaching certificate and should survive in many cases, as here, a reduction in force. Having given themselves to the difficult task of educating the most developmentally disabled of our children, and to the needs of students whose only chance for a thorough and efficient education will come within State institutions, these teachers are entitled to have the allegations of their complaint tested on a developed record rather than have them disposed of by resolution of one point raised in an appeal.
In his Petition, the Attorney General emphasized that his gravest concern with the decision below was that “[i]n holding that N.J.S.A. 18A:7B-11 [the State Facilities Education Act] bestows tenure benefits upon Department of Human Services *139teachers, the Lukas court has radically departed from the statute and has substituted its will for that of the Legislature.” We have decided that issue in favor of the Attorney General. That does not, however, resolve the other difficult issues raised by these teachers. In a brief filed below, the teachers reserved these rights:
The petitioners have several legal theories that they believe entitle them to tenure. It must be frankly admitted, however, that facts pertaining to all but one of these theories are in dispute. The present motion therefore is devoted to the one theory to which there is no relevant factual dispute, namely, that the petitioners are entitled to tenure by virtue of Section 15 of the State Facilities Education Act of 1979, N.J.S.A. 18A:7B-ll(b).
It may turn out that pursuit of the teachers’ other theories may not be successful. Still, they are entitled to their day in court. I would remand their cases and those of other teachers similarly situated for a factual hearing on the question whether they were in fact interviewed, hired, supervised, and dismissed by the Garden State School District. If they were, they are entitled to claim tenure-eligibility on the principles of Spiewak v. Rutherford Bd. of Educ., supra, 90 N.J. 63.