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11 N.J.A.R. 129

West Orange, Board of Education of, and Marilyn Savage, Patti Van Cauwenberge; Capodilupo, Phillip v
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Citation: 11 N.J.A.R. 129
Decision Date: 1985
Agency: DEPARTMENT OF EDUCATION
Synopsis: Petitioner requested reinstatement and back pay, claiming his tenure rights were violated when the Board terminated his employ- ment but retained nontenured teachers in positions for which he was qualified. He also claimed seniority over another tenured teacher who was retained. The matter was transmitted to the Office of Adminis- trative Law for a hearing. Petitioner, a high school physical education teacher for five years, was terminated as the result of a reduction in force. Retained on staff were two non-tenured elementary physical education teachers (one of whom specialized in adaptive gym for handicapped students) and a tenured elementary physical education teacher with less than four years experience. All four were certified physical education teachers. No special certification is required to teach adaptive gym. The administrative law judge assigned to the case concluded that petitioner's tenure rights were violated by retaining the nontenured teachers, since petitioner was qualified legally to hold either of the positions being filled by the nontenured teachers. However, as to the ß tenured teacher who was retained, the judge said that new seniority rules effective after September 1, 1983 governed. Applying those rules, petitioner is credited only in the category of secondary physical educa- tion and thus does not have seniority over the other teacher whose years of service are in the different category of elementary physical education. The administrative law judge ordered the Board to reinstate peti- tioner .with lost salary and benefits. Upon review, this initial decision was reversed by the Commissioner of Education. Applying the new seniority rules, the Commissioner concluded that petitioner acquired both seniority and tenure in the secondary education category only. Therefore, he was not eligible for the positions retained by the two nontenured teachers and did not have seniority over the tenured elementary physical education teacher. Petitioner was eligible only for reinstatement in the secondary educa- tion category. Consequently, the reinstatement order of the adminis- trative law judge was set aside. Richard A. Friedman, Esq., for petitioner (Ruhlman, Butrym & Friedman, attorneys) Samuel A. Christiano, Esq. for respondent Alfred F. Maurice, Esq., for intervenor Margaret Savage Gregory T. Syrek, Esq., for interventor Patti Van Cauwenberge (Bucceri & Pincus, attorneys)
Rule(s) Cited: 6:3-1.10 6:11-3.3 6:11-8.4(c) 
Citation Tracker rejected-Com'r of Ed., reversed -St. Bd.; affirmed -218 N.J. Super 510 (App. Div. 1987); certification denied 109 N.J. 514 [Updated through 1991]