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13 N.J.A.R. 95

South Plainfield Education Assoc. v. Bd. of Ed. of the Borough of South Plainfield
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Citation: 13 N.J.A.R. 95
Decision Date: 1989
Agency: DEPARTMENT OF EDUCATION
Synopsis: Respondent board of education terminated several employees as part of a reduction in force. A petition of appeal was filed and the matter was transmitted to the Office of Administrative Law for hear- ing. The administrative law judge assigned to the case issued a partial summary decision on two counts of the petition which related to one employee, Joseph Ascolese. Mr. Ascolese, a certified physical educa- tion teacher who had been employed by respondent as an attendance officer, claimed he acquired tenure and seniority as a teaching staff member. Therefore, he said respondent was required to employ him as a physical education teacher instead of non-tenured teachers. Mr. Ascolese also alleged that respondent violated the law by eliminating the attendance officer position. Respondent denied both claims and moved for dismissal of the counts of the petition relating to Mr. Ascolese. The administrative law judge granted respondent's motion for partial summary judgment. Regarding tenure, the judge concluded that Mr. Ascolese was not a teaching staff member within the meaning of the tenure statute. The fact that he held a teaching certificate and that respondent required attendance officers to hold a certificate did not mean the position was a teaching position. There was no require- ment in the law or Department of Education regulations that atten- dance officers be certified teachers. Therefore, attendance officers were not teaching staff members as contemplated by the tenure law. Mr. Ascolese was not a teaching staff member and did not acquire tenure as such while serving as an attendance officer. On the issue of eliminating the attendance officer position, the judge concluded that it was permissible to eliminate the position and assign the duties to other employees. Upon review, this partial summary decision was adopted by the Acting Commissioner of Education. The Acting Commissioner agreed that Mr. Ascolese could not acquire status as a teaching staff member for purposes of tenure simply because the local board required atten- dance officers to have a teaching certificate. The first prong of the Spiewak test for acquisition of tenure--that the person work in a position for which a teaching certificate is required--means that the nature of the duties must be consistent with those performed by a teaching staff member. An attendance officer cannot be imbued with the status of teaching staff member solely because he is required to have a teaching certificate. Because Mr. Ascolese performed no duties requiring a certificate, concluded the Acting Commissioner, he was not a teaching staff member and was not tenure eligible. The State Board of Education affirmed. Stephen E. Klausner, Esq., for petitioners (Klausner, Hunter & Oxfeld, attorneys) Robert J. Cirafesi, Esq., for respondent (Wilentz, Goldman & Spitzer, attorneys)