Judith A. Dinapoli v. Board of Education of the Township Of verona, Essex County ( 2014 )

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5649-11T2
                                            APPROVED FOR PUBLICATION
                                               January 22, 2014
                                              APPELLATE DIVISION
             Argued March 12, 2013 – Decided January 22, 2014
             Before Judges Messano, Lihotz and Mantineo.
             On   appeal   from    the   Commissioner        of
             Education, Agency Docket No. 140-6/11.
             Michael J. Gross argued the cause for
             appellant (Kenney, Gross, Kovats & Parton,
             attorneys; Mr. Gross, of counsel; Daniel R.
             Roberts, on the briefs).
             Paul   E.  Griggs   argued  the   cause   for
             respondent Judith A. DiNapoli (Lindabury,
             McCormick,   Estabrook    &  Cooper,    P.C.,
             attorneys; Mr. Griggs, of counsel and on the
             Jeffrey    S.    Chiesa,  Attorney   General,
             attorney for respondent Commissioner of
             Education     (Daniela   Ivancikova,   Deputy
             Attorney General, on the statement in lieu
             of brief).
          The opinion of the court was delivered by
    MANTINEO, J.S.C. (temporarily assigned)
          Respondent Board of Education of the Township of Verona
    (Board)       appeals     the    final       decision         of    the     Commissioner       of
    Education       (Commissioner)          finding          petitioner         Judith    DiNapoli
    (DiNapoli)         retained     her    secretarial            tenure      rights     and    could
    "bump"     a    non-tenured           employee         when    her        then   position      of
    assistant          school     business         administrator               was      eliminated.
    Following our review, we conclude the Commissioner’s decision
    was      unauthorized           by     the        applicable           statutory       scheme.
    Accordingly we reverse.
          In March of 1977, DiNapoli commenced employment with the
    Board    as    a    bus     driver/coordinator,               an   hourly,       non-tenurable
    position.          DiNapoli      was    then          appointed      to    the    position     of
    accounts       payable/transportation                 secretary      on    August     1,    2003,
    which she held until October 24, 2006, and acquired tenure as a
          Thereafter,           DiNapoli     agreed          to    be     reassigned       as     the
    assistant to the school business administrator, which was a non-
    certified position.              She held that position from October 25,
    2006 until June 30, 2009.
          DiNapoli again consented to reassignment on July 1, 2009,
    accepting          the      position         of        assistant           school     business
                                                      2                                    A-5649-11T2
    administrator.           This    was    a    twelve-month        position     requiring
    administrative certificate endorsement by the school’s business
    administrator.         During a reduction in force, the Board abolished
    that position.         On March 1, 2011, DiNapoli was given sixty days
    pay and released from employment.
        Thereafter, DiNapoli filed a petition of appeal with the
    Commissioner alleging the Board violated her tenure rights by
    not employing her in a secretarial or clerical position held by
    a non-tenured employee after her position as assistant business
    administrator was eliminated.                The Board filed an answer to the
    petition       and    the    matter    was    transmitted        to   the    Office      of
    Administrative         Law   (OAL)     for   a   hearing    as    a   contested       case
    pursuant to N.J.S.A. 52:14F-1 to -13.                      The parties agreed to
    resolve    the       dispute    by    submitting    cross-motions           for   summary
    disposition with a joint stipulation of facts and legal issues
    and a joint exhibit list.1             The parties stipulated the issue for
    determination as follows: “[Was DiNapoli] entitled to bumping
    rights    to    a    secretarial       or    clerical   position       following        the
      Motions for summary decision before administrative law judges
    are governed by N.J.A.C. 1:1-13.1 et seq. N.J.A.C. 1:1-13.2(a)
    provides that a decision on a motion for summary decision "shall
    be rendered if the papers and discovery which have been filed,
    together with the affidavits, if any, show that there is no
    genuine issue as to any material fact challenged and that the
    moving party is entitled to prevail as a matter of law."
                                                 3                                    A-5649-11T2
    elimination of the Assistant Business Administrator position on
    March 1, 2011?"
         The Administrative Law Judge (ALJ) held DiNapoli retained
    her secretarial tenure rights when assigned to the position of
    assistant    school    business   administrator         and    should      have    been
    returned to a clerical or secretarial position held by a non-
    tenured employee when the Board eliminated her current position.
    The Commissioner affirmed the decision.             This appeal followed.
         Our scope of review of an administrative agency's final
    determination    is    limited.    In       re   Carter,      
    191 N.J. 474
    ,    482
    (2007).     We "may reverse only if we conclude that the decision
    of   the    administrative    agency        is    arbitrary,        capricious      or
    unreasonable,     or   is   not   supported        by    substantial        credible
    evidence in the record as a whole."                     J.D. v. N.J. Div. of
    Developmental Disabilities, 
    329 N.J. Super. 516
    , 521 (App. Div.
    2000) (citations omitted).         "The burden of demonstrating that
    the agency's action was arbitrary, capricious or unreasonable
    rests upon the [party] challenging the administrative action."
    In re Arenas, 
    385 N.J. Super. 440
    , 443-44 (App. Div.), certif.
    188 N.J. 219
     (2006); see also Barone v. Dep't of Human
    Servs., Div. of Med. Assistance & Health Servs., 
    210 N.J. Super. 276
    , 285 (App. Div. 1986), aff'd, 
    107 N.J. 355
     (1987) (holding
                                            4                                    A-5649-11T2
    "[w]here action of an administration agency is challenged, a
    presumption    of   reasonableness       attaches    to   the     action     of   an
    administrative agency and the party who challenges the validity
    of that action has the burden of showing that it was arbitrary,
    unreasonable or capricious") (internal quotation marks omitted).
    This     standard   governs    appellate         review   of      administrative
    decisions     involving    "disputes       arising    under      school     laws."
    Kaprow v. Bd. of Educ. of Berkeley Twp., 
    131 N.J. 572
    , 591
    (1993)    (citing   Dennery   v.   Bd.     of    Educ.,   
    131 N.J. 626
    ,     641
    (1993); Dore v. Bd. of Educ., 
    185 N.J. Super. 447
    , 452 (App.
    Div. 1982)).
           Our limited review of administrative agency decisions is
    informed by three inquiries:
                (1) whether the agency's action violates
                express or implied legislative policies,
                that is, did the agency follow the law; (2)
                whether the record contains substantial
                evidence to support the findings on which
                the agency based its action; and (3) whether
                in applying the legislative policies to the
                facts, the agency clearly erred in reaching
                a conclusion that could not reasonably have
                been made on a showing of the relevant
                [Mazza v. Bd. of Trs., 
    143 N.J. 22
    , 25
                (1995) (citing Campbell v. Dep't of Civil
    39 N.J. 556
    , 562 (1963)).]
           However, the deference does not require abdication of the
    judiciary's    role   in   assuring        the   agency's       action    properly
                                           5                                   A-5649-11T2
    comports with its legislative mandate.                       We review the agency's
    legal conclusions de novo.                 City of Atl. City v. Trupos, 
    201 N.J. 447
    , 463 (2010).              While we respect an agency's expertise
    and will "defer to the specialized or technical expertise of the
    agency charged with administration of a regulatory system,"                             In
    re Virtua-West Jersey Hosp. Voorhees, 
    194 N.J. 413
    , 422 (2008),
    we are "in no way bound by the agency's interpretation of a
    statute     or    its     determination          of   a     strictly    legal   issue."
    Mayflower Sec. Co. v. Bureau of Secs., 
    64 N.J. 85
    , 93 (1973).
    "[I]f the statute is silent or ambiguous with respect to the
    specific    issue,       the     question    for      the    court     is   whether   the
    agency's answer is based on a permissible construction of the
    statute."        Matturri v. Bd. of Trs. of the Jud. Ret. Sys., 
    173 N.J. 368
    , 381-82 (2002) (internal citations and quotation marks
        On     appeal,       the     Board   suggests         that    whether   secretaries
    retain     tenure       status    after     transferring          to   a    certificated
    position is a question of first impression.                          The Board submits
    that a secretary forfeits her tenure upon promotion to a non-
    secretarial certificated position, as there is no legislative
    authority    which       permits     the    retention        of   secretarial    tenure
                                                 6                                  A-5649-11T2
          DiNapoli     disputes    the     Board's     characterization       of     the
    issue, arguing the right of a tenured employee to bump a non-
    tenured one is well-settled.            DiNapoli urges the court to find
    that the tenure rights she acquired through her employment as a
    secretary were not relinquished when she left her position to
    become the assistant school business administrator.
          Tenure     rights    are        statutory     and    not       contractual.
    Zimmerman, supra, 38 N.J. at 72.              N.J.S.A. 18A:17-2 defines the
    conditions     under   which   secretarial        employees    of    a   board   of
    education are entitled to the security of tenure.                   The objective
    of such tenure statutes is to protect competent and qualified
    employees, after a probationary period from being removed for
    "unfounded, flimsy, or political reasons."                Zimmerman v. Newark
    Bd. of Educ., 
    38 N.J. 65
    , 71 (1962), certif. denied, 
    371 U.S. 956
    83 S. Ct. 508
    9 L. Ed. 2d 502
     (1963).                      To acquire the
    security of tenure, the precise conditions enunciated in the
    applicable statute must be met.              See Picogna v. Bd. of Educ. of
    Twp. of Cherry Hill, 
    143 N.J. 391
    , 400 (1996) ("[t]enure arises
    only upon compliance with the precise conditions articulated in
    the   statute");    Kletzkin     v.    Bd.   of   Educ.   of   the    Borough     of
    136 N.J. 275
    , 278 (1994) ("[t]enure is a statutory
    right that depends on a teacher’s satisfying specific statutory
    conditions"); Zimmerman, supra, 38 N.J. at 72 ("[i]n order to
                                             7                                A-5649-11T2
    acquire the status of a permanent teacher under a tenure law . .
    . a teacher must comply with the precise conditions articulated
    in the statute").      Tenure "arises only by the passage of time
    fixed by the statute . . . ."         Canfield v. Bd. of Educ. of Pine
    Hill Borough, 
    97 N.J. Super. 483
    , 490 (App. Div. 1967) (Gaulkin,
    J.,   dissenting),   rev'd   on   dissent    
    51 N.J. 400
        (1968).      The
    employee   shoulders   the   burden   of    establishing       entitlement   to
    tenure protection, which ordinarily must be clearly proven.                  Id.
    at 493.
          In interpreting statutes, a court's goal is to effectuate
    the legislative intent.        TAC Assocs. v. N.J. Dept. of Envtl.
    202 N.J. 533
    , 540 (2010).            In order to accomplish this
    goal, the court first looks to the plain meaning of the statute.
    Praxair Tech, Inc. v. Dir., Div. of Taxation, 
    201 N.J. 126
    , 136
    (2009).    It is fundamental for the court to apply the law as
    written, according to its plain language.                Pizzullo v. N.J.
    Mfrs. Ins. Co., 
    196 N.J. 251
    , 264 (2008).           Where the language is
    clear, we may not look beyond the statutory terms to determine
    the legislative intent.       State v. Churchdale Leasing, Inc., 
    115 N.J. 83
    , 101 (1989).         Courts are not permitted to "rewrite a
    plainly-written enactment of the Legislature [or] presume that
    the Legislature intended something other than that expressed by
    way of the plain language."        O'Connell v. State, 
    171 N.J. 484
                                          8                               A-5649-11T2
    488 (2002).        Courts should be extremely reluctant to add terms
    to a statute, lest they usurp the Legislature's authority.                                 See
    Craster    v.    Newark        Bd.   of     Comm'rs,     
    9 N.J. 225
    ,      230     (1952)
    (holding     that       courts       "should       not   write      in    an    additional
    qualification          which     the       Legislature       pointedly         omitted      in
    drafting     its        own    enactment").              Finally,        "construing        or
    interpreting       a    clear     and      unambiguous       statute      is   simply      not
    permissible."           MacMillan v. Dir., Div. of Taxation, 180 N.J.
    Super.    175,    177     (App.      Div.    1981),      (internal       quotation      marks
    omitted), aff'd, 
    89 N.J. 216
        The Board argues N.J.S.A. 18A:17-2 authorizes tenure to be
    maintained       only    while       the    employee     serves     in    a    secretarial
    position, office or employment.                    That statute provides:
                a.   Any  secretary,   assistant   secretary,
                school business administrator or business
                manager of a board of education of any
                school district who has or shall have
                devoted his full time to the duties of his
                office and has or shall have served therein
                for three consecutive calendar years, and
                b. Any person holding any secretarial or
                clerical position or employment under a
                board of education of any school district or
                under any office thereof, after
                1. The expiration of a period of employment
                of three consecutive calendar years in the
                district or such shorter period as may be
                fixed by the board or office employing him,
                                                   9                                     A-5649-11T2
                  2. Employment for three consecutive academic
                  years, together with employment at the
                  beginning of the next succeeding academic
                  year, an academic year being the period
                  between the time when school opens in the
                  district after the general summer vacation
                  and the beginning of the next succeeding
                  summer vacation, and
                  c. Any person, who has acquired, or shall
                  hereafter acquire, tenure in any secretarial
                  or clerical office, position or employment
                  under the board of education of a school
                  district and has been appointed district
                  clerk or secretary, or shall hereafter be
                  appointed secretary of said district, as
                  such secretary, shall hold his office,
                  position or employment under tenure during
                  good behavior and efficiency and shall not
                  be dismissed or suspended or reduced in
                  compensation,     except     for    neglect,
                  misbehavior or other offense and only in the
                  manner prescribed by subarticle B of article
                  2 of chapter 6 of this title.
          Initially, we find the plain language of the statute does
    not   support     the    Commissioner's      determination     that       DiNapoli
    retained    her   tenure     rights   upon    transfer    to   a       certificated
    position.       Nor   does   N.J.S.A.    18A:17-2    reflect       a    legislative
    design   to    provide     secretaries,      who   have   relinquished        their
    positions for non-secretarial certificated employment, the right
    to retain tenure.          Rather, the language of N.J.S.A. 18A:17-2
    limits the retention of tenure to the time during which the
    employee holds her secretarial office, position or employment.
    The Commissioner's conclusion that secretarial staff maintain
                                            10                                 A-5649-11T2
    tenure upon transfer to non-secretarial positions is unfounded
    under     the     express    terms    of        the    statute.        Once        DiNapoli
    voluntarily        transferred       to    the        assistant     school         business
    administrator position, she no longer held her "office, position
    or employment" as a secretary and, absent expressed statutory
    authority, she relinquished her right to "bump back" into a
    secretarial position.
          "The Legislature is presumed to be familiar with its own
    enactments, with judicial declarations relating to them, and to
    have passed or preserved cognate laws with the intention that
    they be construed to serve a useful and consistent purpose."
    St.     Peter's    Univ.     Hosp.    v.    Lacy,       
    185 N.J. 1
    ,     14    (2005)
    (citations       omitted).         Indisputably,         if   the     Legislature        had
    intended    for     a   secretary,        who    acquired      tenure       pursuant      to
    N.J.S.A.        18A:17-2     (b)     or    (c),        to     retain     tenure        upon
    relinquishment of his or her secretarial position, it would have
    provided for such protection in the statute, similar to the
    provisions found in other tenure retention provisions.
          For example, N.J.S.A. 18A:28-5 provides, in relevant part:
                [t]he services of all teaching staff members
                employed   in  the  positions   of  teacher,
                principal . . . shall be under tenure during
                good behavior . . . and shall not be
                dismissed or reduced in compensation except
                for inefficiency, incapacity, or conduct
                unbecoming. . . .
                                               11                                      A-5649-11T2
    Also in this regard, the Legislature enacted N.J.S.A. 18A:28-6
    and     18A:17-20.4,          which    afford       tenure     retention         rights   to
    teachers       and      superintendents            notwithstanding          promotion     or
    transfer.       N.J.S.A. 18A:28-6 specifies a tenured teaching staff
    member,       after    transfer       or    promotion,       whose    new    position     is
    terminated        before       tenure        in     that      position      is     achieved
    "shall be returned to his [or her] former position at the salary
    which    he    [or     she]    would       have    received     had   the    transfer      or
    promotion not occurred[.]"                  Also, N.J.S.A. 18A:17-20.4 provides
    similar protection for those promoted to superintendents, who
    "shall retain all tenure rights accrued in any position which
    was previously held by the superintendent in the district."
          These      provisions       represent         the    Legislature's         intent   to
    preserve tenure for certain employees who transferred or were
    promoted to a different position prior to achieving tenure in
    that position.           N.J.S.A. 18A:17-2 does not contain a similar
    tenure     retention          provision           regarding     tenured        secretarial
    employment, thus reflecting the Legislature's decision not to
    afford     such       rights.2        "When       the   Legislature      has      carefully
      This is not the only instance where secretaries are afforded
    less rights than other school employees.      For instance, the
    seniority preferences and recall lists available to teachers are
    not available to secretaries.    See, e.g., Ferronto v. Bd. of
    Educ. of the Twp. of Weymouth, et al., EDU 8774-02, final
                                                  12                                   A-5649-11T2
    employed a term in one place and excluded it in another, it
    should not be implied where excluded."                    In re Plan for the
    Abolition of the Council on Affordable Housing, 
    214 N.J. 444
    470 (2013) (internal quotation marks and citations omitted).
        The fact that the Legislature limited secretarial tenure to
    the period of time an employee "holds [his or her secretarial]
    office,     position    or    employment"       precludes      a   finding      that
    DiNapoli retained her tenure rights after being transferred to a
    non-secretarial position.         See N.J.S.A. 18A:17-2.
        DiNapoli      argues     N.J.S.A.        18A:28-6    and   18A:17-20.4       are
    inapposite    because      they   do   not    address    tenure    retention     but
    rather focus on seniority preservation.                We disagree.
        In      our   review     of   statutory      enactments,       we   must    read
    statutes dealing with the same subject matter in pari materia
    and construe them together as a "unitary and harmonious whole."
    Lacy, supra, 185 N.J. at 14-15 (citations omitted).                      "Statutes
    in pari materia are to be construed together when helpful in
    resolving    doubts     or   uncertainties       and    the    ascertainment      of
    legislative intent[,]" and "it is basic in the construction of
    legislation that every effort should be made to harmonize the
    decision,             (February             1,                                 2006),
                                            13                                A-5649-11T2
    law relating to the same subject matter."                    State v. Green, 
    62 N.J. 547
    , 554-55 (1973).
           In     determining     whether    legislative      enactments      "actually
    'concern the same object,'" a court should consider "whether
    both statutes were included in one enactment, whether the proofs
    required overlap, and whether they are 'designed to serve the
    same purpose and objective[.]'"                Marino v. Marino, 
    200 N.J. 315
    330 (2009) (quoting 2B Sutherland Statutory Construction § 51:3
    (7th    ed.    2008)).      Both     N.J.S.A.     18A:17-2   and    18A:28-6     were
    enacted at the same time.                See L. 1967, c. 271.             N.J.S.A.
    18A:17-20.4 was enacted subsequently.               See L. 1991, c. 267, § 8.
           We are satisfied that all three statutes concern the same
    object, namely, the accrual and retention of tenure by school
    district employees, and are designed to serve the same purpose
    and    objective.        "When     the   Legislature     expressly     includes     a
    requirement in one section and excludes that same requirement in
    other    subsections     of    the    same     general   statute,    we   need   not
    strain to import that requirement where it is not."                            In re
    Freshwater Wetlands Prot. Act Rules, 
    180 N.J. 478
    , 492 (2004).
    When considered together, it is obvious the Legislature did not
    intend to afford secretaries tenure preservation upon transfer
    or promotion from secretarial employment as they did not adopt a
    provision providing for tenure retention in the legislation.
                                              14                               A-5649-11T2
          We    next     consider     the   Commissioner's        determination    that
    Given v. East Windsor Regional School District, 1978 S.L.D. 43
    (Comm. Jan. 30, 1978), aff'd, 1978 S.L.D. 46 (St. Bd. Of Educ.
    June 7, 1978), aff'd, 1979 S.L.D. 832 (App. Div. May 18, 1979)
    controls the within matter.
          In Given, the petitioner was employed as a tenured clerk
    before accepting a position as secretary within the district.
    After      working    as    a    secretary     for    approximately   twenty-two
    months, Given was involuntarily returned to a clerical position.
    Ibid.      Given appealed to the Commissioner for an order declaring
    that she was a tenured secretary and therefore not subject to
    reassignment as a clerical employee.                  Ibid.    Given argued that
    the   transfer       and   the   reduction     in    compensation   violated    her
    tenure rights as a secretary which she contended she acquired
    immediately upon her promotion to the position.                  Id. at 44.    The
    Board conceded that Given had earned tenure as a clerk, but
    denied that she had served the requisite probationary period to
    earn tenure as a secretary.              Ibid.       In rejecting petitioner's
    argument, the Commissioner upheld the action of the Board in
    reassigning petitioner to a clerical position, finding:
                 there exists a legitimate interest for a
                 local board to have a probationary period
                 for clerical and secretarial employees in
                 its employ who receive a promotion.   The
                                             15                              A-5649-11T2
                 Commissioner opines that to hold otherwise
                 would work hardship on both the board and
                 the employee if instant tenure were to
                 accrue to a promotional position made in
                 good faith by the board.             A clerk or
                 secretary   so    promoted    would    likely   be
                 required to demonstrate greater technical
                 skills in order to properly discharge more
                 complex responsibilities and must have a
                 probationary period in which to adequately
                 adjust to the new position.        The fact that
                 the   Legislature    has    not   established    a
                 specific statutory probationary period for
                 clerks   and   secretaries      who    have   been
                 promoted, such as exists in N.J.S.A. 18A:28-
                 6 for certificated personnel, does not
                 obviate the need for such a probationary
                 period.     The Commissioner holds that a
                 tenured clerk or secretary, upon promotion
                 to   another   position     within    the   school
                 district,    must      satisfy     the     precise
                 conditions enunciated in N.J.S.A. 18A:17-
                 2(b) and (c) to achieve a tenure status in
                 the new position.      The Commissioner further
                 holds that tenure rights accrued in a school
                 system   in   any    clerical    or    secretarial
                 position prior to promotion shall not be
                 negated by such promotion and shall remain
                 as   a   continuing      entitlement     to   such
                 [Id. at 45.]
        The      Commissioner's    ruling   in   Given    applies   only     in   the
    limited situations where a secretary or clerk is promoted to
    another secretarial or clerical position.             This is implicit from
    the language of the opinion, which required that a promoted
    clerk   or     secretary    "must   satisfy     the    precise     conditions
    enunciated     in   N.J.S.A.    18A:17-2(b)     and    (c),"     since    those
    conditions only pertain to clerical and secretarial employees.
                                        16                                 A-5649-11T2
    Ibid. (emphasis added).                 That portion of the decision upon which
    the Commissioner relied in this case, i.e., "that tenure rights
    accrued    in       a    school    system      in    any    clerical     or    secretarial
    position       prior      to     promotion      shall      not    be   negated     by    such
    promotion and shall remain as a continuing entitlement to such
    employee," was dicta, since it had no effect upon the outcome of
    the case.
        More importantly, Given did not address the issue presented
    here, namely, whether the tenure achieved under N.J.S.A. 18A:17-
    2, is retained when the tenured secretary accepts a certificated
    position    and         leaves    her    tenured     secretarial        employment.           In
    addressing this issue we look to Colon-Serrano v. Plainfield Bd.
    of Educ., 
    2007 WL 4644775
     (N.J. Adm.) (Colon-Serrano I), aff'd
    in part, rev'd in part, 
    2008 WL 1795250
     (N.J. Adm.) (Colon-
    Serrano II), aff'd, 
    2008 WL 2971334
     (N.J. Adm.) (Colon-Serrano
    III) for guidance.
        In      Colon-Serrano,              the   petitioner         was   employed    by     the
    district       in       the    clerical       position     of     attendance      aide    and
    obtained tenure pursuant to N.J.S.A. 18A:17-2.                          Colon-Serrano I,
    supra,    at    *1.           Thereafter,      the   petitioner        transferred       to   a
    classroom aide position, which was neither clerical nor tenure
    eligible.       Ibid.         The petitioner held her position as classroom
    aide from 1994 until the district failed to renew her contract
                                                    17                                 A-5649-11T2
    in 2006.     Ibid.        The petitioner then sought to return to a
    clerical position held by a non-tenured or less senior clerical
    employee.         Ibid.      When    the        Board   refused   to   return    the
    petitioner to a clerical title, she filed a petition with the
    Commissioner seeking reinstatement on the basis of her prior
    accrued tenure.      Ibid.
        The     ALJ    concluded    the    petitioner        earned   tenure   in    the
    clerical position of attendance aide and ordered the Board to
    place petitioner in a clerical position held by a non-tenured or
    less senior employee.          Id. at *3.          On review, the Commissioner
    agreed that the petitioner had acquired tenure as a clerical
    employee, but rejected the conclusion that the petitioner, "who
    voluntarily left her tenured position in 1994 to accept the
    separate and non[-]tenurable position of classroom aide . . . is
    now entitled to 'bump back' into a clerical position held by a
    non[-]tenured or less senior clerical employee . . ."                       Colon-
    Serrano II, supra, at *2.           The Commissioner specifically found:
                N.J.S.A. 18A:17-2 provides that clerical
                employees who acquire tenure "shall hold
                [their] office, position or employment under
                tenure during good behavior and efficiency
                and shall not be dismissed or suspended or
                reduced in compensation except for neglect,
                misbehavior or other offense and only in the
                manner prescribed by [the Tenure Employees
                Hearing Law]." . . . In this matter,
                however, the employment from which the
                petitioner was dismissed was neither her
                tenured clerical employment nor an extension
                                               18                              A-5649-11T2
                 or    "hybrid"      continuation     of   such
                 employment,    but rather a clearly distinct,
                 non[-]clerical, and non[-]tenured classroom
                 aide position to which she voluntarily
                 transferred in 1994. . . . Under these
                 circumstances,    when   the   petitioner  was
                 advised in July 2006 that her contract would
                 not be renewed, the protections of N.J.S.A.
                 18A:17-2 were no longer applicable; in the
                 absence of express legislative provision for
                 retention of accrued tenure rights upon
                 transfer to a position which is not tenure
                 eligible, the petitioner must be deemed to
                 have relinquished the protections associated
                 with her clerical tenure upon acceptance of
                 the nonprotected position of classroom aide.
                 [Id. at *2 (alteration in original).]
             This case is factually similar to Colon-Serrano in that
    DiNapoli left her tenured secretarial position to pursue the
    non-secretarial        certificated   position     of   assistant    school
    business administrator.        Once DiNapoli abandoned her employment
    as   a    secretary,   she   relinquished   the   tenure   rights   she   had
      The Commissioner specifically distinguished the facts from
    those presented in Keaney v. Bd. of Educ. of the Twp. of
    Bloomfield, EDU 5881-03, initial decision (July 28, 2005),
    http://njlaw.rutgers.edu/collections/oal/search.html>        and
    adopted,   Comm'r,    final   Decision    (August   31,   2005),
    http://njlaw.rutgers.edu/collections/oal/search.html>       (the
    Commissioner adopted the ALJ's initial decision which found
    petitioner "never knowingly and intelligently waived his tenure
    as a janitorial employee when he assumed the title of supervisor
    of maintenance" in which he still maintained his janitorial
    duties); and Quinlan v. Bd. of Educ. of N. Bergen Twp., 73 N.J.
    Super. 40, 47-48 (App. Div. 1953) (holding petitioner's tenure
    as a clerk was not terminated by the board's unilateral
    appointment of her as clerk-attendance officer where she
    continued to perform clerical duties as well as those of an
    attendance officer).
                                          19                            A-5649-11T2
    accrued therein.      Although Colon-Serrano's new position was not
    tenure eligible and DiNapoli's position was, that fact alone
    cannot support a dissimilar result, as there was no discussion
    by the Commissioner in Colon-Serrano about how, if at all, that
    fact affected his finding.             Further, there was no reference by
    the Commissioner to any statutory authority that would support
    the disparate treatment of secretaries who transfer into non-
    tenurable    positions     versus      those     who    transfer    into      tenure
    eligible positions.        There is no basis in N.J.S.A. 18A:17-2 for
    such a distinction.        In finding Colon-Serrano had forfeited her
    tenure rights, the Commissioner focused on the fact that the
    petitioner was no longer employed in the clerical employment
    that had been the source of her tenure, and was instead engaged
    in a "distinct, nonclerical . . . position[.]"                Id. at *2.
          Additionally,   there       is   nothing    in    the   record    in       Colon-
    Serrano,    other   than    the    petitioner's        acceptance      of    a    non-
    tenurable position, to demonstrate an intention to relinquish
    her   clerical   tenure    rights,      yet    the     Commissioner     found      she
    forfeited the tenure protections she had acquired by way of her
    transfer.    We too must find DiNapoli abandoned her tenure rights
    when she accepted a transfer to a non-secretarial certificated
                                            20                                   A-5649-11T2
        Here, the Commissioner adopted the ALJ's conclusion that
    the decision in Colon-Serrano expanded without distinction upon
    the decision in Given but offered no basis or support for that
    conclusion.      We disagree with the ALJ’s determination, as it is
    clear    the   decision       in    Colon–Serrano         limited      Given's   holding.
    Simply    stated,     Given        and    Colon-Serrano       cannot     be     reconciled
    unless     Given      is     limited       to        situations   where       clerks    and
    secretaries are promoted or transferred to other clerical or
    secretarial positions.
        We         also         reject        the          Commissioner's         restrictive
    interpretation of Lange v. Bd. of Educ. Of Borough of Audubon,
    26 N.J. Super. 83
     (App. Div. 1953).                         The Commissioner merely
    stated Lange was "inapposite to the instant controversy [,]"
    without    meaningful         discussion.              However,   we    conclude       Lange
    offers     further         support       for     the     conclusion      that    DiNapoli
    relinquished her secretarial tenure.
        In Lange, the petitioner was employed by the Audubon Board
    of Education, beginning her service as a teacher in 1912.                               Id.
    at 84.     In 1914, she was transferred, with her consent, to the
    position of principal in which she served from 1914 until 1927.
    Ibid.     In June 1927, she was assigned by the Board of Education
    to the position of "Supervisor to Supervise Grade Schools," and
    served in that capacity until the position was abolished in June
                                                    21                                A-5649-11T2
    1944 for reasons of economy and diminution in the number of
    pupils.     Ibid.       Thereafter, she served as a teaching principal
    in one of the grade schools until September 18, 1944, when it
    was discovered that there had been no vacancy in such position
    and Lange was returned to a teaching position.                      Id. at 85.
          In 1951, a vacancy arose in a principal position and Lange
    applied asserting rights to the position by virtue of her prior
    service as principal.                Ibid.        She was not appointed to the
    position and appealed, arguing that under the then Teachers'
    Tenure Law, R.S. 18:13-16, 17, 19 and 20, she did not lose her
    tenure     as    principal          when     she    accepted     the      position    of
    "Supervisor       to        Supervise      Grade     Schools,"      and    "when     the
    [supervisor] position was abolished in 1944, she was entitled to
    appointment to fill the next available principalship."                             Ibid.
    The Board of Education contended Lange "lost any tenure she may
    have had as a principal under the Teachers['] Tenure Law by
    accepting       the    position      of    supervisor."        Ibid.        The    State
    Commissioner of Education affirmed the Board's determination and
    Lange appealed.         Ibid.
          At the time Lange served as principal, she was protected by
    tenure.     The original Teachers' Tenure Law was enacted in 1909,
    see   L.   1909,       c.    243,    p.    398;    however,    it    was    not    until
    amendments enacted in 1935 that the concept of seniority was
                                                 22                                A-5649-11T2
    introduced and given prospective effect.     See L. 1935 c. 126. p.
    331; Lange, supra, 26 N.J. Super. at 85-86 (citing Downs v. Bd.
    of Educ. of Hoboken, 
    126 N.J.L. 11
    , 13 (Sup. Ct. 1940), aff'd,
    Schlank v. Bd. of Educ. of Hoboken, 
    127 N.J.L. 602
     (E. & A.
    1942));   Werlock   v.   Woodbridge,   1939-1949   Comp.   School   Law
    Decisions, p. 107 (1948), aff'd on other grounds, 
    5 N.J. Super. 140
     (App. Div. 1949).
        Important for our purposes here is the court's discussion
    of Lange's relinquishment of her principalship, and the rights
    connected therewith.     Specifically the court found:
              The record is barren of any protest or
              expression of dissatisfaction by plaintiff
              respecting   her   change  of  status   from
              principal to supervisor. Nor does it appear
              that any proceeding was initiated by her to
              test the local board's action or that the
              appellant at any time protested or took any
              action indicating dissatisfaction with the
              action of the local board voiding the
              principalship held by her for a brief period
              of time in 1944. We think, therefore, it is
              a reasonable inference that she surrendered
              her principalship in 1927 voluntarily.   The
              appellant concedes that one may voluntarily
              relinquish a position, . . . but asserts
              that tenure rights may not be waived while
              keeping the position.
                   . . . .
                   This appeal might well be disposed of
              on the ground of laches.     Notwithstanding
              the fact that by accepting the position of
              supervisor, she surrendered her position as
              principal, thereby constituting a dismissal
              as such principal and thereafter limiting
                                      23                          A-5649-11T2
                    her tenure rights to the classification of a
                    teacher . . . .
                    [Lange, supra, 26 N.J.               Super.    at     86-89
                    (citations omitted).]
          In     this      case,    we        disagree    with     the     Commissioner's
    conclusion        that    Lange      is     not    relevant.          Lange     involved
    consideration       of    whether     the     petitioner      retained     her    tenure
    rights     in    the     position    of     principal      after     she   voluntarily
    transferred from principal to supervisor, a separate tenurable
    position.        We found Lange "waived whatever rights she may have
    acquired to the position of principal[,]" possessed no seniority
    rights with respect to a principal position and had no claim to
    be on a preferred eligibility list for her service as principal
    from 1914 to 1927.             Id. at 87.          The Commissioner here failed,
    however, to consider our specific holding in his analysis.
          Like       Lange,     DiNapoli         did     not     protest       or    express
    dissatisfaction with her transfer or promotion to the position
    of   assistant      school     business       administrator.          Moreover,       like
    Lange, she voluntarily transferred from her tenured secretarial
    position to another tenure eligible position.                        When the holding
    in Lange is applied to these facts, DiNapoli must be found to
    have relinquished her secretarial tenure upon promotion to the
    position of assistant school business administrator.                             Just as
    Lange had no claim to a principal position that became available
                                                 24                                  A-5649-11T2
    in 1951, DiNapoli cannot be said to have the right to "bump
    back" to a secretarial position held by a non-tenured employee.
          DiNapoli     concedes     that    an    individual       may    voluntarily
    relinquish a position, but argues she may not waive her tenure
    rights while keeping her position.             Lange, supra, 26 N.J. Super.
    at 88.     Nevertheless, she argues that at the time she accepted
    the   promotion     and    subsequent       transfer    to     the   position    of
    assistant school business administrator, she did not relinquish,
    waive or forfeit her position as secretary.                  There is no support
    for this argument in the record before us.               There is nothing to
    suggest that either party considered the transfers or promotions
    temporary assignments.         In fact, in order for DiNapoli to become
    the assistant school business administrator she needed to obtain
    the   appropriate    certification      credentials.          She    obtained   the
    certification, thus evidencing her intention to remain in the
    position     as    assistant     school      business    administrator,         not
    secretary.        Certainly, the facts support the conclusion that
    DiNapoli     relinquished       her    secretarial       position       upon    her
    acceptance    of    the   promotion    or    transfer    to    the   position     of
    assistant school business administrator.
          DiNapoli further argues that since she was "assigned" to
    the positions of assistant to the business administrator and
                                            25                                A-5649-11T2
    assistant school business administrator, she did not waive or
    voluntarily relinquish her position as a secretary.                            We also
    find this argument meritless.               A voluntary resignation equates
    to abandonment of tenure rights.                 Kimless V. Twp. of Woodbridge
    Bd. of Educ., 1978 S.L.D. 651, 656 (1978) (citations omitted)
    ("Such [a] holding is consistent with previous rulings of the
    Commissioner        wherein     it   was        held     petitioners      voluntarily
    resigned      teaching    position    which          constituted      abandonment     of
    their rights to a tenure claim").                Despite DiNapoli's suggestion
    to    the    contrary,    she    could     only        have    been   transferred     or
    promoted     with   her   consent.         Thus,       when    DiNapoli   voluntarily
    assumed the position of assistant to the business administrator
    and   then    accepted    a     promotion       to   the      position   of   assistant
    school business administrator, she relinquished her secretarial
    position and tenure rights.
                                               26                                  A-5649-11T2