SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1095-17T1

PAULA MELNYK,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF 

THE DELSEA REGIONAL 

HIGH SCHOOL DISTRICT,

GLOUCESTER COUNTY,

Respondent-Respondent.

________________________

Argued December 4, 2018 – Decided

Before Judges Haas and Mitterhoff.

On appeal from the New Jersey Commissioner of 

Education, Docket No. 161-7/15.

Hop T. Wechsler argued the cause for appellant 

(Selikoff & Cohen, PA, attorneys; Keith Waldman, of 

counsel and on the briefs; Hop T. Wechsler, on the 

briefs).

Andrew W. Li argued the cause for respondent Board 

of Education of the Delsea Regional High School 

District (Parker McCay, PA, attorneys; Andrew W. Li, 

on the brief).

NOT FOR PUBLICATION WITHOUT THE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 17, 2018
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Gurbir S. Grewal, Attorney General, attorney for 

respondent Commissioner of Education (Joan M. 

Scatton, Deputy Attorney General, on the statement in 

lieu of brief).

PER CURIAM

Appellant Paula Melnyk appeals from the October 12, 2017 final decision 

of the Commissioner of Education (Commissioner), adopting the initial decision 

of the Administrative Law Judge (ALJ), and concluding that respondent Board 

of Education of the Delsea Regional High School District (District) did not 

violate appellant's tenure rights when it terminated her extracurricular 

assignment as a teacher in the District's alternative education program. We 

affirm.

We begin by summarizing the applicable legal principles governing the 

issue presented in this appeal. A teaching staff member like appellant "is 

entitled to tenure if (1) she works in a position for which a teaching certificate 

is required; (2) she holds the appropriate certificate; and (3) she has served the 

requisite period of time." Spiewak v. Summit Bd. of Educ., 90 N.J. 63, 74 

(1982). Pursuant to N.J.S.A. 18A:28-5(a), teaching staff members acquire 

tenure after employment by a board of education for:
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(1) Three consecutive calendar years, or any shorter 

period which may be fixed by the employing board for 

such purpose; or

(2) Three consecutive academic years, together with 

employment at the beginning of the next succeeding 

academic year; or

(3) The equivalent of more than three academic years 

within a period of any four consecutive academic years.

"[T]enure 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." 

Nelson v. Bd. of Educ. of Old Bridge, 148 N.J. 358, 366 (1997) (quoting Ellicott 

v. Bd. of Educ., 251 N.J. Super. 342, 348 (App. Div. 1991)). Thus, a teacher 

acquires title in a particular position for which he or she holds a certificate, 

rather than based on the specific assignments he or she performs while in that 

position.

In a long line of administrative decisions dating back over forty-seven 

years, the Commissioner has held that a teacher, already having tenure based 

upon his or her years of service in a particular position, may not also acquire 

separate tenure in an extracurricular assignment they might also perform if the 

teacher is not required to possess any certificate other than the one they already 

hold in their tenured position, and they receive a stipend for this assignment 
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which is not an "integral portion" of their salary for the tenured position. Dignan 

v. Bd. of Educ. of the Rumson-Fair Haven Reg'l High School, 71 S.L.D. 336, 

343 (Comm'r of Educ. July 29, 1971), aff’d, 74 S.L.D. 1376 (State Bd. of Educ. 

Sept. 11, 1974), aff’d, 75 S.L.D. 1083 (App. Div. Oct. 10, 1975); see also

Manley v. Bd. of Educ. of Old Bridge, 2005 N.J. AGEN LEXIS 664, (Nov. 4, 

2005), adopted by the Commissioner, 2005 N.J. AGEN LEXIS 1053 (Dec. 19, 

2005) (stating that "no tenure protections flow from extracurricular positions 

unless the position requires additional certification"). As the Commissioner 

held in Dignan:

[A] board of education has the authority to assign and 

reassign teachers to extra-classroom curricular duties in 

addition to their regularly-scheduled classroominstruction assignment and to pay such additional 

remuneration as it deems reasonable and appropriate 

therefore[.] . . . [A]bsent a requirement for a certificate 

other than that of a teacher, no tenure status accrues to 

such assignments, and they are renewed or discontinued 

at the discretion of the board.

[Id. at 343.]

With these well-established, governing principles in mind, we turn to the 

specific, and undisputed, facts of this case. Since September 1991, the District 

has employed appellant as a full-time special education teacher. Appellant holds 

an Instructional Certificate with Teacher of the Handicapped and Elementary 
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School Teacher endorsements. Appellant is tenured in this position. According 

to appellant's 2014-15 teacher's contract, her annual salary was $82,874.

In September 2002, the District assigned appellant to teach special 

education classes after her regular school day in an alternative education 

program known as "BookBinders," which the District offered in accordance with 

N.J.A.C. 6A:16-9.1 to -9.3. Alternative education programs, like BookBinders,

are "comprehensive educational program[s] designed to address the individual 

learning, behavior, and health needs of students who are not succeeding in the 

general education program or who have been mandated for removal from general 

education[.]" N.J.A.C. 6A:16-1.3. Appellant does not assert that the District 

required her to work in BookBinders; instead, it is clear from the record that her 

assignment was voluntary.

To participate in this extra assignment, appellant did not need any 

additional teaching certification; the Instructional Certificate with a Teacher of 

the Handicapped endorsement was all that was required. The District paid 

appellant $20 per hour for the time she worked in BookBinders after school and 

in the evenings.

1

 With the exception of the 2009-10 school year during which 

she was "taking a break" from this voluntary assignment, appellant performed 

 

1

 Appellant taught English classes during this period.
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these secondary duties until the end of the 2014-15 school year. At that time, 

the District assigned another teacher to teach English in the program on an 

hourly basis.

Appellant appealed the District's decision to replace her to the 

Commissioner, and alleged that she had achieved separate tenure in her 

BookBinders assignment, despite the fact that she was already tenured in her 

full-time teaching member assignment. Therefore, appellant argued that the 

District could not assign another teacher to work in the program after school in 

her place. The Commissioner transmitted the matter to the OAL as a contested 

case.

Because there was no dispute as to any of these material facts, the parties 

filed cross-motions for summary decision pursuant to N.J.A.C. 1:1-12.5. The 

ALJ framed the issue as "whether [appellant] separately acquired tenure in the 

alternative education teacher position, such that she is entitled to reinstatement, 

together with full back pay, benefits, and emoluments of the position with 

interest, retroactive to June 2015[?]"

In answering this question in the negative, the ALJ reviewed the 

Commissioner's prior decisions regarding extracurricular duties and 

assignments, including Dignan. She observed that an already tenured teacher 
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like appellant, who is assigned to an extracurricular position, does not have a 

right to tenure in that position because a board of education has the authority to 

assign and reassign teachers to extracurricular duties as it deems fit. Dignan, 71 

S.L.D. at 343.

In determining that appellant was performing extracurricular duties when 

she worked in BookBinders after school for an hourly stipend, the ALJ stated:

Traditionally, "extracurricular" is the word used 

to describe school programs designed to enhance the 

education of students outside of the classroom, or 

regular curriculum, such as the school newspaper or 

athletics. See Smith v. Bd. of Educ. of Paramus, 68 

S.L.D. 62 (stating that "extracurricular or cocurricular 

activities comprise all those events and programs which 

are sponsored by the school and may reasonably be 

characterized as a supplement to the established 

program of studies in the classroom in order to enrich 

the learning and self-development opportunities of 

pupils"), aff’d, St[ate] Bd. of Educ. (Feb. 5, 1969).

However, the definition of "extracurricular" also 

includes "lying outside one's regular duties or routine." 

Merriam-Webster Online Dictionary, "extracurricular," 

https://www.merriam-webster.com/. Thus, while 

[appellant] taught English inside a classroom during her 

BookBinders assignment, the assignment was 

extracurricular in the sense that it fell outside her usual 

duties as a special education teacher during regular 

school hours. Here, as in Dignan, . . . the position was 

extracurricular and did not require additional 

certification beyond [appellant's] teaching certificate. 

Accordingly, [appellant] was not separately entitled to 

tenure in the alternative education position.
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In addition to the fact that appellant did not need an additional 

certification to participate in the extracurricular BookBinders program, 

appellant's $20 per hour remuneration for "her extracurricular service was 

established separately from her employment contracts." As the ALJ found,

Nothing in [appellant's] contract as a special education 

teacher required her to participate in the alternative 

program. Instead, for the 2014-2015 school year, she 

received a salary of $82,874 for her teaching position 

in the general education program, and she received 

separate compensation of twenty dollars an hour for her 

extracurricular duty as an English teacher in the 

BookBinders program. Therefore, her compensation 

for her work in the alternative program was not an 

integral part of her contractual salary. . . . 

Consequently, as [appellant's] former position in the 

alternative program was neither engrafted onto her 

primary tenured position nor compensated as an 

integral part of her salary, [appellant] is not entitled to 

back pay or other compensation.

Accordingly, the ALJ concluded that appellant "did not acquire tenure 

rights in the BookBinders position because the assignment did not require a 

certificate separate from the one under which she acquired tenure in her teaching 

position and in the general education program and was extracurricular." 

Appellant filed exceptions to the ALJ's initial decision and, on October 12, 2017, 

the Commissioner adopted the ALJ's reasoning and concluded that appellant did 
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not acquire tenure in the alternative education program position. This appeal 

followed.

On appeal, appellant again argues, as she unsuccessfully did before the 

Commissioner, that she had tenure in her "alternative program teaching 

position" and, therefore, the District was powerless to assign another teacher to 

work after school in the program. Based on our review of the record and 

applicable law, we are not persuaded by appellant's contention, and affirm 

substantially for the reasons articulated by the Commissioner. We add the 

following comments.

Our standard of review of administrative determinations by the

Commissioner is limited. "[W]e will not reverse the determination of an 

administrative agency unless it is arbitrary, capricious or unreasonable, or is not 

supported by substantial credible evidence in the record as a whole." Kaprow 

v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v. 

Bd. of Educ., 131 N.J. 626, 641 (1993)). We limit our review "to a determination 

of whether the [Commissioner's] decision is 'unreasonable, unsupported by the 

record or violative of the legislative will.'" D.L. v. Bd. of Educ. of Princeton 

Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting Capodilupo 

v. Bd. of Educ. of W. Orange, 218 N.J. Super. 510, 515 (App. Div. 1987)).
10 A-1095-17T1

We are not bound by an administrative agency's legal opinions. Levine v. 

State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. 

Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 

(1999)). Nonetheless, administrative decisions are cloaked with a "strong 

presumption of reasonableness." Newark v. Natural Res. Council, 82 N.J. 530, 

539 (1980). Additionally, the "agency's interpretation of statutes and 

regulations within its implementing and enforcing responsibility is ordinarily 

entitled to our deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. 

Super. 52, 56 (App. Div. 2001) (citing In re Progressive Cas. Ins. Co., 307 N.J. 

Super. 93, 102 (App. Div. 1997)).

"The delegation of regulatory and administrative responsibility over 

tenure to the [Commissioner] is based on the complexity and specialized nature 

of the subject of teacher tenure." Dennery, 131 N.J. at 637 (citing Ellicott, 251 

N.J. Super. at 350). Thus, our Supreme Court has cautioned that "the courts 

cannot supplant educators; they are not at liberty to interfere with regulatory and 

administrative judgments of the professionals in the field of public education 

unless those judgments are palpably arbitrary or depart from governing law." 

Id. at 643.
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Applying these standards, we discern no grounds to overturn the 

Commissioner's reasoned decision. The salient facts of this case were 

undisputed and, in light of the governing law, the Commissioner's legal 

conclusions are unassailable.

Affirmed.