NANCY J. DI COMO V. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY, 10/2/00 (327-00)

#327-00
NANCY J. DI COMO, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
STATE-OPERATED SCHOOL DISTRICT OF : 	DECISION
THE CITY OF NEWARK, ESSEX COUNTY,
:
RESPONDENT.
:
_______________________________________
SYNOPSIS
Petitioner asserted tenure and seniority entitlement to a supervisory position and sought reinstatement to tenured
vice principal position with back pay. The District contended that although petitioner was tenured as a teacher, she
was not tenured as a vice principal or supervisor. The District challenged petitioner’s assertion that under N.J.S.A.
18A:7A-44, a central office employee hired in a position subsequent to a reorganization immediately acquires tenure
in that position regardless of whether he or she served in that position previously.
The ALJ concluded that while petitioner would not be entitled to tenure as a vice principal under the transfer
provisions of N.J.S.A. 18A:28-6, these provisions were superseded by the plain language of N.J.S.A. 18A:7A-44
which states that individuals hired after the State takeover will be hired with tenure if they had tenure in their prior
position. As such, petitioner was hired with tenure when she was appointed to the position of vice principal after the
State takeover. Thus, petitioner could only be removed from this position or reduced in compensation pursuant to
the provisions of the Tenure Employees Hearing Law. The ALJ determined that these provisions were not followed
when petitioner was demoted from vice principal and, as a result, petitioner’s tenure rights were violated. The ALJ
ordered reinstatement of petitioner to the position of vice principal and awarded her back pay to cover the difference
in petitioner’s salary as vice principal and what she received as a classroom teacher since the date of her demotion.
The Commissioner rejected the ALJ’s recommended decision and remedy in this matter. The Commissioner found
that this matter presented for the first time the circumstance wherein a central office administrative/supervisory
employee, whose position was abolished pursuant to N.J.S.A. 18A:7A-44, was not, upon reorganization, either
terminated or returned to an “other than central office” position to which he or she was entitled by virtue of tenure
and/or seniority rights, but rather, was placed in a school-based administrative position in which the individual had
not previously attained tenure. 	The Commissioner determined that the provisions of N.J.S.A. 18A:7A-44 solely
address central office administrative and supervisory positions and the reorganization of the central office and do not
apply to the hiring of staff to the non-central office administrative or supervisory positions. The Commissioner
found that petitioner herein, whose central office supervisory position was abolished, was not hired by the State
superintendent, upon reorganization of the State-operated District, to fill a central office administrative or
supervisory position. Thus, the Commissioner determined that the disputed wording of the statute herein did not, as
concluded by the ALJ, bestow tenure on petitioner upon her hiring to fill the school-based position of vice principal,
a position in which she never served and in which she never acquired tenure by operation of either N.J.S.A. 18A:28-
5 or 6. The Commissioner noted that a vice principal position is, pursuant to N.J.S.A. 18A:28-5, separately tenurable
from that of supervisor; it requires an endorsement different from that of supervisor; and it constitutes a school-
based rather than a central office position. Petition was dismissed.
October 2, 2000

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OAL DKT. NO. EDU 1157-99
AGENCY DKT. NO. 520-11/98
NANCY J. DI COMO, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
STATE-OPERATED SCHOOL DISTRICT OF : 	DECISION
THE CITY OF NEWARK, ESSEX COUNTY,
:
RESPONDENT.
:
_______________________________________
The record and Initial Decision issued by the Office of Administrative Law
(OAL) have been reviewed. Respondent’s (District) exceptions and petitioner’s reply thereto
were timely filed pursuant to N.J.A.C. 1:1-18.4.
Initially, 	the 	District’s 	exceptions 	reiterate petitioner’s 	employment 	history,
noting that for employment years 16-36, she served as a central office staff administrator, and
that her tenure as a central office Supervisor of Special Projects K-12 is not at issue in this
matter. The exceptions next address the provisions of N.J.S.A. 18A:7A-44 and the legal
conclusions reached by the ALJ with respect to this statute under the facts of this matter.
N.J.S.A. 18A:7A-44 reads in pertinent part:
Notwithstanding 	any other 	provision 	of 	law 	or 	contract, 	the
positions 	of 	the 	central 	administrative 	and 	supervisory 	staff,
instructional 	and 	noninstructional, 	other 	than 	those 	positions
abolished pursuant to subsection a. of this section [the positions of
the 	district’s 	chief 	school 	administrator 	and 	those 	executive
administrators responsible for curriculum, business and finance,
and personnel] shall be abolished upon the reorganization of the
State-operated 	school 	district’s 	staff. 	The 	State 	district
superintendent 	may 	hire 	an 	individual 	whose 	position 	is 	so

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abolished, based upon the evaluation of the individual and the
staffing needs of the reorganized district staff. 	These individuals
shall be hired with tenure if they had tenure in their prior position.
If they did not have tenure in their prior position, they may obtain
tenure pursuant to the provisions of N.J.S. 18A:28-6.***Any
employee 	whose 	position 	is 	abolished 	by 	operation 	of 	this
subsection shall be entitled to assert a claim to any position or to
placement upon a preferred eligibility list for any position to which
the employee may be entitled by virtue of tenure or seniority
within the district. 	No employee whose position is abolished by
operation of this subsection shall retain any right to tenure or
seniority in the positions abolished herein.
The District avers that, in accordance with the above statutory provisions,
petitioner’s tenure in her central administrative supervisory position was abolished and she
retained no tenure or seniority rights to any administrative/supervisory positions. See Van Dyke,
supra, in which it was determined that former district supervisors whose positions were
abolished under reorganization did not retain a right to tenure and seniority in supervisory
positions, and that their bumping rights extended only to non-supervisory positions to which they
were entitled based upon their tenure and seniority.1
It is the District’s contention that when the State took over the District and
petitioner was appointed to a building position as vice principal, no tenure rights accrued to that
position pursuant to N.J.S.A. 18A:28-6 because the statute requires an employment period of
more than two academic years and the beginning of the next succeeding academic year -- a
period of service petitioner did not attain. As such, the District argues that petitioner is wrong in
her legal argument with respect to N.J.S.A. 18A:7A-44, i.e., “that if she ‘had tenure in a prior
position, she was transferred to the position of vice-principal with tenure.’” 	(District’s
Exceptions at 4, quoting Petitioner’s Post-hearing Brief) 	As to this claim, the District
1 As indicated at page 10 of the Initial Decision, petitioner argues that her claim is distinguishable from those in
Van Dyke because she was appointed to the position of vice principal after reorganization and thus acquired tenure
rights in that position.

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emphasizes that it was asserted for the first time by petitioner in her brief submitted to the OAL
dated January 5, 2000, and the Administrative Law Judge (ALJ) erroneously accepted it when
determining that petitioner achieved tenure under N.J.S.A. 18A:7A-44 on her first day of
employment as a vice principal. With respect to this, the District argues:
The State of New Jersey Department of Education presently
recognizes 	four 	(4) 	separate 	endorsements 	for 	holders 	of
administrative certificates. 	These distinctions are set forth in
N.J.A.C. 6:11-9.3, which establish separate credentials for school
administrator, 	principal, 	supervisor 	and 	school 	business
administrator. 	As such, distinctions between school building
administrators and central staff administrators are established.
While Petitioner held the credentials for service as both central
administration staff and as a school based principal or vice-
principal, she never served in any school based category. To grant
Petitioner 	automatic 	tenure 	on 	the 	first 	day 	of 	appointment
contravenes other provisions of law which require her to serve the
required two years and a day in that position. *** The “Take Over”
statute expressly requires tenure provisions to be governed by
those provisions set forth in N.J.S.A. 18A:28-5 or 6, which make a
distinction between tenure within the District, and tenure within a
job title. 	Indeed, the statute itself [N.J.S.A. 18A:28-5] expressly
established that “tenure in any of the administrative or supervisory
positions enumerated herein shall accrue only by employment in
that administrative or supervisory position.” 	Consequently, while
Petitioner may hold tenure within the District as an appropriately
credentialed instructional employee, she failed to hold tenure
within the vice principal position to which she was transferred, and
indeed, had never served a day in any school based administrative
assignment. (District’s Exceptions at 6-7)
The District also argues that the legislative history of the takeover statutes
demonstrates that the Legislature intended central administrative staff not rehired in the central
office to return to those former school based positions to which they have existing tenure and
seniority rights, and that res judicata requires a determination that petitioner was not entitled to
school-based administrative/supervisory position when her central administrative position was
abolished. As to this, the District contends that the ALJ’s determination of automatic tenure as a

18
vice principal runs counter to long-standing tenure laws within the State of New Jersey which
establish that, for any and all transfer positions, employees must serve the requisite statutory
period under the new endorsement before tenure in that position can accrue and that tenure as a
vice principal may not be achieved without actual service as a vice principal for the statutory
time period. 	Thus, the District avers, “petitioner cannot attain through Reorganization of a
district taken over by the State more than she could attain through any tenure statute.” (Id. at 13)
As to the res judicata argument, the District avers that petitioner’s situation is not unique and is
similar to the petitioners in Leong, supra, wherein it was determined that when a central office
supervisory position is abolished pursuant to N.J.S.A. 18A:7A-44, all tenure and seniority rights
to, and originating from, that position are abolished and petitioners retained only tenure and
seniority rights which were attained in connection with their former central office supervisory
positions.2 More specifically, the District argues with respect to this point that:
Having 	the 	same 	fact 	pattern, 	and 	having 	determined 	that
Petitioner did not statutorily earn tenure as a vice-principal, the
holding must be identical. 	Petitioner is not entitled to enhanced
tenure protections. Petitioner was properly bumped to her tenured
teaching 	position. 	Although 	the 	ALJ 	incorrectly 	applied 	the
statutory formula for the calculation of tenure in an administrative
position, his opinion is not based upon whether Petitioner had
tenure rights that were transferable by endorsement, by “tacking”
or any other legally recognized method, but rather that Petitioner
earned tenure as a school based vice principal after one day of
service. 	Clearly 	this 	determination 	exceeds 	any 	protection
afforded by the legislature.
The ALJ erred in his determination that Nelson v. Old Bridge,
supra, is not applicable in the case at bar. [Initial Decision] at 10.
While the parties acknowledge that Nelson established that tenure
accrued only as a result of actual work experience in separately
tenurable positions specifically enumerated in N.J.S.A. 18A:28-5,
2 At page 14 of its Exceptions, the District maintains, inter alia, that what distinguishes petitioner from those in
Leong, supra, is the fact that Di Como was offered a school-based vice principal position within the District, which
was not based upon tenure and seniority rights; thus, petitioner’s bumping rights were only implicated when she
was not renewed in the vice principal position.

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the ALJ ignores the fact that Petitioner failed to earn tenure in a
separately tenurable vice principal position, and could not “tack”
experience from her prior position. 	Petitioner[’s] allegation that
“she acquired tenure in that position from the first day she worked
as (a vice-principal) under N.J.S.A. 18A:7A-44 has no legal or
factual merit. 	Moreover, petitioner offered no factual or legal
substantiation for her claim of exemption under N.J.S.A. 18A:28-5.
Moreover, 	the 	ALJ 	specifically 	referenced 	that 	Petitioner
“conceded once again that she retained no tenure rights relating to
her central office position.” [Initial Decision] at 10. Prior case law
demands that the ALJ’s decision be overturned and that the
Commissioner recognize that Petitioner’s tenure and seniority
rights were properly applied by the District***. (Id. at 16-17)
Upon review of the record and the Initial Decision, the Commissioner rejects the
ALJ’s legal conclusions and recommended remedy in this matter for the reasons set forth below.
Initially, the Commissioner would point out that the ALJ is correct when he states at page 11 of
the Initial Decision that this matter appears to be a case of first impression. 	Contrary to the
District’s assertion that petitioner’s situation is not “unique” and that it is similar to the
petitioners in Leong, supra, this matter does present for the first time in a contested case the
circumstance wherein a central office administrative/supervisory employee, whose position was
abolished pursuant to N.J.S.A. 18A:7A-44, was not, upon reorganization, either terminated or
returned to an “other than central office” position to which he or she was entitled by virtue of
tenure and/or seniority rights, but rather, is placed in a school-based administrative position in
which the individual has not previously attained tenure. Hence, this particular circumstance is a
critical factor which distinguishes the instant matter substantively from prior matters cited by the
District.
Having thoroughly considered the provisions of N.J.S.A. 18A:7A-44 in dispute
herein, the Commissioner does not agree with the conclusion of the ALJ that petitioner attained

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automatic tenure as vice principal when, upon reorganization of the State-operated District’s
central office, she was hired in that position in the Dr. William Horton School.
In the Commissioner’s judgment, the provisions of N.J.S.A. 18A:7A-44 solely
address central office administrative and supervisory positions and the reorganization of the
central office: Section a. 	deals with the abolishment of the chief school administrative position
and executive administrators responsible for curriculum, business and finance and personnel,
each of which is a central office position; 	Section b. mandates that the State district
superintendent 	prepare, within one year of takeover, a reorganization of the district’s central
office administrative and supervisory positions; and Section c. deals with the abolishment of all
central office administrative and supervisory positions other than those set forth in Section a.,
which, unlike Section a., authorizes the State district superintendent to hire an individual who
held an abolished position to fill an administrative/supervisory position in the reorganized central
office, if so determined by the State district superintendent upon evaluation of the individual and
staffing needs. 	Further, the Commissioner concludes that Section c., the specific portion of
N.J.S.A. 18A:7A-44 under dispute herein, refers solely to the hiring of such individuals to fill
central office administrative/supervisory staff in the newly reorganized central office and does
not apply to the hiring of such staff to non-central office administrative or supervisory positions.
In the instant matter, petitioner, whose central office supervisory position was
abolished, was not hired by the State superintendent, upon reorganization of the State-operated
District, to fill a central office administrative or supervisory position. Consequently, the
Commissioner determines that the disputed wording of the statute herein did not, as concluded
by the ALJ, bestow tenure on petitioner upon her hiring to fill the school-based position of vice
principal, a position in which she never served and in which she never acquired tenure by

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operation of either N.J.S.A. 18A:28-5 or 6. In so holding, the Commissioner is in full agreement
with the District that a vice principal position is, pursuant to N.J.S.A. 18A:28-5, separately
tenurable from that of supervisor; it requires an endorsement different from that of supervisor;
and it constitutes a school-based rather than a central office position. Under applicable statutes
and decisional law, tenure accruing to a vice principal position cannot be achieved without actual
service in the position for the requisite statutory length of time. 	Nelson, supra. 	Further, as
argued by the District, the Commissioner concludes that petitioner cannot attain, through the
reorganization of a state-operated district, tenure status in a school-based administrative position.
Accordingly, the recommended decision of the ALJ is rejected and petitioner’s
motion for summary judgment denied and for reasons expressed herein, the petition is hereby
dismissed.
IT IS SO ORDERED. 3
COMMISSIONER OF EDUCATION
Date of Decision: October 2, 2000
Date of Mailing: October 2, 2000
3 	This decision, as the Commissioner’s final determination, 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., within 30 days of its filing. Commissioner
decisions are deemed filed three days after the date of mailing to the parties.