NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5649-11T2

JUDITH A. DINAPOLI,

Petitioner-Respondent,

v.

BOARD OF EDUCATION OF THE

TOWNSHIP OF VERONA, ESSEX

COUNTY,

Respondent-Appellant.

_____________________________________

Argued March 12, 2013 – Decided

Before Judges Messano, Lihotz and Mantineo.

On appeal from the Commissioner of 

Education, Agency Docket No. 140-6/11.

Michael J. Gross argued the cause for 

appellant (Kenney, Gross, Kovats & Parton, 

attorneys; Mr. Gross, of counsel; Daniel R. 

Roberts, on the briefs).

Paul E. Griggs argued the cause for 

respondent Judith A. DiNapoli (Lindabury, 

McCormick, Estabrook & Cooper, P.C., 

attorneys; Mr. Griggs, of counsel and on the 

brief).

Jeffrey S. Chiesa, Attorney General, 

attorney for respondent Commissioner of 

Education (Daniela Ivancikova, Deputy 

Attorney General, on the statement in lieu 

of brief).

APPROVED FOR PUBLICATION

January 22, 2014

APPELLATE DIVISION

January 22, 2014
2 A-5649-11T2

The opinion of the court was delivered by 

MANTINEO, J.S.C. (temporarily assigned)

Respondent Board of Education of the Township of Verona 

(Board) appeals the final decision of the Commissioner of 

Education (Commissioner) finding petitioner Judith DiNapoli 

(DiNapoli) retained her secretarial tenure rights and could 

"bump" a non-tenured employee when her then position of 

assistant school business administrator was eliminated. 

Following our review, we conclude the Commissioner’s decision 

was unauthorized by the applicable statutory scheme. 

Accordingly we reverse.

In March of 1977, DiNapoli commenced employment with the 

Board as a bus driver/coordinator, an hourly, non-tenurable 

position. DiNapoli was then appointed to the position of 

accounts payable/transportation secretary on August 1, 2003, 

which she held until October 24, 2006, and acquired tenure as a 

secretary.

Thereafter, DiNapoli agreed to be reassigned as the 

assistant to the school business administrator, which was a noncertified position. She held that position from October 25, 

2006 until June 30, 2009.

DiNapoli again consented to reassignment on July 1, 2009, 

accepting the position of assistant school business 
3 A-5649-11T2

administrator. This was a twelve-month position requiring 

administrative certificate endorsement by the school’s business 

administrator. During a reduction in force, the Board abolished 

that position. On March 1, 2011, DiNapoli was given sixty days 

pay and released from employment.

Thereafter, DiNapoli filed a petition of appeal with the 

Commissioner alleging the Board violated her tenure rights by 

not employing her in a secretarial or clerical position held by 

a non-tenured employee after her position as assistant business 

administrator was eliminated. The Board filed an answer to the 

petition and the matter was transmitted to the Office of 

Administrative Law (OAL) for a hearing as a contested case 

pursuant to N.J.S.A. 52:14F-1 to -13. The parties agreed to 

resolve the dispute by submitting cross-motions for summary 

disposition with a joint stipulation of facts and legal issues 

and a joint exhibit list.

1 The parties stipulated the issue for 

determination as follows: “[Was DiNapoli] entitled to bumping 

rights to a secretarial or clerical position following the 

 

1 Motions for summary decision before administrative law judges 

are governed by N.J.A.C. 1:1-13.1 et seq. N.J.A.C. 1:1-13.2(a) 

provides that a decision on a motion for summary decision "shall 

be rendered if the papers and discovery which have been filed, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact challenged and that the 

moving party is entitled to prevail as a matter of law."
4 A-5649-11T2

elimination of the Assistant Business Administrator position on 

March 1, 2011?" 

The Administrative Law Judge (ALJ) held DiNapoli retained 

her secretarial tenure rights when assigned to the position of 

assistant school business administrator and should have been 

returned to a clerical or secretarial position held by a nontenured employee when the Board eliminated her current position. 

The Commissioner affirmed the decision. This appeal followed. 

I.

Our scope of review of an administrative agency's final 

determination is limited. In re Carter, 191 N.J. 474, 482 

(2007). We "may reverse only if we conclude that the decision 

of the administrative agency is arbitrary, capricious or 

unreasonable, or is not supported by substantial credible 

evidence in the record as a whole." J.D. v. N.J. Div. of 

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 

2000) (citations omitted). "The burden of demonstrating that 

the agency's action was arbitrary, capricious or unreasonable 

rests upon the [party] challenging the administrative action." 

In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. 

denied, 188 N.J. 219 (2006); see also Barone v. Dep't of Human 

Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super.

276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (holding 
5 A-5649-11T2

"[w]here action of an administration agency is challenged, a 

presumption of reasonableness attaches to the action of an 

administrative agency and the party who challenges the validity 

of that action has the burden of showing that it was arbitrary, 

unreasonable or capricious") (internal quotation marks omitted). 

This standard governs appellate review of administrative 

decisions involving "disputes arising under school laws." 

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); Dore v. Bd. of Educ., 185 N.J. Super. 447, 452 (App. 

Div. 1982)).

Our limited review of administrative agency decisions is 

informed by three inquiries:

(1) whether the agency's action violates 

express or implied legislative policies, 

that is, did the agency follow the law; (2) 

whether the record contains substantial 

evidence to support the findings on which 

the agency based its action; and (3) whether 

in applying the legislative policies to the 

facts, the agency clearly erred in reaching 

a conclusion that could not reasonably have 

been made on a showing of the relevant 

factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 

(1995) (citing Campbell v. Dep't of Civil 

Serv., 39 N.J. 556, 562 (1963)).] 

However, the deference does not require abdication of the 

judiciary's role in assuring the agency's action properly 
6 A-5649-11T2

comports with its legislative mandate. We review the agency's 

legal conclusions de novo. City of Atl. City v. Trupos, 201 

N.J. 447, 463 (2010). While we respect an agency's expertise

and will "defer to the specialized or technical expertise of the 

agency charged with administration of a regulatory system," In 

re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008), 

we are "in no way bound by the agency's interpretation of a 

statute or its determination of a strictly legal issue." 

Mayflower Sec. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973). 

"[I]f the statute is silent or ambiguous with respect to the 

specific issue, the question for the court is whether the 

agency's answer is based on a permissible construction of the 

statute." Matturri v. Bd. of Trs. of the Jud. Ret. Sys., 173 

N.J. 368, 381-82 (2002) (internal citations and quotation marks 

omitted).

II.

On appeal, the Board suggests that whether secretaries 

retain tenure status after transferring to a certificated 

position is a question of first impression. The Board submits 

that a secretary forfeits her tenure upon promotion to a nonsecretarial certificated position, as there is no legislative 

authority which permits the retention of secretarial tenure 

rights.
7 A-5649-11T2

DiNapoli disputes the Board's characterization of the 

issue, arguing the right of a tenured employee to bump a nontenured one is well-settled. DiNapoli urges the court to find 

that the tenure rights she acquired through her employment as a 

secretary were not relinquished when she left her position to 

become the assistant school business administrator.

Tenure rights are statutory and not contractual.

Zimmerman, supra, 38 N.J. at 72. N.J.S.A. 18A:17-2 defines the 

conditions under which secretarial employees of a board of 

education are entitled to the security of tenure. The objective 

of such tenure statutes is to protect competent and qualified 

employees, after a probationary period from being removed for 

"unfounded, flimsy, or political reasons." Zimmerman v. Newark 

Bd. of Educ., 38 N.J. 65, 71 (1962), certif. denied, 371 U.S.

956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). To acquire the 

security of tenure, the precise conditions enunciated in the 

applicable statute must be met. See Picogna v. Bd. of Educ. of 

Twp. of Cherry Hill, 143 N.J. 391, 400 (1996) ("[t]enure arises 

only upon compliance with the precise conditions articulated in 

the statute"); Kletzkin v. Bd. of Educ. of the Borough of 

Spotswood, 136 N.J. 275, 278 (1994) ("[t]enure is a statutory 

right that depends on a teacher’s satisfying specific statutory 

conditions"); Zimmerman, supra, 38 N.J. at 72 ("[i]n order to 
8 A-5649-11T2

acquire the status of a permanent teacher under a tenure law . . 

. a teacher must comply with the precise conditions articulated 

in the statute"). Tenure "arises only by the passage of time 

fixed by the statute . . . ." Canfield v. Bd. of Educ. of Pine 

Hill Borough, 97 N.J. Super. 483, 490 (App. Div. 1967) (Gaulkin, 

J., dissenting), rev'd on dissent 51 N.J. 400 (1968). The

employee shoulders the burden of establishing entitlement to 

tenure protection, which ordinarily must be clearly proven. Id.

at 493.

In interpreting statutes, a court's goal is to effectuate 

the legislative intent. TAC Assocs. v. N.J. Dept. of Envtl. 

Prot., 202 N.J. 533, 540 (2010). In order to accomplish this 

goal, the court first looks to the plain meaning of the statute. 

Praxair Tech, Inc. v. Dir., Div. of Taxation, 201 N.J. 126, 136 

(2009). It is fundamental for the court to apply the law as 

written, according to its plain language. Pizzullo v. N.J. 

Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). Where the language is 

clear, we may not look beyond the statutory terms to determine 

the legislative intent. State v. Churchdale Leasing, Inc., 115 

N.J. 83, 101 (1989). Courts are not permitted to "rewrite a 

plainly-written enactment of the Legislature [or] presume that 

the Legislature intended something other than that expressed by 

way of the plain language." O'Connell v. State, 171 N.J. 484, 
9 A-5649-11T2

488 (2002). Courts should be extremely reluctant to add terms 

to a statute, lest they usurp the Legislature's authority. See

Craster v. Newark Bd. of Comm'rs, 9 N.J. 225, 230 (1952) 

(holding that courts "should not write in an additional 

qualification which the Legislature pointedly omitted in 

drafting its own enactment"). Finally, "construing or 

interpreting a clear and unambiguous statute is simply not 

permissible." MacMillan v. Dir., Div. of Taxation, 180 N.J. 

Super. 175, 177 (App. Div. 1981), (internal quotation marks 

omitted), aff'd, 89 N.J. 216 (1982).

The Board argues N.J.S.A. 18A:17-2 authorizes tenure to be 

maintained only while the employee serves in a secretarial 

position, office or employment. That statute provides:

a. Any secretary, assistant secretary, 

school business administrator or business 

manager of a board of education of any 

school district who has or shall have 

devoted his full time to the duties of his 

office and has or shall have served therein 

for three consecutive calendar years, and

b. Any person holding any secretarial or 

clerical position or employment under a 

board of education of any school district or 

under any office thereof, after

1. The expiration of a period of employment 

of three consecutive calendar years in the 

district or such shorter period as may be 

fixed by the board or office employing him, 

or
10 A-5649-11T2

2. Employment for three consecutive academic 

years, together with employment at the 

beginning of the next succeeding academic 

year, an academic year being the period 

between the time when school opens in the 

district after the general summer vacation 

and the beginning of the next succeeding 

summer vacation, and

c. Any person, who has acquired, or shall 

hereafter acquire, tenure in any secretarial 

or clerical office, position or employment 

under the board of education of a school 

district and has been appointed district 

clerk or secretary, or shall hereafter be 

appointed secretary of said district, as 

such secretary, shall hold his office, 

position or employment under tenure during 

good behavior and efficiency and shall not 

be dismissed or suspended or reduced in 

compensation, except for neglect, 

misbehavior or other offense and only in the 

manner prescribed by subarticle B of article 

2 of chapter 6 of this title.

Ibid.

Initially, we find the plain language of the statute does 

not support the Commissioner's determination that DiNapoli 

retained her tenure rights upon transfer to a certificated 

position. Nor does N.J.S.A. 18A:17-2 reflect a legislative 

design to provide secretaries, who have relinquished their 

positions for non-secretarial certificated employment, the right 

to retain tenure. Rather, the language of N.J.S.A. 18A:17-2 

limits the retention of tenure to the time during which the 

employee holds her secretarial office, position or employment. 

The Commissioner's conclusion that secretarial staff maintain
11 A-5649-11T2

tenure upon transfer to non-secretarial positions is unfounded 

under the express terms of the statute. Once DiNapoli

voluntarily transferred to the assistant school business 

administrator position, she no longer held her "office, position 

or employment" as a secretary and, absent expressed statutory

authority, she relinquished her right to "bump back" into a 

secretarial position.

"The Legislature is presumed to be familiar with its own 

enactments, with judicial declarations relating to them, and to 

have passed or preserved cognate laws with the intention that 

they be construed to serve a useful and consistent purpose." 

St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005) 

(citations omitted). Indisputably, if the Legislature had 

intended for a secretary, who acquired tenure pursuant to 

N.J.S.A. 18A:17-2 (b) or (c), to retain tenure upon 

relinquishment of his or her secretarial position, it would have 

provided for such protection in the statute, similar to the 

provisions found in other tenure retention provisions.

For example, N.J.S.A. 18A:28-5 provides, in relevant part:

[t]he services of all teaching staff members 

employed in the positions of teacher, 

principal . . . shall be under tenure during 

good behavior . . . and shall not be 

dismissed or reduced in compensation except 

for inefficiency, incapacity, or conduct 

unbecoming. . . . 
12 A-5649-11T2

Also in this regard, the Legislature enacted N.J.S.A. 18A:28-6 

and 18A:17-20.4, which afford tenure retention rights to

teachers and superintendents notwithstanding promotion or 

transfer. N.J.S.A. 18A:28-6 specifies a tenured teaching staff 

member, after transfer or promotion, whose new position is 

terminated before tenure in that position is achieved

"shall be returned to his [or her] former position at the salary

which he [or she] would have received had the transfer or 

promotion not occurred[.]" Also, N.J.S.A. 18A:17-20.4 provides 

similar protection for those promoted to superintendents, who 

"shall retain all tenure rights accrued in any position which 

was previously held by the superintendent in the district."

These provisions represent the Legislature's intent to 

preserve tenure for certain employees who transferred or were 

promoted to a different position prior to achieving tenure in 

that position. N.J.S.A. 18A:17-2 does not contain a similar 

tenure retention provision regarding tenured secretarial 

employment, thus reflecting the Legislature's decision not to 

afford such rights.2 "When the Legislature has carefully 

 

2 This is not the only instance where secretaries are afforded 

less rights than other school employees. For instance, the 

seniority preferences and recall lists available to teachers are 

not available to secretaries. See, e.g., Ferronto v. Bd. of 

Educ. of the Twp. of Weymouth, et al., EDU 8774-02, final 

(continued)
13 A-5649-11T2

employed a term in one place and excluded it in another, it 

should not be implied where excluded." In re Plan for the 

Abolition of the Council on Affordable Housing, 214 N.J. 444, 

470 (2013) (internal quotation marks and citations omitted).

The fact that the Legislature limited secretarial tenure to 

the period of time an employee "holds [his or her secretarial] 

office, position or employment" precludes a finding that 

DiNapoli retained her tenure rights after being transferred to a 

non-secretarial position. See N.J.S.A. 18A:17-2.

DiNapoli argues N.J.S.A. 18A:28-6 and 18A:17-20.4 are 

inapposite because they do not address tenure retention but 

rather focus on seniority preservation. We disagree.

In our review of statutory enactments, we must read 

statutes dealing with the same subject matter in pari materia

and construe them together as a "unitary and harmonious whole." 

Lacy, supra, 185 N.J. at 14-15 (citations omitted). "Statutes 

in pari materia are to be construed together when helpful in 

resolving doubts or uncertainties and the ascertainment of 

legislative intent[,]" and "it is basic in the construction of 

legislation that every effort should be made to harmonize the 

 

(continued)

decision, (February 1, 2006), 

http://njlaw.rutgers.edu/collections/oal/search.html>.
14 A-5649-11T2

law relating to the same subject matter." State v. Green, 62 

N.J. 547, 554-55 (1973).

In determining whether legislative enactments "actually 

'concern the same object,'" a court should consider "whether 

both statutes were included in one enactment, whether the proofs 

required overlap, and whether they are 'designed to serve the 

same purpose and objective[.]'" Marino v. Marino, 200 N.J. 315, 

330 (2009) (quoting 2B Sutherland Statutory Construction § 51:3 

(7th ed. 2008)). Both N.J.S.A. 18A:17-2 and 18A:28-6 were 

enacted at the same time. See L. 1967, c. 271. N.J.S.A.

18A:17-20.4 was enacted subsequently. See L. 1991, c. 267, § 8.

We are satisfied that all three statutes concern the same

object, namely, the accrual and retention of tenure by school 

district employees, and are designed to serve the same purpose 

and objective. "When the Legislature expressly includes a 

requirement in one section and excludes that same requirement in 

other subsections of the same general statute, we need not 

strain to import that requirement where it is not." In re 

Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004).

When considered together, it is obvious the Legislature did not 

intend to afford secretaries tenure preservation upon transfer 

or promotion from secretarial employment as they did not adopt a 

provision providing for tenure retention in the legislation.
15 A-5649-11T2

III.

We next consider the Commissioner's determination that 

Given v. East Windsor Regional School District, 1978 S.L.D. 43

(Comm. Jan. 30, 1978), aff'd, 1978 S.L.D. 46 (St. Bd. Of Educ. 

June 7, 1978), aff'd, 1979 S.L.D. 832 (App. Div. May 18, 1979) 

controls the within matter. 

In Given, the petitioner was employed as a tenured clerk 

before accepting a position as secretary within the district. 

After working as a secretary for approximately twenty-two 

months, Given was involuntarily returned to a clerical position. 

Ibid. Given appealed to the Commissioner for an order declaring 

that she was a tenured secretary and therefore not subject to 

reassignment as a clerical employee. Ibid. Given argued that 

the transfer and the reduction in compensation violated her 

tenure rights as a secretary which she contended she acquired 

immediately upon her promotion to the position. Id. at 44. The 

Board conceded that Given had earned tenure as a clerk, but 

denied that she had served the requisite probationary period to 

earn tenure as a secretary. Ibid. In rejecting petitioner's 

argument, the Commissioner upheld the action of the Board in 

reassigning petitioner to a clerical position, finding:

there exists a legitimate interest for a 

local board to have a probationary period 

for clerical and secretarial employees in 

its employ who receive a promotion. The 
16 A-5649-11T2

Commissioner opines that to hold otherwise 

would work hardship on both the board and 

the employee if instant tenure were to 

accrue to a promotional position made in 

good faith by the board. A clerk or 

secretary so promoted would likely be 

required to demonstrate greater technical 

skills in order to properly discharge more 

complex responsibilities and must have a 

probationary period in which to adequately 

adjust to the new position. The fact that 

the Legislature has not established a 

specific statutory probationary period for 

clerks and secretaries who have been 

promoted, such as exists in N.J.S.A. 18A:28-

6 for certificated personnel, does not 

obviate the need for such a probationary 

period. The Commissioner holds that a 

tenured clerk or secretary, upon promotion 

to another position within the school 

district, must satisfy the precise 

conditions enunciated in N.J.S.A. 18A:17-

2(b) and (c) to achieve a tenure status in 

the new position. The Commissioner further 

holds that tenure rights accrued in a school 

system in any clerical or secretarial 

position prior to promotion shall not be 

negated by such promotion and shall remain 

as a continuing entitlement to such 

employee.

[Id. at 45.]

The Commissioner's ruling in Given applies only in the 

limited situations where a secretary or clerk is promoted to 

another secretarial or clerical position. This is implicit from 

the language of the opinion, which required that a promoted 

clerk or secretary "must satisfy the precise conditions 

enunciated in N.J.S.A. 18A:17-2(b) and (c)," since those 

conditions only pertain to clerical and secretarial employees. 
17 A-5649-11T2

Ibid. (emphasis added). That portion of the decision upon which 

the Commissioner relied in this case, i.e., "that tenure rights 

accrued in a school system in any clerical or secretarial 

position prior to promotion shall not be negated by such 

promotion and shall remain as a continuing entitlement to such 

employee," was dicta, since it had no effect upon the outcome of 

the case.

More importantly, Given did not address the issue presented 

here, namely, whether the tenure achieved under N.J.S.A. 18A:17-

2, is retained when the tenured secretary accepts a certificated 

position and leaves her tenured secretarial employment. In 

addressing this issue we look to Colon-Serrano v. Plainfield Bd. 

of Educ., 2007 WL 4644775 (N.J. Adm.) (Colon-Serrano I), aff'd

in part, rev'd in part, 2008 WL 1795250 (N.J. Adm.) (ColonSerrano II), aff'd, 2008 WL 2971334 (N.J. Adm.) (Colon-Serrano 

III) for guidance.

In Colon-Serrano, the petitioner was employed by the 

district in the clerical position of attendance aide and 

obtained tenure pursuant to N.J.S.A. 18A:17-2. Colon-Serrano I, 

supra, at *1. Thereafter, the petitioner transferred to a 

classroom aide position, which was neither clerical nor tenure 

eligible. Ibid. The petitioner held her position as classroom 

aide from 1994 until the district failed to renew her contract 
18 A-5649-11T2

in 2006. Ibid. The petitioner then sought to return to a 

clerical position held by a non-tenured or less senior clerical 

employee. Ibid. When the Board refused to return the 

petitioner to a clerical title, she filed a petition with the 

Commissioner seeking reinstatement on the basis of her prior 

accrued tenure. Ibid. 

The ALJ concluded the petitioner earned tenure in the 

clerical position of attendance aide and ordered the Board to 

place petitioner in a clerical position held by a non-tenured or 

less senior employee. Id. at *3. On review, the Commissioner 

agreed that the petitioner had acquired tenure as a clerical 

employee, but rejected the conclusion that the petitioner, "who 

voluntarily left her tenured position in 1994 to accept the 

separate and non[-]tenurable position of classroom aide . . . is 

now entitled to 'bump back' into a clerical position held by a 

non[-]tenured or less senior clerical employee . . ." ColonSerrano II, supra, at *2. The Commissioner specifically found:

N.J.S.A. 18A:17-2 provides that clerical 

employees who acquire tenure "shall hold 

[their] office, position or employment under 

tenure during good behavior and efficiency 

and shall not be dismissed or suspended or 

reduced in compensation except for neglect, 

misbehavior or other offense and only in the 

manner prescribed by [the Tenure Employees 

Hearing Law]." . . . In this matter, 

however, the employment from which the 

petitioner was dismissed was neither her 

tenured clerical employment nor an extension 
19 A-5649-11T2

or "hybrid" continuation of such 

employment,[3] but rather a clearly distinct, 

non[-]clerical, and non[-]tenured classroom 

aide position to which she voluntarily 

transferred in 1994. . . . Under these 

circumstances, when the petitioner was 

advised in July 2006 that her contract would 

not be renewed, the protections of N.J.S.A.

18A:17-2 were no longer applicable; in the 

absence of express legislative provision for 

retention of accrued tenure rights upon 

transfer to a position which is not tenure 

eligible, the petitioner must be deemed to 

have relinquished the protections associated 

with her clerical tenure upon acceptance of 

the nonprotected position of classroom aide.

[Id. at *2 (alteration in original).]

This case is factually similar to Colon-Serrano in that 

DiNapoli left her tenured secretarial position to pursue the

non-secretarial certificated position of assistant school 

business administrator. Once DiNapoli abandoned her employment

as a secretary, she relinquished the tenure rights she had 

 

3 The Commissioner specifically distinguished the facts from 

those presented in Keaney v. Bd. of Educ. of the Twp. of 

Bloomfield, EDU 5881-03, initial decision (July 28, 2005), 

http://njlaw.rutgers.edu/collections/oal/search.html> and 

adopted, Comm'r, final Decision (August 31, 2005), 

http://njlaw.rutgers.edu/collections/oal/search.html> (the 

Commissioner adopted the ALJ's initial decision which found 

petitioner "never knowingly and intelligently waived his tenure 

as a janitorial employee when he assumed the title of supervisor 

of maintenance" in which he still maintained his janitorial 

duties); and Quinlan v. Bd. of Educ. of N. Bergen Twp., 73 N.J. 

Super. 40, 47-48 (App. Div. 1953) (holding petitioner's tenure 

as a clerk was not terminated by the board's unilateral 

appointment of her as clerk-attendance officer where she 

continued to perform clerical duties as well as those of an 

attendance officer).
20 A-5649-11T2

accrued therein. Although Colon-Serrano's new position was not 

tenure eligible and DiNapoli's position was, that fact alone 

cannot support a dissimilar result, as there was no discussion 

by the Commissioner in Colon-Serrano about how, if at all, that 

fact affected his finding. Further, there was no reference by 

the Commissioner to any statutory authority that would support 

the disparate treatment of secretaries who transfer into nontenurable positions versus those who transfer into tenure 

eligible positions. There is no basis in N.J.S.A. 18A:17-2 for 

such a distinction. In finding Colon-Serrano had forfeited her 

tenure rights, the Commissioner focused on the fact that the 

petitioner was no longer employed in the clerical employment 

that had been the source of her tenure, and was instead engaged 

in a "distinct, nonclerical . . . position[.]" Id. at *2.

Additionally, there is nothing in the record in ColonSerrano, other than the petitioner's acceptance of a nontenurable position, to demonstrate an intention to relinquish 

her clerical tenure rights, yet the Commissioner found she 

forfeited the tenure protections she had acquired by way of her 

transfer. We too must find DiNapoli abandoned her tenure rights 

when she accepted a transfer to a non-secretarial certificated 

position.
21 A-5649-11T2

Here, the Commissioner adopted the ALJ's conclusion that 

the decision in Colon-Serrano expanded without distinction upon 

the decision in Given but offered no basis or support for that 

conclusion. We disagree with the ALJ’s determination, as it is 

clear the decision in Colon–Serrano limited Given's holding. 

Simply stated, Given and Colon-Serrano cannot be reconciled 

unless Given is limited to situations where clerks and 

secretaries are promoted or transferred to other clerical or 

secretarial positions.

We also reject the Commissioner's restrictive 

interpretation of Lange v. Bd. of Educ. Of Borough of Audubon, 

26 N.J. Super. 83 (App. Div. 1953). The Commissioner merely 

stated Lange was "inapposite to the instant controversy [,]"

without meaningful discussion. However, we conclude Lange

offers further support for the conclusion that DiNapoli 

relinquished her secretarial tenure.

In Lange, the petitioner was employed by the Audubon Board 

of Education, beginning her service as a teacher in 1912. Id.

at 84. In 1914, she was transferred, with her consent, to the 

position of principal in which she served from 1914 until 1927. 

Ibid. In June 1927, she was assigned by the Board of Education 

to the position of "Supervisor to Supervise Grade Schools," and 

served in that capacity until the position was abolished in June 
22 A-5649-11T2

1944 for reasons of economy and diminution in the number of 

pupils. Ibid. Thereafter, she served as a teaching principal 

in one of the grade schools until September 18, 1944, when it 

was discovered that there had been no vacancy in such position 

and Lange was returned to a teaching position. Id. at 85.

In 1951, a vacancy arose in a principal position and Lange 

applied asserting rights to the position by virtue of her prior 

service as principal. Ibid. She was not appointed to the 

position and appealed, arguing that under the then Teachers' 

Tenure Law, R.S. 18:13-16, 17, 19 and 20, she did not lose her 

tenure as principal when she accepted the position of 

"Supervisor to Supervise Grade Schools," and "when the 

[supervisor] position was abolished in 1944, she was entitled to 

appointment to fill the next available principalship." Ibid.

The Board of Education contended Lange "lost any tenure she may 

have had as a principal under the Teachers['] Tenure Law by 

accepting the position of supervisor." Ibid. The State 

Commissioner of Education affirmed the Board's determination and 

Lange appealed. Ibid. 

At the time Lange served as principal, she was protected by 

tenure. The original Teachers' Tenure Law was enacted in 1909, 

see L. 1909, c. 243, p. 398; however, it was not until 

amendments enacted in 1935 that the concept of seniority was 
23 A-5649-11T2

introduced and given prospective effect. See L. 1935 c. 126. p.

331; Lange, supra, 26 N.J. Super. at 85-86 (citing Downs v. Bd. 

of Educ. of Hoboken, 126 N.J.L. 11, 13 (Sup. Ct. 1940), aff'd,

Schlank v. Bd. of Educ. of Hoboken, 127 N.J.L. 602 (E. & A.

1942)); Werlock v. Woodbridge, 1939-1949 Comp. School Law 

Decisions, p. 107 (1948), aff'd on other grounds, 5 N.J. Super.

140 (App. Div. 1949). 

Important for our purposes here is the court's discussion 

of Lange's relinquishment of her principalship, and the rights 

connected therewith. Specifically the court found:

The record is barren of any protest or 

expression of dissatisfaction by plaintiff 

respecting her change of status from 

principal to supervisor. Nor does it appear 

that any proceeding was initiated by her to 

test the local board's action or that the 

appellant at any time protested or took any 

action indicating dissatisfaction with the 

action of the local board voiding the 

principalship held by her for a brief period 

of time in 1944. We think, therefore, it is 

a reasonable inference that she surrendered 

her principalship in 1927 voluntarily. The 

appellant concedes that one may voluntarily 

relinquish a position, . . . but asserts 

that tenure rights may not be waived while 

keeping the position.

. . . . 

This appeal might well be disposed of 

on the ground of laches. Notwithstanding 

the fact that by accepting the position of 

supervisor, she surrendered her position as 

principal, thereby constituting a dismissal 

as such principal and thereafter limiting 
24 A-5649-11T2

her tenure rights to the classification of a 

teacher . . . .

[Lange, supra, 26 N.J. Super. at 86-89 

(citations omitted).]

 In this case, we disagree with the Commissioner's 

conclusion that Lange is not relevant. Lange involved 

consideration of whether the petitioner retained her tenure 

rights in the position of principal after she voluntarily 

transferred from principal to supervisor, a separate tenurable 

position. We found Lange "waived whatever rights she may have 

acquired to the position of principal[,]" possessed no seniority 

rights with respect to a principal position and had no claim to 

be on a preferred eligibility list for her service as principal 

from 1914 to 1927. Id. at 87. The Commissioner here failed, 

however, to consider our specific holding in his analysis.

Like Lange, DiNapoli did not protest or express 

dissatisfaction with her transfer or promotion to the position 

of assistant school business administrator. Moreover, like 

Lange, she voluntarily transferred from her tenured secretarial 

position to another tenure eligible position. When the holding 

in Lange is applied to these facts, DiNapoli must be found to 

have relinquished her secretarial tenure upon promotion to the 

position of assistant school business administrator. Just as 

Lange had no claim to a principal position that became available 
25 A-5649-11T2

in 1951, DiNapoli cannot be said to have the right to "bump 

back" to a secretarial position held by a non-tenured employee. 

IV.

DiNapoli concedes that an individual may voluntarily 

relinquish a position, but argues she may not waive her tenure 

rights while keeping her position. Lange, supra, 26 N.J. Super.

at 88. Nevertheless, she argues that at the time she accepted 

the promotion and subsequent transfer to the position of 

assistant school business administrator, she did not relinquish, 

waive or forfeit her position as secretary. There is no support 

for this argument in the record before us. There is nothing to 

suggest that either party considered the transfers or promotions 

temporary assignments. In fact, in order for DiNapoli to become 

the assistant school business administrator she needed to obtain 

the appropriate certification credentials. She obtained the 

certification, thus evidencing her intention to remain in the 

position as assistant school business administrator, not 

secretary. Certainly, the facts support the conclusion that 

DiNapoli relinquished her secretarial position upon her 

acceptance of the promotion or transfer to the position of 

assistant school business administrator.

DiNapoli further argues that since she was "assigned" to 

the positions of assistant to the business administrator and 
26 A-5649-11T2

assistant school business administrator, she did not waive or 

voluntarily relinquish her position as a secretary. We also 

find this argument meritless. A voluntary resignation equates 

to abandonment of tenure rights. Kimless V. Twp. of Woodbridge 

Bd. of Educ., 1978 S.L.D. 651, 656 (1978) (citations omitted) 

("Such [a] holding is consistent with previous rulings of the 

Commissioner wherein it was held petitioners voluntarily 

resigned teaching position which constituted abandonment of 

their rights to a tenure claim"). Despite DiNapoli's suggestion 

to the contrary, she could only have been transferred or 

promoted with her consent. Thus, when DiNapoli voluntarily 

assumed the position of assistant to the business administrator 

and then accepted a promotion to the position of assistant 

school business administrator, she relinquished her secretarial 

position and tenure rights.

Reversed.