                                NOT FOR PUBLICATION WITHOUT THE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-1477-18T4

GAIL MIRDA,

          Petitioner-Appellant,

v.

BOARD OF EDUCATION OF
THE UNION COUNTY
EDUCATIONAL SERVICES
COMMISSION, UNION COUNTY,

     Respondent-Respondent.
_______________________________

                    Argued December 4, 2019 - Decided December 16, 2019

                    Before Judges Haas and Mayer.

                    On appeal from the New Jersey Commissioner of
                    Education, Docket No. 286-11/16.

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

                    Brent R. Pohlman argued the cause for respondent
                    Union County Educational Services Commission
            (Methfessel & Werbel, attorneys; Brent R. Pohlman
            and Scott Ketterer, on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent Commissioner of Education (Donna Arons,
            Assistant Attorney General, of counsel; Jaclyn M. Frey,
            Deputy Attorney General, on the statement in lieu of
            brief).

PER CURIAM

      Petitioner Gail Mirda appeals from a November 9, 2018 final decision of

the Commissioner of Education (Commissioner), finding she did not accrue

tenure rights as a bedside tutor. We affirm.

      Respondent     Union    County       Educational   Services   Commission

(Commission) provides one-to-one bedside instruction at Trintas Regional

Medical Center for students enrolled in various schools within the Commission's

jurisdiction who are hospitalized and unable to attend regular classes. A person

providing bedside instruction is designated as either an Inpatient Teacher

(Teacher) or Bedside Tutor (Tutor).         A Teacher is a full-time salaried

Commission employee. A Tutor is paid hourly and has no specific work hours.

      Teachers and Tutors have overlapping responsibilities for hospitalized

students. Both are responsible for assessing student skills, receiving lesson

plans from the schools, and utilizing pre-developed packets to address student

skill deficits. However, only Teachers are responsible for attending faculty

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                                       2
meetings and professional development days, identifying new students for

services, creating schedules for Tutors, and notifying Tutors of their start date

for instructional services.

      Teachers work exclusively for the Commission during the school day.

Tutors may seek other employment if it does not interfere with bedside

instruction on behalf of the Commission. Teachers are observed and evaluated

annually by the Department of Education. Tutors are not.

      Teachers receive health benefits, and are paid for absences attributable to

sick days, family illness, and personal emergencies. Tutors are not entitled to

these benefits. Teachers accrue a pension through the Teacher's Pension and

Annuity Fund, while Tutors accrue a pension through the Public Employee

Retirement System.

      Mirda holds a teaching certificate as a teacher of the handicapped. She

worked for the Commission as a Tutor at Trinitas Hospital from October 1998

to November 2013. From 2006 to 2013, Mirda served as a Tutor five days per

week, six to eight hours per day, for ten months of the school year.

      Mirda submitted a petition of appeal to the Commissioner, claiming she

accrued tenure rights between 2006 and 2013. The Commission filed its answer,

denying Mirda accrued tenure from 2006 to 2013. The matter was transferred


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                                       3
to the Office of Administrative Law and assigned to an Administrative Law

Judge (ALJ).

      The Commission and Mirda filed motions for summary decision based on

stipulated facts. In granting the Commission's motion and denying Mirda's

cross-motion, the ALJ issued a comprehensive written decision, concluding

Mirda failed to acquire tenure in her position as a bedside tutor.              The

Commissioner adopted the ALJ's decision.

      On appeal, Mirda argues she acquired tenure as a bedside tutor in

accordance with N.J.S.A. 18A:28-5. Mirda also contends she was not acting as

a substitute teacher and therefore the exception to tenure under N.J.S.A. 18A:16-

1.1 was inapplicable.

      The standard for granting a motion for summary decision under N.J.A.C.

1:1-12.5(b) is "substantially the same" as that governing a motion for summary

judgment under Rule 4:46-2. Contini v. Bd. of Educ. of Newark, 286 N.J. Super.

106, 121 (App. Div. 1995).          We review de novo the Commissioner's

determination that no genuine issue of material fact existed and "strive to give

substantial deference to the interpretation [the] agency gives to a statute that the

agency is charged with enforcing." In re Application of Viruta-West Jersey




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                                         4
Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422-23 (2008)

(alteration in original).

      We are not "bound by the agency's interpretation of a statute or its

determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec. in

Div. of Consumer Affairs of Dep't of Law & Public Safety, 64 N.J. 85, 93

(1973). Our courts will not uphold an unreasonable interpretation of a statute.

Zimmerman v. Sussex Cty. Educ. Servs. Comm'n, 237 N.J. 465, 476 (2019)

(citing In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201

N.J. 254, 260 (2010)).

      The right to tenure is governed by N.J.S.A. 18A:28-5. There are three

requirements for tenure: "(1) [work] in a position for which a teaching certificate

is required; (2) [hold] the appropriate certificate; and (3) [serve] the requisite

period of time." Spiewak v. Bd. of Educ. of Rutherford, 90 N.J. 63, 74 (1982).

If an employee satisfies these requirements, he or she is "presumptively eligible

for tenure unless a statutory exception applies." Ibid.

      The parties agree Mirda satisfied the requirement of N.J.S.A. 18A:28-5 to

be eligible for tenure. The issue is whether any of the statutorily created

exceptions precluded Mirda's right to tenure.




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                                        5
      The Commissioner found Mirda was not entitled to tenure because she

was acting in place of a regular classroom teacher and thus fell under the

statutory exception set forth in N.J.S.A. 18A:16-1.1. That statute provides:

            [i]n each district the board of education may designate
            some person to act in place of any officer or employee
            during the absence, disability or disqualification of any
            such officer or employee subject to the provisions of
            [N.J.S.A. 18A:17-13]. The act of any person so
            designated shall in all cases be legal and binding as if
            done and performed by the officer or employee for
            whom such designated person is acting but no 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.]

      We agree that Mirda did not acquire tenure rights for the cogent reasons

expressed by the ALJ.        Based on the case law, statute, and applicable

regulations, the ALJ correctly concluded that bedside tutors whose function is

akin to a substitute or temporary replacement teacher or home instructor are

acting in place of students' regular classroom teachers and not entitled to tenure.

      Home instructors 1 take the place of regular classroom teachers based on

the student's inability to attend school. As the ALJ correctly observed, bedside


1
  "Home instruction" is defined as "the provision of one-to-one, small-group, or
online instruction in the student's place of residence or other appropriate setting
due to a health condition [or] need for treatment . . . ." N.J.A.C. 6A:16-1.3.
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                                        6
tutors are analogous to "home instructors" because both "act in the place of

classroom teachers as a result of the students' absence from the classroom" and

"are only needed because the regular classroom teachers are unable to provide

the student with instruction during his or her absence." See Donvito v. Bd. of

Educ. of N. Valley Regional High School Dist., 387 N.J. Super. 216, 222-23

(App. Div. 2006).

      N.J.S.A. 18A:16-1.1 applied to Mirda's employment as a Tutor because

she was acting in the place of regular classroom teachers. The regular classroom

teachers were "disqualified" from teaching the hospitalized students while

simultaneously teaching their regular classroom student, satisfying the statutory

exception to the accrual of tenure. As we explained in Donvito, a board of

education's fiscal concerns undermine finding that a home instructor is entitled

to tenure as such a holding would "entail a duplication of benefits and expenses

because the hiring board of education must continue to pay the salary and

benefits of the teacher who is providing instruction to the balance of the class

who are physically present." Id. at 222.

      Here, the same legitimate economic policy reasons apply because the

member school districts, which contracted with the Commission to provide

bedside instruction, sought to avoid the expense of providing duplicate benefits


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                                       7
to a Tutor and classroom teacher. Mirda was designated to act in the place of a

classroom teacher who was "disqualified" from simultaneously teaching

classroom students and students medically unable to attend class. Therefore, the

Commissioner correctly determined Mirda did not acquire tenure rights as a

Tutor.

      Affirmed.




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