In a surprising ruling, the Appellate Division, the state’s second highest court, determined that a terminated administrative assistant was actually tenured as a secretary under 18A:17-2, reversing the New Jersey Commissioner of Education’s ruling that the administrative assistant had not accrued tenure in that position. The Appellate Division remanded the matter to the commissioner, and the district will  provide the administrative assistant a tenure dismissal hearing and all the rights attached to such a proceeding.

In this matter, the administrative assistant was initially hired as a secretary in the business department of the school district in January 2010. At the time, her duties were clerical in nature – answering phone calls and typing documents. During the 2011-12 school year, she was transferred to the position of administrative assistant to the assistant superintendent, where she stayed for the balance of that school year and the next two school years, accruing tenure in the district, according to her 2013-14 employment contract. In July of 2015, the assistant superintendent the employee worked for was appointed superintendent of schools, and the employee followed along with a substantially increased salary.

As assistant to the superintendent, in addition to previous secretarial duties, the employee’s new duties included drafting agendas for board meetings and coordinating professional development for staff members district-wide. She was responsible for the Read Across America program in the district,  renewed contracts for the early childhood program(s), and arranged accommodations for out-of-district seminars. However, on June 5, 2018, the employee was relieved of her duties for conduct unbecoming and given a certain amount of pay in lieu of notice. She contested her termination by filing a petition of appeal with the New Jersey Commissioner of Education, arguing that as a tenured employee, she was entitled to a tenure dismissal hearing.

At the initial hearing in the Office of Administrative Law, the administrative law judge determined that she did not serve sufficient time as a secretary in the business office to attain tenure. The judge further said that the employee could not add her time as secretary in the business office to her time as a confidential employee in the superintendent’s office. Nor, according to the judge, did the employee accrue tenure in the superintendent’s office because she lacked sufficient time in that position. Moreover, the judge relied on commissioner’s precedent to distinguish the secretarial position from the confidential position to defeat tenure accruing for the employee. The commissioner adopted the initial decision as a final decision in the matter and the employee appealed to the Appellate Division.

In that appeal, the Appellate Division relied on the fact that while no specific job description existed for any of the positions the employee held while employed by the district, testimony revealed that the duties of each position were essentially the same, with the exception of a few additional duties added to the confidential position.

After noting that the district job descriptions, and other district documentation, did not differentiate the positions, the court relied on prior judicial precedent, which in similar circumstances held:

We . . . take the view that where an employee holding a position covered by tenure is promoted to a position which encompasses his former duties and additionally requires the performance of services which are not covered by tenure, and he thereafter continues to render services in both capacities, his right in his tenure position continues until terminated in accordance with the statute. [Quinlan v. Bd. of Educ. of Twp. of N. Bergen, 73 N.J. Super. 40, 51-52 (1962).]

The court concluded, “If a secretary moves to a position that still requires secretarial duties, but adds additional duties in a position that is not specifically culled from the tenure statute’s ‘secretarial position,’ we see no reason why the employee should not retain tenure-track status.” As noted above, the court returned the matter to the commissioner for further proceedings.

Board members with questions are encouraged to consult with the board attorney. More information about this matter can be found here or by consulting with the NJSBA Legal, Labor, and Policy Department at (609) 278-5254.