                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

       Beryl Zimmerman v. Sussex County Educational Services Commission
                              (A-75-17) (080861)

Argued January 14, 2019 -- Decided April 30, 2019

LaVECCHIA, J., writing for the Court.

       Within New Jersey’s education statutes, the Tenure Act provides that tenured
teachers shall not be “reduced in compensation.” N.J.S.A. 18A:28-5. The legal issue in
this appeal is whether tenured teachers who served in a part-time capacity pursuant to
negotiated contracts that did not specify a minimum number of guaranteed hours suffered
an impermissible reduction in compensation when their hours were reduced.

       The Sussex County Educational Services Commission (SCESC) provides special
educational services pursuant to Chapter 192, Chapter 193, and the federal Individuals
with Disabilities Education Improvement Act (IDEIA) to students in Sussex County
enrolled in full-time, non-public schools. The number of hours that SCESC’s part-time
staff work is subject to the number of students and the needs of those students; both
fluctuate from school year to school year. Because of the varying demand for services,
part-time teachers are not contractually guaranteed a minimum number of hours.

       Two tenured part-time teachers for the SCESC, Judy Comment and Beryl
Zimmerman, brought this action. They claimed their tenure rights were violated when, in
the 2014-15 school year, their hours were substantially reduced. Moreover, their hours
were limited to Chapter 192 instruction, and, pursuant to an SCESC directive, instruction
groups required a minimum of three students. Due to the reduction in hours, they
received substantially less annual compensation even though their hourly wages
increased. They alleged that some of the work went to non-tenured teachers or to
teachers with less seniority.

       The superintendent of the SCESC asserted that she implemented a directive that
Chapter 192 services would no longer be provided in groups of fewer than three students
unless requested by the student’s child study team. She also asserted that if and when
Zimmerman and/or Comment obtain required certifications, they may return to teaching
Chapter 193 and IDEIA services. The record is bereft of further explanation of the
reasons for the reduction of Comment’s or Zimmerman’s hours in the 2014-15 school
year.
                                            1
       In November 2014, Comment and Zimmerman filed verified petitions of appeal
with the Commissioner of Education. The Commissioner concluded that the teachers did
not have a tenure right to a specified number of hours during the 2014-15 school year.
As held by the Commissioner, although the Tenure Act protects tenured teachers from
reductions in compensation, unless part-time teachers have a contractually guaranteed
minimum number of hours, the mere reduction of hours does not equate to a reduction in
compensation. The Commissioner noted that the hourly rate paid to each teacher was not
decreased.

       The Appellate Division held that the failure to include a minimum number of
hours in the contracts did not deprive the teachers of tenure rights. 453 N.J. Super. 464,
469 (App. Div. 2018). The panel determined that “compensation” means more than
hourly rate, id. at 476-77, and noted further that, although the teachers here had no right
to a guaranteed minimum number of hours, they do have seniority rights, id. at 477. The
panel explained how, if it knew the total number of hours available to be allocated among
the SCESC teaching staff and the “seniority percentage,” it could calculate whether
Comment’s or Zimmerman’s tenure or seniority rights were violated by the assignment of
hours to non-tenured or less-senior part-time teachers. Id. at 478-79. However, the
record did not permit that assessment and, accordingly, the panel remanded. The Court
granted the SCESC’s petition for certification. 234 N.J. 121 (2018).

HELD: Protection of compensation is not restricted to protection of the hourly rate of
pay, and a remand is needed. A record must be created to allow the Commissioner to
assess the SCESC’s reasons for allocating work among its part-time teachers in a manner
that severely reduced the number of hours afforded to the two tenured teachers and
awarded work to non-tenured and less senior staff. The Court thus affirms the judgment
of the Appellate Division but does not encourage a strict arithmetic calculation along the
lines the panel has suggested.

1. N.J.S.A. 18A:28-5 of the Tenure Act provides that tenured teachers “shall not be
dismissed or reduced in compensation except for inefficiency, incapacity, or conduct
unbecoming such a teaching staff member or other just cause.” The Tenure Act is
recognized and construed as remedial legislation. Spiewak v. Board of Education of
Rutherford explained that the Tenure Act “makes tenure a mandatory term and condition
of employment.” 90 N.J. 63, 72 (1982). The Spiewak Court declared that part-time
supplemental teachers were entitled to the rights and privileges of tenure, “if they meet
the specific criteria in N.J.S.A. 18A:28-5.” Id. at 84. Further, dismissal of tenured
teachers when reducing the workforce shall be made on the basis of “seniority.” N.J.S.A.
18A:28-10. The Court has not addressed the meaning of reduction in compensation in
any setting resembling the instant matter. (pp. 14-17)

2. The Appellate Division here concluded that protection of compensation is not
restricted solely to protection of the hourly rate of pay, and the Court agrees. That
                                             2
construction is consistent with Spiewak’s instruction that tenure rights are not subservient
to contractual provisions. Concepts pertinent to the rights of tenured staff, and the
seniority that comes with tenure, come into play. The Court has acknowledged the
obligation of an employer to honor tenured staff’s seniority rights over a non-tenured
applicant and has held that a tenured part-time teacher has seniority rights in seeking a
full-time position with identical responsibilities within his or her certification. Lichtman
v. Bd. of Educ. of Ridgewood, 93 N.J. 362, 364 (1983). (pp. 17-19)

3. Here, the focus is on work being divvied up among tenured and non-tenured part-time
teachers, all of whom have the same caveat in their respective contractual provisions --
the amount of hours is dependent on the number and the needs of the SCESC’s students.
The total amount of work, and the nature of the educational services needed in any given
school year, is beyond the SCESC’s control. However, the SCESC’s position is that its
allocation of that work is not subject to review, so long as an individual teacher’s
respective hourly rate of pay is not reduced. That interpretation would allow an employer
to take unreasonable action, such as reducing the tenured teachers’ annual hours to nil,
effectively creating a dismissal without cause contrary to N.J.S.A. 18A:28-5. An
administrative agency, including a school board, is subject to having its decisions or
actions reviewed under an arbitrary and capricious standard. If an employer such as the
SCESC were to allocate the amount of hours that it has to assign to its certified teaching
staff on an arbitrary and capricious basis, those actions remain subject to review and set-
aside by the Commissioner of Education, should they be challenged. See N.J.S.A.
18A:6-9. (pp. 19-21)

4. The Court affirms the Appellate Division’s decision to remand. A record must be
created to allow the Commissioner to assess under the arbitrary and capricious standard
the SCESC’s reasons for allocating work among its part-time teachers in a manner that
severely reduced the number of hours afforded to the two tenured teachers and awarded
work to non-tenured and less senior staff. The Court provides guidance as to what that
record should contain. The record must identify the considerations that led to the work
assignments allocated by the SCESC. That should include a determination of the
certification requirements for the assignments, consideration of the geography of
assignments and scheduling needs for the schools being serviced, whether unique
educational continuity concerns of the students being serviced were involved in
allocating assignments, and whether, all things considered, preference was given to
tenured staff and senior staff. The Court adds that setting a minimum number of
students for groups does not violate the arbitrary and capricious standard. (pp. 21-22)

5. The Court rejects the teachers’ asserted expectation of entitlement to the annual salary
of their previous year of employment and does not encourage a strict arithmetic
calculation along the lines the Appellate Division has suggested. There are legitimate
management needs factoring into a just allocation of work. However, a just allocation in
this setting must generally favor tenured and more senior staff over non-tenured and less
                                             3
senior staff. Finally, the Court urges the creation of a system by which the SCESC and
like entities explain how work like this is allocated from year to year and why hours are
being reduced. (pp. 22-23)

      The judgment of the Appellate Division is AFFIRMED AS MODIFIED and
the matter is REMANDED to the Commissioner of Education.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.




                                            4
       SUPREME COURT OF NEW JERSEY
             A-75 September Term 2017
                       080861


               Beryl Zimmerman and
                  Judy Comment,

              Petitioners-Respondents,

                          v.

         Sussex County Educational Services
            Commission, Sussex County,

               Respondent-Appellant.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
       453 N.J. Super. 464 (App. Div. 2018).

       Argued                     Decided
   January 14, 2019             April 30, 2019


Brent Pohlman argued the cause for appellant
(Methfessel & Werbel, attorneys; Brent Pohlman, Boris
Shapiro, and Eric L. Harrison, on the briefs).

Donna Arons, Deputy Attorney General, argued the cause
for respondent New Jersey Commissioner of Education
(Gurbir S. Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General, of counsel,
and Eric Apar, Deputy Attorney General, on the brief).




                          1
            Louis P. Bucceri argued the cause for respondents Beryl
            Zimmerman and Judy Comment (Bucceri & Pincus,
            attorneys; Louis P. Bucceri, of counsel and on the brief).


          JUSTICE LaVECCHIA delivered the opinion of the Court.


      Within New Jersey’s education statutes, the Tenure Act provides that

tenured teachers shall not be “reduced in compensation.” N.J.S.A. 18A:28-5.

The legal issue in this appeal is whether tenured teachers who served in a part-

time capacity pursuant to negotiated contracts that did not specify a minimum

number of guaranteed hours suffered an impermissible reduction in

compensation when their hours were reduced.

      Two tenured part-time teachers, who provided compensatory and

remedial special education services to students through the Sussex County

Educational Services Commission (SCESC), initiated this action. The teachers

filed a petition of appeal with the Commissioner of Education, claiming their

tenure rights were violated when, in the 2014-15 school year, their hours were

substantially reduced and, consequently, they received less annual

compensation. They alleged that some of the work went to non-tenured

teachers or to teachers with less seniority.

      The Commissioner held against the teachers, reasoning that their tenure-

right protection from a reduction in compensation was not violated because


                                         2
neither teacher’s respective hourly rate was reduced nor could either teacher

claim any contractually guaranteed minimum number of hours. The Appellate

Division reversed that administrative decision, concluding that the Tenure Act

protects more than the hourly rate of compensation of part-time teachers in

such circumstances. The panel remanded with instructions for the creation of

a more complete record concerning the allocation of work assignments in the

2014-15 school year.

      We granted the SCESC’s petition for certification to consider its

argument that, so long as there is no reduction in the hourly rate, when a

contract does not guarantee a specified amount of hours, a management

reallocation of work that reduces the hours of a part-time teacher does not

create an impermissible reduction in compensation under the Tenure Act. For

the reasons that follow, we affirm as modified the judgment of the Appellate

Division and remand for further proceedings consistent with this opinion.

                                       I.

      We derive the following facts from the joint stipulation of facts and

accompanying exhibits, except where otherwise noted.

      The SCESC provides compensatory and remedial special educational

services pursuant to Chapter 192, Chapter 193, and the federal Individuals

with Disabilities Education Improvement Act (IDEIA) to students in Sussex


                                       3
County who are enrolled in full-time, non-public elementary and secondary

schools.1 See N.J.S.A. 18A:6-51 to -70 (establishing the means for boards of

education to create an educational services commission). Chapter 192 services

include “compensatory education in Basic Skills” and English as a Second

Language (ESL) instruction. Chapter 193 and IDEIA services consist of

remedial special education services.

      The number of hours that SCESC’s part-time staff work is subject to the

number of students and the needs of those students; both fluctuate from school

year to school year. Because of the varying demand for services, part-time

teachers are not contractually guaranteed a minimum number of hours.

      Judy Comment is a tenured part-time teacher who has an instructional

certificate with endorsements as an elementary N-8 teacher, and as a K-12,

“Highly Qualified English Teacher.” The SCESC employed her on a part-time

basis from the 1997-98 school year to the 2014-15 school year to provide



1
  Chapter 192 services provide “preventive and remedial programs . . . to
assist pupils who have academic needs that prevent them from succeeding in
regular school programs.” N.J.S.A. 18A:46A-2(e). Students who are enrolled
full-time in non-public elementary and secondary schools are eligible for
Chapter 192 instruction. See N.J.S.A. 18A:46A-1 to -17. Chapter 193
services provide “remedial services for handicapped children in both public
and nonpublic schools.” N.J.S.A. 18A:46-19.1. The IDEIA, 20 U.S.C.
§§ 1400 to 1482, provides federal funds to school districts to provide special
education and related services designed to meet the needs of children with
disabilities.
                                       4
Chapter 192, 193, and IDEIA-based instruction at various non-public schools

in Sussex County. Her hours fluctuated each year. In her verified petition

filed with the Commissioner, Comment states that her approximate hours for

previous school years were as follows:

          From 1997-98 through 2010-11, 22-32 hours per week

          2011-12, 17 hours per week

          2012-13, 27.5 hours per week

          2013-14, 29.75 hours per week

      In or about September 2014, Comment learned that her schedule would

be reduced to about five hours per week. The joint stipulation of facts, filed

by the parties with the Commissioner, states that in the 2014-15 school year,

Comment was assigned fewer hours per week than in the previous year; her

hours were limited to Chapter 192 instruction; and, pursuant to an SCESC

directive, instruction groups required a minimum of three students. Her annual

income for the 2013-14 school year was $36,838.74. For the 2014-15 school

year, her annual income dropped to $10,331.13. The hourly wage paid to her

in 2013-14 was $32.98; in 2014-15, her hourly rate of pay rose to $33.79.

      Beryl Zimmerman is also a tenured part-time instructor with the SCESC.

She has an educational certificate with an endorsement as an elementary

school teacher. The SCESC employed Zimmerman continuously on a part-

                                         5
time basis from the 2002-03 through the 2014-15 school years. Her hours

fluctuated during her years of employment. Her verified petition states that

her hours were approximately as follows:

            2002-03, 3 hours per week

            2003-04, 3 hours per week

            From 2004-05 through 2012-13, 29.75 hours per week

            2013-14, 28 hours per week

        The joint stipulation of facts states that prior to 2014-15, Zimmerman

provided Chapter 192, 193, and IDEIA-based instruction, but in 2014-15 she

was assigned fewer hours than the prior year and her hours were limited to

Chapter 192 instruction. Also, per an SCESC directive, instruction groups

required a minimum of three students. Her income for 2013-14 was

$27,668.81, and her income for 2014-15 was $19,603.42. Her hourly pay for

2013-14 was $28.98 and for 2014-15 was $29.79.

        The joint stipulation also reveals that three part-time non-tenured

teachers provided Chapter 192 and 193 instruction during the 2014-15 school

year. Two of them also provided IDEIA instruction during the 2014-15 school

year.

        In a sworn statement, the superintendent of the SCESC, Andrea Romano,

provided additional factual assertions not included in the joint stipulation of

                                         6
facts. Prior to the 2014-15 school year, Romano implemented a directive that

Chapter 192 services would no longer be provided in groups of fewer than

three students unless requested by the classified student’s child study team.

During the 2013-14 school year, both Zimmerman and Comment had provided

instruction in groups of fewer than three students, which had the effect of

increasing the number of instructional hours that were provided.

      Romano also asserted that Comment and Zimmerman had improperly

provided Chapter 193 and IDEIA instruction during the 2013-14 school year

because each lacked a “students with disabilities,” “teacher of the

handicapped,” or relevant “Highly Qualified Teacher” certification. In her

statement, Romano explained that providing Chapter 193 and IDEIA

instruction by teachers lacking proper certification is “noncompliant with state

law and the contracts with the local school districts.” That said, Romano

asserted that SCESC offered Comment, who did possess a “Highly Qualified

Teacher” of English certification, the opportunity to teach English to classified

students, but Comment declined. Romano contends that, if and when

Zimmerman and/or Comment obtain the required certifications, they may

return to teaching Chapter 193 and IDEIA services. Notably, Comment and

Zimmerman contest Romano’s assertion of their certification noncompliance.




                                        7
      The record is bereft of further explanation of the reasons for the

reduction of Comment’s or Zimmerman’s hours in the 2014-15 school year.

Thus, the record does not contain any information about: (1) how much of the

reduction in the hours assigned to Comment and Zimmerman was due to the

elimination of classes with fewer than three students; (2) the justification, if

any, for using non-tenured teachers to teach Chapter 192, 193, and IDEIA

classes while tenured teachers had their hours reduced; (3) the number of total

hours available for all relevant Chapter 192, 193, and IDEIA classes compared

with previous years; and (4) any other justification for the decrease in

Comment’s and Zimmerman’s hours and the number of hours by which each of

their schedules was reduced due to each justification.

                                        II.
                                        A.
      In November 2014, Comment and Zimmerman (hereinafter “the

teachers”) filed separate verified petitions of appeal with the Commissioner,

which were consolidated. See N.J.S.A. 18A:6-9 (vesting the Commissioner

with jurisdiction over controversies and disputes arising under the school

laws). Each petition alleged that the teacher’s tenured status under N.J.S.A.

18A:28-5 and seniority rights under N.J.A.C. 6A:32-5.1 entitled her to

maintain her 2013-14 level of employment over non-tenured and less senior

teachers.

                                         8
      The Commissioner transferred the matter to the Office of Administrative

Law as a contested case. The administrative law judge (ALJ) who was

assigned to hear this matter issued an Initial Decision recommending the grant

of summary judgment in favor of the SCESC. The ALJ’s decision held that

for a reduction of a part-time employee’s hours to trigger tenure/seniority

rights, there must be a guarantee of a minimum number of hours. Because

here there was no contractually guaranteed minimum number of hours, the

ALJ determined that the SCESC did not violate the tenure or seniority rights of

the teachers.

                                       B.

      The Commissioner adopted the Initial Decision as her Final Decision,

concluding that teachers did not have a tenure right to a specified number of

hours during the 2014-15 school year. As held by the Commissioner, although

the Tenure Act protects tenured teachers from reductions in compensation,

unless part-time teachers have a contractually guaranteed minimum number of

hours, the mere reduction of hours does not equate to a reduction in

compensation. Importantly, the Commissioner noted that the hourly rate paid

to each teacher was not decreased.




                                       9
                                       C.

      In a published opinion, the Appellate Division identified three questions

that required resolution: (1) whether the failure to include language in the

contracts that guaranteed the teachers a minimum number of hours deprived

them of tenure rights; (2) whether the reduction in hours reduced the teachers’

compensation; and, (3) whether the reduction in hours triggered the teachers’

seniority rights. Zimmerman v. Sussex Cty. Educ. Servs. Comm’n, 453 N.J.

Super. 464, 469 (App. Div. 2018). The panel held that the failure to include a

minimum number of hours in the contracts did not deprive the teachers of

tenure rights. Ibid. The Appellate Division determined that “compensation”

means more than hourly rate, id. at 476-77, and noted further that, although the

teachers here had no right to a guaranteed minimum number of hours, they do

have seniority rights, id. at 477.

      The panel explained how, if it knew the total number of hours available

to be allocated among the SCESC teaching staff and the “seniority

percentage,” it could calculate whether Comment’s or Zimmerman’s tenure or

seniority rights were violated by the assignment of hours to non-tenured or

less-senior part-time teachers. Id. at 478-79. However, the record did not

permit that assessment and, accordingly, the panel remanded for the creation

of a record that would permit assessment of the teachers’ “seniority percentage


                                       10
as compared to each other and the other part-time teachers” in order to

determine whether the decrease in hours violated tenure and seniority rights.

Id. at 478. The Appellate Division decision also invited the Commissioner to

use her expertise to create, on remand, an equally viable alternative for

computing whether seniority rights were violated, as long as the alternative

does not exclusively rely on an hourly rate-of-pay comparison. Id. at 478-79.

                                       D.

      We granted the SCESC’s petition for certification. 234 N.J. 121 (2018).

The arguments of the parties elaborate on their positions taken before the

Appellate Division.

      The SCESC argues that, as part-time teachers with no minimum number

of hours required by their contract, Comment and Zimmerman are not entitled

to a minimum number of hours through tenure or seniority rights. It argues

that “compensation” under the Tenure Act is a contractually negotiated term

and, in this case, the compensation was the hourly rate because there was no

minimum number of hours. The SCESC contends that the Appellate

Division’s “seniority percentage” formula is overly burdensome and does not

adequately consider the fluctuating needs of the employee or the fluctuating

needs of the schools -- the basis for having part-time teachers without a firm

hourly commitment.


                                       11
      In a statement in lieu of brief generally supportive of the SCESC, the

Commissioner of Education asks that her decision be upheld because it is not

arbitrary and capricious, is supported by the record, is consistent with legal

precedent, and does not violate legislative policies.

      On the other hand, Comment and Zimmerman maintain that any

reduction in compensation must comport with the Tenure Act independent of

their contractual language. They contend that if “compensation” under the

Tenure Act were controlled purely by contract, the entire legislative purpose of

the Tenure Act -- to protect teachers against school boards’ abuse of

bargaining power -- would be undermined. The teachers argue that granting

the SCESC the ability to freely reduce hours, without cause, while continuing

to employ and hire non-tenured part-time teachers to perform the same

function, is a violation of their tenure and seniority rights.

                                        III.

                                         A.

      This appeal is from a quasi-judicial decision of an administrative

agency. As such, the general standard of review is well-settled. A long line of

case law recognizes that an appellate court reviews agency decisions under an

arbitrary and capricious standard. In re Stallworth, 208 N.J. 182, 194 (2011)

(“In order to reverse an agency’s judgment, an appellate court must find the


                                         12
agency’s decision to be ‘arbitrary, capricious, or unreasonable, or [] not

supported by substantial credible evidence in the record as a whole.’”

(alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571,

579-80 (1980))); Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562 (1963)

(“[W]e will not upset a determination by the Commission in the absence of a

showing that it was arbitrary, capricious or unreasonable, or that it lacked fair

support in the evidence, or that it violated legislative policies expressed or

implicit in the civil service act.”).

      However, in this matter, a legal question of statutory construction is

involved. The core issue requires an interpretation and application of the word

“compensation” within the Tenure Act. In the judicial performance of that

statutory construction task, we consider the Commissioner of Education’s

interpretation but are not bound by it. See Ardan v. Bd. of Review, Lourdes

Med. Ctr. of Burlington Cty., Inc., 231 N.J. 589, 604 (2018) (“In an appeal

from a final agency decision, an appellate court is ‘in no way bound by the

agency’s interpretation of a statute or its determination of a strictly legal

issue.’” (quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012))). We

give deference “to the interpretation of statutory language by the agency

charged with the expertise and responsibility to administer the scheme,” Acoli

v. State Parole Bd., 224 N.J. 213, 229 (2016); however, we will not uphold an


                                        13
unreasonable interpretation, In re Election Law Enf’t Comm’n Advisory Op.

No. 01-2008, 201 N.J. 254, 260 (2010).

                                       B.

      N.J.S.A. 18A:28-5 of the Tenure Act protects the rights of teachers

employed in the public schools in the State of New Jersey by providing that

tenured teachers “shall not be dismissed or reduced in compensation except for

inefficiency, incapacity, or conduct unbecoming such a teaching staff me mber

or other just cause.” The Tenure Act, codified in full at N.J.S.A. 18A:28-1 to -

18, is recognized and construed as remedial legislation. Spiewak v. Bd. of

Educ. of Rutherford, 90 N.J. 63, 74-75 (1982) (“[B]ecause of its remedial

purpose, the Tenure Act should be liberally construed to achieve its beneficent

ends.”).

      The issue in Spiewak was whether part-time public school teachers

providing remedial and supplementary instruction for many years, albeit on an

hourly basis and often without the benefit of a contract, may acquire tenure.

Id. at 66-67. The teachers “sought a declaration of their employment status

and tenure eligibility, as well as prorated salary and benefits.” Id. at 69. The

Spiewak decision explained that the Tenure Act “makes tenure a mandatory

term and condition of employment. It therefore supersedes contractual terms.”

Id. at 72. The Court observed that tenure protection “would be greatly reduced


                                       14
if it were subject to contract principles,” adding that “[t]enure is not d ependent

on agreement between the parties. Teachers are entitled to tenure because the

Legislature has granted them that right.” Id. at 80.

      In the end, the Court found irrelevant the source of funding for the

positions -- federal Title I funding -- and stated that federal funding did not

exclude the teachers from the protections of the Act. Id. at 82. The Spiewak

Court declared that part-time supplemental teachers were entitled to the rights

and privileges of tenure, “if they meet the specific criteria in N.J.S.A. 18A:28-

5.” Id. at 84. Although the Spiewak decision resolved the acquisition of

tenure by part-time teachers, regardless of the source of funding or fluctuating

need for services, it did not examine all the protections that accompany the

grant of tenure.

      N.J.S.A. 18A:28-5 protects tenured teachers from dismissal or reduction

in compensation except for inefficiency, incapacity, conduct unbecoming, or

other just cause. Further, dismissal of tenured teachers when reducing the

workforce shall be made on the basis of “seniority.” N.J.S.A. 18A:28-10

(“Dismissals resulting from any such reduction shall not be made by reason of

residence, age, sex, marriage, race, religion or political affiliation but shall be

made on the basis of seniority according to standards to be established by the

commissioner with the approval of the state board.”). The Legislature charged


                                         15
the Commissioner of Education with establishing “standards of seniority” for

tenured teachers:

            The commissioner in establishing such standards shall
            classify insofar as practicable the fields or categories of
            administrative, supervisory, teaching or other
            educational services and the fields or categories of
            school nursing services which are being performed in
            the school districts of this state and may, in his
            discretion, determine seniority upon the basis of years
            of service and experience within such fields or
            categories of service as well as in the school system as
            a whole, or both.

            [N.J.S.A. 18A:28-13.]

      Our Court has not addressed the meaning of reduction in compensation

in any setting resembling the instant matter. To the extent that the Appellate

Division has addressed related circumstances in published decisions, two

holdings bear noting.

      In the setting of the abolishment of a teacher’s full-time position in favor

of one of a fraction of a week, the Appellate Division has held that a

“[r]eduction in hours of employment is considered a reduction in force” under

the Tenure Act. Klinger v. Bd. of Educ. of Cranbury Twp., 190 N.J. Super.

354, 357 (App. Div. 1982). There, the Cranbury Board of Education altered

the teaching of its physical education program from two full-time teachers to

two seven-tenths teachers, one man and one woman, who would jointly teach

the physical education classes. Id. at 356. Klinger alleged that he should have
                                        16
been retained as the sole teacher, and be allowed to teach full-time. Ibid.

(noting that Klinger argued that “by reason of his tenure and seniority the

board was required to retain him in a full-time position rather than employing

both him and [the non-tenured female teacher] as part-time teachers”). The

panel held that the reduction in hours was a reduction in force, but added that

the other seven-tenths non-tenured teacher “received no better treatment than

[Klinger, so] his seniority rights were not violated.” Id. at 358.

      A tenured teacher’s seniority rights also were held not to be triggered

when a school board abolished a position and assigned the teacher to another

area within his certification without reducing salary or other employment

benefits of the teacher. Carpenito v. Bd. of Educ. of Rumson, 322 N.J. Super.

522, 528 (App. Div. 1999).

                                       IV.

      The Commissioner’s decision upholding the action of the SCESC relies

on previous Commissioner of Education and school law administrative

decisions, affirmed in unpublished appellate decisions, that approached the

question of what a reduction in compensation means for part-time teachers on

the basis of the contractual terms of the parties. The Commissioner and the

SCESC rely on those past decisions, spanning several decades, to assert a

broad proposition: so long as the hourly rate of pay is not reduced, if a part-


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time teacher’s contractual agreement with a school employer does not

guarantee a minimum amount of hours per week, or presumably, per year, then

fluctuation from year-to-year creates no violation of the tenure right to be

protected from a reduction in compensation.

      The Appellate Division panel was unpersuaded by those earlier

administrative law decisions and it found that the language of the Tenure Act

failed to support that broadly stated proposition in all circumstances. Rather,

the panel concluded that protection of compensation is not restricted solely to

protection of the hourly rate of pay. We agree. Like the Appellate Division,

we also conclude that construction is consistent with Spiewak’s instruction

that tenure rights are not subservient to contractual provisions.

      Tenure rights, once acquired, may not be contractually restricted. They

are statutorily controlled. Thus, concepts pertinent to the rights of tenured

staff, and the seniority that comes with tenure, come into play. See N.J.S.A.

18A:28-5 (describing rights and benefits of tenure); N.J.S.A. 18A:28-13

(describing seniority rights).

      In particular, this Court has acknowledged the obligation of an employer

to recognize and honor tenured staff’s seniority rights over a non-tenured

applicant. In Lichtman, we held that a tenured part-time teaching staff

member has seniority rights in seeking a full-time position within his or her


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certification and with responsibilities identical to those of the part-time

position. Lichtman v. Bd. of Educ. of Ridgewood, 93 N.J. 362, 364 (1983).

Following the elimination of her position as a part-time school librarian, the

librarian applied for a full-time librarian position, but was rejected in favor of

a non-tenured applicant. Id. at 364-65. This Court determined that

“regulations governing the award and calculation of seniority do not evince

any legislative intent to distinguish between full-time and part-time positions.”

Id. at 367. A teacher’s “seniority accrues from her actual service in the

particular position for which she is certified.” Id. at 369. When the nature and

duties of the full-time position are identical to those of the part-time position,

the experience and seniority acquired in the part-time position entitle the

teacher to preference over non-tenured applicants. Ibid.

      Here, the focus is on work being divvied up among tenured and non-

tenured part-time teachers, all of whom have the same caveat in their

respective contractual provisions -- the amount of hours is dependent on the

number of students of the client-school districts to be served by the SCESC

and the needs of those students. There does not appear to be any question that

the total amount of work, and the nature of the educational services needed in

any given school year, is beyond the SCESC’s control. However, the

SCESC’s position is that its allocation of that work is not subject to review, so


                                        19
long as an individual teacher’s respective hourly rate of pay is not reduced.

That position was initially accepted by the Commissioner, but it overlooks the

Tenure Act’s intent to reasonably protect against a reduction in compensation

in settings such as these, where the annual work fluctuates.

      Taken to an extreme, the argument advanced by the SCESC would

permit the effective dismissal of tenured part-time staff in favor of non-tenured

hires because the SCESC asserts the ability to effectively reduce the tenured

teachers’ annual hours to nil, should it so decide. That cannot be permitted

under the Tenure Act’s prohibitions. In addition to effectively creating a

dismissal without cause, contrary to N.J.S.A. 18A:28-5, it allows an employer

to take unreasonable action.

      An administrative agency, including a school board, is subject to having

its decisions or actions reviewed under an arbitrary and capricious standard.

See, e.g., Dennery v. Bd. of Educ. of Passaic Cty. Reg’l High Sch. Dist. No. 1,

131 N.J. 626, 641-42 (1993) (applying the arbitrary, capricious, and

unreasonable standard of review in evaluating a school board reorganization

that led to an alleged violation of tenure rights); see also In re Proposed Quest

Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385-86 (2013)

(collecting cases to highlight the general applicability of the arbitrary,

capricious, and unreasonable standard of review in agency action). If an


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employer such as the SCESC were to allocate the amount of hours that it has to

assign to its certified teaching staff on an arbitrary and capricious basis, those

actions remain subject to review and set-aside by the Commissioner of

Education, should they be challenged. See N.J.S.A. 18A:6-9.

      We are hobbled by the state of the record in this matter and affirm the

Appellate Division’s decision to remand. A record must be created to allow

the Commissioner to assess the SCESC’s reasons for allocating work among

its part-time teachers in a manner that severely reduced the number of hours

afforded to the two tenured teachers and awarded work to non-tenured and less

senior staff. See ACLU of N.J. v. Hendricks, 233 N.J. 181, 201 (2018)

(“Where the agency record is insufficient, we may order a remand to the

agency to more fully develop the record.”).

      The record must identify the considerations that led to the work

assignments allocated by the SCESC. That should include a determination of

the certification requirements for the assignments, consideration of the

geography of assignments and scheduling needs for the schools being serviced,

whether unique educational continuity concerns of the students being serviced

were involved in allocating assignments, and whether, all things considered,

preference was given to tenured staff and senior staff. We add only that the

one educational/management justification that we are aware of in this record --


                                        21
setting a minimum number of students for instructional groups -- does not

violate the arbitrary and capricious standard of review and need not be

revisited on remand.

      In sum, a remand is necessary for a full and proper review of the

SCESC’s justification for its allocation of work, which directly affected the

amount of compensation received by the tenured part-time staff who brought

this action. The justification must be reasonable and not arbitrary or

capricious, as determined by the Commissioner.

      Finally, to the extent that the teachers assert an expectation of

entitlement to the annual salary of their previous year of employment, we

reject that argument. They are entitled to their employer’s reasonable

allocation of available work, subject to the considerations identified herein and

other like considerations that the Commissioner, in her expertise, may add.

      We do not encourage a strict arithmetic calculation along the lines the

Appellate Division has suggested. In resting our analysis on the Tenure Act,

with its inherent expectation of reasonableness and non-arbitrary or capricious

action by an employer that has not guaranteed a minimum amount of hours

when dividing up work, we acknowledge that there are legitimate management

needs factoring into a just allocation of work. However, a just allocation in

this setting must generally favor tenured and more senior staff over non-


                                        22
tenured and less senior staff. Finally, we urge the creation of a system by

which the SCESC and like entities explain how work like this is allocated from

year to year and why hours are being reduced. In the long run, such an

explanation would promote transparency and help avoid litigation.

                                       V.

      The judgment of the Appellate Division is affirmed as modified. The

matter is remanded to the Commissioner of Education for further proceedings

consistent with this opinion.



    CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.




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