SYLVIA LUSTBERG V. BOARD OF EDUCATION OF THE BOROUGH OF TENAFLY, BERGEN COUNTY, 4/12/04 (#158-04)

158-04 (Link to OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu07080-03_1.html)
SYLVIA LUSTBERG, 	:
PETITIONER, 	:
V. 	:
COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE BOROUGH 	:
OF TENAFLY, BERGEN COUNTY, 	DECISION
:
RESPONDENT.
__________________________________________:
SYNOPSIS
Petitioner alleged that the Boardís failure to reemploy her for the 2003-04 school year as a full-
time teacher was a violation of her tenure and seniority rights pursuant to N.J.S.A. 18A:28-5.
Petitioner contended that her time spent as a long-term substitute teacher from March through
June 2000 in place of third grade teacher, Ms. Lituchy, should have been counted toward the
acquisition of tenure.
The ALJ found that Ms. Lituchyís position did not become vacant until the end of the 1999-2000
academic 	year 	and 	petitioner 	remained 	a 	long-term 	substitute 	during 	the 	period 	from
March 6, 2000 through June 30, 2000, the date when Ms. Lituchyís resignation became effective.
Thus, the ALJ concluded that petitionerís service as a long-term substitute could not be counted
toward her tenure since the position she filled did not become vacant until June 30, 2000. 	The
ALJ, therefore concluded that the Board could release petitioner following three years of service
because she had not acquired tenure pursuant to N.J.S.A. 18A:28-5(c). 	(Spiewak; Lammers;
Sayerville; and Driscoll)
The Commissioner concurred with the ALJ, noting that petitioner was not entitled to accrue time
toward tenure acquisition while serving in an ìactingî position in that Ms. Lituchyís resignation
did not become effective until June 30, 2000. 	Since petitionerís service during the 1999-2000
school year could not be counted toward tenure, the Commissioner found that petitioner did not
achieve tenure by the end of the 2002-03 school year. 	The Commissioner also found that the
Board did not act in bad faith toward petitioner in that it did appoint petitioner to teaching
positions for the next three consecutive school years. 	Therefore, it was within the Boardís
discretion to inform petitioner, a nontenured teacher, that her contract would not be renewed for
the 2003-04 school year.
This synopsis is not part of the Commissionerís decision. It has been prepared for the convenience of the
reader. It has been neither reviewed nor approved by the Commissioner.
April 12, 2004

OAL DKT. NO. EDU 7080-03
AGENCY DKT. NO. 164-5/03
SYLVIA LUSTBERG, 	:
PETITIONER, 	:
V. 	:
COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE BOROUGH 	:
OF TENAFLY, BERGEN COUNTY, 	DECISION
:
RESPONDENT.
__________________________________________:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	Petitionerís exceptions and respondentís reply thereto were
submitted in accordance with N.J.A.C. 1:1-18.4 and were considered by the Commissioner in
reaching his decision.
Initially, petitioner takes exception to the statement in the Initial Decision that
ì[t]he issue of her performance was not contested,î asserting that no finding can be made on that
topic because there was no evidence submitted, and moreover, whether or not petitioner
contested her nonrenewal is irrelevant to the determination of her tenure rights.1 (Petitionerís
Exceptions at 2, quoting Initial Decision at 8) 	Petitioner also takes issue, inter alia, with the
conclusion in the Initial Decision that Driscoll, supra, is analogous to this matter, arguing that, in
the instant matter the Board had complete control over Ms. Lituchyís employment, wherein the
Board in Driscoll did not have control over the actions of Voss, the teacher being replaced in that
matter. 	(Id. at 3) 	In support thereof, petitioner avers that Voes ìengaged in a series of
1 Petitioner claims that she ìdid dispute the reasons for her nonrenewal but did not litigate them because in the
absence of tenure, she could not successfully dispute reasons which do not qualify as arbitrary or capricious.î
(Petitionerís Exceptions at 2)
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contradictory decisions about returning to work and not doing soî and did not submit a
resignation until ìafter the service time Driscoll sought to include for tenure.î (emphasis in text)
(Ibid.) Thus, petitioner submits, the Board in Driscoll could not deem Voss as having abandoned
her position because it had no knowledge as to whether or not she would return. 	(Ibid.)
Petitioner concludes, therefore, that whether the Board had control over the employment of the
teacher being replaced is a critical difference that was ignored in the Initial Decision. (Ibid.)
Moreover, petitioner points out that Ms. Lituchyís resignation letter does not
specify the effective date of her resignation, but simply states that she is resigning. 	(Id. at 4)
Petitioner submits that it is clear that the Boardís vote to accept Ms. Lituchyís resignation on
March 6, 2000 made such resignation binding and non-rescindable. (Ibid.) Petitioner, therefore,
contends that, on March 6, 2000, the Board thus had the certainty that did not exist in Driscoll,
supra, and that payroll records listing Ms. Lituchy as terminated as early as May 15, 2000 prove
this contention. 	(Ibid.) 	In pointing out that she only needs one day of service in 1999-2000 to
achieve tenure, petitioner claims that the wording of the Boardís March 6, 2000 resolution
accepting Ms. Lituchyís resignation effective June 30, 2000 was simply the Boardís choice and
is the only basis for denying her tenure in that the wording of that resolution was not necessitated
by Ms. Lituchyís resignation letter or required by any payroll obligation to her. (Id. at 4-5)
Additionally, petitioner argues that on May 8, 2000 she was appointed to teach
the next year, which shows that even before June 30, 2000 the Board had hired her to continue in
her position because it knew that Ms. Lituchy was not returning. (Id. at 5) Pointing to Spiewak,
supra, and citing Lammers, supra, at 272, petitioner contends that ìthe demarcation between true
substitute service (excluded from tenure accrual by N.J.S.A. 18A:16-1.1) and tenure-eligible
replacement service must be the knowledge on the part of the board as to the status of the absent
person.î 	(emphasis in text) 	(Id. at 5-6) 	The time served by a replacement person must
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therefore, petitioner concludes, count towards tenure once a board knows with certainty that the
individual being replaced is not returning. 	(Id. at 6) 	Accordingly, petitioner contends that her
service from February 23, 2000 onward was in a vacant position and should be counted as time
toward tenure because the Board in the instant matter knew precisely at that point that the
incumbent did not intend to return.2 (Ibid.) 	In further support thereof, petitioner points to
Jannarone v. Bd. of Ed. of Asbury Park et al., 1976 S.L.D. 526 and Puryear v. Bd. of Ed. of East
Orange, 1987 S.L.D. 2412, averring that ìthese cases stand for the proposition that a board
cannot unilaterally turn a vacant job into one which is temporarily unoccupied by labeling the
job as an ëactingí position.î 	(Id. at 7)
Moreover, petitioner submits that Ward v. Westfield Bd. of Ed., 1988 S.L.D. 386,
affíd with modification 1988 S.L.D. 395 (Comm. of Ed.), affíd 1988 S.L.D. 400 (St. Bd. of Ed.)
lends further support for her position. (Ibid.) 	In Ward, a teacher who had suffered a heart attack
did not resign, but, instead, by letter of May 15, 1985 advised the board that he was permanently
disabled and requested a one-year leave so he could qualify for a veteranís retirement rather than
a disability pension. 	(Id. at 8) 	Notwithstanding that the teacher did not submit a binding
resignation, nor did the board act to approve a resignation, retirement or vacancy, petitioner
contends, the State Board found that the May 15 letter created a vacant position so that
Ms. Wardís service after that point was tenure eligible. (Id. at 9) Thus, petitioner concludes, in
that the Board knew with certainty on February 23, 2000 that Ms. Lituchy was not returning,
petitionerís service from that date must count toward tenure. (Ibid.)
In reply, the Board takes issue with petitionerís assertion that Ms. Lituchyís
position became vacant when the Board knew that she would not be returning for the next school
2 According to the Joint Stipulation of Facts, the Board received Ms. Lituchyís resignation letter on or about
February 23, 2000, stating that she would not return in September 2000. (Stipulation of Facts, No. 9 at 3)
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year, averring that, from the Joint Stipulation of Facts ìit is clear that Ms. Lituchy was on a leave
of absence until June 30, 2000 and that her resignation effective June 30, 2000 was directed
towards her desire not to return for the 2000-2001 school year.î 	(Boardís Reply Exceptions
at 1) 	With respect to petitionerís contention that the Administrative Law Judgeís (ALJ) decision
might have turned on her statement that the issue of petitionerís performance was not contested,
the Board states that it is difficult to understand how petitioner could have reached this
conclusion in that the finding merely reflected the Boardís action and evaluative comment and
that the matter was not at issue in this litigation. (Id. at 2)
Turning to whether Driscoll, supra, applies, the Board argues that it does apply,
because on the one important issue raised, the cases are analogous; that is, the Board in Driscoll
did not have control over a teacher who did not return to work and the Board herein did not have
control over Ms. Lituchyís resignation. 	(Ibid.) 	In support thereof, the Board submits that:
1) Ms. Lituchy was granted a leave of absence for the entire 1999-2000 school year and was
expected to return; 2) the Board requested Ms. Lituchy to indicate whether she would be
returning to teach in 2000-2001 in order to prepare for the next school year; and 3) Ms. Lituchy
advised the Board she would not be returning the next year and submitted her letter of
resignation. 	(Ibid.) 	The Board claims that Ms. Lituchyís letter, clearly stating that her
resignation was to be effective the next school year, was in direct response to its specific inquiry
regarding the next school year, and in that her letter does not offer her immediate resignation, the
Board had no choice but to accept her resignation effective at the conclusion of her leave.
(Id. at 2-3) 	The Board concludes, therefore, that it had no more control over petitionerís
resignation than the board in Driscoll did. (Id. at 3)
Moreover, the Board claims that petitioner is correct that Ms. Lituchy could not
rescind her resignation once it was approved by the Board, but asserts that what she could not
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rescind was that she would not have an employment relationship after June 30, 2000. 	(Ibid.)
The Board reiterates its position that Ms. Lituchyís resignation was not an immediate severance
of her employment relationship and that the position was, therefore, not vacant on March 7, 2000
after the Board accepted her resignation, but, instead, was vacant after the effective date of the
resignation on June 30, 2000. 	(Id. at 3-4) 	Petitioner further claims that ì[t]he payroll record
(J-23-24), relied on by Petitioner, does not reflect the Board action and can only be considered a
payroll clerkís mistake.î (Id. at 4)
The Board acknowledges that Jannarone, supra, stands for the proposition that if
you do all the duties of a position, you are entitled to accrue tenure in that position even if it is an
ìactingî position, but reasons that the Jannarone decision defies logic when examining the clear
language in the statute, N.J.S.A. 18A:16-1.1, which states:
In each district the board of education may designate some person
to act in place of any officer or employee during the absence,
disability or disqualification of any such officer or employeeÖThe
act of any person shall in all cases be legal and binding as if done
and 	performed 	by 	the 	officer 	or 	employee 	for 	whom 	such
designated person is acting, but no person so acting shall acquire
tenure in the office or employment in which he acts pursuant to this
section when so acting. (emphasis in text) (Ibid.)
It is thus clear from the statute, the Board argues, that the substitute will act exactly as a teacher,
but that such time served does not accrue towards tenure acquisition. (Ibid.)
With respect to Ward, supra, the Board contends that Ward is distinguishable
form the instant matter because, in Ward, the teacherís letter stating that she was permanently
disabled and not able to return to work was the only notice received from the teacher and
provided the only certainty on which the board could rely; whereas, in this matter, Ms. Lituchyís
letter provided a certainty that she was resigning effective June 30, 2000. (Id. at 5) 	The Board
avers that Williams v. Board of Educ. of the City of Orange, 1987 S.L.D. 997, 1000, affíd State
Board of Educ. 1988 S.L.D. 2534 is the only case that it has identified that deals with the issue of
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a letter of resignation with a future effective resignation date. 	(Ibid.) 	In Williams, the Board
received a letter on or about March 28, 1983 from an ill teacher, resigning/retiring effective
May 15, 1983. 	(Ibid.) 	The Commissioner in Williams found that ìthe teacher on leave
maintained an employment relationship with the District until the effective date of his resignation
and retirement, not when the letter of resignation was provided to the District.î 	(emphasis in
text) (Ibid.) The Board avers that the same principle applies herein and that petitioner accrued
time towards tenure by working three school years for the Board, but did not work the one day in
the fourth school year that would entitle her to tenure pursuant to N.J.S.A. 18A:28-5(b), nor did
she attain tenure under N.J.S.A. 18A:28-5(a) or (c). The Board concludes, therefore, that it was
within its rights not to renew petitionerís contract for the 2003-04 school year since petitioner
had not achieved tenure. (Id. at 6)
Upon 	careful 	and 	independent 	review 	of 	the 	record, 	the 	Initial 	Decision,
petitionerís exceptions and the Boardís reply thereto, the Commissioner determines to adopt the
findings and conclusions expressed in the Initial Decision, finding that petitionerís service as a
long-term substitute for the 1999-00 school year cannot be counted toward tenure. Accordingly,
the Board could release petitioner following her three years of service because she had not
achieved tenure pursuant to N.J.S.A. 18A:28-5(c). 	In so determining, the Commissioner
emphasizes in response to the concern expressed in petitionerís exceptions that this ultimate
conclusion does not rest on whether or not petitioner contested her nonrenewal as that issue is
not before him and is irrelevant to the determination of petitionerís tenure rights.
The Commissioner reiterates that it is undisputed that Ms. Lituchy was granted a
one-year leave of absence for the 1999-00 school year. (Exhibit J-1, in evidence) In Lammers,
supra at 267, the Court found that ìan entitlement to a position arises only when a vacancy
existsî and that ìa one-year leave of absence does not create a vacancy or temporary vacancy
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under N.J.S.A. 18A:28-12.î 	Ms. Lituchyís position was, therefore, not vacant during her
one-year leave of absence that ended June 30, 2000. 	In response to a February 4, 2000 letter
from the Board inquiring as to whether she would return to her position the next school year,
2000-2001, Ms. Lituchy responded:
It is with mixed feelings that I write this letter to inform you of my
resignation from my teaching position in the Tenafly School
District. 	While I have greatly enjoyed my teaching position at
Mackay School, I wish to spend the next several years as a
full-time, stay-at-home mother to my two sons.
Taking care of young children is a full-time, demanding job, and I
do 	not 	feel 	I 	could 	be 	a 	fine 	teacher 	while 	fulfilling 	the
responsibilities I have at home. I am enclosing the letter I recently
received from Terry Collins stating that I will not return in
September 2000.
Thank you.
(emphasis supplied) (Exhibit J-8, in evidence)
Thus, Ms. Lituchyís response, provided in answer to the Boardís specific inquiry
as to whether she planned to return for the 2000-01 school year, does not offer her immediate
resignation or specify an effective date of her resignation that revokes her leave of absence, but
instead, informs the Board that she will not be returning in September 2000. The Commissioner
notes that, in accepting Ms. Lituchyís resignation on March 6, 2000, the Board did not rescind
the one-year leave of absence granted her in accord with its prior commitment, but made
Ms. Lituchyís resignation effective June 30, 2000, the end of her approved leave. 	As observed
by the ALJ, ìpursuant to N.J.S.A. 18A:28-5, the Board could not terminate Lituchy, a tenured
teacher, at an earlier time since it had no just cause to do so.î 	(Initial Decision at 7)
Notwithstanding petitionerís arguments that the ALJ misapplied Driscoll, supra, Spiewak, supra
and Lammers, supra, in this matter and that petitionerís service from February 23, 2000 onward
should be counted towards her tenure service because the Board knew with certainty on that date
that Ms. Lituchy was not returning, the Commissioner concurs with the ALJ that Ms. Lituchyís
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resignation was not effective until June 30, 2000 and, thus, her position was not vacant until that
date. 	For the reasons fully explicated in the Initial Decision, the Commissioner finds this
conclusion entirely consistent with Spiewak, supra; Lammers, supra; Sayreville, supra; and
Driscoll, supra.
Additionally, the Commissioner rejects petitionerís reliance on Ward, supra.
Unlike Ward, wherein the retiring teacher notified the board that his health status prohibited his
return to teaching and requested that ìthe Board consider granting him retirement ëone year
hence as a veteran at half-pay rather than as a disabled teacher this year at a significantly lower
rate,íî Ward, supra at 397,3 Ms. Lituchy was on an approved one-year leave of absence that
expired June 30, 2000, and she submitted a letter that specifically stated that she was not
returning in September. Absent Ms. Lituchyís request to terminate her leave of absence prior to
June 30 or the provision of an effective date for her resignation that differed from June 30, 2000,
there was no basis for the Board in this matter to adjust her resignation date.
With respect to Jannarone, supra, the Commissioner notes that this decision was
not reviewed by the State Board or the Courts. Since the 1976 Jannarone decision, however, by
decisions in Spiewak, supra, Sayreville, supra, and Lammers, supra, the courts have interpreted
and clarified the exception to the Tenure Act relating to the tenure accrual exception set forth in
N.J.S.A. 18A:16-1.1 as a statute that denies tenure accrual during the time served to temporary
employees who act in place of another employee who is absent, disabled or disqualified and who
is ultimately expected to return to the position. 	Thus, the Commissioner concludes that
petitioner, while acting as a teacher for Ms. Lituchy during her leave of absence, is not entitled to
accrue time toward tenure acquisition while serving in such ìactingî position.
3 It is unclear whether the Board in this matter granted this request.
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Moreover, the Commissioner cannot find that the Board acted in bad faith toward
petitioner in that it appointed petitioner to teaching positions for the next three consecutive
school years. 	However, since petitionerís service as a long-term substitute for Ms. Lituchy for
the 1999-00 school year cannot be counted toward tenure, the Commissioner finds petitioner had
not achieved tenure at the end of the 2002-03 school year. It was, therefore, within the Boardís
discretion to inform petitioner, a nontenured teacher, that her contract would not be renewed for
the 2003-04 school year.
Accordingly, the Commissioner adopts the Initial Decision in this matter for the
reasons expressed therein.
IT IS SO ORDERED.4
COMMISSIONER OF EDUCATION
Date of Decision: 	April 12, 2004
Date of Mailing: 	April 14, 2004
4 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C. 6A:4-1.1 et seq.
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