NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1730-12T3

STEPHANIE PLATIA,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF

THE TOWNSHIP OF HAMILTON,

MERCER COUNTY,

Respondent-Respondent.

________________________________________________________________

Argued December 17, 2013 – Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the New Jersey Commissioner 

of Education, Docket No. 206-7/11.

Edward A. Cridge argued the cause for 

appellant (Mellk O'Neill, attorneys; Arnold 

M. Mellk, of counsel; Mr. Cridge, on the 

brief).

Sanmathi Dev argued the cause for respondent 

Board of Education of the Township of 

Hamilton (Capehart & Scatchard, P.A., 

attorneys; Ms. Dev and Joseph F. Betley, on 

the brief).

John J. Hoffman, Acting Attorney General, 

attorney for respondent Commissioner of 

Education (Lauren A. Jensen, Deputy Attorney 

General, on the statement in lieu of brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

APPROVED FOR PUBLICATION

January 29, 2014

APPELLATE DIVISION

January 29, 2014
2 A-1730-12T3

Stephanie Platia was employed as a special education 

teacher by the Board of Education of Hamilton Township (Board) 

for more than three academic years in a four-year period. 

However, the Board denied that she obtained tenure under the 

Tenure Act, N.J.S.A. 18A:28-1 to -18, because her employment for 

one of those academic years was as a "Long Term Substitute" 

pursuant to a contract that stated the position was "nontenurial." In this, her appeal from a final decision of the 

Commissioner of Education, we consider the application of the 

"temporary" employee exception to the Tenure Act, N.J.S.A.

18A:16-1.1. We conclude the exception does not apply and that 

Platia obtained tenure as of right.

I.

Platia was hired by the Board to serve as a full-time 

special education teacher at Greenwood Elementary School in 

Hamilton Township, effective January 28 to June 30, 2008. She 

was rehired to serve in the same position for the next two 

academic years, 2008-09 and 2009-10. According to the Board, 

Platia was not offered a contract for the 2010-11 academic year

"based on reasons of economy."

However, in July 2010, the Board offered Platia a new 

contract to serve in the position of "Long Term Substitute" as a 
3 A-1730-12T3

special education teacher at the Mercerville and Lalor Schools, 

effective September 1, 2010, to June 30, 2011. That contract 

included the following notice:

You are replacing an employee who is on a 

leave of absence and who may be returning to 

his/her position at the expiration of this 

contract. This position is non-tenurial and 

carries no seniority eligibility. You will 

be assigned to the Substitute Teacher List 

if no position is available at the 

expiration of this contract.

Platia signed the contract and accepted the position. When 

Platia inquired about her status regarding tenure, she was 

informed:

Tenure is not accruable as a Long term 

Substitute. Tenure is gained in a full-time 

position – it is equal to 3 years and 1 day 

– a[nd] must be within a 4 year period – 1 

full year as a long term substitute would 

make a tenure clock start over again.

In April 2011, the Board notified Platia it would be unable 

to offer her a contract for the 2011-12 academic year because 

funding for the position she held would expire at the end of 

June 2011. The Board added that it was "reviewing . . . 

staffing needs for the 2011-2012 school year" and would contact 

Platia if its needs changed and her services were desired.

In July 2011, Platia filed a verified petition with the 

Commissioner of Education seeking, among other relief, an order 

that would direct and compel the Board to recognize her as a 
4 A-1730-12T3

tenured employee and restore her to the teaching position she 

previously held.1 The Board filed an answer in which it denied 

Platia had acquired tenure. The matter was transferred to the 

Office of Administrative Law as a contested case. Both Platia 

and the Board moved for summary decision. Following oral 

argument, the Administrative Law Judge (ALJ) issued an initial 

decision on September 17, 2012, granting the Board's crossmotion for summary decision and dismissing Platia's appeal. 

Thereafter, the Commissioner adopted the ALJ's Initial Decision 

as the final decision of the Department of Education.

Both the ALJ and the Commissioner viewed the question as 

whether Platia filled a permanently vacant position or one that 

was temporarily vacated by a teacher who intended to return. 

The Commissioner agreed with the ALJ that Platia was not 

entitled to tenure credit during the 2010-11 academic year 

because "she filled a position resulting from a leave of 

absence, not a permanent vacancy." The Commissioner noted 

further that, pursuant to N.J.S.A. 18A:16-1.1, the Board was

"authorized to designate a person" who would "act in the place 

of an employee during a leave of absence" but not acquire tenure 

credit for that employment.

 

1 Platia concedes that if she were restored to a tenured 

teaching position, her employment would remain subject to a 

reduction in force. See N.J.S.A. 18A:28-9.
5 A-1730-12T3

Our review in an appeal from a final decision of an 

administrative agency is limited. Circus Liquors, Inc. v. 

Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009).

However, the issue presented here calls for the interpretation 

of the Tenure Act and the exception for temporary employees, 

N.J.S.A. 18A:16-1.1. Such interpretation "is primarily the role 

of the judiciary and is not an administrative function." 

Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div. 

2010). As a result, the Commissioner's interpretation of the 

statutes is not entitled to our deference.

II.

"The right to tenure is created and governed entirely by 

statute." Merlino v. Borough of Midland Park, 172 N.J. 1, 8 

(2002) (quoting Breitwieser v. State-Operated Sch. Dist., 286 

N.J. Super. 633, 637 (App. Div. 1996)). The Tenure Act "defines 

the conditions under which teachers are entitled to the security 

of tenure." Spiewak v. Bd. of Educ., 90 N.J. 63, 72 (1982). 

Tenure becomes a "mandatory term and condition of employment" 

for "all teaching staff members[2] who work in positions for which 

 

2 "Teaching staff member" is defined in N.J.S.A. 18A:1-1 as "a 

member of the professional staff of any district or regional 

board of education . . . holding office, position or employment 

of such character that the qualifications, for such office, 

position or employment, require him to hold a valid and 

effective standard, provisional or emergency certificate, 

(continued)
6 A-1730-12T3

a certificate is required, who hold valid certificates, and who 

have worked the requisite number of years . . . unless they come 

within the explicit exceptions in N.J.S.A. 18A:28-5 or related 

statutes such as N.J.S.A. 18A:16-1.1." Id. at 72, 81. 

Because a "legislative source for tenure rights is 

essential," Lukas v. State of New Jersey, 103 N.J. 126, 128 

(1986), the right to tenure accrues only when there is 

"compliance with the precise conditions articulated in the 

relevant legislative enactment." Merlino, supra, 172 N.J. at 8;

see also Picogna v. Bd. of Educ., 143 N.J. 391, 400 (1996); 

Zimmerman v. Bd. of Educ., 38 N.J. 65, 72 (1962), cert. denied, 

371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). Thus, 

actual service of the time specified in the statute is a 

necessary prerequisite to the right to tenure. Tenure will not 

accrue for an employee discharged before that time requirement 

is satisfied, even if the discharge is in breach of an 

employment contract.

3 Picogna, supra, 143 N.J. at 401-02; 

 

(continued)

appropriate to his office, position or employment, issued by the 

State Board of Examiners . . . ."

3 In addition to the Tenure Act, the Board's power to dismiss is 

limited by the Fourteenth Amendment of the United States 

Constitution, the New Jersey Constitution, federal and state 

anti-discrimination laws, see Picogna, supra, 143 N.J. at 402;

Zimmerman, supra, 38 N.J. at 70-71, and, presumably, by other 

(continued)
7 A-1730-12T3

Canfield v. Bd. of Educ., 51 N.J. 400 (1968), rev'g on dissent

97 N.J. Super. 483, 490-93 (App. Div. 1967). Similarly, when 

the statutory requirement calls for employment for a consecutive 

number of years, an interruption in service precludes 

satisfaction of the time requirement. See Merlino, supra, 172 

N.J. at 12.

Although compliance with the time requirement must be 

"absolute," Merlino, supra, 172 N.J. at 8, we are mindful of the 

Tenure Act's remedial purpose to "prevent[] school boards from 

abusing their superior bargaining power over teachers in 

contract negotiations," Spiewak, supra, 90 N.J. at 72, and the 

principle that it "should be liberally construed to achieve its 

beneficent ends." Id. at 74. Therefore, the Tenure Act 

"should not be interpreted to permit avoidance of tenure by 

manipulation of job titles." Dugan v. Stockton State Coll., 245 

N.J. Super. 567, 573 (App. Div. 1991).

Pursuant to N.J.S.A. 18A:28-5(a), the services of teaching 

staff members employed prior to the 2012-2013 school year 

shall be under tenure during good behavior 

and efficiency and they shall not be 

dismissed or reduced in compensation except 

for inefficiency, incapacity, or conduct 

 

(continued)

statutory provisions such as the Conscientious Employee 

Protection Act, N.J.S.A. 34:19-1 to -14.
8 A-1730-12T3

unbecoming such a teaching staff member or 

other just cause . . . after employment[4] in 

such district or by such board for:

(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.

[N.J.S.A. 18A:28-5(a) (emphasis added).]

The Board does not allege any "just cause" such as 

"inefficiency, incapacity, or conduct unbecoming" for denying 

Platia tenure. N.J.S.A. 18A:28-5(a). It is further undisputed 

that Platia worked in a position for which a certificate is 

required and that she holds a valid certificate. The thrust of 

the Board's argument that Platia did not work the requisite 

number of years is that her employment as a "Long Term 

Substitute" fell within the exception in N.J.S.A. 18A:16-1.1.

If, however, Platia's year as a "Long Term Substitute" for 

the 2010-11 academic year is counted, she qualifies for tenure 

 

4 "Employee" is defined as including "the holder of any position 

or employment." N.J.S.A. 18A:1-1. "Employment" includes

"employment in a position." Ibid. N.J.S.A. 18A:28-1 defines 

"position" as including "any office, position or employment." 
9 A-1730-12T3

pursuant to N.J.S.A. 18A:28-5(a)(3).5 See Kletzkin, supra, 136 

N.J. at 277 ("[T]o obtain tenure" under N.J.S.A. 18A:28-5(a)(3)6, 

a teacher must "be 'employed' for thirty months and one day over 

four academic years."); Spiewak, supra, 90 N.J. at 71-72, 84 

(holding that a teacher qualified for tenure under this 

provision where she worked in a public school system from 

February 1976 through June 1979). If, as the Board argues, that 

year may not be counted toward tenure, she does not satisfy the 

statutory requirements for tenure. 

 

5 Platia was employed as a teaching staff member from January to 

June 2008 and for the academic years 2008-09 and 2009-10. She 

argues that unless a tenure exception applies, she is entitled 

to tenure under N.J.S.A. 18A:28-5(a)(2). However, she was not 

employed for "[t]hree consecutive academic years, together with 

employment at the beginning of the next succeeding academic 

year" because Platia's employment from January to June 2008 does 

not constitute employment for an academic year as defined by 

statute. N.J.S.A. 18A:1-1 (An "academic year" is "the period 

between the time school opens in any school district or under 

any board of education after the general summer vacation until 

the next succeeding summer vacation."); see also Kletzkin v. Bd. 

of Educ., 136 N.J. 275, 277 (1994) ("An academic year runs for 

the ten months between September 1 and June 30 of the school 

year."). Therefore, she did not satisfy the criteria set forth 

in N.J.S.A. 18A:28-5(a)(2). See also Picogna, supra, 143 N.J.

at 402 (To obtain tenure under relevant provision, "plaintiff 

was required to serve three consecutive calendar years on 

probation with defendant and then be reemployed by the Board for 

at least one day in a fourth year.").

6 At the time Kletzkin was decided, this provision was located

at N.J.S.A. 18A:28-5(c).
10 A-1730-12T3

A.

The Board contends that Platia's employment as a "Long Term 

Substitute" fell within the exception in N.J.S.A. 18A:16-1.1, 

which provides, in pertinent part:

In each district the board of education may 

designate some person to act in place of any 

. . . employee during the absence, 

disability or disqualification of any such 

. . . employee[.]

. . . [N]o 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 (emphasis added).]

To establish Platia's nontenurial status for purposes of 

N.J.S.A. 18A:16-1.1, the Board relies on Platia's contract for 

the 2010-11 school year, which stated that Platia would be 

"replacing an employee who is on a leave of absence and who may

be returning to his/her position at the expiration of this 

contract." As a preliminary matter, we reject the notion that 

the language of the contract offered Platia for the 2010-11

academic year precludes consideration of that year's employment

for tenure purposes. A teacher's right to tenure "never depends 

on the contractual agreement between the teachers and the board 

of education." Spiewak, supra, 90 N.J. at 77. 

In Spiewak, the Boards of Education similarly negotiated 

contracts with special education teachers that characterized 
11 A-1730-12T3

their employment as temporary, precluding them from obtaining 

tenure notwithstanding their satisfaction of the time 

requirements of the Tenure Act. Id. at 67-72; see also Merlino, 

supra, 172 N.J. at 11 (applying Spiewak). The Court held that 

the teachers obtained tenure as of right because the statute 

made tenure after three years of service "a mandatory term and 

condition of employment." Spiewak, supra, 90 N.J. at 72. Once 

the teachers "fully satisfied the factual prerequisites of the 

statute, [they] achieved tenure regardless of any side 

agreements that they may have made renouncing their statutory 

rights." Merlino, supra, 172 N.J. at 11. The fact that the 

Legislature established a specific term of service for tenure to 

accrue "leaves no room for discretionary action, [and]

negotiation on that term is fully preempted." Spiewak, supra, 

90 N.J. at 76; see also Merlino, supra, 172 N.J. at 8 

("[S]tatutory terms and conditions of employment take precedence 

over any side agreement in contravention of the statute."). 

Moreover, the statutory right to tenure "may not be forfeited or 

waived." Spiewak, supra, 90 N.J. at 77.

B.

We therefore turn to the question whether the exception 

regarding temporary employees set forth in N.J.S.A. 18A:16-1.1 

applies. Our Supreme Court has instructed that this exception 
12 A-1730-12T3

"extends only to those who 'act in place of' another employee 

who is absent or disabled." Spiewak, supra, 90 N.J. at 74.

According to the Board, Platia was a "Long Term Substitute" 

for Michele Snyder for the 2010-11 academic year. However, the 

record fails to show that Snyder was "absent" from her 

employment or that Platia acted "in place of" her.

It is undisputed that Snyder remained a full-time employee 

of the Board throughout the 2009-10 and 2010-11 academic years. 

By letter dated July 16, 2009, the Board advised Snyder it had

voted to "transfer" her to the position of "Special Education 

Literacy Resource Coach" at the Lalor School and Kuser School, 

effective for the academic year from September 1, 2009, to June 

30, 2010. The position as literacy resource coach was part of a 

grant program funded by the New Jersey Department of Education. 

To work in this assignment, Snyder was required to hold the same 

instructional certificate issued by the Department of Education, 

State Board of Examiners, as that required to work as a special 

education teacher. See N.J.A.C. 6A:9-9.2(b)(5) and (6). 

Even if Snyder's transfer were construed as an "absence," 

the record also fails to support the conclusion that Platia

acted "in place of" Snyder. Prior to her transfer to the 

literary resource coach position in 2009, Snyder was assigned as 

a special education teacher at the Robinson School. For the 
13 A-1730-12T3

2009-10 academic year, when Snyder was "transferred" to her 

duties as a literary resource coach, Platia was employed as a 

full-time special education teacher at the Greenwood school, not 

as a "Long Term Substitute" and not at the Robinson School. The 

record does not reveal who, if anyone, assumed Snyder's duties 

at the Robinson School for 2009-10.

When Snyder's assignment as literary resource coach ended,7

she returned to the position she held prior to the 2009-10

academic year, which had now been transferred to the Kuser 

School for the 2011-2012 academic year. Platia was never 

assigned to the Kuser School, either. From the time of her 

initial employment in January 2008 through June 2010, Platia was 

assigned to work as a special education teacher at the Greenwood 

School. Similarly, the "Long Term Substitute" contract did not 

assign her to the school where Snyder worked prior to her 

transfer to the literary resource coach position but, rather, to 

the Mercerville and Lalor Schools for the 2010-11 academic year.

 

7 It is unclear from the record exactly when Snyder's assignment 

as literary resource coach ended. The Cooperative Grant 

Agreement that established the Special Education Literacy 

Resource Coach position states the grant program ran only 

through the 2009-10 school year, with a final report due on 

August 16, 2010. However, in answers to interrogatories, the 

Board asserted that the assignment was for a two-year grant 

position, which would mean that Snyder continued in that 

assignment for the 2010-11 academic year, the term of its "Long

Term Substitute" contract with Platia.
14 A-1730-12T3

The record therefore fails to support findings that Snyder 

was "absent" for the year in which Platia was hired as a "Long

Term Substitute" or that Platia filled a position that was 

available by virtue of Snyder's "absence." Both of these 

criteria must be satisfied for the temporary employee exception 

in N.J.S.A. 18A:16-1.1 to apply. Because Platia was employed 

for the "equivalent of more than three academic years within a 

period of . . . four consecutive academic years," tenure was 

conferred upon her as of right pursuant to N.J.S.A. 18A:28-

5(a)(3).

Reversed.