SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1477-18T4

GAIL MIRDA,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF

THE UNION COUNTY

EDUCATIONAL SERVICES

COMMISSION, UNION COUNTY,

Respondent-Respondent.

_______________________________

Argued December 4, 2019 - Decided

Before Judges Haas and Mayer.

On appeal from the New Jersey Commissioner of 

Education, Docket No. 286-11/16.

William P. Hannan argued the cause for appellant 

(Oxfeld Cohen, PC, attorneys; Gail Oxfeld Kanef, of 

counsel; William P. Hannan, of counsel and on the 

brief).

Brent R. Pohlman argued the cause for respondent 

Union County Educational Services Commission

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

December 16, 2019
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(Methfessel & Werbel, attorneys; Brent R. Pohlman

and Scott Ketterer, on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent Commissioner of Education (Donna Arons, 

Assistant Attorney General, of counsel; Jaclyn M. Frey, 

Deputy Attorney General, on the statement in lieu of 

brief).

PER CURIAM

Petitioner Gail Mirda appeals from a November 9, 2018 final decision of 

the Commissioner of Education (Commissioner), finding she did not accrue 

tenure rights as a bedside tutor. We affirm.

Respondent Union County Educational Services Commission 

(Commission) provides one-to-one bedside instruction at Trintas Regional 

Medical Center for students enrolled in various schools within the Commission's 

jurisdiction who are hospitalized and unable to attend regular classes. A person 

providing bedside instruction is designated as either an Inpatient Teacher 

(Teacher) or Bedside Tutor (Tutor). A Teacher is a full-time salaried 

Commission employee. A Tutor is paid hourly and has no specific work hours. 

Teachers and Tutors have overlapping responsibilities for hospitalized 

students. Both are responsible for assessing student skills, receiving lesson 

plans from the schools, and utilizing pre-developed packets to address student 

skill deficits. However, only Teachers are responsible for attending faculty 
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meetings and professional development days, identifying new students for 

services, creating schedules for Tutors, and notifying Tutors of their start date 

for instructional services. 

Teachers work exclusively for the Commission during the school day. 

Tutors may seek other employment if it does not interfere with bedside 

instruction on behalf of the Commission. Teachers are observed and evaluated 

annually by the Department of Education. Tutors are not. 

Teachers receive health benefits, and are paid for absences attributable to 

sick days, family illness, and personal emergencies. Tutors are not entitled to 

these benefits. Teachers accrue a pension through the Teacher's Pension and 

Annuity Fund, while Tutors accrue a pension through the Public Employee 

Retirement System. 

Mirda holds a teaching certificate as a teacher of the handicapped. She 

worked for the Commission as a Tutor at Trinitas Hospital from October 1998 

to November 2013. From 2006 to 2013, Mirda served as a Tutor five days per 

week, six to eight hours per day, for ten months of the school year.

Mirda submitted a petition of appeal to the Commissioner, claiming she 

accrued tenure rights between 2006 and 2013. The Commission filed its answer, 

denying Mirda accrued tenure from 2006 to 2013. The matter was transferred 
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to the Office of Administrative Law and assigned to an Administrative Law 

Judge (ALJ). 

The Commission and Mirda filed motions for summary decision based on 

stipulated facts. In granting the Commission's motion and denying Mirda's 

cross-motion, the ALJ issued a comprehensive written decision, concluding 

Mirda failed to acquire tenure in her position as a bedside tutor. The 

Commissioner adopted the ALJ's decision.

On appeal, Mirda argues she acquired tenure as a bedside tutor in 

accordance with N.J.S.A. 18A:28-5. Mirda also contends she was not acting as 

a substitute teacher and therefore the exception to tenure under N.J.S.A. 18A:16-

1.1 was inapplicable. 

The standard for granting a motion for summary decision under N.J.A.C. 

1:1-12.5(b) is "substantially the same" as that governing a motion for summary 

judgment under Rule 4:46-2. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 

106, 121 (App. Div. 1995). We review de novo the Commissioner's 

determination that no genuine issue of material fact existed and "strive to give 

substantial deference to the interpretation [the] agency gives to a statute that the 

agency is charged with enforcing." In re Application of Viruta-West Jersey 
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Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422-23 (2008)

(alteration in original). 

We are not "bound by the agency's interpretation of a statute or its 

determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec. in 

Div. of Consumer Affairs of Dep't of Law & Public Safety, 64 N.J. 85, 93 

(1973). Our courts will not uphold an unreasonable interpretation of a statute.

Zimmerman v. Sussex Cty. Educ. Servs. Comm'n, 237 N.J. 465, 476 (2019) 

(citing In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 

N.J. 254, 260 (2010)). 

The right to tenure is governed by N.J.S.A. 18A:28-5. There are three 

requirements for tenure: "(1) [work] in a position for which a teaching certificate 

is required; (2) [hold] the appropriate certificate; and (3) [serve] the requisite 

period of time." Spiewak v. Bd. of Educ. of Rutherford, 90 N.J. 63, 74 (1982). 

If an employee satisfies these requirements, he or she is "presumptively eligible 

for tenure unless a statutory exception applies." Ibid.

The parties agree Mirda satisfied the requirement of N.J.S.A. 18A:28-5 to 

be eligible for tenure. The issue is whether any of the statutorily created 

exceptions precluded Mirda's right to tenure. 
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The Commissioner found Mirda was not entitled to tenure because she 

was acting in place of a regular classroom teacher and thus fell under the 

statutory exception set forth in N.J.S.A. 18A:16-1.1. That statute provides:

[i]n each district the board of education may designate 

some person to act in place of any officer or employee 

during the absence, disability or disqualification of any 

such officer or employee subject to the provisions of 

[N.J.S.A. 18A:17-13]. The act of any person so 

designated shall in all cases be legal and binding as if 

done and performed by the officer or employee for 

whom such designated person is acting but no person 

so acting shall acquire tenure in the office or 

employment in which he acts pursuant to this section 

when so acting.

[N.J.S.A. 18A:16-1.1.] 

We agree that Mirda did not acquire tenure rights for the cogent reasons 

expressed by the ALJ. Based on the case law, statute, and applicable 

regulations, the ALJ correctly concluded that bedside tutors whose function is

akin to a substitute or temporary replacement teacher or home instructor are

acting in place of students' regular classroom teachers and not entitled to tenure. 

Home instructors1take the place of regular classroom teachers based on 

the student's inability to attend school. As the ALJ correctly observed, bedside 

1

"Home instruction" is defined as "the provision of one-to-one, small-group, or 

online instruction in the student's place of residence or other appropriate setting 

due to a health condition [or] need for treatment . . . ." N.J.A.C. 6A:16-1.3. 
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tutors are analogous to "home instructors" because both "act in the place of 

classroom teachers as a result of the students' absence from the classroom" and 

"are only needed because the regular classroom teachers are unable to provide 

the student with instruction during his or her absence." See Donvito v. Bd. of 

Educ. of N. Valley Regional High School Dist., 387 N.J. Super. 216, 222-23

(App. Div. 2006). 

N.J.S.A. 18A:16-1.1 applied to Mirda's employment as a Tutor because

she was acting in the place of regular classroom teachers. The regular classroom 

teachers were "disqualified" from teaching the hospitalized students while 

simultaneously teaching their regular classroom student, satisfying the statutory 

exception to the accrual of tenure. As we explained in Donvito, a board of 

education's fiscal concerns undermine finding that a home instructor is entitled 

to tenure as such a holding would "entail a duplication of benefits and expenses 

because the hiring board of education must continue to pay the salary and 

benefits of the teacher who is providing instruction to the balance of the class 

who are physically present." Id. at 222. 

Here, the same legitimate economic policy reasons apply because the 

member school districts, which contracted with the Commission to provide

bedside instruction, sought to avoid the expense of providing duplicate benefits 
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to a Tutor and classroom teacher. Mirda was designated to act in the place of a 

classroom teacher who was "disqualified" from simultaneously teaching 

classroom students and students medically unable to attend class. Therefore, the 

Commissioner correctly determined Mirda did not acquire tenure rights as a 

Tutor. 

Affirmed.