BRENDA MILLER v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0078-16T3

BRENDA MILLER,

Petitioner-Appellant,

v. APPROVED FOR PUBLICATION

STATE-OPERATED SCHOOL DISTRICT November 4, 2019
OF THE CITY OF NEWARK, ESSEX
COUNTY, APPELLATE DIVISION

Respondent-Respondent.
________________________________

Argued February 5, 2018 – Decided July 27, 2018

Before Judges Vernoia and DeAlmeida.

On appeal from the Commissioner of Education,
Agency Docket No. 301-10/14.

William P. Hannan argued the cause for
appellant (Oxfeld Cohen, PC, attorneys;
William P. Hannan, of counsel and on the
brief).

Shana T. Don argued the cause for respondent
Newark Public School District (Scarinci &
Hollenbeck, LLC, attorneys; Ramon E. Rivera,
of counsel; Jason T. Mushnick and Shana T.
Don, on the brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Commissioner of
Education (Nicole T. Castiglione, Deputy
Attorney General, on the statement in lieu of
brief).
The opinion of the court was delivered by

VERNOIA, J.A.D.

Petitioner Brenda Miller appeals from the New Jersey

Commissioner of Education's final agency decisions dismissing her

claims that her employment with the State Operated School District

of the City of Newark (the District) was terminated in violation

of her tenure rights under N.J.S.A. 18A:17-2, and the termination

was void because it was effectuated without the proper delegation

of authority by the District's superintendent. Because we conclude

the termination of petitioner's employment violated her tenure

rights under N.J.S.A. 18A:17-2, we reverse.

The relevant facts are not disputed. Petitioner was hired

by the District on May 4, 1998, and held various provisional titles

until her permanent appointment to the title of Senior Clerk on

April 1, 2004. She held that position until her transfer to the

title of Secretarial Assistant, Typing on July 23, 2007. Effective

June 16, 2012, her title was renamed Secretarial Assistant. The

parties agree that all of the foregoing positions were classified

titles under the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to

12-6.

Effective July 2012, the District reclassified petitioner's

position to the unclassified title of Confidential Assistant. In

2 A-0078-16T3
a letter to petitioner sent almost seventeen months later, the

District confirmed petitioner's July 2, 2012 reassignment to the

Confidential Assistant position, and advised the new position was

"unaffiliated" and therefore no longer governed by the Act. The

letter explained that petitioner's employment record would reflect

she resigned from her Civil Service title effective June 30, 2012,

and would "no longer be afforded Civil Service rights." The letter

further informed petitioner she could "request consideration for

reemployment in [her] prior Civil Service title" with the District

"by indicating [her] availability within three (3) years of the

date of [her] resignation." Petitioner did not appeal her transfer

to the unclassified position, or the District's confirmation of

her resignation from the classified position, to the Civil Service

Commission.

More than two years later, on August 15, 2014, the District's

Chief Talent Officer, Vanessa Rodriguez, sent petitioner a letter

terminating her employment. Petitioner appealed to the Civil

Service Commission, arguing the termination violated the Act

because she was entitled to return to the permanent classified

position she held prior to the 2012 transfer. The Civil Service

Commission dismissed her appeal, finding petitioner acquiesced to

the 2012 transfer and effectively resigned from her classified

position at that time. The Commission concluded petitioner was

3 A-0078-16T3
terminated from her classified position in 2012, and had no right

to challenge the 2014 termination from her unclassified position

under the Act. There is no record showing petitioner appealed the

Commission's decision.

Petitioner also appealed her termination to the Commissioner

of Education. She alleged her termination was unlawful because

she had tenure under N.J.S.A. 18A:17-2 in her position as a

Confidential Assistant, and Rodriguez lacked the authority to

terminate her. In a December 9, 2015 decision, an Administrative

Law Judge (ALJ) granted summary disposition in petitioner's favor

finding petitioner had tenure under N.J.S.A. 18A:17-2 because she

had been employed by the District in secretarial positions for

more than three consecutive years. The ALJ concluded petitioner's

termination violated her tenure rights under N.J.S.A. 18A:17-2,

and recommended petitioner's reinstatement.

The District filed exceptions to the ALJ's decision, and the

Commissioner rejected the ALJ's recommended decision. The

Commissioner determined petitioner 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

4 A-0078-16T3
any provisions of this chapter."1 The Commissioner concluded

petitioner accrued credit toward tenure under N.J.S.A. 18A:17-2

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. The Commissioner

dismissed petitioner's claim that her termination violated her

tenure rights under N.J.S.A. 18A:17-2, and remanded for the ALJ

to consider petitioner's remaining claim – that Rodriguez lacked

the authority to terminate her employment.

On remand before the ALJ, the parties relied solely on written

submissions. The ALJ considered a certification from Larisa

Shambaugh, who stated she was "fully familiar with the facts and

circumstances associated with [petitioner's] case," and was

appointed the District's Interim Chief Talent Officer following

Rodriguez's resignation in January 2016. Shambaugh stated the

State-appointed Superintendent has responsibility for the hiring

and firing of District employees and "delegates to the Chief Talent

1
We note that although N.J.S.A. 18A:28-2 expressly references
Title 11, "[i]n 1986, the Legislature passed the current Civil
Service Act, repealing Title 11 and establishing Title 11A of the
New Jersey Statutes." In re Reallocation of Prob. Officer, 441 N.J. Super. 434, 444 (App. Div. 2015); L. 1986, c. 112. We
construe N.J.S.A. 18A:28-2's reference to Title 11 to include
Title 11 A. 5 A-0078-16T3
Officer the responsibility to communicate with District employees

regarding their employment." Attached to Shambaugh's

certification is a job description for the District Chief Talent

Officer, the position Rodriguez held when she sent the August 2014

letter terminating petitioner's employment.

The District also submitted a certification from Christopher

Cerf, who replaced Cami Anderson as the District Superintendent

in July 2016. Cerf stated that Anderson delegated the authority

to hire and fire the District's "non-civil service employees" to

Rodriguez, and that upon his appointment as Superintendent, he

continued that delegation of authority to Rodriguez and, following

her resignation, to Shambaugh.

The ALJ found the certifications convincing. He determined

N.J.S.A. 18A:7A-42(b) authorized the Superintendent to "delegate

to subordinate officers or employees in the district any of his

powers or duties as he may deem desirable to be exercised under

his supervision and direction," and concluded the certifications

and Chief Talent Officer's job description established Rodriguez

had the delegated authority to terminate petitioner's employment

in 2014. The ALJ also found it "inconceivable" that in a District

"consist[ing] of seventy-four schools serving 39,440 students,"

the Superintendent "would micro-manage every personnel decision,"

and "logical" that decisions concerning the duty to hire and fire

6 A-0078-16T3
unclassified employees would be delegated to the Chief Talent

Officer whose job description required "leadership in all matters

related to talent management."

The ALJ also found petitioner had the burden of establishing

by a preponderance of the evidence that Rodriguez lacked the

requisite delegated authority, and she failed to sustain her burden

because she offered nothing more than "a bald assertion that the

State-Appointed Superintendent did not delegate the authority" to

Rodriguez. The ALJ noted that petitioner failed to present any

evidence refuting the Shambaugh and Cerf certifications, and

concluded the "unrefuted evidence supports [a finding] of proper

delegation of authority." The ALJ recommended dismissal of

petitioner's claim Rodriguez lacked the authority to terminate her

employment.

The Commissioner adopted the ALJ's findings and

recommendation, and determined that in 2014 the Superintendent

delegated her authority to terminate petitioner's employment to

Rodriguez in accordance with N.J.S.A. 18A:7A-42(b). The

Commissioner, relying on the Shambaugh and Cerf certifications and

the lack of any evidence from petitioner refuting them, concluded

petitioner failed to sustain her burden of showing Rodriguez lacked

the authority to terminate her employment.

7 A-0078-16T3
On appeal, petitioner challenges the Commissioner's

decisions, and presents the following arguments:

POINT I

STANDARD OF REVIEW OF AGENCY DECISION.

POINT II

THE COMMISSIONER OF EDUCATION ERRED IN FINDING
THAT [PETITIONER] DID NOT HAVE TENURE UNDER
. . . TITLE 18A AT THE TIME OF HER TERMINATION.

a. The Commissioner's Narrow Application of
N.J.S.A. 18A:17-2 Ignores the Long-
Established Requirement that Tenure Statutes
Are to be Liberally Construed in Favor of
Employees and [Petitioner] Satisfied the
Express Terms of the Statute.

b. The Commissioner Erred by Applying N.J.S.A.
18A:28-2 to [Petitioner] as a Non-Teaching
Staff Member.

POINT III

THE COMMISSIONER ERRED BY [DISMISSING] COUNT
TWO OF [PETITIONER'S] PETITION BECAUSE THE
DISTRICT PRESENTED NO CREDIBLE EVIDENCE TO
DEMONSTRATE THAT THE AUTHORITY TO TERMINATE
[PETITIONER] HAD BEEN PROPERLY DESIGNATED TO
THE CHIEF TALENT OFFICER PURSUANT TO LAW.

II.

"The scope of appellate review of a final agency decision is

limited," and we will not overturn an agency's final decision "in

the absence of a showing that it was arbitrary, capricious or

unreasonable, or that it lacked fair support in the evidence." In

8 A-0078-16T3
re Carter, 191 N.J. 474, 482 (2007) (citations omitted).

Generally, our review of an agency decision is

restricted to 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.

[In re Proposed Quest Acad. Charter Sch., 216
N.J. 370, 385 (2013) (quoting Mazza v. Bd. of
Trs., 143 N.J. 22, 25 (1995)).]

The person challenging an agency action has "[t]he burden of

showing that an action was arbitrary, unreasonable or capricious."

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.

Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med.

Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div.

1986)).

Although "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,' we are 'in no way

bound by the agency's interpretation of a statute or its

determination of a strictly legal issue.'" DiNapoli v. Bd. of

Educ., 434 N.J. Super. 233, 236-37 (App. Div. 2014) (first quoting

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

9 A-0078-16T3
and then quoting Mayflower Sec. Co. v. Bureau of Sec., Div. of

Consumer Affairs, 64 N.J. 85, 93 (1973)). "Statutory

interpretation involves the examination of legal issues and is,

therefore, a question of law subject to de novo review." Saccone

v. Bd. of Trs. of Police and Firemen's Ret. Sys., 219 N.J. 369,

380 (2014) (citations omitted) (citing McGovern v. Rutgers, 211 N.J. 94, 107-08 (2012)).

The Commissioner's rejection of petitioner's claim that her

termination violated her tenure rights is founded on his

interpretation of N.J.S.A. 18A:17-2 and N.J.S.A. 18A:28-2. The

Commissioner recognized that under N.J.S.A. 18A:17-2(b), a

secretary employed by a board of education has tenure after "the

expiration of a period of employment of three consecutive calendar

years," and petitioner was employed in secretarial positions for

that period of time during her employment by the District. The

Commissioner, however, found petitioner's years of service in

classified secretarial positions prior to her 2012 reassignment

could not be counted toward the time of service requirements for

tenure under N.J.S.A. 18A:17-2, because N.J.S.A. 18A:28-2 provides

that "[n]o person, who is in the classified service of the civil

service . . . pursuant to Title 11 . . . shall be affected by any

provisions of this chapter."

10 A-0078-16T3
An appellate court's primary purpose in construing a statute

is to "discern the meaning and intent of the Legislature." State

v. Gandhi, 201 N.J. 161, 176 (2010). "There is no more persuasive

evidence of legislative intent than the words by which the

Legislature undertook to express its purpose; therefore, we first

look to the plain language of the statute." Perez v. Zagami,

L.L.C., 218 N.J. 202, 209-10 (2014). "We ascribe to the statutory

words their ordinary meaning and significance, and read them in

context with related provisions so as to give sense to the

legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492

(2005) (internal citations omitted). Where "the plain language

leads to a clear and unambiguous result, . . . our interpretive

process is over." Richardson v. Bd. of Trs., Police & Firemen's

Ret. Sys., 192 N.J. 189, 195 (2007). When the statutory language

"clearly reveals the meaning of the statute, the court's sole

function is to enforce the statute in accordance with those terms."

McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting

SASCO 1997 NI, L.L.C. v. Zudkewich, 166 N.J. 579, 586 (2001)).

Petitioner contends she earned tenure in her secretarial

positions under N.J.S.A. 18A:17-2, which "defines the conditions

under which secretarial employees of a board of education are

entitled to the security of tenure." DiNapoli, 434 N.J. Super.

at 237. The statute provides that "[a]ny person holding any

11 A-0078-16T3
secretarial or clerical position" has tenure after either "[t]he

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 of education, or "[e]mployment for three consecutive

academic years, together with employment at the beginning of the

next succeeding academic year." N.J.S.A. 18A:17-2(b)(1) and (2).

"To acquire the security of tenure, the precise conditions

enunciated in [N.J.S.A. 18A:17-2] must be met." DiNapoli, 434 N.J. Super. at 237-38.

It is undisputed that petitioner held secretarial positions

following her permanent appointment in 2004 through her

termination in 2014, and therefore was employed for a sufficient

period of time to earn tenure under N.J.S.A. 18A:17-2. The

Commissioner, however, rejected petitioner's claim she had tenure

rights under N.J.S.A. 18A:17-2 based on the conclusion petitioner

did not accrue credit toward the time in employment requirements

of the statute during her employment in the classified Civil

Service positions.

The Commissioner determined that N.J.S.A. 18A:28-2 barred

consideration of petitioner's employment in classified Civil

Service positions in the calculation of the time in employment

requirements for tenure under N.J.S.A. 18A:17-2. N.J.S.A. 18A:28-

2 provides:

12 A-0078-16T3
No person, who is in the classified service
of the civil service of the state pursuant to
Title 11, Civil Service, of the Revised
Statutes, shall be affected by any provisions
of this chapter.

[(Emphasis added).]

The Commissioner reasoned that because N.J.S.A. 18A:28-2 provides

that "[n]o person" who holds a classified Civil Service title

"shall be affected by any provisions of this chapter," petitioner'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. We disagree.

N.J.S.A. 18A:28-2 was enacted in 1967, L. 1967, c. 271, and

included in the chapter of Title 18A entitled "Tenure," which the

Legislature designated as Chapter 28. N.J.S.A. 18A:28-2's plain

language makes clear that individuals in classified Civil Service

positions are not "affected by any provisions of" Chapter 28. The

statute is expressly limited in its applicability — it renders

Chapter 28's tenure provisions inapplicable to persons holding

classified Civil Service positions.

The fatal flaw in the Commissioner's reasoning is that Chapter

28's tenure provisions are inapplicable to individuals, such as

petitioner, holding secretarial positions, and thus are

inapplicable to the determination of petitioner's tenure. Chapter

28 is bereft of any provisions concerning the tenure rights of

13 A-0078-16T3
secretarial employees. Chapter 28 pertains exclusively to the

tenure rights of teaching staff members in public school

districts.2 See, e.g., DiNapoli, 434 N.J. Super. at 240-41

(comparing tenure rights of secretaries under N.J.S.A. 18A:17-2

with the rights of teaching staff members under N.J.S.A. 18A:28-6

and superintendents under N.J.S.A. 18A:17-20.4).

The plain language of N.J.S.A. 18A:28-2 exempts persons

employed in classified Civil Service titles from the "provisions

of" Chapter 28, but does not exempt employees in classified titles

from the tenure provisions in other chapters of Title 18A. Thus,

N.J.S.A. 18A:28-2 applies only to "teaching staff member[s]" who

hold classified Civil Service titles because they are the only

employees "affected by" Chapter 28's tenure provisions.

Moreover, although N.J.S.A. 18A:17-2 was enacted at the same

time as N.J.S.A. 18A:28-2, L. 1999, c. 271, the Legislature chose

2 N.J.S.A. 18A:28-4 provides that, with defined exceptions,
"teaching staff member[s]" who do not hold "an appropriate
certificate for such position" may not accrue tenure. N.J.S.A.
18A:28-5 details the tenure requirements for "teaching staff
members," N.J.S.A. 18A:28-5.1 provides that certain "tenured
teaching staff member[s]" may transfer their tenure rights when
accepting positions in underperforming schools, and N.J.S.A.
18A:28-6 describes the effects of transfers and promotions on the
tenure of "teaching staff member[s]." Chapter 28 further provides
for teaching staff member tenure rights upon discontinuance of
school, N.J.S.A. 18A:28-6.1, and termination of tenured teaching
staff members, N.J.S.A. 18A:28-8 to -14, and the effects of a
change of government on teaching staff members, N.J.S.A. 18A:28-
15.

14 A-0078-16T3
not to include in N.J.S.A. 18A:17-2 the Civil Service exemption

set forth in N.J.S.A. 18A:28-2. "When the Legislature expressly

includes a requirement in one subsection 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).

The Commissioner's application of N.J.S.A. 18A:28-2 to limit

petitioner's tenure rights under Chapter 17 ignores that the

statute's application is expressly limited to "this chapter" –

Chapter 28 – of Title 18A. "We cannot assume that the Legislature

used meaningless language" in a statute, McCann, 167 N.J. at 321

(quoting Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969)),

and are required to give effect to the words of the law as written,

see Johnson v. Johnson, 204 N.J. 529, 552-53 (2010) (citation

omitted) ("[C]ourts should adhere to the legislation as

written."). Applying those principles, any limitations imposed

by N.J.S.A. 18A:28-2 pertain only to tenure rights of teaching

staff members "affected" by Title 28.

It was therefore error for the Commissioner to conclude

petitioner's time employed in classified Civil Service titles

could not be considered in determining petitioner's tenure rights

under N.J.S.A. 18A:17-2. By its plain terms, N.J.S.A. 18A:28-2

is limited to "this chapter" — Chapter 28 — of Title 18A. Thus,

15 A-0078-16T3
it is inapplicable to tenure rights earned under N.J.S.A. 18A:17-

N.J.S.A. 18A:17-2 does not exempt secretarial employees in

Civil Service positions from its tenure protections, and it was

error for the Commissioner to apply such an exemption where the

Legislature chose not to. Neither the Commissioner nor this court

is "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,'" or "add

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

DiNapoli, 434 N.J. Super. at 238 (alteration in original) (citation

omitted) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

Because Chapter 17 does not include an exemption from its

tenure protections for secretarial employees holding classified

Civil Service titles, we apply the plain language of N.J.S.A.

18A:17-2 to determine petitioner's entitlement to tenure. "Tenure

'arises only by the passage of time fixed by the statute . . . .'"

Ibid. (quoting Canfield v. Bd. of Educ., 97 N.J. Super. 483, 490

(App. Div. 1967) (Gaulkin, J., dissenting), rev'd on dissent, 51 N.J. 400 (1968)). It is undisputed that petitioner satisfied the

tenure requirements of the statute, and N.J.S.A. 18A:17-2 does not

exclude time of employment spent by secretarial employees in

classified Civil Service titles. The record therefore establishes

16 A-0078-16T3
petitioner had tenure under N.J.S.A. 18A:17-2 when she was

terminated.

Although not cited or relied upon by the District or the

Commissioner, we note that Title 18A includes a provision

concerning the tenure rights of school employees holding Civil

Service titles that requires discussion here. N.J.S.A. 18A:6-31

provides that "[n]othing contained in [Title 18A] shall be

construed to affect the tenure or civil service rights of any

person presently existing, or hereafter obtained, under this or

any other law."3 The plain language of the statute does not permit

or require the conclusion that an employee holding a secretarial

position in the classified service does not accrue time in

employment credit toward tenure under N.J.S.A. 18A:17-2. To the

contrary, the statute provides only that tenure rights granted

under Title 18A, such as those to which petitioner is entitled

under N.J.S.A. 18A:17-2, do not affect any tenure rights under

Title 11 A. 3 N.J.S.A. 18A:11-1(c) also authorizes boards of education to
"[m]ake, amend and repeal rules, not inconsistent with [Title 18A]
. . . for the employment, regulation of conduct and discharge of
its employees, subject, where applicable, to the provisions of
Title 11, Civil Service, of the Revised Statutes." The statute
has no application here because there are no District rules at
issue.

17 A-0078-16T3
We are unpersuaded by the District's reliance on In re

Fulcomer, 93 N.J. Super. 404, 411 (App. Div. 1967), where we

observed that the tenure provisions of Title 18, the predecessor

to Title 18A, provided a "comprehensive procedure for the

resolution of all controversies involving charges against all

tenure employees not subject to Civil Service." The District

argues our observation means N.J.S.A. 18A:28-2 should be

interpreted to exclude all school district employees in classified

Civil Service titles from the tenure protections otherwise

provided under Title 18A. We reject this argument because here

we interpret a different statute, and note that if the Legislature

intended to deny tenure protections to all school employees who

hold classified Civil Service titles, it would not have limited

the exemption for Civil Service employees to only those teaching

staff members "affected by" Chapter 28 of Title 18A.

We similarly reject the District's reliance on the

Commissioner's decision in Anderson v. Dep't of Pers., 95 N.J.A.R 2d 65 (Dep't of Educ.), where it was noted "that

nonprofessional staff protected under Title 11 in school districts

which have adopted civil service laws do not acquire separate

tenure rights under Title 18A." We defer to the Commissioner's

expertise in the administration of the Department of Education's

regulatory system, but are not bound by the Commissioner's

18 A-0078-16T3
interpretation of a statute or determination of legal issues,

DiNapoli, 434 N.J. Super. at 236, and are 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.

We also reject the contention that our interpretation of

N.J.S.A. 18A:28-2 and N.J.S.A. 18A:17-2 will unfairly and

illogically provide employees in the classified service who

otherwise earn tenure under N.J.S.A. 18A:17-2 with "two bites of

the apple" through two tenure proceedings – one under the Act and

the other under Title 18A. We have not decided that issue because

it is not before us. Petitioner did not have two bites of the

apple because she did not have Civil Service tenure rights when

her employment was terminated, and the Civil Service Commission

rejected her appeal on that basis. Thus, this case did not present

a circumstance where an employee with Civil Service tenure rights

also asserts tenure rights under Title 18A in a proceeding before

the Commissioner.

"[S]ince tenure statutes are intended to secure efficient

public service by protecting public employees in their employment,

'the widest range should be given to the applicability of the

law.'" Barnes v. Jersey City Bd. of Educ., 85 N.J. Super. 42, 45

(App. Div. 1964) (quoting Sullivan v. McOsker, 84 N.J.L. 380, 385

(E. & A. 1913)). Here, we decide only that the Commissioner erred

19 A-0078-16T3
by relying on N.J.S.A. 18A:28-2 to determine petitioner's tenure

rights under N.J.S.A. 18A:17-2, there is no statutory bar to

utilizing time employed in a classified Civil Service position to

satisfy the time in employment requirements of N.J.S.A. 18A:17-2,

and petitioner satisfied N.J.S.A. 18A:17-2(b)'s requirements and

had tenure when her employment was terminated. We therefore

reverse the Commissioner's determination that petitioner did not

have tenure rights under N.J.S.A. 18A:17-2 and the District did

not violate petitioner's tenure rights by terminating her

employment.

Because we determine the District violated petitioner's

tenure rights under N.J.S.A. 18A:17-2, it is unnecessary to address

petitioner's remaining argument that Rodriguez did not have the

authority to terminate her employment. We note only that

petitioner's arguments concerning Rodriguez's purported lack of

authority are otherwise without sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), because there

was sufficient credible evidence in the record supporting the

Commissioner's determination that Rodriguez was vested with the

authority to terminate petitioner's employment as a matter of

fact, see Harris ex rel. Harris v. Bd. of Trus. of P.E.R.S., 378 N.J. Super. 459, 464 (App. Div. 2005) (finding a reviewing court

will not reverse an agency's findings of fact that are supported

20 A-0078-16T3
by sufficient credible evidence), and petitioner otherwise failed

to sustain her burden of demonstrating Rodriguez lacked the

requisite authority, see McGowan, 347 N.J. Super at 563.

Reversed.

21 A-0078-16T3

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