(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).
Argued January 22, 1997 -- Decided March 12, 1997
GARIBALDI, J., writing for a unanimous Court.
In this appeal, the Court examines the laws governing tenure of educational personnel. The issue
before the Court is whether the specific positions listed in N.J.S.A. 18A:28-5 are spearately tenurable and, if
so, whether tenure obtained under one endorsement to an administrative certificate may be transferred to
another endorsement under that certificate.
Under the Tenure Act, N.J.S.A. 18A:28-1 to -18, which authorizes the tenure of educational
personnel, a person who is employed in the public schools must normally hold a valid certificate to teach,
administer, direct or supervise the teaching of pupils. The State Board of Education (State Board) has
implemented the certification requirement by authorizing three certificates that an educator may hold. An
educator may hold more than one type of certificate. In addition to the three types of certificates, the State
Board has also designated “special endorsements” under each type of certificate, which identify the
educational subjects or assignments that share common traits. An individual may possess multiple
endorsements under a certificate, qualifying that person to be employed in the positions covered by the
respective endorsements, so long as he or she meets specific requirements. In addition to certification, in
order to achieve tenure, and educator must serve a probationary period in a given position under a
designated certificate.
N.J.S.A. 18A:28-5 (Section 28-5) establishes the guidelines for achieving tenure. Prior to its
amendment in June 1996, that section extended tenure protection to all teaching staff members, including all
teachers, principals other than administrative principals, assistant principals, vice principals, assistant
superintendents and all school nurses. That section was subsequently amended to extend tenure protection
to those positions enumerated therein only by employment in that particular administrative or supervisory
position and to limit the tenure only to that position.
G. Michael Nelson is the holder of an administrative certificate with separate supervisor and
principal endorsements issued by the New Jersey Commissioner of Education (the Commissioner). In
September 1982, Old Bridge appointed Nelson to the position of Department Chairperson of Industrial Arts
at Cedar Ridge High School. He qualified for that position by reason of his supervisor endorsement to his
administrative certificate. In September 1985, Nelson achieved tenure in that position. However, in May
1990, Old Bridge climinated Nelson's position of Chairperson of Industrial Arts as part of a reduction in
force (RIF). Thereafter, Nelson was reassigned to the position of teacher of Industrial Arts for the 1990-1991 school year and has held that position since his reassignment. Nelson never served in the capacity of
administrator, principal, or vice principal under the principal endorsement.
In October 1993, Old Bridge filled an elementary principal position at the Cooper Elementary
School with a non-tenured individual. On December 2, 1993, Nelson filed a petition of appeal with the
Commissioner claiming a tenure right to the principal position, maintaining that the tenure he had achieved
under his supervisor endorsement as Chairperson of Industrial Arts extended to that principal's position.
The matter was transferred to the Office of Administrative Law. Relying on Dennery v. Board of Education,
131 N.J. 626 (1993), the Administrative Law Judge (ALJ) granted summary judgment to Nelson and ordered
Old Bridge to install Nelson as principal of the Cooper Elementary School.
Thereafter, the Commissioner reversed the ALJ's decision and granted summary judgment to Old
Bridge. The Commissioner cited administrative precedent holding that, under the Tenure Act, tenure can
accrue in a separately tenurable position, such as principal, only as a result of actual work experience in the
position. Since Nelson never served in a principal's position, he could have no tenure claim to that position.
The Commissioner further expressly rejected the ALJ's reliance on Dennery and noted that a contrary
decision would disrupt sound educational policy. The State Board affirmed the Commissioner's decision.
Relying primarily on the Dennery case, the Appellate Division reversed the State Board, holding that
Nelson's tenure under the supervisor endorsement of his administrative certificate was transferable to the
principal endorsement of that same certificate. The panel explicitly rejected the State Board's assertion that
Section 28-5 mandates that the positions listed int the Statute are separately tenurable.
After Old Bridge and the State Board filed petitions for certification with the Supreme Court, the
New Jersey Legislature enacted the above-described amendment to Section 28-5.
The Supreme Court granted Old Bridge's and the State Board's petitions for certification.
HELD: The State Board's interpretation of N.J.S.A. 18A:28-5 as requiring service in the separately-listed
positions before tenure can be achieved in them conforms to the Legislature's intent and represents a
proper interpretation of the Statute and sound educational policy.
1. The interpretation of a statute by the administrative agency charged with its enforcement is entitled to
great weight and will not be upset unless unreasonable, unsupported by the record or violative of the
legislative will. (p. 7)
2. Prior to and after the Appellate Division decision in this case, every administrative decision has held that
educators do not have bumping rights across the administrative certificate. (pp. 8-10)
3. Permitting an educator to transfer tenure rights to a separately-tenurable position, such as principal, is
unsound public and education policy. (pp. 10-12)
4. Although courts favor the prospective application of statutes, that rule is to aid the court in the search for
legislative intent. When the Legislature does not clearly express its intent to give a statute prospective
application, a court must determine whether to apply the statute retroactively. (pp. 12-13)
5. Retroactive application of a statute is justified where the Legislature has declared such an intent; where
the statute is curative; and where the expectations of those affected by the statute warrant retroactive
application. (pp. 13-15)
6. Retroactive application of the amendment to Section 28-5 does not result in “manifest injustice” or a loss
of a “vested right.” (pp. 15-17)
7. The determination of whether “manifest injustice” exists requires a weighing of the public interest in the
retroactive application of the statute against the affected party's reliance on the previous law, and the
consequences of that reliance. (pp. 17-18)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-94/
95 September Term 1996
G. MICHAEL NELSON,
Petitioner-Respondent,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF OLD BRIDGE,
MIDDLESEX COUNTY,
Respondent-Appellant.
Argued January 22, l997 -- Decided March 12, 1997
On certification to the Superior Court,
Appellate Division.
Todd A. Wigder, Deputy Attorney General,
argued the cause for appellant New Jersey
State Board of Education (Peter G. Verniero,
Attorney General of New Jersey, attorney;
Mary C. Jacobson, Assistant Attorney General,
of counsel).
Francis X. Journick, Jr., argued the cause
for appellant Board of Education of the
Township of Old Bridge, etc. (Wilentz,
Goldman & Spitzer, attorneys; Harold G.
Smith, of counsel).
Gail Oxfeld Kanef argued the cause for
respondent (Balk, Oxfeld, Mandell & Cohen,
attorneys).
Michael F. Kaelber argued the cause for
amicus curiae New Jersey School Boards
Association (Susan E. Galante, Director,
Legal Department, attorney; Mr. Kaelber and
Ms. Galante, on the brief).
Nathanya G. Simon submitted a brief on behalf
of amicus curiae Bloomfield Board of
Education (Schwartz Simon Edelstein Celso &
Kessler, attorneys; Ms. Simon and Thomas
Russo, on the brief).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal requires the Court again to examine the laws
governing tenure of educational personnel. G. Michael Nelson,
respondent, who possesses an administrative certificate with
separate principal and supervisor endorsements, seeks to transfer
his tenure status achieved under his supervisor endorsement to
his principal endorsement. We must determine whether the
specific positions listed in N.J.S.A. l8A:28-5 are separately
tenurable and, if so, whether tenure obtained under one
endorsement to an administrative certificate may be transferred
to another endorsement under that certificate.
In l975, G. Michael Nelson was first employed as a teaching staff member by the Old Bridge Board of Education (Old Bridge). Nelson is the holder of an administrative certificate with separate supervisor and principal endorsements issued by the New Jersey Commissioner of Education (the Commissioner). Nelson received his administrative certificate with a supervisor endorsement in February 1978. He received the principal endorsement to his administrative certificate in July 1978.
On September 21, 1982, Old Bridge appointed Nelson to the
position of Department Chairperson of Industrial Arts at Cedar
Ridge High School. Nelson qualified for that position by reason
of his supervisor endorsement to his administrative certificate.
On September 15, 1985, Nelson achieved tenure in that position.
On May 29, 1990, Old Bridge eliminated Nelson's position of
Chairperson of Industrial Arts as part of a reduction in force
(RIF). Thereafter, Nelson was reassigned to the position of
teacher of Industrial Arts for the 1990-1991 school year. Nelson
has held that position since his reassignment. Nelson never
served in the capacity of administrator, principal, or vice
principal under his principal endorsement.
In October 1993, Old Bridge filled an elementary principal
position at the Cooper Elementary School with a non-tenured
individual. On December 2, 1993, Nelson filed a petition of
appeal with the Commissioner claiming a tenure right to the
principal position at the Cooper Elementary School, maintaining
that the tenure he had achieved under his supervisor endorsement
as Chairperson of Industrial Arts extended to that principal's
position.
The matter was transferred to the Office of Administrative
Law. Relying primarily on Dennery v. Board of Education, l3l
N.J. 626 (l993), the Administrative Law Judge (ALJ) granted
summary judgment to Nelson and ordered Old Bridge to install
Nelson as principal of the Cooper Elementary School. Nelson was
also awarded an amount representing the difference in salary
between his present position and the principal position from
December 1993 until the date of his installation as principal.
The Commissioner reversed the ALJ's decision and granted
summary judgment to Old Bridge. The Commissioner cited
administrative precedent holding that under the Tenure Act
"tenure is achieved in a particular `position'" and that "tenure
can accrue in [a separately tenurable position, such as
principal] only as a result of actual work experience in the
position." The Commissioner concluded that since Nelson never
served in a principal's position, he could have no tenure claim
to that position.
The Commissioner expressly rejected the ALJ's holding that
Dennery changed those long-standing tenure principles. The
Commissioner concluded that "the Dennery court did not address
the separately tenurable positions specifically enumerated in
N.J.S.A. 18:28-5, nor did it consider whether tenure could be
transferred across endorsements to the administrative certificate
at issue herein." Finally, the Commissioner noted that a
contrary decision would disrupt sound educational policy by
introducing chaos into the tenure rules.
The New Jersey State Board of Education (State Board)
affirmed the Commissioner's decision. In an unpublished opinion,
the Appellate Division panel reversed the State Board. The panel
relied primarily on Dennery to conclude that Nelson's tenure
under the supervisor endorsement of his administrative
certificate was transferable to the principal endorsement of that
same certificate. The court explicitly rejected the State
Board's assertion that N.J.S.A. 18A:28-5 mandates that the
positions listed in the Statute are separately tenurable. The
court concluded that Dennery requires "that a tenured supervisor
under an administrative certificate who satisfies the
requirements for service as a principal must be appointed to that
position over a non-tenured individual."
After Old Bridge and the State Board filed petitions for
certification with this Court, the New Jersey Legislature enacted
L. 1996, c. 58, which amended N.J.S.A. 18A:28-5, effective June
28, 1996 (the Amendment).
We granted Old Bridge's and the State Board's petitions for
certification.
146 N.J. 499 (1996).See footnote 1
The tenure of educational personnel is authorized by the Tenure Act, N.J.S.A. 18A:28-1 to -18. A person who is employed in the public schools must normally "hold[] . . . a valid certificate to teach, administer, direct or supervise the teaching, instruction or educational guidance of . . . pupils in such public schools . . . ." N.J.S.A. 18A:26-2. The State Board has implemented the certification requirement by authorizing three certificates that an educator may hold: instructional, administrative, and educational services. N.J.A.C. 6:ll-2.3. An educator may hold more than one type of certificate. In addition
to the three types of certificates, the State Board has also
designated "special endorsements" under each type of certificate,
which identify the educational subjects or assignments that share
common traits. Ibid.
Employment in a specific assignment requires that an
educator hold the appropriate endorsement. N.J.A.C. 6:ll-6.l,
-6.2. An individual may possess multiple endorsements under a
certificate, qualifying that person to be employed in the
positions covered by the respective endorsements. To obtain each
separate endorsement, the candidate must meet certain specific
requirements. In addition to certification, an educator must
serve a probationary period in a given position under a
designated certificate to achieve tenure.
Prior to the enactment of the Amendment, N.J.S.A. 18A:28-5
(Section 28-5), which establishes the guidelines for achieving
tenure, read in pertinent part:
The services of all teaching staff members including all
teachers, principals other than administrative principals,
assistant principals, vice principals, assistant
superintendents, and all school nurses . . . and any other
nurse performing school nursing services and such other
employees as are in positions which require them to hold
appropriate certificates issued by the board of examiners .
. . shall be under tenure during good behavior and
efficiency and they shall not be dismissed or reduced in
compensation . . . 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.
The interpretation of a statute by the administrative agency charged with its enforcement is entitled to great weight. See GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 306 (1993); Merin v. Maglaki, 126 N.J. 430, 436-37 (1992). "[T]he ultimate administrative decision-maker in reviewing . . . school matters is the State Board, whose final decision will not be upset unless unreasonable, unsupported by the record or violative of the legislative will." Capodilupo v. Board of Educ., 2l 8 N.J. Super. 5l0, 5l5 (App. Div.), certif. denied, l 09 N.J. 5l4 (l987). As this Court noted in Dennery:
The Legislature intended that the State Board "promulgate specifications concerning categories of `certification'" and that courts not intervene "unless the State Board's decision is palpably arbitrary." Agency regulations are accorded substantial deference based on the recognition that "certain subjects are within the peculiar competence of the agency."
[Dennery, supra, 131 N.J. at 637 (citations omitted).]
"The delegation of regulatory and administrative responsibility over tenure to the State Board is based on the complexity and specialized nature of the subject of teacher tenure." Ibid. (citing Ellicott v. Board of Educ., 25l N.J. Super. 342, 350 (App. Div. l99l)).
In his decision below, which was explicitly adopted by the State Board, the Commissioner determined that supervisors and principals are separately-tenurable positions under the Statute.
The parties recognize that the distinction in tenure law between
positions that are separately tenurable and positions that are
not listed in Section 28-5 has been recognized consistently by
the State Board and the Commissioner. In fact, prior to and
after the Appellate Division decision in this case, every
administrative decision that considered the issue has held that
educators do not have bumping rights across the administrative
certificate.
Prior to this decision the Appellate Division also
recognized the distinction between separately-tenurable Section
28-5 positions and positions not listed in Section 28-5. The
instant case is one of a long line of tenure rights decisions
that concerned tenured teaching staff members who, after their
positions were abolished or reduced as a result of a RIF, claimed
an entitlement to a position to which they were not entitled
under the seniority regulations. See Ellicott, supra (finding
that tenured speech correctionist also had tenure as learning
disabilities consultant under educational services certificate
where neither assignment was specifically listed in statute);
Bednar v. Westwood Bd. of Educ., 22l N.J. Super. 239 (App. Div.
l987) (holding tenured art teacher who lost elementary school job
entitled to tenure in secondary art teacher assignment under
instructional certificate where both assignments were within
single "position" of teacher listed in statute); Capodilupo,
supra (holding teacher with elementary and secondary physical
education endorsements was tenured in both jobs under
instructional certificate where both assignments fell within
single "position" of teacher listed in statute).
In Ellicott, the Appellate Division agreed with the State
Board's emphasis that a staff member's tenure rights in the wake
of a RIF must be gauged by evaluating whether the individual had
acquired tenure in the specific position. Discussing the concept
of a tenurable position, the Appellate Division stated:
As the State Board properly observed, what
is clear from the statutory scheme is that
tenure is achieved in a specific "position,"
and the scope of the tenured position is
initially limited by the "certificate" the
teaching staff member must hold to satisfy
the prerequisite of qualifications for his or
her employment . . . .
The Appellate Division, thus, agreed with the State Board's
conclusion that "with the exception of the position of school
nurse, [a specific tenurable position under N.J.S.A. l8A:28-5,]
the petitioner enjoyed tenure in all positions for which her
educational services certificate qualified her . . . despite the
fact that she had not served the requisite probationary period
under N.J.S.A. l8A:28-5 in that position." Id. at 345.
The State Board's determination in the instant action,
therefore, was based on a long line of court decisions and
administrative decisions that have held that the positions
specifically enumerated in the Statute, including principal, are
separately tenurable. See also Kaprow v. Board of Educ.,
255 N.J. Super. 76, 92 (App. Div. l992) ("We agree that `Assistant
Superintendent' is a separately tenurable position under N.J.S.A.
l8A:28-5 . . . ."), aff'd, l3l N.J. 572 (l993).
We are unpersuaded by the ALJ's and the Appellate Division's
reliance on the dicta in Dennery, supra, l3l N.J. at 634, that
"an educator who has attained tenure by virtue of the requisite
service in a specific position will have tenure with respect to
all positions under the particular certificate." That case, of
course, concerned only the transferability of tenure between
certificates, as opposed to separate endorsements to an
individual certificate. Moreover, none of the positions
specifically listed in Section 28-5 were before the Court. What
is most important, however, is that in holding that tenure was
not transferable between certificates, we emphasized that the
Court should defer to the State Board in its interpretation of
complex tenure laws, id. at 637, and that the Appellate Division
should be reversed because it would "obviate as a tenure
requirement actual service in a position included under a
certificate." Id. at 638. Those positions fully support our
determination in this case.
Moreover, the State Board asserts that permitting an educator to transfer tenure rights to a separately-tenurable position, such as principal, is unsound public policy. There are four separate endorsements to an administrative certificate: school administrator, principal, supervisor and school business administrator. N.J.A.C. 6:11-9.3. The positions available under
the separate endorsements include principal, assistant principal,
vice-principal, supervisor of instruction, superintendent,
assistant superintendent, finance manager, director, and
superintendent for curriculum. Ibid. Therefore, if the
Appellate Division opinion was to apply to the positions listed
in Section 28-5, a tenured school business administrator,
concerned with purchasing, would be eligible for a principalship
after a RIF. The tenure achieved under the finance manager
endorsement would be transferable to the principal endorsement
even if the individual had no prior experience in that position.
In the instant action, the supervisory position in which
Nelson acquired tenure primarily involved the supervision and
assessment of high school industrial arts teachers. N.J.A.C.
6:11-9.3(c). By contrast, the elementary school principal's job
that Nelson claims is the school's chief administrative post with
the sole responsibility for establishing policy for the entire
school and controlling every facet of its operation, including
all issues concerning staff, students, buildings, and budgets.
N.J.A.C. 6:11-9.3(b) and -9.5. On a district-wide level, a
principal must serve as the school's liaison with the local
board, parents and the community as a whole. It seems clear that
the two positions are not significantly similar even though both
endorsements fall under the administrative certificate. Those
are but two examples. Many more examples can be envisioned.
Such appointments would promote unsound education policy.
After the Appellate Division decision in this case, the
Legislature amended the Statute to make clear that the positions
listed in N.J.S.A. l8A:28-5 are indeed separately tenurable.
Accordingly, deference to the State Board's longstanding
interpretation of Section 28:5 is even more compelling. The
State Board's determination was neither unreasonable, unsupported
by the record, nor violative of any legislative will. We
continue to defer to the expertise of the State Board in tenure
matters and recognize the educationally- unsound policy results
that would flow from applying Nelson's rationale to the positions
listed in Section 28-5.
That curative amendment to Section 28-5 further establishes that the Appellate Division misread legislative intent and wrongly awarded tenure to Nelson, although he never worked as a principal. See, e.g., Edwards v. Mayor of Moonachie, 3 N.J. l7, 24-25 (l949) (finding amendments carry "great weight" in determining intention of original statute); Boyd v. Marini, l 32 N.J. Super. 324, 328 (App. Div. l975) (holding that subsequent legislation is "convincing" aid to interpretation of earlier law). Moreover, the Legislature has indicated in L. l996, c. 58 that those curative amendments have retrospective application to all tenured staff members. The Amendment states in pertinent part:
The Legislature finds and declares that, due to the interpretation of N.J.S. 18A:28-5 by the Appellate Division in the case of Nelson v. Board of Education of the Township of Old Bridge, a clarification of that statute is necessary
in order to continue the traditional practice of providing
that tenure is acquired in one of the specifically
enumerated positions only if the individual has served for
the requisite statutorily required period of time in that
position.
The Amendment further states that:
The services of all teaching staff members employed in the positions of teacher, principal, other than administrative principal, assistant principal, vice principal, assistant superintendent, and all school nurses . . . and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners . . . shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation . . .
For purposes of this chapter, tenure in any of the administrative or supervisory positions enumerated herein shall accrue only by employment in that administrative or supervisory position. Tenure so accrued shall not extend to any other administrative or supervisory position . . .
[Id. at § 2 (emphasis added).]
The Amendment concludes that it "shall take effect immediately and shall apply to all individuals who have acquired tenure pursuant to N.J.S. 18A:28-5 or any prior statute." Id. at § 3.
Although courts favor the prospective application of statutes, see Phillips v. Curiale, 128 N.J. 608, 615 (1992), that rule is to aid the court in the search for legislative intent. Twiss v. State, l 24 N.J. 46l, 466 (l99l) (citing Rothman v. Rothman, 65 N.J. 219, 224 (1974)).
Courts should not apply the rule mechanistically. Rather, "[w]here . . . supervening considerations clearly compel a contrary determination, this, like all other rules of statutory construction[,] must give way." When the Legislature does not clearly express its intent to give a statute prospective application, a court must determine whether to apply the statute retroactively.
This Court applies a two-part test to determine whether a statute should be applied retroactively. The first question is "whether the Legislature intended to give the statute retroactive application." In re D.C., 146 N.J. 31, 50 (1996) (citation omitted). The second inquiry is "whether retroactive application of the statute will result in either an unconstitutional interference with `vested rights' or a `manifest injustice.'" Ibid.
There are three circumstances that will justify retroactive application of a statute: (1) where the Legislature has declared such an intent, either explicitly or implicitly; (2) where the statute is curative; and (3) where the expectations of those affected by the statute warrant retroactive application. See Id. at 51 (citing Gibbons v. Gibbons, 86 N.J. 515, 522-23 (l98l)).
An examination of this Amendment discloses that it meets all three tests. The Amendment states that it "shall take effect immediately and shall apply to all individuals who have acquired tenure pursuant to N.J.S. 18A:28-5 or any prior statute." L. 1996, c. 58, § 3. The plain language of the Statute reveals that the Amendment is to apply to all individuals who have acquired tenure pursuant to the Statute. It seems clear that such an enactment, therefore, can hardly be found to be prospective. Nelson is included in the group of "individuals who have acquired tenure pursuant to N.J.S. l8A:28-5," and, therefore, the Amendment is literally applicable to him.
Moreover, the Amendment is curative in nature, and curative
legislation is to be retroactively applied. See In re D.C.,
supra, 146 N.J. at 51. Under the curative exception to
prospective applicability, an amendment to a statute is given
retroactive effect if it is designed merely to carry out or
explain the intent of the original statute. See Kendall, supra,
219 N.J. Super. at 287.
In essence, an amendment which falls within the curative
exception can be retroactively applied consistent with the
general rule of prospectivity because its purpose is to
remedy a perceived imperfection in or misapplication of a
statute and not to alter the intended scope or purposes of
the original act.
[Id. at 288.]
The Amendment was expressly intended to correct a
misapplication of the Statute. Section 3 of the Amendment states
that the Appellate Division decision below made
a clarification of that statute necessary in order to
continue the traditional practice of providing that tenure
is acquired in one of the specifically enumerated positions
only if the individual has served for the requisite
statutorily required period of time in that position.
[L. 1996, c. 58, § 1 (emphasis added).]
Such language makes it obvious that the Amendment is curative, in
that its intent is to clarify, and it should, therefore, be
retroactively applied.
Nor does applying the Amendment retroactively result in
"manifest injustice" or the loss of a "vested right." This Court
has defined a "vested right" as "a present fixed interest . . .
which should be protected against arbitrary state action."
Phillips, supra, 128 N.J. at 620 (citation omitted). Other New
Jersey courts have defined the right by stating what a "vested
right" is not: "There can be no vested right in the continued
existence of a statute or rule of the common law which precludes
its change or repeal." Ibid. (citations omitted). Furthermore,
this Court has stated "that retroactive application of civil
legislation generally does not violate due process unless the
consequences are `particularly harsh and oppressive.'" Id. at
622 (citations omitted).
In the case of the Amendment to N.J.S.A. l8A:28-5, no
"vested rights" are threatened by its retroactive application to
Nelson. As indicated earlier, since the Amendment is, in the
Legislature's words, merely a "clarification" that the doctrine
of "separate tenurability" was and continues to be the law for
positions specifically enumerated in Section 28-5, including the
position of principal, the Amendment denies Nelson nothing.
After the Amendment, Nelson retains exactly the same rights he
possessed prior to the Amendment.
Moreover, the Amendment represents a public policy
determination by the Legislature that our public schools are
better off when principals, assistant principals, vice
principals, and assistant superintendents must achieve tenure
through actual service in those positions. As a result, the
Amendment is addressed to the public interest and should be
applied retroactively to secure the greatest possible benefit to
the public.
The Amendment does not disturb the tenure interest Nelson
achieved as Chairperson of Industrial Arts. Rather, the
Amendment prevents Nelson from transferring his tenure status to
the principal position after a RIF. Therefore, the relevant
question is whether Nelson held "a legitimate expectation" that
his tenure status was transferable to the "separately tenurable"
position of principal. In view of the many judicial and
administrative decisions decided prior to the instant action,
Nelson could not have held "a legitimate expectation" that his
tenure status was transferable. In fact, prior to the Appellate
Division decision in Nelson, no court or administrative decision
permitted a tenured supervisor to apply his or her tenure status
to a principalship. Whether or not it was a proper
interpretation of the Statute, the State Board had consistently
held that positions listed in N.J.S.A. 18A:28-5 were separately
tenurable. Therefore it is not "particularly harsh and
oppressive" to apply the Amendment retroactively to Nelson.
Phillips, supra, 128 N.J. at 622 (citations omitted).
This Court has stated that the determination of whether
"manifest injustice" exists requires a weighing of the public
interest in the retroactive application of the statute against
the affected party's reliance on the previous law, and the
consequences of that reliance. State v. Caruso,
291 N.J. Super. 430, 439 (App. Div. 1996) (citing Phillips, supra, 128 N.J. at
625). As discussed above, Nelson could not have relied for very
long on the "previous law." In addition to the fact that all
prior decisions have held that the positions listed in the
Statute are separately tenurable, both the Commissioner and the
State Board rejected Nelson's claim in the instant action.
Therefore, Nelson could not have begun relying on the "previous
law" until after the Appellate Division decision in this case.
On the other side of the balance, the public interest in
retroactive application is strong. As made clear by the State
Board, a prospective application of the Amendment would mean that
several other individuals in addition to Nelson, would be
entitled to transfer their tenure status to administrative
positions listed in the Statute. Such a result could have an
adverse impact on public policy. Individuals with no prior
experience in critical positions such as vice-principal and
principal would be entitled to such appointments. We, therefore,
find that there is no "manifest injustice" in applying the
Amendment retroactively.
N.J.S.A. 18A:28-5 has consistently been interpreted by the State Board as requiring service in the separately-listed positions before tenure can be achieved in them. That rule conforms to the Legislature's intent and represents a proper interpretation of the Statute and sound educational policy. The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-94/95 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
G. MICHAEL NELSON,
Petitioner-Respondent,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF OLD BRIDGE,
MIDDLESEX COUNTY,
Respondent-Appellant.
DECIDED March 12, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1The Court also granted the motions of the New Jersey School Boards Association and the Bloomfield Board of Education to appear as amicus curiae.