Earlier this month, the Interim Commissioner of Education determined that a retired teacher was not entitled to be immediately returned to service, but she did retain the right to be restored to her former or a comparable position should one become available in the district.
In Gagliano v. Ridgewood Village Bd. of Educ., Tina Gagliano, a tenured home economics/food teacher, suffered from an unfortunate incident in the classroom in 2016, including a concussion and other injuries. Gagliano took a brief leave of absence but was unable to return to full-time teaching and in February of 2017, she applied for and was granted leave pursuant to the Family and Medical Leave Act. Subsequent to the incident, Gagliano filed for accidental disability retirement but was denied and was instead approved for deferred retirement at the age of 60. Gagliano appealed the denial of her accidental disability application and the grant of the application for deferred retirement at age 60. Subsequently, she withdrew both the appeal and the application and, in 2019, she reported to the board for reinstatement to her former position. The board denied her request to return to service because the board had filled her position in the intervening years.
The statute governing disability retirement for teachers, N.J.S.A. 18A:66-40, covers both ordinary and accidental disability and provides for re-employment under both types of disability if a medical examination shows that the employee’s disability has materially diminished. If it has, and the formerly disabled employee is able to perform the duties of his or her former position or a comparable position assigned by the board, the employee must report to duty within ten days of that assignment.
In many cases, the educational statutes of New Jersey require additional clarification by the commissioner or the courts. In this matter, the commissioner previously ruled on a similar case. In Klumb v. Manalapan-Englishtown Bd. of Educ., a case in which the NJSBA participated as amicus curiae, the commissioner, as affirmed by the New Jersey Supreme Court, determined that when a disabled employee’s disability abated, the board was obligated to return the formerly disabled teacher to a position so long as he or she met the standards established by the State Board of Education.
By way of further background, in Klumb, the teacher first filed for a disability retirement in 1988 and applied for restoration to her former position in 1994 and again in 1998. The district declined to reemploy Charlotte Klumb, and in 2002, she filed a complaint in Superior Court, which was remanded to the commissioner based on jurisdictional grounds. In 2005, the commissioner ordered reinstatement with back pay dating back to 1999, a time when a position was open, and further ordered the district to provide “the support necessary to familiarize her with current methods and educational trends to assure [Klumb]’s seamless re-acclimation to her teaching duties and the provision of quality educational services to her students.” The Klumb case ultimately affirmed the commissioner’s decision.
In applying the statute and case law to the present matter, the commissioner identified two material issues. First, since Gagliano, in essence, withdrew her disability application, there was a genuine question of fact as to whether her disability had materially diminished as required by statute. Secondly, Ridgewood was not willing to assign her to a position because an opening did not exist. The question of whether Gagliano was entitled to reemployment then turned on whether the board was required to create a position for her.
The commissioner ultimately determined that the board was not required to create a position for Gagliano, but the board was required to place her in the next opening in her former position so long as she was able to perform the duties of that position or some other comparable duty. Importantly, the commissioner set no time limit on the teacher’s return to service, so long as the teacher possessed the proper certification and endorsements.
Accordingly, when a board is facing a demand from a formerly disabled employee to be returned to service because the disability has diminished to the point where it does not interfere with that employee’s ability to perform the duties of the position, the board will be well served by reviewing the above decisions. For more information about this matter, board members may consult with the board attorney, or contact the Legal and Labor Relations Department at (609) 278-5254.