(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
DOROTHY KLETZKIN V. BOARD OF EDUCATION OF THE BOROUGH OF SPOTSWOOD,
MIDDLESEX COUNTY (A-32)
Argued November 8, 1993 -- Decided June 29, 1994
POLLOCK, J., writing for a majority of the Court.
The issue on appeal is whether Dorothy Kletzkin, a school psychologist employed by the Board of
Education of the Borough of Spotswood (Middlesex County), acquired tenure while on leave because of a work-related injury.
Kletzkin began employment with Spotswood as a learning-disabilities teacher consultant on January 13,
1986. She was reclassified by Spotswood as a school psychologist on October 22, 1986, and served in that
capacity through the 1987-88 school year. Spotswood then rehired Kletzkin for the 1988-89 year. Kletzkin
continued to work as a school psychologist until November 17, 1988, when she was forced to take an involuntary
leave of absence due to a work-related injury. She continued to receive her full salary. On April 11, 1989,
before she returned to work, Spotswood terminated Kletzkin's employment. She challenged the termination,
arguing that she had obtained statutory tenure.
The statute that deals with teacher tenure includes school psychologists and provides that teaching-staff
members receive tenure after employment for the equivalent of more than three academic years within a period
of any four academic years. An academic year runs for the ten months between September 1 and June 30 of
the school year. Therefore, to obtain tenure, Kletzkin would have to have been "employed" for thirty months
and one day over a period of four academic years. At the time of her injury, she had served for slightly more
than twenty-eight months. The litigation revolves around the question of whether Kletzkin obtained tenure when
the thirtieth month passed in January 1989, which was during the time that she was disabled.
The Commissioner of Education found in Kletzkin's favor, as did the State Board of Education. The
Appellate Division affirmed, substantially for the reasons set forth by the State Board of Education. The
Supreme Court granted the Spotswood Board of Education's petition for certification.
HELD: A teaching-staff employee of a board of education may acquire tenure while on a leave of absence
because of a work-related injury.
1. Tenure is a statutory right that depends on a teacher satisfying specific statutory requirements. The
plain language of the statute contemplates an ordinary employment relationship. The language is clear and
unambiguous and shall be applied as written in the absence of any evidence of legislative intent to the contrary.
Under the statute, "employment" includes periods of sick leave. Therefore, Kletzkin obtained tenure while on
sick leave and Spotswood improperly terminated her. (pp. 3-5)
2. Another statute (N.J.S.A. 18A:30-2.1) confirms that the Legislature intended that a teacher's employment
would continue during a period of involuntary sick leave. Other court cases also substantiate the conclusion that
Kletzkin continued her period of employment during her leave of absence. (pp. 5-6)
3. The Court rejects the argument that the statute requires a full thirty months of active service prior to
an award of tenure. While the Court recognizes the importance of a probationary period as a means of assessing
a teacher's performance, the Spotswood Board had ample opportunity to assess Kletzkin over twenty-eight
months during four school years. Nothing indicates that the Board had any reason to deny her tenure before
she was injured on the job. In another case, however, a more extended leave of absence could lead to a different
result. (p. 7)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, dissenting, in which JUSTICE CLIFFORD joins, is of the view that the term
"employment" in the tenure context contemplates a period of actual service. Furthermore, neither the legislative
history of the pertinent statute nor the caselaw suggests the existence of any relationship between tenure and a
teacher's right to receive pay during an absence caused by a job-related injury. If a teacher can acquire tenure
without actually teaching for the full probationary period, that result runs counter to the Court's 1968 decision
in Canfield v. Board of Education (
51 N.J. 400) and circumvents the purpose of the statutory probationary
period.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN and GARIBALDI join in JUSTICE
POLLOCK's opinion. JUSTICE STEIN filed a separate dissenting opinion in which JUSTICE CLIFFORD
joins.
SUPREME COURT OF NEW JERSEY
A-
32 September Term 1993
DOROTHY KLETZKIN,
Petitioner-Respondent,
v.
BOARD OF EDUCATION OF THE
BOROUGH OF SPOTSWOOD, MIDDLESEX
COUNTY,
Respondent-Appellant.
Argued November 8, 1993 -- Decided June 29, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
261 N.J. Super. 549 (1993)
Philip H. Shore argued the cause for
appellant (Shore & Zahn, attorneys; Mr. Shore
and John B. Wolf, on the briefs).
Stephen B. Hunter argued the cause for
respondent (Klausner, Hunter, Cige & Seid,
attorneys).
Arlene Goldfus Lutz, Deputy Attorney General,
argued the cause for respondent State Board
of Education (Fred DeVesa, Acting Attorney
General of New Jersey, attorney; Mary C.
Jacobson, Assistant Attorney General, of
counsel).
Donna M. Kaye, Associate Counsel, argued the
cause for amicus curiae, New Jersey School
Boards Association (Sheila Dow Ford,
Director, attorney).
The opinion of the Court was delivered by
POLLOCK, J.
The issue is whether respondent, Dorothy Kletzkin, a school
psychologist, acquired tenure while on leave because of a
work-related injury. The Commissioner of Education (the
Commissioner), the New Jersey State Board of Education (the
Board), and the Appellate Division,
261 N.J. Super. 549 (1993),
all read the tenure statute, N.J.S.A. 18A:28-5, to require a
finding that Kletzkin had acquired tenure. We granted the
petition for certification of the Spotswood Board of Education
(Spotswood),
133 N.J. Super. 443 (1993), and now affirm.
Kletzkin began employment with Spotswood as a learning-disabilities teacher consultant on January 13, 1986. Spotswood reclassified her as a school psychologist on October 22, 1986. She served in that capacity for the remainder of the 1986-87 school year and throughout the 1987-88 year. Spotswood rehired Kletzkin for the 1988-89 year. She continued to work as a school psychologist until November 17, 1988, when a work-related injury forced her to take an involuntary leave of absence. Pursuant to N.J.S.A. 18A:30-2.1, she continued to receive her full salary. On April 11, 1989, before Kletzkin's return to service, Spotswood terminated her employment.
The applicable statute, N.J.S.A. 18A:28-5(c), provides that teaching-staff members, which include school psychologists, receive tenure "after employment" for the equivalent of more than three academic years within a period of any four academic years.
An academic year runs for the ten months between September 1 and
June 30 of the school year. See N.J.S.A. 18A:1-1 (defining
academic year as "the period between the time school opens in any
school district or any board of education after the general
summer vacation until the next succeeding summer vacation").
Thus, to obtain tenure, Kletzkin would have had to be "employed"
for thirty months and one day over four academic years. At the
time of her injury, she had served for slightly more than
twenty-eight months. The parties disagree whether she obtained
tenure when the thirtieth month passed in January 1989 while she
was disabled.
The Commissioner found in Kletzkin's favor, using a case-by-case subjective approach. Although the Board affirmed the
finding that Kletzkin was entitled to tenure, it reasoned that
Kletzkin's claim turned "solely on analysis of whether she
satisfied the specific requirements of N.J.S.A. 18A:28-5." The
Appellate Division affirmed, "substantially for the reasons set
forth by the Board in its decision," 261 N.J. Super. at 552.
Tenure is a statutory right that depends on a teacher's satisfying specific statutory conditions. Spiewak v. Board of Educ., 90 N.J. 63, 72 (1982); Zimmerman v. Board of Educ., 38 N.J. 65, 72 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed.2d 502 (1963). Because of its remedial purpose, we construe the Act liberally. Spiewak, supra, 90 N.J. at 74. "Moreover, as the agency ultimately charged with implementation of the school laws, the Board's statutory interpretation is entitled to considerable weight, where not inconsistent with the statute and in harmony with the statutory purpose." Kletzkin, supra, 261 N.J. Super. at 553 (citing Basset v. Board of Educ., 223 N.J. Super. 136, 142-43 (App. Div. 1988)). Although remaining vigilant to the "proper application of the school laws . . .," Dennery v. Board of Educ., 131 N.J. 626, 643 (1993), we also recognize that we should not interfere with the Board's decisions unless those decisions are "palpably arbitrary." Ibid.
The dispositive statute provides:
The services of all teaching staff
members . . . shall be under tenure during
good behavior and efficiency and they shall
not be dismissed or reduced in compensation
except for inefficiency, incapacity, or
conduct unbecoming such a teaching staff
member or other just cause . . . after
employment . . . for
(c) The equivalent of more than three
academic years within a period of any four
consecutive academic years.
Kletzkin maintains that "employment" includes periods of
sick leave, that she obtained tenure while on such leave, and
that Spotswood improperly terminated her. We agree. Our
analysis begins with the plain language of the statute, which
contemplates an ordinary employment relationship. "Since the
wording of N.J.S.A. 18A:28-5 is clear and unambiguous, we will
apply it as written in the absence of any evidence of a contrary
legislative intent." Spiewak, supra, 90 N.J. at 74.
A teacher's employment begins with the actual performance of
service, not the date of hiring. See Zimmerman, supra, 38 N.J.
at 73-74; Carroll v. State Board of Educ.,
8 N.J. Misc. 859, 862
(Sup. Ct. 1930). Further, "continuous employment" exists
notwithstanding the "mere occasional absence of a teacher by
reason of illness or excuse." Board of Educ. v. Wall,
119 N.J.L. 308, 309-10 (Sup. Ct. 1938). Spotswood hired Kletzkin for the
school year spanning September 1, 1988, through June 30, 1989,
and she started work under that employment contract. A teacher
who performs services under a contract for the year is employed
for the purposes of the statute, see Zimmerman, supra, 38 N.J. at
74, even if he or she takes an involuntary leave. Accordingly,
Spotswood maintained the employment relationship with Kletzkin
until it terminated her on April 11, 1989, approximately three
months after she had become tenured. In sum, the termination
occurred after Kletzkin became tenured in January 1989.
Another statute, N.J.S.A. 18A:30-2.1, confirms that the
Legislature intended that a teacher's employment would continue
during a period of involuntary sick leave. That statute
provides:
Whenever any employee, entitled to sick
leave under this chapter, is absent from his
post of duty as a result of a personal injury
caused by an accident arising out of and in
the course of his employment, his employer
shall pay to such employee the full salary or
wages for the period of such absence for up
to one calendar year without having such
absence charged to the annual sick leave or
the accumulated sick leave provided in
sections 18A:30-2 and 18A:30-3.
By referring to a teacher on sick leave as an "employee," and by
requiring a school board to "pay to such employee the full salary
or wages for the period of such absence," the statute recognizes
that teachers are employed while on sick leave.
In other contexts, we have also recognized that an employee on a leave of absence remains an employee. See Ward v. Keenan, 3 N.J. 298, 310, 311 (1949) (holding police officer on leave of absence "does not lose his tenure during good behavior"; rather, "a leave of absence, instead of constituting a complete severance of responsibility, is analogous to the off duty period enjoyed daily by every police officer, except that it extends for a
longer period"); see also Blinn v. Board of Trustees,
173 N.J.
Super. 277, 278 (App. Div. 1980) (stating in pension case,
"phrase 'leave of absence' itself 'connotes a continuity of the
employment status'") (citations omitted). These analogous cases
substantiate our conclusion that Kletzkin continued her period of
employment during her leave of absence.
We reject Spotswood's argument, embraced by the dissent, that the statute requires that a teacher render a full thirty months of active service during the probationary period. In rejecting that argument, we recognize the importance of a probationary period as a means of assessing a teacher's performance. See Zimmerman, supra, 38 N.J. at 73 (stating that policy of tenure legislation "demands that permanent appointments be made only if the teachers are found suitable for the positions after a qualifying trial period"); see also Cammarata v. Essex County Park Comm'n, 26 N.J. 404, 412 (1958) (emphasizing that crucial test of park police officer's fitness is "how he fares on the job from day to day"). Kletzkin, however, was no stranger to the Board. It had ample opportunity to assess her over twenty-eight months during four school years. Nothing indicates that the Board had any reason to deny her tenure before she was injured on the job. Under the unusual circumstances of this case, we conclude that Kletzkin's brief period of sick leave did not deprive the Board of its opportunity to evaluate her before
she acquired tenure. In another case, a more extended leave of
absence could lead to a different result. As the Board
recognized, the happenstance that Kletzkin's leave occurred at
the end of her probationary period does not justify excluding the
time that she was on leave from her probationary period.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, O'Hern, and
Garibaldi join in this opinion. Justice Stein has filed a
separate dissenting opinion in which Justice Clifford joins.
SUPREME COURT OF NEW JERSEY
A-
32 September Term 1993
DOROTHY KLETZKIN,
Petitioner-Respondent,
v.
BOARD OF EDUCATION OF THE
BOROUGH OF SPOTSWOOD, MIDDLESEX
COUNTY,
Respondent-Appellant.
____________________________
STEIN, J., dissenting.
This case turns on the meaning of "employment" in a tenure
statute, N.J.S.A. 18A:28-5. That enactment provides that a
teaching-staff member "serving in any school district or under
any board of education" acquires tenure
after employment in such district or by such
board for:
(a) Three consecutive calendar
years, or any shorter period which
may be fixed by the employing board
for such purpose; or
(b) Three consecutive academic
years, together with employment at
the beginning of the next
succeeding academic year; or
(c) The equivalent of more than
three academic years within a
period of any four consecutive
academic years. (Emphasis added.)
The Court determines today that "employment" as used in the
tenure statute means contractual employment, and that it
therefore includes a period during which a teacher is absent on
an extended paid disability leave. Although that result may seem
appropriate in the case of respondent, Dorothy Kletzkin, who
served subject to the evaluation of the Spotswood school board
for twenty-eight months and was injured on the job just two
months before she would have completed the full probationary
period, the Court's conclusion may allow insufficiently-evaluated
teachers to acquire tenure. Because tenured teachers cannot be
discharged except for substantial cause, the probationary tenure
period is critically important in determining a teacher's
competence in classroom instruction, and a decision that
effectively shortens that probationary period disserves the
interests of school children and potentially undermines the
purpose of the tenure statute. My view is that "employment" in
the tenure context contemplates a period of actual service.
Kletzkin, hired in the middle of the academic year, began employment with the Spotswood school district on January 13, 1986, as a learning-disabilities teacher consultant (LDTC). She served for the remainder of that academic year until June 30, 1986. The Spotswood Borough Board of Education (Spotswood) rehired Kletzkin for the 1986-87 school year, and she served from
September 1, 1986, through June 30, 1987, first as an LDTC and
then as a school psychologist. Pursuant to a new contract,
Kletzkin worked the following academic year from September 1,
1987, through June 30, 1988, serving as both a school
psychologist and an LDTC. Spotswood rehired her for the
following academic year, and she began employment, but on
November 17, 1988, she was injured on the job and was forced to
take a leave of absence. Kletzkin received full salary during
that leave pursuant to N.J.S.A. 18A:30-2.1. On April 11, 1989,
Spotswood terminated Kletzkin, who was still on leave, and hired
a new LDTC for the 1989-90 school year.
Kletzkin claimed that Spotswood could not fire her, except
for cause and in compliance with the applicable procedures,
because she had acquired tenure while on leave. Kletzkin alleged
that she had met the requirements of paragraph (c) of N.J.S.A.
18A:28-5 because by January 14, 1989, she had been an employee of
Spotswood for "[t]he equivalent of more than three academic years
within a period of any four consecutive academic years." (An
academic year is defined by N.J.S.A. 18A:1-1 as the period
between the time school opens after the general summer vacation
until the next succeeding summer vacation; in the case of the
Spotswood school district, that period is from September 1 to
June 30, or ten months.) Kletzkin had begun employment in the
middle of an academic year and had subsequently been hired for,
but had not completed, three full academic-year contracts.
Hence, she does not argue that she meets the requisites of
paragraph (a) or (b) of the tenure statute, which require either
employment for a period of three consecutive calendar years or
employment for three consecutive academic years together with
employment at the beginning of the next succeeding academic year.
The tenure statute was enacted to protect teachers from the vicissitudes of school board elections and resulting arbitrary dismissals. See Zimmerman v. Board of Educ., 38 N.J. 65, 71 (1962) ("The objectives [of the tenure statute] are to protect competent and qualified teachers in the security of their positions during good behavior, and to protect them, after they have undergone an adequate probationary period, against removal for unfounded, flimsy, or political reasons."), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed.2d 502 (1963). A school board cannot fire a tenured teacher without "just cause" such as inefficiency, incapacity, or conduct unbecoming a teaching-staff member. N.J.S.A. 18A:6-10. To discharge a tenured teacher, a school board must file written charges and hold a hearing. Ibid. A contested dismissal of a tenured teacher can "take years" and "cost districts hundreds of thousands of dollars." Ovetta
Wiggins, Anti-Tenure Coalition Lobbying Trustees, The Record
(Hackensack, N.J.), May 20, 1994, at C-1, C-2.
In recognition of the relative permanency accorded by tenure
status, N.J.S.A. 18A:28-5 grants tenure to a teacher only after
affording school boards a substantial probationary period during
which to evaluate the teacher. In the probationary period the
teacher can be fired for any non-discriminatory reason. See
Gilchrist v. Board of Educ.,
155 N.J. Super. 358, 367 (App. Div.
1978); see also Donaldson v. Board of Educ.,
65 N.J. 236, 241
(1974) ("The board's determination not to grant tenure need not
be grounded on unsatisfactory classroom or professional
performance * * * ."). A teacher dismissed prior to the
completion of the probationary period will not acquire tenure,
regardless of whether that teacher has an employment contract for
a period in which tenure would have been obtained if the teacher
had continued teaching. Canfield v. Board of Educ.,
51 N.J. 400
(1968), rev'g on dissent below
97 N.J. Super. 483, 490 (App. Div.
1967).
The evaluative purpose of the probationary period is
emphasized by the statutory mandate of N.J.S.A. 18A:27-3.1, which
provides that school boards must have each nontenured teacher
observed and evaluated in the performance of
her or his duties at least three times during
each school year but not less than once
during each semester. * * * The purpose of
this procedure is to recommend as to
reemployment, identify any deficiencies,
extend assistance for their correction and
improve professional competence.
In Kletzkin's case, her absence prevented the school board from
making the final required evaluation of her performance.
The history of the tenure statute suggests that the
Legislature contemplated a period of teaching service in
requiring "employment" for a minimum term. In 1934, the
Legislature amended the statute to reverse the effect of a State
Board of Education decision that denied tenure to teachers who
worked only during the academic year and not for full calendar
years. The amendment was intended to assure "that a teacher was
protected in her employment after three consecutive calendar
years of service or upon beginning the fourth consecutive
academic year of service." Sponsor Statement to Senate Bill No.
31 (1935) (emphasis added). In 1935, the Legislature, concerned
that language used in the 1934 amendment would invite
interpretations that would "shorten the probationary period,"
clarified the academic-year provision by adding the present
language of paragraph (b). Ibid.
With regard to paragraph (c) of N.J.S.A. 18A:28-5, setting
forth the probationary period allegedly fulfilled by Kletzkin,
the Sponsor Statement noted that the law was intended
to provide for teachers[] who aggregate the
equivalent of more than three academic years
of teaching service in any school district,
within a period of four consecutive academic
years, the same tenure of position [that] the
present law provides for teachers who teach
three calendar years or three consecutive
academic years and are employed at the
beginning of the fourth academic year.
[Sponsor Statement to Assembly Bill No. 81
(1940) (emphasis added).]
Our prior cases have interpreted the tenure statute to
require service for the statutory period. In Zimmerman, supra,
a teacher alleging that he had acquired tenure prior to the
school board's termination of his employment argued that the
statutory tenure period began running on the date a contract to
teach for the next academic year was signed. 38 N.J. at 67. The
Court rejected that argument and found that "employment" did not
commence until the teacher began teaching. Id. at 73-74.
Although Zimmerman did not address whether "employment" would
include periods of paid absence, its language suggests that mere
contractual status would not suffice even after a teacher has
begun teaching:
[I]f appellant's interpretation of the word
"employment" were to be adopted, tenure would
be acquired in many instances before the
teacher had completed teaching for three
academic years. That interpretation would
also shorten the length of the minimum
probationary period specified in terms of
"academic" years as the latter is defined in
the last paragraph of [the tenure statute].
Such a reading would clearly detract from the
statutory purpose.
See also Dennery v. Board of Education, 131 N.J. 626, 638 (1993) ("[T]enure accrues to a teaching staff member under a certificate only if he or she has also served in a position under that same certificate for a requisite period of time."); Spiewak v. Board
of Education,
90 N.J. 63, 74 (1982) ("By the express terms of
these statutes, an employee of a board of education is entitled
to tenure if (1) she works in a position for which a teaching
certificate is required; (2) she holds the appropriate
certificate; and (3) she has served the requisite period of
time.").
School-district employees who are steadily employed by the board of education or protected by tenure in their employment are allowed sick leave with full pay for a minimum of ten school days in an academic year. N.J.S.A. 18A:30-2. If an employee entitled to sick leave is absent due to an injury that arose out of and in the course of employment, the school board must pay the employee full salary for the period of absence for up to one calendar year without charging such absence to annual sick leave or to accumulated sick leave. N.J.S.A. 18A:30-2.1. Any amount paid to an employee under the statute is reduced by the amount of any workers' compensation award made for temporary disability. Ibid. The majority notes that N.J.S.A. 18A:30-2.1 refers to a teacher on disability leave as an "employee," and from that reference extrapolates that time spent on disability leave constitutes "employment" for the purposes of the tenure statute, N.J.S.A. 18A:28-5. Ante at ___ (slip op. at 5-6).
The tenure statute and its relevant amendments, see L. 1909, c. 243; L. 1934, c. 188; L. 1935, c. 27; L. 1940, c. 43, were enacted prior to the statutes providing for sick leave and paid leave for work-related injuries, see L. 1954, c. 188; L. 1959, c. 175. The legislative history of those laws and of the act recodifying those laws, see L. 1967, c. 271, do not address whether "employment" in the tenure statute was intended to include such absences. As originally enacted, N.J.S.A. 18A:30-2.1 provided that a board of education "may pay * * * up to the full salary" for a teacher's absence due to an injury on the job without charging that absence to sick-leave time. L. 1959, c. 175. The statute was amended in 1967 to make payment of full salary to disabled teachers mandatory by replacing "may pay" with "shall pay," and "up to the full salary" with "full salary." L. 1967, c. 168. The Sponsor Statement noted that the amendment "would eliminate the unfair practice of charging teacher absence due to injuries or illness arising from employment against the annual or accumulated sick leave." Sponsor Statement to Assembly Bill No. 357 (1967). Subsequent case law observed that "the express function of N.J.S.A. 18A:30-2.1 is to complement workers' compensation benefits for a strictly limited time period." Forgash v. Lower Camden County School, 208 N.J. Super. 461, 466-67 (App. Div. 1985); accord Theodore v. Dover Bd. of Educ., 183 N.J. Super. 407, 416 (App. Div. 1982). Neither the legislative history nor the case law suggests the existence of any
relationship between tenure and a teacher's right to receive pay
during an absence caused by a job-related injury.
Under the Court's decision, a teacher acquires tenure regardless of whether the teacher actually teaches for the full probationary period. That result runs counter to the Court's decision in Canfield, supra, 51 N.J. 400, and undermines the evaluative purposes of the tenure statute. See Zimmerman, supra, 38 N.J. at 73-74 (stating that interpretation of "employment" that would "shorten the length of the minimum probationary period * * * would clearly detract from the statutory purpose").
In enacting the tenure statute, the Legislature made a judgment regarding the appropriate length of the probationary period during which a school board may review a teacher's performance. A school board may also establish a shorter probationary period, N.J.S.A. 18A:28-5(a), but Spotswood has not done so, relying instead on the term established by statute. Although the majority states that it "recognize[s] the importance of a probationary period as a means of assessing a teacher's performance," ante at ___ (slip op. at 7), the Court, in finding that Spotswood "had ample opportunity to assess [Kletzkin] over twenty-eight months during four school years," ibid., essentially substitutes its own judgment of the appropriate review period for that made by the Legislature and adopted by Spotswood.
Kletzkin worked for twenty-eight months during four consecutive academic years, only two months short of the period of service that the statute requires. See N.J.S.A. 18A:28-5(c). The Court's decision, however, will allow a teacher who has taught for less time to acquire tenure. The Court's opinion, "reject[ing] Spotswood's argument * * * that the statute requires that a teacher render a full thirty months of active service during the probationary period," ante at ___ (slip op. at 7), would allow not only disability leaves pursuant to N.J.S.A. 18A:30-2.1 but also any "leave of absence" to be considered as "employment" for tenure purposes. Id. at ___ (slip op. at 6). Given the variety of leaves available to teaching-staff members, including those authorized by New Jersey's Family Leave Act, see N.J.S.A. 34:11B-3 to -4 (providing that employees are entitled to leave of twelve weeks in any twenty-four month period to provide care in the event of birth or adoption of child, or serious health condition of family member); the federal Family and Medical Leave Act, see 29 U.S.C.A. §2612 (providing that employees are entitled to leave of twelve weeks during any twelve-month period because of birth or adoption of child, or because of serious health condition of employee, or to care for seriously-ill family member); and leaves granted for personal or professional reasons on a case-by-case basis or pursuant to contract, see N.J.S.A. 18A:30-7 (allowing school boards by rule or individual consideration to pay salary in cases of absence not
constituting sick leave), the Court's decision will have
significant ramifications for school boards in their evaluations
of probationary teachers.
Although N.J.S.A. 18A:30-2.1 fulfills the laudable
objectives of not penalizing teachers for injuries encountered on
the job and of providing an incentive to school boards to create
safe work environments, nothing in its language or legislative
history indicates that the statute also was intended to allow
teachers to satisfy the requirements of the tenure statute while
on leave. Such an intent seems unlikely, because the underlying
purpose of the probationary period can be achieved only when a
teacher is working and subject to the evaluation of the school
board. The family-leave legislation recently enacted by both the
State and the federal governments contains language strongly
suggesting that absences pursuant to that legislation would not
be credited toward tenure. The New Jersey Family Leave Act
provides that on expiration of a leave, an employee shall be
restored to "the position held by the employee when the leave
commenced or to an equivalent position of like seniority, status,
employment benefits, pay, and other terms and conditions of
employment." N.J.S.A. 34:11B-7 (emphasis added). The federal
Family and Medical Leave Act states that no seniority or
employment benefits shall accrue during any period of leave.
29 U.S.C.A.
§2614(a)(3).
Not all absences would interfere significantly with a school
board's duty to evaluate probationary teachers. Thus, in Board
of Education v. Wall,
119 N.J.L. 308 (Sup. Ct. 1938), a case
concerning a teacher employed on a per diem basis, the court
stated that "[a] mere occasional absence of a teacher by reason
of illness or excuse" cannot disturb a teacher's right to tenure.
Id. at 309. Accordingly, periodic absences due to illness are
contemplated by N.J.S.A. 18A:30-2, the statute that provides
teachers with an annual allotment of sick days, and those
absences should not interrupt a teacher's acquisition of tenure.
However, the paid leave of up to one calendar year allowed under
N.J.S.A. 18A:30-2.1 is not the kind of short-term absence that
should be accommodated within the tenure probationary period.
In holding that Kletzkin had acquired tenure while on leave,
the Appellate Division noted that "the effect of this holding
upon a local school board, hesitant to grant tenure to a work-injured employee on involuntary leave, is simply to require that
timely notice of dismissal or non-renewal must be given before
expiration of the * * * tenure period."
261 N.J. Super. 549, 552
(1993). Such a dismissal, however, might be challenged as
inconsistent with the statutory mandate against discharge of an
employee for claiming workers' compensation benefits, see
N.J.S.A. 34:15-39.1, and could expose a school board to suits by
dismissed disabled employees for retaliatory discharge. See
Lally v. Copygraphics,
85 N.J. 668, 671 (1981) (holding that
N.J.S.A. 34:15-39.1 and -39.2 establish common-law cause of
action for retaliatory firing).
Not crediting a teacher's time on leave towards acquisition
of tenure is preferable, both for the teacher and the school
board, to dismissal of the teacher while out on leave. If the
leave is discounted, a teacher is not significantly prejudiced in
the acquisition of tenure but is required merely to serve a
period of time equal to that of teachers who do not take leave.
The tenure statute allows a teacher who but for a leave of
absence would have acquired tenure under either the calendar- or
academic-year provisions of N.J.S.A. 18A:28-5 to acquire tenure
within four years by accumulating the equivalent of more than
three academic years of service. The requirement of more than
three academic years of service within four consecutive academic
years allows sufficient flexibility to accommodate a leave of
absence of up to ten months. Furthermore, N.J.S.A. 18A:28-5(c)
provides that employment for the equivalent of more than three
academic years in any four consecutive academic years will result
in the acquisition of tenure, thereby allowing for the four-year
period of review to be shifted forward to account for leaves of
absence.
Kletzkin, a mid-year hire, would have gained tenure if she
had returned to service within the academic year in which she was
injured and worked for two months. Kletzkin was dismissed in
April before she was able to return to her job. The reason for
that dismissal is not known, but it may reflect the pressure
imposed on school boards by N.J.S.A. 18A:27-10, which at the time
of Kletzkin's employment required school boards to give notice to
nontenured teachers regarding their employment for the next year
by April 30, as well as Spotswood's apprehension that Kletzkin,
who had been on leave for five months, would be unable to serve
during the next academic year. If Kletzkin had not been
dismissed but had been offered a new contract, she would have
lost credit for the more than five months of service in her first
academic year but would have gained tenure under N.J.S.A. 18A:28-5(c) after working about seven and one-half months during the
following academic year.
The Legislature required "employment" for a proscribed probationary period so that a school board could decide which teachers were qualified and should acquire tenure. A school board cannot evaluate a teacher who is on leave, whether that leave is voluntary or involuntary, and therefore cannot make an informed decision to grant the teacher the job security that tenure provides. The Court's holding, that "employment" in the tenure context does not require availability to teach, circumvents the purpose of the statutory probationary period.
I would reverse the judgment of the Appellate Division.