                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5649-11T2



JUDITH A. DINAPOLI,
                                        APPROVED FOR PUBLICATION
     Petitioner-Respondent,
                                           January 22, 2014
v.
                                          APPELLATE DIVISION
BOARD OF EDUCATION OF THE
TOWNSHIP OF VERONA, ESSEX
COUNTY,

     Respondent-Appellant.
_____________________________________

         Argued March 12, 2013 – Decided January 22, 2014

         Before Judges Messano, Lihotz and Mantineo.

         On   appeal   from    the   Commissioner        of
         Education, Agency Docket No. 140-6/11.

         Michael J. Gross argued the cause for
         appellant (Kenney, Gross, Kovats & Parton,
         attorneys; Mr. Gross, of counsel; Daniel R.
         Roberts, on the briefs).

         Paul   E.  Griggs   argued  the   cause   for
         respondent Judith A. DiNapoli (Lindabury,
         McCormick,   Estabrook    &  Cooper,    P.C.,
         attorneys; Mr. Griggs, of counsel and on the
         brief).

         Jeffrey    S.    Chiesa,  Attorney   General,
         attorney for respondent Commissioner of
         Education     (Daniela   Ivancikova,   Deputy
         Attorney General, on the statement in lieu
         of brief).
      The opinion of the court was delivered by

MANTINEO, J.S.C. (temporarily assigned)

      Respondent Board of Education of the Township of Verona

(Board)       appeals     the    final       decision         of    the     Commissioner       of

Education       (Commissioner)          finding          petitioner         Judith    DiNapoli

(DiNapoli)         retained     her    secretarial            tenure      rights     and    could

"bump"     a    non-tenured           employee         when    her        then   position      of

assistant          school     business         administrator               was      eliminated.

Following our review, we conclude the Commissioner’s decision

was      unauthorized           by     the        applicable           statutory       scheme.

Accordingly we reverse.

      In March of 1977, DiNapoli commenced employment with the

Board    as    a    bus     driver/coordinator,               an   hourly,       non-tenurable

position.          DiNapoli      was    then          appointed      to    the    position     of

accounts       payable/transportation                 secretary      on    August     1,    2003,

which she held until October 24, 2006, and acquired tenure as a

secretary.

      Thereafter,           DiNapoli     agreed          to    be     reassigned       as     the

assistant to the school business administrator, which was a non-

certified position.              She held that position from October 25,

2006 until June 30, 2009.

      DiNapoli again consented to reassignment on July 1, 2009,

accepting          the      position         of        assistant           school     business




                                                  2                                    A-5649-11T2
administrator.           This    was    a    twelve-month        position     requiring

administrative certificate endorsement by the school’s business

administrator.         During a reduction in force, the Board abolished

that position.         On March 1, 2011, DiNapoli was given sixty days

pay and released from employment.

    Thereafter, DiNapoli filed a petition of appeal with the

Commissioner alleging the Board violated her tenure rights by

not employing her in a secretarial or clerical position held by

a non-tenured employee after her position as assistant business

administrator was eliminated.                The Board filed an answer to the

petition       and    the    matter    was    transmitted        to   the    Office      of

Administrative         Law   (OAL)     for   a   hearing    as    a   contested       case

pursuant to N.J.S.A. 52:14F-1 to -13.                      The parties agreed to

resolve    the       dispute    by    submitting    cross-motions           for   summary

disposition with a joint stipulation of facts and legal issues

and a joint exhibit list.1             The parties stipulated the issue for

determination as follows: “[Was DiNapoli] entitled to bumping

rights    to    a    secretarial       or    clerical   position       following        the




1
  Motions for summary decision before administrative law judges
are governed by N.J.A.C. 1:1-13.1 et seq. N.J.A.C. 1:1-13.2(a)
provides that a decision on a motion for summary decision "shall
be rendered if the papers and discovery which have been filed,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the
moving party is entitled to prevail as a matter of law."



                                             3                                    A-5649-11T2
elimination of the Assistant Business Administrator position on

March 1, 2011?"

     The Administrative Law Judge (ALJ) held DiNapoli retained

her secretarial tenure rights when assigned to the position of

assistant    school    business   administrator         and    should      have    been

returned to a clerical or secretarial position held by a non-

tenured employee when the Board eliminated her current position.

The Commissioner affirmed the decision.             This appeal followed.

                                     I.

     Our scope of review of an administrative agency's final

determination    is    limited.    In       re   Carter,      191   N.J.    474,    482

(2007).     We "may reverse only if we conclude that the decision

of   the    administrative    agency        is    arbitrary,        capricious      or

unreasonable,     or   is   not   supported        by    substantial        credible

evidence in the record as a whole."                     J.D. v. N.J. Div. of

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.

2000) (citations omitted).         "The burden of demonstrating that

the agency's action was arbitrary, capricious or unreasonable

rests upon the [party] challenging the administrative action."

In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif.

denied, 188 N.J. 219 (2006); see also Barone v. Dep't of Human

Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super.

276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (holding




                                        4                                    A-5649-11T2
"[w]here action of an administration agency is challenged, a

presumption    of   reasonableness       attaches    to   the     action     of   an

administrative agency and the party who challenges the validity

of that action has the burden of showing that it was arbitrary,

unreasonable or capricious") (internal quotation marks omitted).

This     standard   governs    appellate         review   of      administrative

decisions     involving    "disputes       arising    under      school     laws."

Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591

(1993)    (citing   Dennery   v.   Bd.     of    Educ.,   131    N.J.    626,     641

(1993); Dore v. Bd. of Educ., 185 N.J. Super. 447, 452 (App.

Div. 1982)).

       Our limited review of administrative agency decisions is

informed by 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.

            [Mazza v. Bd. of Trs., 143 N.J. 22, 25
            (1995) (citing Campbell v. Dep't of Civil
            Serv., 39 N.J. 556, 562 (1963)).]

       However, the deference does not require abdication of the

judiciary's    role   in   assuring        the   agency's       action    properly




                                       5                                   A-5649-11T2
comports with its legislative mandate.                       We review the agency's

legal conclusions de novo.                 City of Atl. City v. Trupos, 201

N.J. 447, 463 (2010).              While 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,"                             In

re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008),

we are "in no way bound by the agency's interpretation of a

statute     or    its     determination          of   a     strictly    legal   issue."

Mayflower Sec. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973).

"[I]f the statute is silent or ambiguous with respect to the

specific    issue,       the     question    for      the    court     is   whether   the

agency's answer is based on a permissible construction of the

statute."        Matturri v. Bd. of Trs. of the Jud. Ret. Sys., 173

N.J. 368, 381-82 (2002) (internal citations and quotation marks

omitted).

                                            II.

    On     appeal,       the     Board   suggests         that    whether   secretaries

retain     tenure       status    after     transferring          to   a    certificated

position is a question of first impression.                          The Board submits

that a secretary forfeits her tenure upon promotion to a non-

secretarial certificated position, as there is no legislative

authority    which       permits     the    retention        of   secretarial    tenure

rights.




                                             6                                  A-5649-11T2
      DiNapoli     disputes    the     Board's     characterization       of     the

issue, arguing the right of a tenured employee to bump a non-

tenured one is well-settled.            DiNapoli urges the court to find

that the tenure rights she acquired through her employment as a

secretary were not relinquished when she left her position to

become the assistant school business administrator.

      Tenure     rights    are        statutory     and    not       contractual.

Zimmerman, supra, 38 N.J. at 72.              N.J.S.A. 18A:17-2 defines the

conditions     under   which   secretarial        employees    of    a   board   of

education are entitled to the security of tenure.                   The objective

of such tenure statutes is to protect competent and qualified

employees, after a probationary period from being removed for

"unfounded, flimsy, or political reasons."                Zimmerman v. Newark

Bd. of Educ., 38 N.J. 65, 71 (1962), certif. denied, 371 U.S.

956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963).                      To acquire the

security of tenure, the precise conditions enunciated in the

applicable statute must be met.              See Picogna v. Bd. of Educ. of

Twp. of Cherry Hill, 143 N.J. 391, 400 (1996) ("[t]enure arises

only upon compliance with the precise conditions articulated in

the   statute");    Kletzkin     v.    Bd.   of   Educ.   of   the    Borough     of

Spotswood, 136 N.J. 275, 278 (1994) ("[t]enure is a statutory

right that depends on a teacher’s satisfying specific statutory

conditions"); Zimmerman, supra, 38 N.J. at 72 ("[i]n order to




                                         7                                A-5649-11T2
acquire the status of a permanent teacher under a tenure law . .

. a teacher must comply with the precise conditions articulated

in the statute").      Tenure "arises only by the passage of time

fixed by the statute . . . ."         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).      The

employee   shoulders   the   burden   of    establishing       entitlement   to

tenure protection, which ordinarily must be clearly proven.                  Id.

at 493.

      In interpreting statutes, a court's goal is to effectuate

the legislative intent.        TAC Assocs. v. N.J. Dept. of Envtl.

Prot., 202 N.J. 533, 540 (2010).            In order to accomplish this

goal, the court first looks to the plain meaning of the statute.

Praxair Tech, Inc. v. Dir., Div. of Taxation, 201 N.J. 126, 136

(2009).    It is fundamental for the court to apply the law as

written, according to its plain language.                Pizzullo v. N.J.

Mfrs. Ins. Co., 196 N.J. 251, 264 (2008).           Where the language is

clear, we may not look beyond the statutory terms to determine

the legislative intent.       State v. Churchdale Leasing, Inc., 115

N.J. 83, 101 (1989).         Courts are not 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."        O'Connell v. State, 171 N.J. 484,




                                      8                               A-5649-11T2
488 (2002).        Courts should be extremely reluctant to add terms

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

Craster    v.    Newark        Bd.   of     Comm'rs,     9   N.J.    225,      230     (1952)

(holding     that       courts       "should       not   write      in    an    additional

qualification          which     the       Legislature       pointedly         omitted      in

drafting     its        own    enactment").              Finally,        "construing        or

interpreting       a    clear     and      unambiguous       statute      is   simply      not

permissible."           MacMillan v. Dir., Div. of Taxation, 180 N.J.

Super.    175,    177     (App.      Div.    1981),      (internal       quotation      marks

omitted), aff'd, 89 N.J. 216 (1982).

    The Board argues N.J.S.A. 18A:17-2 authorizes tenure to be

maintained       only    while       the    employee     serves     in    a    secretarial

position, office or employment.                    That statute provides:

            a.   Any  secretary,   assistant   secretary,
            school business administrator or business
            manager of a board of education of any
            school district who has or shall have
            devoted his full time to the duties of his
            office and has or shall have served therein
            for three consecutive calendar years, and

            b. Any person holding any secretarial or
            clerical position or employment under a
            board of education of any school district or
            under any office thereof, 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




                                               9                                     A-5649-11T2
              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, and

              c. Any person, who has acquired, or shall
              hereafter acquire, tenure in any secretarial
              or clerical office, position or employment
              under the board of education of a school
              district and has been appointed district
              clerk or secretary, or shall hereafter be
              appointed secretary of said district, as
              such secretary, shall hold his office,
              position or employment under tenure during
              good behavior and efficiency and shall not
              be dismissed or suspended or reduced in
              compensation,     except     for    neglect,
              misbehavior or other offense and only in the
              manner prescribed by subarticle B of article
              2 of chapter 6 of this title.

              Ibid.

      Initially, we find the plain language of the statute does

not   support     the    Commissioner's      determination     that       DiNapoli

retained    her   tenure     rights   upon    transfer    to   a       certificated

position.       Nor   does   N.J.S.A.    18A:17-2    reflect       a    legislative

design   to    provide     secretaries,      who   have   relinquished        their

positions for non-secretarial certificated employment, the right

to retain tenure.          Rather, the language of N.J.S.A. 18A:17-2

limits the retention of tenure to the time during which the

employee holds her secretarial office, position or employment.

The Commissioner's conclusion that secretarial staff maintain



                                        10                                 A-5649-11T2
tenure upon transfer to non-secretarial positions is unfounded

under     the     express    terms    of        the    statute.        Once        DiNapoli

voluntarily        transferred       to    the        assistant     school         business

administrator position, she no longer held her "office, position

or employment" as a secretary and, absent expressed statutory

authority, she relinquished her right to "bump back" into a

secretarial position.

      "The Legislature is presumed to be familiar with its own

enactments, with judicial declarations relating to them, and to

have passed or preserved cognate laws with the intention that

they be construed to serve a useful and consistent purpose."

St.     Peter's    Univ.     Hosp.    v.    Lacy,       185    N.J.    1,     14    (2005)

(citations       omitted).         Indisputably,         if   the     Legislature        had

intended    for     a   secretary,        who    acquired      tenure       pursuant      to

N.J.S.A.        18A:17-2     (b)     or    (c),        to     retain     tenure        upon

relinquishment of his or her secretarial position, it would have

provided for such protection in the statute, similar to the

provisions found in other tenure retention provisions.

      For example, N.J.S.A. 18A:28-5 provides, in relevant part:

            [t]he services of all teaching staff members
            employed   in  the  positions   of  teacher,
            principal . . . shall be under tenure during
            good behavior . . . and shall not be
            dismissed or reduced in compensation except
            for inefficiency, incapacity, or conduct
            unbecoming. . . .




                                           11                                      A-5649-11T2
Also in this regard, the Legislature enacted N.J.S.A. 18A:28-6

and     18A:17-20.4,          which    afford       tenure     retention         rights   to

teachers       and      superintendents            notwithstanding          promotion     or

transfer.       N.J.S.A. 18A:28-6 specifies a tenured teaching staff

member,       after    transfer       or    promotion,       whose    new    position     is

terminated        before       tenure        in     that      position      is     achieved

"shall be returned to his [or her] former position at the salary

which    he    [or     she]    would       have    received     had   the    transfer      or

promotion not occurred[.]"                  Also, N.J.S.A. 18A:17-20.4 provides

similar protection for those promoted to superintendents, who

"shall retain all tenure rights accrued in any position which

was previously held by the superintendent in the district."

      These      provisions       represent         the    Legislature's         intent   to

preserve tenure for certain employees who transferred or were

promoted to a different position prior to achieving tenure in

that position.           N.J.S.A. 18A:17-2 does not contain a similar

tenure     retention          provision           regarding     tenured        secretarial

employment, thus reflecting the Legislature's decision not to

afford     such       rights.2        "When       the   Legislature      has      carefully




2
  This is not the only instance where secretaries are afforded
less rights than other school employees.      For instance, the
seniority preferences and recall lists available to teachers are
not available to secretaries.    See, e.g., Ferronto v. Bd. of
Educ. of the Twp. of Weymouth, et al., EDU 8774-02, final
                                                     (continued)


                                              12                                   A-5649-11T2
employed a term in one place and excluded it in another, it

should not be implied where excluded."                    In re Plan for the

Abolition of the Council on Affordable Housing, 214 N.J. 444,

470 (2013) (internal quotation marks and citations omitted).

    The fact that the Legislature limited secretarial tenure to

the period of time an employee "holds [his or her secretarial]

office,     position    or    employment"       precludes      a   finding      that

DiNapoli retained her tenure rights after being transferred to a

non-secretarial position.         See N.J.S.A. 18A:17-2.

    DiNapoli      argues     N.J.S.A.        18A:28-6    and   18A:17-20.4       are

inapposite    because      they   do   not    address    tenure    retention     but

rather focus on seniority preservation.                We disagree.

    In      our   review     of   statutory      enactments,       we   must    read

statutes dealing with the same subject matter in pari materia

and construe them together as a "unitary and harmonious whole."

Lacy, supra, 185 N.J. at 14-15 (citations omitted).                      "Statutes

in pari materia are to be construed together when helpful in

resolving    doubts     or   uncertainties       and    the    ascertainment      of

legislative intent[,]" and "it is basic in the construction of

legislation that every effort should be made to harmonize the




(continued)
decision,             (February             1,                                 2006),
http://njlaw.rutgers.edu/collections/oal/search.html>.



                                        13                                A-5649-11T2
law relating to the same subject matter."                    State v. Green, 62

N.J. 547, 554-55 (1973).

       In     determining     whether    legislative      enactments      "actually

'concern the same object,'" a court should consider "whether

both statutes were included in one enactment, whether the proofs

required overlap, and whether they are 'designed to serve the

same purpose and objective[.]'"                Marino v. Marino, 200 N.J. 315,

330 (2009) (quoting 2B Sutherland Statutory Construction § 51:3

(7th    ed.    2008)).      Both     N.J.S.A.     18A:17-2   and    18A:28-6     were

enacted at the same time.                See L. 1967, c. 271.             N.J.S.A.

18A:17-20.4 was enacted subsequently.               See L. 1991, c. 267, § 8.

       We are satisfied that all three statutes concern the same

object, namely, the accrual and retention of tenure by school

district employees, and are designed to serve the same purpose

and    objective.        "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).

When considered together, it is obvious the Legislature did not

intend to afford secretaries tenure preservation upon transfer

or promotion from secretarial employment as they did not adopt a

provision providing for tenure retention in the legislation.




                                          14                               A-5649-11T2
                                        III.

      We    next     consider     the   Commissioner's        determination    that

Given v. East Windsor Regional School District, 1978 S.L.D. 43

(Comm. Jan. 30, 1978), aff'd, 1978 S.L.D. 46 (St. Bd. Of Educ.

June 7, 1978), aff'd, 1979 S.L.D. 832 (App. Div. May 18, 1979)

controls the within matter.

      In Given, the petitioner was employed as a tenured clerk

before accepting a position as secretary within the district.

After      working    as    a    secretary     for    approximately   twenty-two

months, Given was involuntarily returned to a clerical position.

Ibid.      Given appealed to the Commissioner for an order declaring

that she was a tenured secretary and therefore not subject to

reassignment as a clerical employee.                  Ibid.    Given argued that

the   transfer       and   the   reduction     in    compensation   violated    her

tenure rights as a secretary which she contended she acquired

immediately upon her promotion to the position.                  Id. at 44.    The

Board conceded that Given had earned tenure as a clerk, but

denied that she had served the requisite probationary period to

earn tenure as a secretary.              Ibid.       In rejecting petitioner's

argument, the Commissioner upheld the action of the Board in

reassigning petitioner to a clerical position, finding:

             there exists a legitimate interest for a
             local board to have a probationary period
             for clerical and secretarial employees in
             its employ who receive a promotion.   The



                                         15                              A-5649-11T2
             Commissioner opines that to hold otherwise
             would work hardship on both the board and
             the employee if instant tenure were to
             accrue to a promotional position made in
             good faith by the board.             A clerk or
             secretary   so    promoted    would    likely   be
             required to demonstrate greater technical
             skills in order to properly discharge more
             complex responsibilities and must have a
             probationary period in which to adequately
             adjust to the new position.        The fact that
             the   Legislature    has    not   established    a
             specific statutory probationary period for
             clerks   and   secretaries      who    have   been
             promoted, such as exists in N.J.S.A. 18A:28-
             6 for certificated personnel, does not
             obviate the need for such a probationary
             period.     The Commissioner holds that a
             tenured clerk or secretary, upon promotion
             to   another   position     within    the   school
             district,    must      satisfy     the     precise
             conditions enunciated in N.J.S.A. 18A:17-
             2(b) and (c) to achieve a tenure status in
             the new position.      The Commissioner further
             holds that tenure rights accrued in a school
             system   in   any    clerical    or    secretarial
             position prior to promotion shall not be
             negated by such promotion and shall remain
             as   a   continuing      entitlement     to   such
             employee.

             [Id. at 45.]

    The      Commissioner's    ruling   in   Given    applies   only     in   the

limited situations where a secretary or clerk is promoted to

another secretarial or clerical position.             This is implicit from

the language of the opinion, which required that a promoted

clerk   or     secretary    "must   satisfy     the    precise     conditions

enunciated     in   N.J.S.A.    18A:17-2(b)     and    (c),"     since    those

conditions only pertain to clerical and secretarial employees.



                                    16                                 A-5649-11T2
Ibid. (emphasis added).                 That portion of the decision upon which

the Commissioner relied in this case, i.e., "that tenure rights

accrued    in       a    school    system      in    any    clerical     or    secretarial

position       prior      to     promotion      shall      not    be   negated     by    such

promotion and shall remain as a continuing entitlement to such

employee," was dicta, since it had no effect upon the outcome of

the case.

    More importantly, Given did not address the issue presented

here, namely, whether the tenure achieved under N.J.S.A. 18A:17-

2, is retained when the tenured secretary accepts a certificated

position    and         leaves    her    tenured     secretarial        employment.           In

addressing this issue we look to Colon-Serrano v. Plainfield Bd.

of Educ., 2007 WL 4644775 (N.J. Adm.) (Colon-Serrano I), aff'd

in part, rev'd in part, 2008 WL 1795250 (N.J. Adm.) (Colon-

Serrano II), aff'd, 2008 WL 2971334 (N.J. Adm.) (Colon-Serrano

III) for guidance.

    In      Colon-Serrano,              the   petitioner         was   employed    by     the

district       in       the    clerical       position     of     attendance      aide    and

obtained tenure pursuant to N.J.S.A. 18A:17-2.                          Colon-Serrano I,

supra,    at    *1.           Thereafter,      the   petitioner        transferred       to   a

classroom aide position, which was neither clerical nor tenure

eligible.       Ibid.         The petitioner held her position as classroom

aide from 1994 until the district failed to renew her contract




                                                17                                 A-5649-11T2
in 2006.     Ibid.        The petitioner then sought to return to a

clerical position held by a non-tenured or less senior clerical

employee.         Ibid.      When    the        Board   refused   to   return    the

petitioner to a clerical title, she filed a petition with the

Commissioner seeking reinstatement on the basis of her prior

accrued tenure.      Ibid.

    The     ALJ    concluded    the    petitioner        earned   tenure   in    the

clerical position of attendance aide and ordered the Board to

place petitioner in a clerical position held by a non-tenured or

less senior employee.          Id. at *3.          On review, the Commissioner

agreed that the petitioner had acquired tenure as a clerical

employee, but rejected the conclusion that the petitioner, "who

voluntarily left her tenured position in 1994 to accept the

separate and non[-]tenurable position of classroom aide . . . is

now entitled to 'bump back' into a clerical position held by a

non[-]tenured or less senior clerical employee . . ."                       Colon-

Serrano II, supra, at *2.           The Commissioner specifically found:

            N.J.S.A. 18A:17-2 provides that clerical
            employees who acquire tenure "shall hold
            [their] office, position or employment under
            tenure during good behavior and efficiency
            and shall not be dismissed or suspended or
            reduced in compensation except for neglect,
            misbehavior or other offense and only in the
            manner prescribed by [the Tenure Employees
            Hearing Law]." . . . In this matter,
            however, the employment from which the
            petitioner was dismissed was neither her
            tenured clerical employment nor an extension



                                           18                              A-5649-11T2
             or    "hybrid"      continuation     of   such
                        [3]
             employment,    but rather a clearly distinct,
             non[-]clerical, and non[-]tenured classroom
             aide position to which she voluntarily
             transferred in 1994. . . . Under these
             circumstances,    when   the   petitioner  was
             advised in July 2006 that her contract would
             not be renewed, the protections of N.J.S.A.
             18A:17-2 were no longer applicable; in the
             absence of express legislative provision for
             retention of accrued tenure rights upon
             transfer to a position which is not tenure
             eligible, the petitioner must be deemed to
             have relinquished the protections associated
             with her clerical tenure upon acceptance of
             the nonprotected position of classroom aide.

             [Id. at *2 (alteration in original).]

         This case is factually similar to Colon-Serrano in that

DiNapoli left her tenured secretarial position to pursue the

non-secretarial        certificated   position     of   assistant    school

business administrator.        Once DiNapoli abandoned her employment

as   a    secretary,   she   relinquished   the   tenure   rights   she   had

3
  The Commissioner specifically distinguished the facts from
those presented in Keaney v. Bd. of Educ. of the Twp. of
Bloomfield, EDU 5881-03, initial decision (July 28, 2005),
http://njlaw.rutgers.edu/collections/oal/search.html>        and
adopted,   Comm'r,    final   Decision    (August   31,   2005),
http://njlaw.rutgers.edu/collections/oal/search.html>       (the
Commissioner adopted the ALJ's initial decision which found
petitioner "never knowingly and intelligently waived his tenure
as a janitorial employee when he assumed the title of supervisor
of maintenance" in which he still maintained his janitorial
duties); and Quinlan v. Bd. of Educ. of N. Bergen Twp., 73 N.J.
Super. 40, 47-48 (App. Div. 1953) (holding petitioner's tenure
as a clerk was not terminated by the board's unilateral
appointment of her as clerk-attendance officer where she
continued to perform clerical duties as well as those of an
attendance officer).



                                      19                            A-5649-11T2
accrued therein.      Although Colon-Serrano's new position was not

tenure eligible and DiNapoli's position was, that fact alone

cannot support a dissimilar result, as there was no discussion

by the Commissioner in Colon-Serrano about how, if at all, that

fact affected his finding.             Further, there was no reference by

the Commissioner to any statutory authority that would support

the disparate treatment of secretaries who transfer into non-

tenurable    positions     versus      those     who    transfer    into      tenure

eligible positions.        There is no basis in N.J.S.A. 18A:17-2 for

such a distinction.        In finding Colon-Serrano had forfeited her

tenure rights, the Commissioner focused on the fact that the

petitioner was no longer employed in the clerical employment

that had been the source of her tenure, and was instead engaged

in a "distinct, nonclerical . . . position[.]"                Id. at *2.

      Additionally,   there       is   nothing    in    the   record    in       Colon-

Serrano,    other   than    the    petitioner's        acceptance      of    a    non-

tenurable position, to demonstrate an intention to relinquish

her   clerical   tenure    rights,      yet    the     Commissioner     found      she

forfeited the tenure protections she had acquired by way of her

transfer.    We too must find DiNapoli abandoned her tenure rights

when she accepted a transfer to a non-secretarial certificated

position.




                                        20                                   A-5649-11T2
    Here, the Commissioner adopted the ALJ's conclusion that

the decision in Colon-Serrano expanded without distinction upon

the decision in Given but offered no basis or support for that

conclusion.      We disagree with the ALJ’s determination, as it is

clear    the   decision       in    Colon–Serrano         limited      Given's   holding.

Simply    stated,     Given        and    Colon-Serrano       cannot     be     reconciled

unless     Given      is     limited       to        situations   where       clerks    and

secretaries are promoted or transferred to other clerical or

secretarial positions.

    We         also         reject        the          Commissioner's         restrictive

interpretation of Lange v. Bd. of Educ. Of Borough of Audubon,

26 N.J. Super. 83 (App. Div. 1953).                         The Commissioner merely

stated Lange was "inapposite to the instant controversy [,]"

without    meaningful         discussion.              However,   we    conclude       Lange

offers     further         support       for     the     conclusion      that    DiNapoli

relinquished her secretarial tenure.

    In Lange, the petitioner was employed by the Audubon Board

of Education, beginning her service as a teacher in 1912.                               Id.

at 84.     In 1914, she was transferred, with her consent, to the

position of principal in which she served from 1914 until 1927.

Ibid.     In June 1927, she was assigned by the Board of Education

to the position of "Supervisor to Supervise Grade Schools," and

served in that capacity until the position was abolished in June




                                                21                                A-5649-11T2
1944 for reasons of economy and diminution in the number of

pupils.     Ibid.       Thereafter, she served as a teaching principal

in one of the grade schools until September 18, 1944, when it

was discovered that there had been no vacancy in such position

and Lange was returned to a teaching position.                      Id. at 85.

      In 1951, a vacancy arose in a principal position and Lange

applied asserting rights to the position by virtue of her prior

service as principal.                Ibid.        She was not appointed to the

position and appealed, arguing that under the then Teachers'

Tenure Law, R.S. 18:13-16, 17, 19 and 20, she did not lose her

tenure     as    principal          when     she    accepted     the      position    of

"Supervisor       to        Supervise      Grade     Schools,"      and    "when     the

[supervisor] position was abolished in 1944, she was entitled to

appointment to fill the next available principalship."                             Ibid.

The Board of Education contended Lange "lost any tenure she may

have had as a principal under the Teachers['] Tenure Law by

accepting       the    position      of    supervisor."        Ibid.        The    State

Commissioner of Education affirmed the Board's determination and

Lange appealed.         Ibid.

      At the time Lange served as principal, she was protected by

tenure.     The original Teachers' Tenure Law was enacted in 1909,

see   L.   1909,       c.    243,    p.    398;    however,    it    was    not    until

amendments enacted in 1935 that the concept of seniority was




                                             22                                A-5649-11T2
introduced and given prospective effect.     See L. 1935 c. 126. p.

331; Lange, supra, 26 N.J. Super. at 85-86 (citing Downs v. Bd.

of Educ. of Hoboken, 126 N.J.L. 11, 13 (Sup. Ct. 1940), aff'd,

Schlank v. Bd. of Educ. of Hoboken, 127 N.J.L. 602 (E. & A.

1942));   Werlock   v.   Woodbridge,   1939-1949   Comp.   School   Law

Decisions, p. 107 (1948), aff'd on other grounds, 5 N.J. Super.

140 (App. Div. 1949).

    Important for our purposes here is the court's discussion

of Lange's relinquishment of her principalship, and the rights

connected therewith.     Specifically the court found:

          The record is barren of any protest or
          expression of dissatisfaction by plaintiff
          respecting   her   change  of  status   from
          principal to supervisor. Nor does it appear
          that any proceeding was initiated by her to
          test the local board's action or that the
          appellant at any time protested or took any
          action indicating dissatisfaction with the
          action of the local board voiding the
          principalship held by her for a brief period
          of time in 1944. We think, therefore, it is
          a reasonable inference that she surrendered
          her principalship in 1927 voluntarily.   The
          appellant concedes that one may voluntarily
          relinquish a position, . . . but asserts
          that tenure rights may not be waived while
          keeping the position.

               . . . .

               This appeal might well be disposed of
          on the ground of laches.     Notwithstanding
          the fact that by accepting the position of
          supervisor, she surrendered her position as
          principal, thereby constituting a dismissal
          as such principal and thereafter limiting



                                  23                          A-5649-11T2
                her tenure rights to the classification of a
                teacher . . . .

                [Lange, supra, 26 N.J.               Super.    at     86-89
                (citations omitted).]

      In     this      case,    we        disagree    with     the     Commissioner's

conclusion        that    Lange      is     not    relevant.          Lange     involved

consideration       of    whether     the     petitioner      retained     her    tenure

rights     in    the     position    of     principal      after     she   voluntarily

transferred from principal to supervisor, a separate tenurable

position.        We found Lange "waived whatever rights she may have

acquired to the position of principal[,]" possessed no seniority

rights with respect to a principal position and had no claim to

be on a preferred eligibility list for her service as principal

from 1914 to 1927.             Id. at 87.          The Commissioner here failed,

however, to consider our specific holding in his analysis.

      Like       Lange,     DiNapoli         did     not     protest       or    express

dissatisfaction with her transfer or promotion to the position

of   assistant      school     business       administrator.          Moreover,       like

Lange, she voluntarily transferred from her tenured secretarial

position to another tenure eligible position.                        When the holding

in Lange is applied to these facts, DiNapoli must be found to

have relinquished her secretarial tenure upon promotion to the

position of assistant school business administrator.                             Just as

Lange had no claim to a principal position that became available




                                             24                                  A-5649-11T2
in 1951, DiNapoli cannot be said to have the right to "bump

back" to a secretarial position held by a non-tenured employee.

                                       IV.

      DiNapoli     concedes     that    an    individual       may    voluntarily

relinquish a position, but argues she may not waive her tenure

rights while keeping her position.             Lange, supra, 26 N.J. Super.

at 88.     Nevertheless, she argues that at the time she accepted

the   promotion     and    subsequent       transfer    to     the   position    of

assistant school business administrator, she did not relinquish,

waive or forfeit her position as secretary.                  There is no support

for this argument in the record before us.               There is nothing to

suggest that either party considered the transfers or promotions

temporary assignments.         In fact, in order for DiNapoli to become

the assistant school business administrator she needed to obtain

the   appropriate    certification      credentials.          She    obtained   the

certification, thus evidencing her intention to remain in the

position     as    assistant     school      business    administrator,         not

secretary.        Certainly, the facts support the conclusion that

DiNapoli     relinquished       her    secretarial       position       upon    her

acceptance    of    the   promotion    or    transfer    to    the   position     of

assistant school business administrator.

      DiNapoli further argues that since she was "assigned" to

the positions of assistant to the business administrator and




                                        25                                A-5649-11T2
assistant school business administrator, she did not waive or

voluntarily relinquish her position as a secretary.                            We also

find this argument meritless.               A voluntary resignation equates

to abandonment of tenure rights.                 Kimless V. Twp. of Woodbridge

Bd. of Educ., 1978 S.L.D. 651, 656 (1978) (citations omitted)

("Such [a] holding is consistent with previous rulings of the

Commissioner        wherein     it   was        held     petitioners      voluntarily

resigned      teaching    position    which          constituted      abandonment     of

their rights to a tenure claim").                Despite DiNapoli's suggestion

to    the    contrary,    she    could     only        have    been   transferred     or

promoted     with   her   consent.         Thus,       when    DiNapoli   voluntarily

assumed the position of assistant to the business administrator

and   then    accepted    a     promotion       to   the      position   of   assistant

school business administrator, she relinquished her secretarial

position and tenure rights.

       Reversed.




                                           26                                  A-5649-11T2
