                        NOT FOR PUBLICATION WITHOUT THE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-0078-16T3

BRENDA MILLER,

        Petitioner-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT
OF THE CITY OF NEWARK, ESSEX
COUNTY,

     Respondent-Respondent.
________________________________

              Argued February 5, 2018 – Decided July 27, 2018

              Before Judges Vernoia and DeAlmeida.

              On appeal from the Commissioner of Education,
              Agency Docket No. 301-10/14.

              William P. Hannan argued the cause for
              appellant (Oxfeld Cohen, PC, attorneys;
              William P. Hannan, of counsel and on the
              brief).

              Shana T. Don argued the cause for respondent
              Newark Public School District (Scarinci &
              Hollenbeck, LLC, attorneys; Ramon E. Rivera,
              of counsel; Jason T. Mushnick and Shana T.
              Don, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent New Jersey Commissioner of
              Education (Nicole T. Castiglione, Deputy
          Attorney General, on the statement in lieu of
          brief).

PER CURIAM

     Plaintiff   Brenda   Miller    appeals   from   the   New    Jersey

Commissioner of Education's final agency decisions dismissing her

claims that her employment with the State Operated School District

of the City of Newark (the District) was terminated in violation

of her tenure rights under N.J.S.A. 18A:17-2, and the termination

was void because it was effectuated without the proper delegation

of authority by the District's superintendent. Because we conclude

the termination of plaintiff's employment violated her tenure

rights under N.J.S.A. 18A:17-2, we reverse.

                                   I.

     The relevant facts are not disputed.     Plaintiff was hired by

the District on May 4, 1998, and held various provisional titles

until her permanent appointment to the title of Senior Clerk on

April 1, 2004.   She held that position until her transfer to the

title of Secretarial Assistant, Typing on July 23, 2007. Effective

June 16, 2012, her title was renamed Secretarial Assistant.           The

parties agree that all of the foregoing positions were classified

titles under the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to

12-6.




                                   2                             A-0078-16T3
     Effective July 2012, the District reclassified plaintiff's

position to the unclassified title of Confidential Assistant.            In

a letter to plaintiff sent almost seventeen months later, the

District confirmed plaintiff's July 2, 2012 reassignment to the

Confidential Assistant position, and advised the new position was

"unaffiliated" and therefore no longer governed by the Act.             The

letter explained that plaintiff's employment record would reflect

she resigned from her Civil Service title effective June 30, 2012,

and would "no longer be afforded Civil Service rights." The letter

further informed plaintiff she could "request consideration for

reemployment in [her] prior Civil Service title" with the District

"by indicating [her] availability within three (3) years of the

date of [her] resignation."       Plaintiff did not appeal her transfer

to the unclassified position, or the District's confirmation of

her resignation from the classified position, to the Civil Service

Commission.

     More than two years later, on August 15, 2014, the District's

Chief Talent Officer, Vanessa Rodriguez, sent plaintiff a letter

terminating her employment.          Plaintiff appealed to the Civil

Service   Commission,   arguing    the   termination   violated   the   Act

because she was entitled to return to the permanent classified

position she held prior to the 2012 transfer.          The Civil Service

Commission dismissed her appeal, finding plaintiff acquiesced to

                                     3                            A-0078-16T3
the 2012 transfer and effectively resigned from her classified

position at that time.        The Commission concluded plaintiff was

terminated from her classified position in 2012, and had no right

to challenge the 2014 termination from her unclassified position

under the Act.    There is no record showing plaintiff appealed the

Commission's decision.

    Plaintiff also appealed her termination to the Commissioner

of Education.    She alleged her termination was unlawful because

she had tenure under N.J.S.A. 18A:17-2 in her position as a

Confidential Assistant, and Rodriguez lacked the authority to

terminate her.    In a December 9, 2015 decision, an Administrative

Law Judge (ALJ) granted summary disposition in plaintiff's favor

finding plaintiff had tenure under N.J.S.A. 18A:17-2 because she

had been employed by the District in secretarial positions for

more than three consecutive years.         The ALJ concluded plaintiff's

termination violated her tenure rights under N.J.S.A. 18A:17-2,

and recommended plaintiff's reinstatement.

    The District filed exceptions to the ALJ's decision, and the

Commissioner    rejected     the   ALJ's   recommended   decision.          The

Commissioner    determined    plaintiff    did   not   earn   tenure     under

N.J.S.A. 18A:17-2 while she served in classified positions under

the Act because N.J.S.A. 18A:28-2 provides that "[n]o person, who

is in the classified service of the civil service of the state

                                      4                                A-0078-16T3
pursuant to Title 11, Civil Service . . . , shall be affected by

any provisions of this chapter."1             The Commissioner concluded

plaintiff accrued credit toward tenure under N.J.S.A. 18A:17-2

only   during   the   period   following     her   2012   transfer    to   the

unclassified position, and that because she had not served in that

position for three consecutive years prior to her termination, she

did not have tenure rights under the statute.             The Commissioner

dismissed plaintiff's claim that her termination violated her

tenure rights under N.J.S.A. 18A:17-2, and remanded for the ALJ

to consider plaintiff's remaining claim – that Rodriguez lacked

the authority to terminate her employment.

       On remand before the ALJ, the parties relied solely on written

submissions.     The ALJ considered a certification from Larisa

Shambaugh, who stated she was "fully familiar with the facts and

circumstances    associated    with       [plaintiff's]   case,"     and   was

appointed the District's Interim Chief Talent Officer following

Rodriguez's resignation in January 2016.            Shambaugh stated the

State-appointed Superintendent has responsibility for the hiring



1
   We note that although N.J.S.A. 18A:28-2 expressly references
Title 11, "[i]n 1986, the Legislature passed the current Civil
Service Act, repealing Title 11 and establishing Title 11A of the
New Jersey Statues."   In re Reallocation of Prob. Officer, 441
N.J. Super. 434, 444 (App. Div. 2015); L. 1986, c. 112.        We
construe N.J.S.A. 18A:18-2's reference to Title 11 to include
Title 11A.

                                      5                               A-0078-16T3
and firing of District employees and "delegates to the Chief Talent

Officer the responsibility to communicate with District employees

regarding      their     employment."         Attached       to      Shambaugh's

certification is a job description for the District Chief Talent

Officer, the position Rodriguez held when she sent the August 2014

letter terminating plaintiff's employment.

     The District also submitted a certification from Christopher

Cerf, who replaced Cami Anderson as the District Superintendent

in July 2016.     Cerf stated that Anderson delegated the authority

to hire and fire the District's "non-civil service employees" to

Rodriguez, and that upon his appointment as Superintendent, he

continued that delegation of authority to Rodriguez and, following

her resignation, to Shambaugh.

     The ALJ found the certifications convincing.                  He determined

N.J.S.A.      18A:7A-42(a)(3)      authorized    the      Superintendent        to

"delegate to subordinate officers or employees in the district any

of his powers or duties as he may deem desirable to be exercised

under   his     supervision     and    direction,"     and    concluded       the

certifications     and    Chief    Talent     Officer's      job     description

established Rodriguez had the delegated authority to terminate

plaintiff's     employment    in      2014.     The    ALJ   also     found     it

"inconceivable" that in a District "consist[ing] of seventy-four

schools serving 39,440 students," the Superintendent "would micro-

                                        6                                A-0078-16T3
manage every personnel decision," and "logical" that decisions

concerning the duty to hire and fire unclassified employees would

be delegated to the Chief Talent Officer whose job description

required "leadership in all matters related to talent management."

     The ALJ also found plaintiff had the burden of establishing

by a preponderance of the evidence that Rodriguez lacked the

requisite delegated authority, and she failed to sustain her burden

because she offered nothing more than "a bald assertion that the

State-Appointed Superintendent did not delegate the authority" to

Rodriguez.     The ALJ noted that plaintiff failed to present any

evidence    refuting   the   Shambaugh      and     Cerf   certifications,      and

concluded the "unrefuted evidence supports [a finding] of proper

delegation    of   authority."     The      ALJ   recommended     dismissal       of

plaintiff's claim Rodriguez lacked the authority to terminate her

employment.

     The      Commissioner      adopted       the      ALJ's     findings       and

recommendation, and determined that in 2014 the Superintendent

delegated her authority to terminate plaintiff's employment to

Rodriguez     in   accordance    with       N.J.S.A.       18A:7A-42(b).        The

Commissioner, relying on the Shambaugh and Cerf certifications and

the lack of any evidence from plaintiff refuting them, concluded

plaintiff failed to sustain her burden of showing Rodriguez lacked

the authority to terminate her employment.

                                        7                                  A-0078-16T3
     On appeal, plaintiff challenges the Commissioner's decisions,

and presents the following arguments:

          POINT I

          STANDARD OF REVIEW OF AGENCY DECISION.

          POINT II

          THE COMMISSIONER OF EDUCATION ERRED IN FINDING
          THAT [PLAINTIFF] DID NOT HAVE TENURE UNDER
          . . . TITLE 18A AT THE TIME OF HER TERMINATION.

          a. The Commissioner's Narrow Application of
          N.J.S.A.   18A:17-2    Ignores   the   Long-
          Established Requirement that Tenure Statutes
          Are to be Liberally Construed in Favor of
          Employees and [Plaintiff] Satisfied the
          Express Terms of the Statute.

          b. The Commissioner Erred by Applying N.J.S.A.
          18A:28-2 to [Plaintiff] as a Non-Teaching
          Staff Member.

          POINT III

          THE COMMISSIONER ERRED BY [DISMISSING] COUNT
          TWO OF [PLAINTIFF'S] PETITION BECAUSE THE
          DISTRICT PRESENTED NO CREDIBLE EVIDENCE TO
          DEMONSTRATE THAT THE AUTHORITY TO TERMINATE
          [PLAINTIFF] HAD BEEN PROPERLY DESIGNATED TO
          THE CHIEF TALENT OFFICER PURSUANT TO LAW.

                               II.

     "The scope of appellate review of a final agency decision is

limited," and we will not overturn an agency's final decision "in

the absence of a showing that it was arbitrary, capricious or

unreasonable, or that it lacked fair support in the evidence."     In



                                8                           A-0078-16T3
re   Carter,    191   N.J.     474,   482   (2007)    (citations    omitted).

Generally, our review of an agency decision is

             restricted to three inquiries: (1) whether the
             agency's action violates express or implied
             legislative policies, that is, did the agency
             follow the law; (2) whether the record
             contains substantial evidence to support the
             findings on which the agency based its action;
             and (3) whether in applying the legislative
             policies to the facts, the agency clearly
             erred in reaching a conclusion that could not
             reasonably have been made on a showing of the
             relevant factors.

             [In re Proposed Quest Acad. Charter Sch., 216
             N.J. 370, 385 (2013) (quoting Mazza v. Bd. of
             Trs., 143 N.J. 22, 25 (1995)).]

The person challenging an agency action has "[t]he burden of

showing that an action was arbitrary, unreasonable or capricious."

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.

Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med.

Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div.

1986)).

     Although "we respect an agency's expertise and will 'defer

to the specialized or technical expertise of the agency charged

with administration of a regulatory system,' we are 'in no way

bound   by    the   agency's    interpretation       of   a   statute   or   its

determination of a strictly legal issue.'"                DiNapoli v. Bd. of

Educ. of Twp. of Verona, 434 N.J. Super. 233, 236-37 (App. Div.

2014) (first quoting In re Virtua-West Jersey Hosp. Voorhees, 194

                                       9                                A-0078-16T3
N.J. 413, 422 (2008); and then quoting Mayflower Sec. Co. v. Bureau

of Secs., 64 N.J. 85, 93 (1973)).                   "Statutory interpretation

involves the examination of legal issues and is, therefore, a

question of law subject to de novo review."                      Saccone v. Bd. of

Trs.   of   Police   and   Firemen's       Ret.     Sys.,    219     N.J.     369,   380

(citations omitted) (citing McGovern v. Rutgers, 211 N.J. 94, 107-

08 (2012)).

       The Commissioner's rejection of plaintiff's claim that her

termination    violated     her     tenure       rights     is      founded    on    his

interpretation of N.J.S.A. 18A:17-2 and N.J.S.A. 18A:28-2.                           The

Commissioner    recognized        that     under        N.J.S.A.     18A:17-2(b),       a

secretary employed by a board of education has tenure after "the

expiration of a period of employment of three consecutive years,"

and plaintiff was employed in secretarial positions for that period

of time during her employment by the District.                     The Commissioner,

however,    found    plaintiff's         years     of     service     in    classified

secretarial positions prior to her 2012 reassignment could not be

counted toward the time of service requirements for tenure under

N.J.S.A. 18A:17-2, because N.J.S.A. 18A:28-2 provides that "[n]o

person, who is in the classified service of the civil service

. . . pursuant to Title 11 . . . shall be affected by any provisions

of this chapter."



                                         10                                     A-0078-16T3
      An appellate court's primary purpose in construing a statute

is to "discern the meaning and intent of the Legislature."                 State

v. Gandhi, 201 N.J. 161, 176 (2010).          "There is no more persuasive

evidence    of   legislative   intent     than   the    words   by    which   the

Legislature undertook to express its purpose; therefore, we first

look to the plain language of the statute."             Perez v. Zagami, LLC,

218 N.J. 202, 209-10 (2014).         "We ascribe to the statutory words

their ordinary meaning and significance, and read them in context

with related provisions so as to give sense to the legislation as

a whole."    DiProspero v. Penn, 183 N.J. 477, 492 (2005) (internal

citation omitted).     Where "the plain language leads to a clear and

unambiguous result, . . . our interpretive process is over."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J.

189, 195 (2007).     When the statutory language "clearly reveals the

meaning of the statute, the court's sole function is to enforce

the statute in accordance with those terms."              McCann v. Clerk of

Jersey City, 167 N.J. 311, 320 (2001) (quoting SASCO 1997 NI, LLC

v. Zudkewich, 166 N.J. 579, 586 (2001)).

      Plaintiff    contends    she   earned   tenure     in   her    secretarial

positions under N.J.S.A. 18A:17-2, which "defines the conditions

under which secretarial employees of a board of education are

entitled to the security of tenure."             DiNapoli, 434 N.J. Super.

at   237.    The   statute    provides    that   "any    person     holding   any

                                     11                                  A-0078-16T3
secretarial or clerical position" has tenure after either "[t]he

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 of education, or "[e]mployment for three consecutive

academic years, together with employment at the beginning of the

next succeeding academic year."               N.J.S.A. 18A:17-2(b)(1) and (2).

"To   acquire   the       security    of    tenure,     the       precise   conditions

enunciated in . . .           [N.J.S.A. 18A:17-2] must be met."              DiNapoli,

434 N.J. Super. at 237-38.

      It is undisputed that plaintiff held secretarial positions

following     her     permanent       appointment       in        2004    through    her

termination in 2014, and therefore was employed for a sufficient

period   of   time       to   earn   tenure     under   N.J.S.A.         18A:17-2.    The

Commissioner, however, rejected plaintiff's claim she had tenure

rights under N.J.S.A. 18A:17-2 based on the conclusion plaintiff

did not accrue credit toward the time in employment requirements

of the statute during her employment in the classified Civil

Service positions.

      The Commissioner determined that N.J.S.A. 18A:28-2 barred

consideration       of    plaintiff's      employment        in    classified       Civil

Service positions in the calculation of the time in employment

requirements for tenure under N.J.S.A. 18A:17-2.                    N.J.S.A. 18A:28-

2 provides:

                                           12                                   A-0078-16T3
          No person, who is in the classified service
          of the civil service of the state pursuant to
          Title 11, Civil Service, of the Revised
          Statutes, shall be affected by any provision
          of this chapter.

          [(Emphasis added).]

The Commissioner reasoned that because N.J.S.A. 18A:28-2 provides

that "[n]o person" who holds a classified Civil Service title

"shall be affected by any provision of this chapter," plaintiff's

employment in her Civil Service position could not be considered

in determining if she satisfied the time in employment requirements

for tenure under N.J.S.A. 18A:17-2.   We disagree.

     N.J.S.A. 18A:28-2 was enacted in 1967, L. 1967, c. 271, and

included in the chapter of Title 18A entitled "Tenure," which the

Legislature designated as Chapter 28.    N.J.S.A. 18A:28-2's plain

language makes clear that individuals in classified Civil Service

positions are not "affected by any provision of" Chapter 28.       The

statute is expressly limited in its applicability — it renders

Chapter 28's tenure provisions inapplicable to persons holding

classified Civil Service positions.

     The fatal flaw in the Commissioner's reasoning is that Chapter

28's tenure provisions are inapplicable to individuals, such as

plaintiff,   holding   secretarial    positions,     and   thus    are

inapplicable to the determination of plaintiff's tenure.     Chapter

28 is bereft of any provisions concerning the tenure rights of

                                13                            A-0078-16T3
secretarial employees.           Chapter 28 pertains exclusively to the

tenure     rights   of   teaching     staff   members      in    public    school

districts.2     See,     e.g.,    DiNapoli,   434   N.J.   Super.    at    240-41

(comparing tenure rights of secretaries under N.J.S.A. 18A:17-2

with the rights of teaching staff members under N.J.S.A. 18A:28-6

and superintendents under N.J.S.A. 18A:17-20.4).

     The    plain   language     of   N.J.S.A.   18A:28-2       exempts   persons

employed in classified Civil Service titles from the "provisions

of" Chapter 28, but does not exempt employees in classified titles

from the tenure provisions in other chapters of Title 18A.                  Thus,

N.J.S.A. 18A:28-2 applies only to "teaching staff member[s]" who

hold classified Civil Service titles because they are the only

employees "affected by" Chapter 28's tenure provisions.

     Moreover, although N.J.S.A. 18A:17-2 was enacted at the same

time as N.J.S.A. 18A:28-2, L. 1999, c. 271, the Legislature chose


2
    N.J.S.A. 18A:28-4 provides that, with defined exceptions,
"teaching staff member[s]" who do not hold "an appropriate
certificate for such position" may not accrue tenure. N.J.S.A.
18A:28-5 details the tenure requirements for "teaching staff
members," N.J.S.A. 18A:28-5.1 provides that certain "tenured
teaching staff member[s]" may transfer their tenure rights when
accepting positions in underperforming schools, and N.J.S.A.
18A:28-6 describes the effects of transfers and promotions on the
tenure of "teaching staff member[s]." Chapter 28 further provides
for teaching staff member tenure rights upon discontinuance of
school, N.J.S.A. 18A:28-6.1, and termination of tenured teaching
staff members, N.J.S.A. 18A:28-8 to -14, and the effects of a
change of government on teaching staff members, N.J.S.A. 28:28-
15.

                                       14                                 A-0078-16T3
not to include in N.J.S.A. 18A:17-2 the Civil Service exemption

set forth in N.J.S.A. 18A:28-2.           "When the Legislature expressly

includes a requirement in one section and excludes that same

requirement in other subsections of the same general statute, we

need not strain to import that requirement where it is not."                In

re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004).

     The Commissioner's application of N.J.S.A. 18A:28-2 to limit

plaintiff's   tenure   rights   under      Chapter   17   ignores   that   the

statute's application is expressly limited to "this chapter" –

Chapter 28 – of Title 18A.      "We cannot assume that the Legislature

used meaningless language" in a statute, McCann, 167 N.J. at 321

(quoting Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969)),

and are required to give effect to the words of the law as written,

see Johnson v. Johnson, 204 N.J. 529, 553 (2010) (citation omitted)

("[C]ourts    should   adhere   to   the     legislation    as   written.").

Applying those principles, any limitations imposed by N.J.S.A.

18A:28-2 pertain only to tenure rights of teaching staff members

"affected" by Title 28.

     It was therefore error for the Commissioner to conclude

plaintiff's time employed in classified Civil Service titles could

not be considered in determining plaintiff's tenure rights under

N.J.S.A. 18A:17-2.      By its plain terms, N.J.S.A. 18A:28-2 is



                                     15                              A-0078-16T3
limited to "this chapter" — Chapter 28 — of Title 18A.     Thus, it

is inapplicable to tenure rights earned under N.J.S.A. 18A:17-2.

     N.J.S.A. 18A:17-2 does not exempt secretarial employees in

Civil Service positions from its tenure protections, and it was

error for the Commissioner to apply such an exemption where the

Legislature chose not to.   Neither the Commissioner nor this court

is "permitted to 'rewrite a plainly-written enactment of the

Legislature [or] presume that the Legislature intended something

other than that expressed by way of the plain language,'" or "add

terms to a statute, lest they usurp the Legislature's authority."

DiNapoli, 434 N.J. Super. at 238 (alteration in original) (citation

omitted) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

     Because Chapter 17 does not include an exemption from its

tenure protections for secretarial employees holding classified

Civil Service titles, we apply the plain language of N.J.S.A.

18A:17-2 to determine plaintiff's entitlement to tenure.    "Tenure

'arises only by the passage of time fixed by the statute . . . .'"

Ibid. (quoting Canfield v. Bd. of Educ. of Pine Hill Borough, 97

N.J. Super. 483, 490 (App. Div. 1967) (Gaulkin, J., dissenting),

rev'd on dissent, 51 N.J. 400 (1968)).      It is undisputed that

plaintiff satisfied the tenure requirements of the statute, and

N.J.S.A. 18A:17-2 does not exclude time of employment spent by

secretarial employees in classified Civil Service titles.        The

                                16                          A-0078-16T3
record therefore establishes plaintiff had tenure under N.J.S.A.

18A:17-2 when she was terminated.

     Although not cited or relied upon by the District or the

Commissioner,     we     note   that   Title     18A    includes    a    provision

concerning the tenure rights of school employees holding Civil

Service titles that requires discussion here.                  N.J.S.A. 18A:6-31

provides   that    "[n]othing     contained      in    [Title    18A]    shall    be

construed to affect the tenure or civil service rights of any

person presently existing, or hereafter obtained, under this or

any other law."3       The plain language of the statute does not permit

or require the conclusion that an employee holding a secretarial

position   in   the     classified     service   does    not    accrue    time    in

employment credit toward tenure under N.J.S.A. 18A:17-2.                   To the

contrary, the statute provides only that tenure rights granted

under Title 18A, such as those to which plaintiff is entitled

under N.J.S.A. 18A:17-2, do not affect any tenure rights under

Title 11A.




3
   N.J.S.A. 18A:11-1(c) also authorizes boards of education to
"make, amend and repeal rules not inconsistent with [Title 18A]
. . . for the employment, regulation of conduct and discharge of
its employees, subject, where applicable, to the provisions of
Title 11, Civil Service, of the revised statutes." The statute
has no application here because there are no District rules at
issue.

                                       17                                  A-0078-16T3
      We are unpersuaded by the District's reliance on In Re Tenure

of Fulcomer, 93 N.J. Super. 404, 411 (App. Div. 1967), where we

observed that the tenure provisions of Title 18, the predecessor

to   Title    18A,    provided    "a    comprehensive      procedure    for    the

resolution of all controversies involving charges against all

tenure employees not subject to Civil Service."                     The District

argues     our   observation      means      N.J.S.A.    18A:28-2     should    be

interpreted to exclude all school district employees in classified

Civil    Service     titles   from     the   tenure     protections    otherwise

provided under Title 18A.            We reject this argument because here

we interpret a different statute, and note that if the Legislature

intended to deny tenure protections to all school employees who

hold classified Civil Service titles, it would not have limited

the exemption for Civil Service employees to only those teaching

staff members "affected by" Chapter 28 of Title 18A.

      We     similarly   reject        the   District's     reliance    on     the

Commissioner's decision Anderson v. Department of Personnel and

the State Operated School District, 95 N.J.A.R.2d 66 (Dep't of

Educ.), where it was noted "that nonprofessional staff protected

under Title 11 in school districts which have adopted civil service

laws do not acquire separate tenure rights under Title 18A."                    We

defer to the Commissioner's expertise in the administration of the

Department of Education's regulatory system, but are not bound by

                                        18                               A-0078-16T3
the Commissioner's interpretation of a statute or determination

of   legal   issues,    DiNapoli,   434    N.J.   Super.   at   236,   and   are

convinced that application of N.J.S.A. 18A:28-2 to employees not

"affected by" Chapter 28 is inconsistent with the statute's plain

language.

      We also reject the contention that our interpretation of

N.J.S.A.     18A:28-2    and    N.J.S.A.    18A:17-2   will     unfairly     and

illogically    provide    employees    in   the    classified    service     who

otherwise earn tenure under N.J.S.A. 18A:17-2 with "two bites of

the apple" through two tenure proceedings – one under the Act and

the other under Title 18A.        We have not decided that issue because

it is not before us.           Plaintiff did not have two bites of the

apple because she did not have Civil Service tenure rights when

her employment was terminated, and the Civil Service Commission

rejected her appeal on that basis. Thus, this case did not present

a circumstance where an employee with Civil Service tenure rights

also asserts tenure rights under Title 18A in a proceeding before

the Commissioner.

      "[S]ince tenure statutes are intended to secure efficient

public service by protecting public employees in their employment,

'the widest range should be given to the applicability of the

law.'"   Barnes v. Jersey City Bd. of Educ., 85 N.J. Super. 42, 45

(App. Div. 1964) (quoting Sullivan v. McOsker, 84 N.J.L. 380, 385

                                      19                               A-0078-16T3
(E. & A. 1913)).       Here, we decide only that the Commissioner erred

by relying on N.J.S.A. 18A:28-2 to determine plaintiff's tenure

rights under N.J.S.A. 18A:17-2, there is no statutory bar to

utilizing time employed in a classified Civil Service position to

satisfy the time in employment requirements of N.J.S.A. 18A:17-2,

and plaintiff satisfied N.J.S.A. 18A-17-2(b)'s requirements and

had tenure when her employment was terminated.                        We therefore

reverse the Commissioner's determination that plaintiff did not

have tenure rights under N.J.S.A. 18A:17-2, and that the District

did not violate plaintiff's tenure rights by terminating her

employment.

      Because we determine the District violated plaintiff's tenure

rights under N.J.S.A. 18A:17-2, it is unnecessary to address

plaintiff's remaining argument that Rodriguez did not have the

authority      to    terminate    her    employment.      We    note    only    that

plaintiff's arguments concerning Rodriguez's purported lack of

authority      are    otherwise    without     sufficient     merit    to   warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), because there

was sufficient credible evidence in the record supporting the

Commissioner's determination that Rodriguez was vested with the

authority to terminate plaintiff's employment as a matter of fact,

see     Harris ex rel. Harris v. Bd. of Trus. of Pub. Emps.' Ret.

Sys.,    378   N.J.    Super.     459,   464   (App.   Div.    2005)   (finding     a

                                         20                                 A-0078-16T3
reviewing court will not reverse an agency's findings of fact that

are supported by sufficient credible evidence), and plaintiff

otherwise failed to sustain her burden of demonstrating Rodriguez

lacked the requisite authority, see McGowan, 347 N.J. Super at

563.

       Reversed.




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