By Jennifer Vorih, Esq., Ty Hyderally, Esq.

The New Jersey Supreme Court recently affirmed the Appellate Division’s decision that a school district employee had earned tenure while working in a Civil Service position.

Brenda Miller began working for the Newark Public School District in 1998 in a provisional title, and was appointed permanently as a Senior Clerk in April 2004. She became a Secretarial Assistant, Typing, in 2007. In June 2012, her title became Secretarial Assistant. All of these positions were classified titles under the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6.

In July 2012, Miller’s position was reclassified to an unclassified title, Confidential Assistant. Nearly a year and a half later, the District sent Miller a letter about the reassignment and stated that the new position was unaffiliated. As a result, according to the letter, Miller’s employment record would reflect that she had resigned from her Civil Service title June 30, 2012, and no longer had Civil Service rights.

On August 15, 2014, Miller was terminated. She appealed to the Civil Service Commission, which dismissed her appeal. She also appealed to the Commissioner of Education. An Administrative Law Judge granted summary judgment in Miller’s favor, finding that she had earned tenure under N.J.S.A. 18A: 17-2 by virtue of being employed in secretarial positions in the district for more than three consecutive years.

However, the Commissioner of Education rejected the Administrative Law Judge’s recommended decision. The Commissioner held that the years Miller had served in classified positions before her July 2012 transfer did not count toward Miller’s accrual of tenure under N.J.S.A. 18A: 17-2. The Commissioner’s reason for this conclusion was that another statute, N.J.S.A. 18A:28-2 — which is part of a chapter which applies exclusively to the tenure rights of teaching staff members – sets forth that,

No person, who is in the classified service of the civil service of the state pursuant to Title 11, Civil Service, of the Revised Statutes, shall be affected by any provision of this chapter.

Miller appealed the Commissioner’s decision to the Appellate Division, which held that N.J.S.A. 18A:28-2 was applicable only to teaching staff members holding classified Civil Service titles, since “they are the only employees “affected by” Chapter 28’s tenure provisions.” The Appellate Division reviewed the rules of statutory interpretation, and decided that:

• • “the Commissioner erred by relying on N.J.S.A. 18A:28-2 to determine plaintiff’s tenure rights under N.J.S.A. 18A:17-2,”
  • “there is no statutory bar to utilizing time employed in a classified Civil Service position to satisfy the time in employment requirements of N.J.S.A. 18A:17-2,” and
  • “plaintiff satisfied N.J.S.A. 18A-17-2(b)’s requirements and had tenure when her employment was terminated.”

Miller v. State-Operated Sch. Dist. of Newark, 2018 N.J. Super. Unpub. LEXIS 1805, *18-19, 2018 WL 3596074

The Supreme Court of New Jersey affirmed the Appellate Division’s decision per curiam. As the Appellate Division’s decision was correct and well-reasoned, this simple affirmance is a breath of fresh air for New Jersey unclassified employees in non-teaching positions.

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