                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1730-12T3

STEPHANIE PLATIA,

     Petitioner-Appellant,           APPROVED FOR PUBLICATION

                                        January 29, 2014
v.
                                       APPELLATE DIVISION
BOARD OF EDUCATION OF
THE TOWNSHIP OF HAMILTON,
MERCER COUNTY,

     Respondent-Respondent.
________________________________________________________________

         Argued December 17, 2013 – Decided January 29, 2014

         Before Judges Fisher, Espinosa and Koblitz.

         On appeal from the New Jersey Commissioner
         of Education, Docket No. 206-7/11.

         Edward A. Cridge argued the cause for
         appellant (Mellk O'Neill, attorneys; Arnold
         M. Mellk, of counsel; Mr. Cridge, on the
         brief).

         Sanmathi Dev argued the cause for respondent
         Board of Education of the Township of
         Hamilton   (Capehart  &   Scatchard,   P.A.,
         attorneys; Ms. Dev and Joseph F. Betley, on
         the brief).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent Commissioner of
         Education (Lauren A. Jensen, Deputy Attorney
         General, on the statement in lieu of brief).

     The opinion of the court was delivered by

ESPINOSA, J.A.D.
      Stephanie         Platia       was     employed        as     a    special       education

teacher by the Board of Education of Hamilton Township (Board)

for   more   than       three       academic         years    in    a    four-year       period.

However, the Board denied that she obtained tenure under the

Tenure Act, N.J.S.A. 18A:28-1 to -18, because her employment for

one of those academic years was as a "Long Term Substitute"

pursuant     to    a    contract          that    stated      the       position       was   "non-

tenurial."        In this, her appeal from a final decision of the

Commissioner of Education, we consider the application of the

"temporary"       employee          exception         to   the     Tenure    Act,       N.J.S.A.

18A:16-1.1.       We conclude the exception does not apply and that

Platia obtained tenure as of right.

                                                 I.

      Platia      was       hired    by    the    Board      to    serve    as     a   full-time

special    education          teacher       at    Greenwood        Elementary          School    in

Hamilton Township, effective January 28 to June 30, 2008.                                        She

was rehired to serve in the same position for the next two

academic years, 2008-09 and 2009-10.                          According to the Board,

Platia was not offered a contract for the 2010-11 academic year

"based on reasons of economy."

      However,         in    July    2010,       the   Board       offered    Platia         a   new

contract to serve in the position of "Long Term Substitute" as a




                                                 2                                       A-1730-12T3
special education teacher at the Mercerville and Lalor Schools,

effective September 1, 2010, to June 30, 2011.                 That contract

included the following notice:

            You are replacing an employee who is on a
            leave of absence and who may be returning to
            his/her position at the expiration of this
            contract. This position is non-tenurial and
            carries no seniority eligibility.   You will
            be assigned to the Substitute Teacher List
            if   no   position  is   available  at   the
            expiration of this contract.

       Platia signed the contract and accepted the position.                  When

Platia   inquired     about    her   status    regarding    tenure,     she   was

informed:

            Tenure is not accruable as a Long term
            Substitute. Tenure is gained in a full-time
            position – it is equal to 3 years and 1 day
            – a[nd] must be within a 4 year period – 1
            full year as a long term substitute would
            make a tenure clock start over again.

       In April 2011, the Board notified Platia it would be unable

to offer her a contract for the 2011-12 academic year because

funding for the position she held would expire at the end of

June   2011.    The    Board    added   that   it   was    "reviewing    .    .   .

staffing needs for the 2011-2012 school year" and would contact

Platia if its needs changed and her services were desired.

       In July 2011, Platia filed a verified petition with the

Commissioner of Education seeking, among other relief, an order

that would direct and compel the Board to recognize her as a




                                        3                               A-1730-12T3
tenured employee and restore her to the teaching position she

previously held.1         The Board filed an answer in which it denied

Platia had acquired tenure.                 The matter was transferred to the

Office of Administrative Law as a contested case.                            Both Platia

and   the   Board       moved   for       summary    decision.           Following     oral

argument, the Administrative Law Judge (ALJ) issued an initial

decision    on     September        17,   2012,     granting      the    Board's    cross-

motion    for    summary     decision        and    dismissing       Platia's      appeal.

Thereafter, the Commissioner adopted the ALJ's Initial Decision

as the final decision of the Department of Education.

      Both the ALJ and the Commissioner viewed the question as

whether Platia filled a permanently vacant position or one that

was temporarily vacated by a teacher who intended to return.

The   Commissioner        agreed      with    the     ALJ    that       Platia   was     not

entitled    to     tenure    credit        during    the    2010-11        academic    year

because     "she    filled      a    position       resulting       from    a    leave    of

absence,    not     a   permanent         vacancy."         The   Commissioner         noted

further that, pursuant to N.J.S.A. 18A:16-1.1, the Board was

"authorized to designate a person" who would "act in the place

of an employee during a leave of absence" but not acquire tenure

credit for that employment.

1
    Platia concedes that if she were restored                              to a tenured
teaching position, her employment would remain                             subject to a
reduction in force. See N.J.S.A. 18A:28-9.



                                             4                                     A-1730-12T3
     Our    review   in    an    appeal       from    a   final     decision     of   an

administrative      agency      is    limited.        Circus   Liquors,       Inc.    v.

Governing    Body    of   Middletown          Twp.,    199   N.J.    1,   9    (2009).

However, the issue presented here calls for the interpretation

of the Tenure Act and the exception for temporary employees,

N.J.S.A. 18A:16-1.1.         Such interpretation "is primarily the role

of   the    judiciary     and    is    not     an     administrative      function."

Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div.

2010).     As a result, the Commissioner's interpretation of the

statutes is not entitled to our deference.

                                         II.

     "The right to tenure is created and governed entirely by

statute."     Merlino v. Borough of Midland Park, 172 N.J. 1, 8

(2002) (quoting Breitwieser v. State-Operated Sch. Dist., 286

N.J. Super. 633, 637 (App. Div. 1996)).                   The Tenure Act "defines

the conditions under which teachers are entitled to the security

of tenure."      Spiewak v. Bd. of Educ., 90 N.J. 63, 72 (1982).

Tenure becomes a "mandatory term and condition of employment"

for "all teaching staff members[2] who work in positions for which


2
   "Teaching staff member" is defined in N.J.S.A. 18A:1-1 as "a
member of the professional staff of any district or regional
board of education . . . holding office, position or employment
of such character that the qualifications, for such office,
position or employment, require him to hold a valid and
effective   standard,  provisional  or  emergency  certificate,
                                                    (continued)


                                          5                                    A-1730-12T3
a certificate is required, who hold valid certificates, and who

have worked the requisite number of years . . . unless they come

within the explicit exceptions in N.J.S.A. 18A:28-5 or related

statutes such as N.J.S.A. 18A:16-1.1."                   Id. at 72, 81.

     Because      a     "legislative           source    for       tenure       rights         is

essential," Lukas v. State of New Jersey, 103 N.J. 126, 128

(1986),    the    right      to       tenure       accrues   only        when    there         is

"compliance      with      the     precise     conditions         articulated        in    the

relevant legislative enactment."                   Merlino, supra, 172 N.J. at 8;

see also Picogna v. Bd. of Educ., 143 N.J. 391, 400 (1996);

Zimmerman v. Bd. of Educ., 38 N.J. 65, 72 (1962), cert. denied,

371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963).                                    Thus,

actual    service     of     the      time   specified       in    the    statute         is    a

necessary prerequisite to the right to tenure.                           Tenure will not

accrue for an employee discharged before that time requirement

is   satisfied,       even       if    the   discharge       is    in     breach      of       an

employment    contract.3              Picogna,      supra,   143     N.J.       at   401-02;




(continued)
appropriate to his office, position or employment, issued by the
State Board of Examiners . . . ."
3
   In addition to the Tenure Act, the Board's power to dismiss is
limited by the Fourteenth Amendment of the United States
Constitution, the New Jersey Constitution, federal and state
anti-discrimination laws, see Picogna, supra, 143 N.J. at 402;
Zimmerman, supra, 38 N.J. at 70-71, and, presumably, by other
                                                      (continued)


                                               6                                     A-1730-12T3
Canfield v. Bd. of Educ., 51 N.J. 400 (1968), rev'g on dissent

97 N.J. Super. 483, 490-93 (App. Div. 1967).                 Similarly, when

the statutory requirement calls for employment for a consecutive

number    of    years,   an    interruption        in     service     precludes

satisfaction of the time requirement.              See Merlino, supra, 172

N.J. at 12.

    Although      compliance    with      the   time    requirement    must    be

"absolute," Merlino, supra, 172 N.J. at 8, we are mindful of the

Tenure Act's remedial purpose to "prevent[] school boards from

abusing   their    superior    bargaining        power    over     teachers   in

contract negotiations," Spiewak, supra, 90 N.J. at 72, and the

principle that it "should be liberally construed to achieve its

beneficent     ends."    Id.   at   74.         Therefore,   the    Tenure    Act

"should not be interpreted to permit avoidance of tenure by

manipulation of job titles."        Dugan v. Stockton State Coll., 245

N.J. Super. 567, 573 (App. Div. 1991).

    Pursuant to N.J.S.A. 18A:28-5(a), the services of teaching

staff members employed prior to the 2012-2013 school year

           shall be under tenure during good behavior
           and efficiency and they shall not be
           dismissed or reduced in compensation except
           for inefficiency, incapacity, or conduct


(continued)
statutory   provisions  such   as   the  Conscientious                 Employee
Protection Act, N.J.S.A. 34:19-1 to -14.




                                       7                               A-1730-12T3
            unbecoming such a teaching staff member or
            other just cause . . . after employment[4] in
            such district or by such board for:

            (1) Three consecutive calendar years, or any
            shorter period which may be fixed by the
            employing board for such purpose; or

            (2)   Three   consecutive   academic  years,
            together with employment at the beginning of
            the next succeeding academic year; or

            (3) The equivalent of more than three
            academic years within a period of any four
            consecutive academic years.

            [N.J.S.A. 18A:28-5(a) (emphasis added).]

     The    Board   does     not    allege    any    "just        cause"   such     as

"inefficiency, incapacity, or conduct unbecoming" for denying

Platia tenure.      N.J.S.A. 18A:28-5(a).           It is further undisputed

that Platia worked in a position for which a certificate is

required and that she holds a valid certificate.                    The thrust of

the Board's argument that Platia did not work the requisite

number     of   years   is   that    her     employment      as     a   "Long     Term

Substitute" fell within the exception in N.J.S.A. 18A:16-1.1.

     If, however, Platia's year as a "Long Term Substitute" for

the 2010-11 academic year is counted, she qualifies for tenure




4
   "Employee" is defined as including "the holder of any position
or employment."      N.J.S.A. 18A:1-1.     "Employment" includes
"employment in a position."    Ibid.   N.J.S.A. 18A:28-1 defines
"position" as including "any office, position or employment."




                                       8                                   A-1730-12T3
pursuant to N.J.S.A. 18A:28-5(a)(3).5                 See Kletzkin, supra, 136

N.J. at 277 ("[T]o obtain tenure" under N.J.S.A. 18A:28-5(a)(3)6,

a teacher must "be 'employed' for thirty months and one day over

four academic years."); Spiewak, supra, 90 N.J. at 71-72, 84

(holding    that    a    teacher       qualified      for   tenure   under    this

provision   where       she   worked    in    a    public   school   system   from

February 1976 through June 1979).                 If, as the Board argues, that

year may not be counted toward tenure, she does not satisfy the

statutory requirements for tenure.




5
   Platia was employed as a teaching staff member from January to
June 2008 and for the academic years 2008-09 and 2009-10.     She
argues that unless a tenure exception applies, she is entitled
to tenure under N.J.S.A. 18A:28-5(a)(2).    However, she was not
employed for "[t]hree consecutive academic years, together with
employment at the beginning of the next succeeding academic
year" because Platia's employment from January to June 2008 does
not constitute employment for an academic year as defined by
statute.   N.J.S.A. 18A:1-1 (An "academic year" is "the period
between the time school opens in any school district or under
any board of education after the general summer vacation until
the next succeeding summer vacation."); see also Kletzkin v. Bd.
of Educ., 136 N.J. 275, 277 (1994) ("An academic year runs for
the ten months between September 1 and June 30 of the school
year."). Therefore, she did not satisfy the criteria set forth
in N.J.S.A. 18A:28-5(a)(2).    See also Picogna, supra, 143 N.J.
at 402 (To obtain tenure under relevant provision, "plaintiff
was required to serve three consecutive calendar years on
probation with defendant and then be reemployed by the Board for
at least one day in a fourth year.").
6
   At the time Kletzkin was decided, this provision was located
at N.J.S.A. 18A:28-5(c).



                                          9                              A-1730-12T3
                                        A.

       The Board contends that Platia's employment as a "Long Term

Substitute" fell within the exception in N.J.S.A. 18A:16-1.1,

which provides, in pertinent part:

            In each district the board of education may
            designate some person to act in place of any
            .   .   .  employee   during   the  absence,
            disability or disqualification of any such
            . . . employee[.]

            . . . [N]o person so acting shall acquire
            tenure in the office or employment in which
            he acts pursuant to this section when so
            acting.

            [N.J.S.A. 18A:16-1.1 (emphasis added).]

       To establish Platia's nontenurial status for purposes of

N.J.S.A. 18A:16-1.1, the Board relies on Platia's contract for

the   2010-11     school   year,    which     stated   that   Platia   would    be

"replacing an employee who is on a leave of absence and who may

be    returning   to    his/her    position    at   the   expiration   of   this

contract."      As a preliminary matter, we reject the notion that

the language of the contract offered Platia for the                     2010-11

academic year precludes consideration of that year's employment

for tenure purposes.        A teacher's right to tenure "never depends

on the contractual agreement between the teachers and the board

of education."      Spiewak, supra, 90 N.J. at 77.

       In Spiewak, the Boards of Education similarly negotiated

contracts    with      special    education    teachers   that   characterized



                                        10                              A-1730-12T3
their employment as temporary, precluding them from obtaining

tenure        notwithstanding           their        satisfaction     of     the    time

requirements of the Tenure Act.                     Id. at 67-72; see also Merlino,

supra, 172 N.J. at 11 (applying Spiewak).                      The Court held that

the teachers obtained tenure as of right because the statute

made tenure after three years of service "a mandatory term and

condition of employment."               Spiewak, supra, 90 N.J. at 72.               Once

the teachers "fully satisfied the factual prerequisites of the

statute,        [they]     achieved          tenure     regardless     of    any    side

agreements that they may have made renouncing their statutory

rights."        Merlino, supra, 172 N.J. at 11.                    The fact that the

Legislature established a specific term of service for tenure to

accrue        "leaves     no     room        for     discretionary    action,      [and]

negotiation on that term is fully preempted."                        Spiewak, supra,

90     N.J.    at   76;    see    also        Merlino,    supra,     172    N.J.   at    8

("[S]tatutory terms and conditions of employment take precedence

over    any    side     agreement       in    contravention    of    the    statute.").

Moreover, the statutory right to tenure "may not be forfeited or

waived."       Spiewak, supra, 90 N.J. at 77.

                                               B.

       We therefore turn to the question whether the exception

regarding temporary employees set forth in N.J.S.A. 18A:16-1.1

applies.        Our Supreme Court has instructed that this exception




                                               11                               A-1730-12T3
"extends only to those who 'act in place of' another employee

who is absent or disabled."         Spiewak, supra, 90 N.J. at 74.

    According to the Board, Platia was a "Long Term Substitute"

for Michele Snyder for the 2010-11 academic year.                However, the

record    fails    to    show   that    Snyder   was    "absent"    from      her

employment or that Platia acted "in place of" her.

    It is undisputed that Snyder remained a full-time employee

of the Board throughout the 2009-10 and 2010-11 academic years.

By letter dated July 16, 2009, the Board advised Snyder it had

voted to "transfer" her to the position of "Special Education

Literacy Resource Coach" at the Lalor School and Kuser School,

effective for the academic year from September 1, 2009, to June

30, 2010.      The position as literacy resource coach was part of a

grant program funded by the New Jersey Department of Education.

To work in this assignment, Snyder was required to hold the same

instructional certificate issued by the Department of Education,

State Board of Examiners, as that required to work as a special

education teacher.       See N.J.A.C. 6A:9-9.2(b)(5) and (6).

    Even if Snyder's transfer were construed as an "absence,"

the record also fails to support the conclusion that Platia

acted    "in   place    of"   Snyder.    Prior   to    her   transfer   to    the

literary resource coach position in 2009, Snyder was assigned as

a special education teacher at the Robinson School.                     For the




                                        12                              A-1730-12T3
2009-10    academic      year,    when    Snyder      was   "transferred"         to   her

duties as a literary resource coach, Platia was employed as a

full-time special education teacher at the Greenwood school, not

as a "Long Term Substitute" and not at the Robinson School.                            The

record does not reveal who, if anyone, assumed Snyder's duties

at the Robinson School for 2009-10.

      When Snyder's assignment as literary resource coach ended,7

she   returned    to    the    position      she     held   prior   to    the   2009-10

academic    year,      which    had    now    been    transferred      to   the    Kuser

School    for    the    2011-2012      academic       year.      Platia     was    never

assigned to the Kuser School, either.                       From the time of her

initial employment in January 2008 through June 2010, Platia was

assigned to work as a special education teacher at the Greenwood

School.    Similarly, the "Long Term Substitute" contract did not

assign    her   to     the    school   where       Snyder     worked   prior      to   her

transfer to the literary resource coach position but, rather, to

the Mercerville and Lalor Schools for the 2010-11 academic year.


7
   It is unclear from the record exactly when Snyder's assignment
as literary resource coach ended.         The Cooperative Grant
Agreement that established the Special Education Literacy
Resource Coach position states the grant program ran only
through the 2009-10 school year, with a final report due on
August 16, 2010.    However, in answers to interrogatories, the
Board asserted that the assignment was for a two-year grant
position, which would mean that Snyder continued in that
assignment for the 2010-11 academic year, the term of its "Long
Term Substitute" contract with Platia.



                                             13                                 A-1730-12T3
       The record therefore fails to support findings that Snyder

was "absent" for the year in which Platia was hired as a "Long

Term   Substitute"    or    that    Platia    filled   a   position   that   was

available   by     virtue   of     Snyder's   "absence."      Both    of   these

criteria must be satisfied for the temporary employee exception

in N.J.S.A. 18A:16-1.1 to apply.              Because Platia was employed

for the "equivalent of more than three academic years within a

period of . . . four consecutive academic years," tenure was

conferred upon her as of right pursuant to                  N.J.S.A. 18A:28-

5(a)(3).

       Reversed.




                                       14                              A-1730-12T3
