Appellate Division Rules that New Jersey Employment Law Ignores Titles When Determining Whether Public School Secretaries Have Acquired Tenure

Attaining tenure is a milestone for public school employees.  Under New Jersey employment law, tenure carries legal protections against termination or discipline without just cause, and requires formal tenure charges and the right to challenge those charges through a hearing and appeal process.  These protections are extremely valuable.

Much literature has been written about tenure requirements for teachers under New Jersey employment law.  However, New Jersey employment law also provides that other public school employees may obtain tenure protection as well.  The Appellate Division addressed the acquisition of tenure for school board secretaries and administrative assistants in the case of Saylor v. Board of Education of the Town of West New York.

 

Background

Chystal Saylor was an employee of the West New York, New Jersey, Board of Education.  She was hired as a secretary in the Business Department in January 2010 for the 2009-2010 school year with a salary of $33,000.  She was reappointed for the 2010-2011 and 2011-2012 school years.  However, in November 2011, her position and contract changed, and she became Administrative Assistant to an assistant superintendent and received a raise to $40,000.  She was reappointed to that position through the 2014-2015 school years with modest raises.  On July 1, 2015, the assistant superintendent she was working for became superintendent, and Saylor was appointed as Secretary to the Superintendent of Schools with a salary of $72,500.  She continued in that position until she was terminated in June 2018 without tenure charges.

Saylor appealed to the New Jersey Commissioner of Education.  She argued that she was a tenured employee and therefore could not be terminated without tenure charges.  The Commissioner transferred the matter to the New Jersey Office of Administrative Law (OAL) where an administrative law judge (ALJ) held a hearing in which the only two witnesses were Saylor and the superintendent.  The ALJ found that she was not entitled to tenure and recommended that Saylor’s termination be upheld.  The Commissioner of Education adopted the ALJ’s recommended decision and upheld Saylor’s termination.  The Board found that she was not a secretary while she was serving as an administrative assistant, and therefore did not have the requisite time for acquiring tenure.  The ALJ also found that as Secretary to the Superintendent Saylor was a ‘confidential employee,’ and therefore not entitled to tenure, although the Commissioner did not focus on this.

Saylor appealed the Commissioner’s decision to the Appellate Division of the Superior Court of New Jersey.  The Appellate Division found that Saylor was not a confidential employee and did have the requisite time for acquiring tenure.  The court therefore found that Saylor could not be fired without tenure charges and a hearing, and therefore reversed the Commissioner’s decision.

 

Acquiring Tenure

New Jersey public school secretaries attain tenure under a different statute that other public school employees.  The Appellate Division explained that:

Any person holding any secretarial or clerical position or employment under a board of education of any school district or under any office thereof’ gains tenure … 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
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[.]

In order to meet the requirements, the employee must hold a position with secretarial duties for the entire period.  The statute also explicitly says “any secretarial or clerical position or employment,” not one particular position.

This process differs significantly from the process for acquiring tenure which teaching staff members are subject to under the TEACHNJ Act.

The Board argued that Saylor’s positions increased when she left the Business Department, and the Commission agreed.  The Commissioner found this controlling and meant she was not still a secretary.  The Appellate Division agreed that Saylor’s duties increased, but emphasized they were still secretarial in nature.  Whether her titles or scope of responsibilities changed was not relevant; the relevant inquiry was the nature of her job responsibilities.  Therefore, because she was still performing secretarial duties and had been for more than three years she was still a secretary and had acquired tenure.  She therefore could not be terminated without tenure charges and the right to challenge them.

 

Confidential Employees

The Appellate Division also rejected the argument that Saylor was a confidential employee.  There was nothing in writing designating her as a confidential employee, and the resolution appointing her did not designate her as a confidential employee.  Moreover, while it is true that some confidential employees (such as State civil service confidential employees), the statute covering tenure for school secretaries does not exclude confidential secretaries.  Rather, it mandates that “any” employee satisfying the statute’s requirements receives tenure.

 

The Bottom Line

School board employees who perform secretarial duties for more than three years achieve tenure regardless of their titles.

 

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