1 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. I n the inte rest of brevity, portions of an opinion may not have been summarized

. )
Brenda Miller v. State
- Operat ed School District of the City of Newark ( A
- 5 2
- 1 8 ) ( 0 8 1771 ) (NOTE: The Court did not write a plenary opinion in this case. T he 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 2 3 , 201 9
-- Decided November 4 , 201 9
PER CURIAM
T he 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 Mille r ’ 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 le tter 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 Mill er did not earn tenure under N.J.S.A. 18A:17

- 2 wh ile 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 Mill er 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 te rmination, 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)

.2

The appellate court note d that N.J.S.A. 18A:28

- 2 “ renders Chapter 28 ’ s tenure provisions inapplic able to persons holding classified Civil Service positions. ” Id. at ___ (slip op. at 13). The court explained, however, that “C hapter 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, [ i t ] does not exempt employees in classified titles from the tenure provisions in other chapters of Title 18A. ” Id. at ___ (slip op. at 14 ) (emphas e s 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 , ” i d. 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 , ” i d. 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 Distri ct’s reliance on two earlier decisions

. Id. at ___ (slip op. at 18). The appellate court was “ convince d 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 affirme d 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 t enure rights accruing under Title 18A a nd the protections afforded to classified workers under civil service law, as well as with n umerous 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 defe r to the Commissioner’s interpretation , in accordance with p rinciples 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.1 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).2 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. 201 8 ).

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.1 Brenda Miller , Petitioner

- Respondent ,

v. State

- Operated School District of the City of Newark ,

Essex County , Re s pondent

- 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 d ecision 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 unde r civil
service law in school districts that have opted to become c ivil 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 s tate 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, 662

(April 10, 1995) ( n oting that the Commissioner has “consistently recognized that nonprofessional staff protect ed 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 ) ; s ee also Harp v. Bd. of Educ. of Newark , OAL DKT. EDU 10918

- 9 3 , EDU 10919

- 93, EDU 3544

- 94 (con solidated) (Aug. 23, 1994) (affirming the A dministrative 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 employm ent 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 reinterpr eted 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 prese nted in this matter . Th e Appellate Division’s interpretive course correction is, at bottom, rooted in an argument between the parties as to whether “chapter” literally meant chapter3

28 of Title 18A as opposed to the session law chapter ( L. 1967, c
. 271) t hat
housed the complete recodification of Title 18 into Title 18A when N.J.S.A.
18A:28

- 2 and all its inter

- related provisions spr a ng 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. T he appellate court ’s decision swept aside the Commissioner’s longstanding interpretat ion 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]en erally, 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.”) ; s ee also In re Stallworth , 208
N.J. 182, 194 (2011) ( n oting that “[ a ] ppellate courts have ‘ a limited role ’ in
the review of ” agency decisions and that , “[i]n order to reverse an agency’s4

judgment, an appellate court must find the agency’s decision to be ‘arbitrary, capricious, or unreasonab le, 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 Commis s ioner has raised practical concerns associated with implementa tion 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 w ith 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 o f 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

- chance5

that she might at some future point be promoted to a school secretary position that was no longer in classi fied service. Even assuming an employer would be

s ufficiently prescient to anticipate that appointment to the civil service position meant the accrual of time toward tenure under the education laws

-- a t a time when such rights were not recognized under t he 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 proba tionary 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 re solve. I would follow the prior school

law 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 revers e th at decision , I must respe ctfully dissent from my colleagues in the majority

.