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SYLLABUS

(This syllabus is not part of the Court’s opinion. 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 

Court. In the interest of brevity, portions of an opinion may not have been summarized.)

Brenda Miller v. State-Operated School District of the City of Newark

(A-52-18) (081771)

(NOTE: The Court did not write a plenary opinion in this case. The Court affirms

the judgment of the Appellate Division substantially for the reasons expressed in 

Judge Vernoia’s opinion, published at ___ N.J. Super. ___ (App. Div. 2018).)

Argued September 23, 2019 -- Decided November 4, 2019

PER CURIAM

The Court considers the Appellate Division’s determination that Brenda Miller’s 

employment with the State Operated School District of the City of Newark (District) was 

terminated in violation of her tenure rights under N.J.S.A. 18A:17-2.

Miller was hired by the District in 1998 and held various clerical and secretarial 

titles until 2012, all of which were classified titles under the Civil Service Act (Act). 

Effective July 2012, the District reclassified Miller’s position to the unclassified title of 

Confidential Assistant. Almost seventeen months later, the District sent Miller a letter 

confirming the reassignment and advising her that her new position was not governed by 

the Act. More than two years later, Miller received a letter terminating her employment.

Miller appealed her termination to the Commissioner of Education, alleging it was 

unlawful because she had tenure under N.J.S.A. 18A:17-2. The Commissioner 

determined Miller did not earn tenure under N.J.S.A. 18A:17-2 while she served in 

classified positions under the Act because N.J.S.A. 18A:28-2 provides that “[n]o person, 

who is in the classified service of the civil service of the state pursuant to Title 11, Civil 

Service . . . , shall be affected by any provisions of this chapter.” The Commissioner 

concluded Miller accrued credit toward tenure only during the period following her 2012 

transfer to the unclassified position and that because she had not served in that position 

for three consecutive years prior to her termination, she did not have tenure rights under 

the statute. Miller appealed.

The Appellate Division reversed, disagreeing with the Commissioner’s conclusion 

that Miller’s “employment in her Civil Service position could not be considered in 

determining if she satisfied the time in employment requirements for tenure under 

N.J.S.A. 18A:17-2.” ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at 12-13, 21).
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The appellate court noted that N.J.S.A. 18A:28-2 “renders Chapter 28’s tenure 

provisions inapplicable to persons holding classified Civil Service positions.” Id. at ___ 

(slip op. at 13). The court explained, however, that “Chapter 28 pertains exclusively to 

the tenure rights of teaching staff members in public school districts,” and that, although 

“[t]he plain language of N.J.S.A. 18A:28-2 exempts persons employed in classified Civil 

Service titles from the ‘provisions of’ Chapter 28, [it] does not exempt employees in 

classified titles from the tenure provisions in other chapters of Title 18A.” Id. at ___ (slip 

op. at 14) (emphases added). The court thus concluded that N.J.S.A. 18A:28 “is 

inapplicable to tenure rights earned under N.J.S.A. 18A:17-2,” id. at ___ (slip op. at 15-

16), and stressed that “N.J.S.A. 18A:17-2 does not exempt secretarial employees in Civil 

Service positions from its tenure protections,” id. at ___ (slip op. at 16).

“[A]pply[ing] the plain language of N.J.S.A. 18A:17-2 to determine [Miller]’s 

entitlement to tenure,” the court found that Miller “had tenure under N.J.S.A. 18A:17-2 

when she was terminated,” id. at ___ (slip op. at 16-17), and that “the District violated 

[her] tenure rights under N.J.S.A. 18A:17-2” by terminating her appointment, id. at ___ 

(slip op. at 20). In reaching that conclusion, the court rejected the District’s reliance on 

two earlier decisions. Id. at ___ (slip op. at 18). The appellate court was “convinced that 

application of N.J.S.A. 18A:28-2 to employees not ‘affected by’ Chapter 28 is 

inconsistent with the statute’s plain language.” Id. at ___ (slip op. at 19).

HELD: The judgment of the Appellate Division is affirmed substantially for the reasons 

expressed in the majority’s opinion.

AFFIRMED.

JUSTICE LaVECCHIA, dissenting, explains that the Commissioner’s decision 

in this matter was consistent with the agency’s longstanding interpretation of the 

intersection of tenure rights accruing under Title 18A and the protections afforded to 

classified workers under civil service law, as well as with numerous decisions over a span 

of decades that kept separate the rights accruing under each statutory scheme. Noting 

that the Commissioner’s application of the relevant statutes through the years reflects a 

reading of N.J.S.A. 18A:28-2’s reference to “chapter” different from that reached by the 

appellate court here, Justice LaVecchia is of the view that the Court should defer to the

Commissioner’s interpretation, in accordance with principles of statutory interpretation. 

Underscoring the practical concerns associated with implementation of the Appellate 

Division’s holding, Justice LaVecchia concludes that the interpretative issue found to 

exist in this matter should have been left to the Legislature to resolve.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, 

SOLOMON, and TIMPONE join in this opinion. JUSTICE LaVECCHIA filed a 

dissent, in which JUSTICE PATTERSON joins.
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SUPREME COURT OF NEW JERSEY

A-52 September Term 2018

081771

Brenda Miller,

Petitioner-Respondent,

v.

State-Operated School District of the City of Newark, 

Essex County,

Respondent-Appellant.

On appeal from the Superior Court, 

Appellate Division, whose opinion is reported at

___ N.J. Super. ___ (App. Div. 2018).

Argued

September 23, 2019

Decided

November 4, 2019

Ramon E. Rivera argued the cause for appellant (Scarinci

& Hollenbeck, attorneys; Ramon E. Rivera, of counsel 

and on the briefs, and Shana T. Don and A.J. Barbarito, 

on the briefs). 

Donna Arons, Assistant Attorney General, argued the 

cause for respondent New Jersey Commissioner of 

Education (Gurbir S. Grewal, Attorney General, attorney; 

Joan M. Scatton, Deputy Attorney General, on the letter 

brief). 

William P. Hannan argued the cause for respondent 

Brenda Miller (Oxfeld Cohen, attorneys; William P. 

Hannan, of counsel and on the brief). 
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PER CURIAM

The judgment of the Superior Court, Appellate Division is affirmed 

substantially for the reasons expressed in Judge Vernoia’s opinion, reported at 

___ N.J. Super. ___ (App. Div. 2018).

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, 

SOLOMON, and TIMPONE join in this opinion. JUSTICE LaVECCHIA filed a 

dissent, in which JUSTICE PATTERSON joins.
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Brenda Miller,

Petitioner-Respondent,

v.

State-Operated School District of the City of Newark, 

Essex County,

Respondent-Appellant.

JUSTICE LaVECCHIA, dissenting.

The Court today affirms a decision of the Appellate Division that 

reversed a Commissioner of Education decision. For the reasons that follow, I 

respectfully disagree with the action taken by my colleagues in the majority.

The Commissioner of Education’s decision in this matter was consistent 

with the agency’s longstanding interpretation of the intersection of tenure 

rights accruing under the education laws of Title 18A, specifically N.J.S.A. 

18A:17-2, and the protections afforded to classified workers under civil 

service law in school districts that have opted to become civil service districts. 

Numerous decisions over a span of decades kept separate the rights accruing 

under each statutory scheme and respected the separate jurisdictional authority 

of the state agencies charged with administering each. See, e.g., Anderson v. 

Dep’t of Pers. & the State Operated Sch. Dist., 97 N.J.A.R.2d (EDU) 65, 66 
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(April 10, 1995) (noting that the Commissioner has “consistently recognized 

that nonprofessional staff protected under Title 11 in school districts which 

have adopted the civil service law do not acquire separate tenure rights under 

Title 18A” and citing past decisions); see also Harp v. Bd. of Educ. of Newark, 

OAL DKT. EDU 10918-93, EDU 10919-93, EDU 3544-94 (consolidated) 

(Aug. 23, 1994) (affirming the Administrative Law Judge’s determination that 

the employment of school clerks in the Newark school district is controlled by 

civil service law and not the tenure protections of N.J.S.A. 18A:17-2); 

Lo Russo v. State Operated Sch. Dist. of Jersey City, 97 N.J.A.R.2d (EDU) 

505, 507 (April 18, 1997) (dismissing the petitioner’s termination challenge 

because his employment rights were governed by civil service law rather than 

the education laws).

Nevertheless, citing N.J.S.A. 18A:28-2, which excludes persons in the 

classified service from being “affected by any provision of this chapter,” the 

Appellate Division reinterpreted Title 18A’s exemption of persons in civil 

service classified titles from school law tenure protection. According to the 

panel, it was applying the “plain language” of the statute. I cannot agree to a 

new “plain language” answer to the question presented in this matter. The 

Appellate Division’s interpretive course correction is, at bottom, rooted in an 

argument between the parties as to whether “chapter” literally meant chapter 
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28 of Title 18A as opposed to the session law chapter (L. 1967, c. 271) that 

housed the complete recodification of Title 18 into Title 18A when N.J.S.A. 

18A:28-2 and all its inter-related provisions sprang into being. See In re 

Fulcomer, 93 N.J. Super. 404, 411-12 (1967) (discussing recodification of 

education provisions of Title 18 into the new Title 18A). Obviously, the 

Commissioner’s application of these statutes through the years read the 

“chapter” reference differently. The appellate court’s decision swept aside the 

Commissioner’s longstanding interpretation of the relevant statutes and 

decades of administrative jurisprudence.

If indeed some ambiguity is discernible here, this Court should defer to 

the Commissioner’s interpretation of the provisions of Title 18A with respect 

to implementation of the tenure laws. Principles of statutory interpretation

counsel that we should defer to the agency charged with administering the 

laws of a regulatory program entrusted to them for enforcement. See, e.g.,

Acoli v. State Parole Bd., 224 N.J. 213, 229 (2016) (“[G]enerally, when 

construing language of a statutory scheme, deference is given to the 

interpretation of statutory language by the agency charged with the expertise 

and responsibility to administer the scheme.”); see also In re Stallworth, 208 

N.J. 182, 194 (2011) (noting that “[a]ppellate courts have ‘a limited role’ in 

the review of” agency decisions and that, “[i]n order to reverse an agency’s 
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judgment, an appellate court must find the agency’s decision to be ‘arbitrary, 

capricious, or unreasonable, or [] not supported by substantial credible 

evidence in the record as a whole” (third alteration in original) (quoting Henry 

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980))).

The Commissioner has raised practical concerns associated with 

implementation of the Appellate Division’s holding, under which a board of 

education would have to exercise its review of a probationary secretary

seeking tenure under Title 18A in an abbreviated fashion -- not the normal 

three years and a day -- in order to align with the probationary review of a 

secretary in a classified civil service position (three months). Compare

N.J.S.A. 18A:17-2 (providing for a three-year period of review before the 

acquisition of tenure protection by school district secretaries or clerks), with

N.J.A.C. 4A:4-5.1 (providing for an “examination process designed to permit 

an appointing authority to determine whether an employee can satisfactorily 

perform the duties of the title”), and N.J.A.C. 4A:4-5.2(b) (providing for a 

working test period of three months for workers in local service).

Indeed, as a result of the Appellate Division’s holding here, the board of 

education was required to have performed its probationary evaluation of Ms. 

Miller for education tenure purposes when she first was appointed to her 

earlier secretarial or clerical title in the classified service on the off-chance 
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that she might at some future point be promoted to a school secretary position 

that was no longer in classified service. Even assuming an employer would be 

sufficiently prescient to anticipate that appointment to the civil service 

position meant the accrual of time toward tenure under the education laws -- at 

a time when such rights were not recognized under the relevant school-law 

jurisprudence -- it is unclear how the two schemes would mesh. I am forced to 

assume that the logic of the Appellate Division’s decision necessarily shortens 

the time for school law tenure acquisition to the classified service probationary 

period so long as the person continues in that classified position past the three 

years and a day. And there is no explanation for how a difference of opinion 

in the decision to retain or terminate such an individual would be resolved 

between the two administrative agencies charged with overseeing their 

respective statutory schemes.

Respectfully, the interpretative issue found to exist in this matter should 

have been left to the Legislature to resolve. I would follow the prior schoollaw case law, which was properly applied by the Commissioner in this matter. 

Hence, I cannot affirm and approve for publication the Appellate Division 

decision in this matter, thereby granting it precedential value. Because I 

would reverse that decision, I must respectfully dissent from my colleagues in 

the majority.