CRYSTAL SAYLOR VS. BOARD OF EDUCATION OF THE TOWN OF WEST NEW YORK, ETC. (NEW JERSEY COMMISSIONER OF EDUCATION)

C
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0990-19

CRYSTAL SAYLOR,

          Petitioner-Appellant,

v.

BOARD OF EDUCATION
OF THE TOWN OF WEST
NEW YORK, HUDSON
COUNTY,

     Respondent-Respondent.
____________________________

                   Argued March 9, 2021 – Decided May 12, 2021

                   Before Judges Fisher, Moynihan, and Gummer.

                   On appeal from the New Jersey Commissioner of
                   Education, Docket No. 219-8/18.

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

                   Afshan T. Ajmiri Giner argued the cause for respondent
                   West New York Board of Education (Florio Perrucci
                   Steinhardt Cappelli Tipton & Taylor, LLC, attorneys;
              Lester E. Taylor III, of counsel; Afshan T. Ajmiri
              Giner, of counsel and on the brief).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent Commissioner of Education (Sadia
              Ahsanuddin, Deputy Attorney General, on the
              statement in lieu of brief).

PER CURIAM

      Petitioner Crystal Saylor served as the administrative assistant to the

superintendent of schools before she was terminated from employment with

respondent Board of Education of the Town of West New York (the Board) for

conduct unbecoming an employee. She appeals from the final decision of the

Commissioner of Education who adopted the initial decision of the

administrative law judge (ALJ)—which affirmed her termination of

employment without a tenure hearing, see N.J.S.A. 18A:6-10—and dismissed

her petition. She argues the Commissioner erred in concluding she was not

under tenure as a secretary, pursuant to N.J.S.A. 18A:17-2, when she was

terminated.    We conclude Saylor has met her burden of proving that the

Commissioner's action was arbitrary, capricious, or unreasonable, DiNapoli v.

Bd. of Educ. of Twp. of Verona, 

434 N.J. Super. 233

, 236 (App. Div. 2014), and

reverse.




                                                                        A-0990-19
                                      2
      Saylor was hired by the Board as the secretary to the Business Department

commencing January 16, 2010, and entered an employment contract for the

remainder of the 2009-2010 school year, with an annual salary of $33,000. She

was reappointed to the same secretarial position for the 2010-2011 and 2011-

2012 school years, but in November 2011 the Board contracted to employ Saylor

for the 2011-2012 school year as the Administrative Assistant to the Assistant

Superintendent of Educational and Personnel Services, with an annual salary of

$40,000. She was reappointed to that position for the 2012-2013, 2013-2014

and 2014-2015 school years with modest raises. On July 1, 2015, the assistant

superintendent with whom Saylor had been working since November 2011 was

promoted to superintendent. Two weeks later, the Board approved the new

superintendent's recommendation to appoint Saylor as Secretary to the

Superintendent of Schools at a pro-rated salary of $72,500. She remained in

that position until her termination in June 2018.

      Saylor filed an appeal to the Commissioner of Education claiming she was

a tenured employee under N.J.S.A. 18A:17-2, and the Board erred by failing to

file tenure charges and affording her a hearing pursuant to N.J.S.A. 18A:6-10.

The matter was transferred to the Office of Administrative Law and, after an

evidentiary hearing at which Saylor and the superintendent were the only


                                                                         A-0990-19
                                        3
witnesses, the ALJ issued an initial decision affirming Saylor's termination and

dismissing her petition, finding she did not have tenure because she had

insufficient time in the Business Department secretarial position to qualify, and

her "duties [as] Administrative Assistant to the Superintendent [were]

significantly different" from her "job description for Secretary to the Business

Department [which] was consistent with the common understanding of the

duties of a secretary," and those duties were "not interchangeable." The ALJ

found Saylor was a "confidential" employee who was "without union or

statutory rights."

      The Commissioner focused on Saylor's job responsibilities in "agree[ing]

with the ALJ that [Saylor] was not employed as a secretary when she held the

position of Administrative Assistant to the Superintendent, and therefore did not

have tenure rights when she was terminated."

      In our "limited role" in reviewing an agency decision, In re Stallworth,

208 N.J. 182

, 194 (2011) (quoting Henry v. Rahway State Prison, 

81 N.J. 571

,

579 (1980)), we reverse an agency's decision "only in those rare circumstances

in which an agency action is clearly inconsistent with its statutory mission or

other state policy," In re Musick, 

143 N.J. 206

, 216 (1996). We "should not

disturb an administrative agency's determinations or findings unless there is a


                                                                           A-0990-19
                                       4
clear showing that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was not supported by

substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 

194 N.J. 413

,

422 (2008).

      While we "defer to the specialized or technical expertise of the agency

charged with administration of a regulatory system," ibid., we are not bound by

an "agency's interpretation of a statute or its determination of a strictly legal

issue," Mayflower Sec. Co. v. Bureau of Sec., 

64 N.J. 85

, 93 (1973). "We review

[an] agency's legal conclusions de novo." 

DiNapoli, 434 N.J. Super. at 236

. The

Commissioner mistakenly construed N.J.S.A. 18A:17-2 in concluding, under the

facts presented, Saylor was not a secretary during her service to the assistant

superintendent and, later, to the superintendent.

      "Any person holding any secretarial or clerical position or employment

under a board of education of any school district or under any office thereof"

gains tenure under N.J.S.A. 18A:17-2(b), 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
              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

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                                          5
            district after the general summer vacation and the
            beginning of the next succeeding summer vacation[.]

The statute further provides anyone who acquires tenure "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"

N.J.S.A. 18A:6-9 to -29.

      "[T]he 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." 

DiNapoli, 434 N.J. Super. at 239

. "To acquire the security of

tenure, the precise conditions enunciated in the applicable statute must be met."

Id. at 237-38.

Thus, the determination of this case turns on whether Saylor held

a secretarial position, or in the words of the Legislature, "any secretarial

position," for the required statutory period.

      The Commissioner differentiated Saylor's position with the Business

Department from her subsequent positions with the assistant superintendent and

superintendent because "her responsibilities, as well as salary, increased

dramatically.   She went from answering phones and typing documents to

preparing for Board meetings,          coordinating district-wide professional

development activities, renewing contracts for the early childhood program, and

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                                        6
coordinating the Read Across America program." The Commissioner agreed

with the ALJ's reliance on our unpublished decision in Burger v. Board of

Education of the Borough of Maywood, No. A-5223-10 (App. Div. June 5,

2012),

            where the ALJ, Commissioner, and Appellate Division
            all found that a tenured secretary was not entitled to the
            position of Administrative Assistant to the
            Superintendent over a non-tenured employee, after the
            hours of her secretary position were reduced as part of
            a reduction in force. Just as the Administrative
            Assistant to the Superintendent in Burger was not
            considered to be a secretary because of her increased
            responsibilities – including supervising other
            secretaries in the Superintendent's office, coordinating
            district-wide administrative activities, overseeing the
            hiring of substitute teachers, and preparing for Board
            meetings – the petitioner's job responsibilities also
            extended far beyond her former duties as a secretary, so
            the positions are not substantially similar.

      We do not agree that our unpublished decision in Burger is controlling1 or

apposite. Significantly, as counsel for the Board informed during oral argument,

no job descriptions were adopted by the Board for any of the positions Saylor




1
  Indeed, Burger cannot be controlling because, by rule, it has no precedential
value. R. 1:36-3.
                                                                          A-0990-19
                                        7
held.2 Largely, the evidence of Saylor's duties was presented by Saylor and the

superintendent and supplemented by some documents.

      Saylor testified to and outlined in her merits brief her core duties as the

Administrative Assistant to the Assistant Superintendent included:

            answering phones; making appointments for [the
            assistant superintendent]; sending faxes and emails for
            [the assistant superintendent]; preparing [the assistant
            superintendent] for upcoming meetings; preparing
            requisitions for supplies; preparing reassignments for
            in and out of district meetings and workshops; keeping
            a calendar for [the assistant superintendent] and
            updating her on all district events and meetings;
            preparing for field trips and fundraisers for Board
            meetings; filing papers; typing memos; and interacting
            with parents who complained and wished to meet with
            [the assistant superintendent].

      As Administrative Assistant to the Superintendent, she essentially

completed the same tasks with the addition of: "[p]reparing agenda for Board

meetings; [p]reparing professional development days; [p]reparing for the Read

[A]cross America event by making memos, mailing out invitations, keeping

track of attendees, and ordering breakfast; [c]ollecting and keeping contracts for

early childhood, as well as renewing them; and [m]aking accommodations for


2
  The ALJ asked the superintendent: "You have not eyeballed a document that
says job description for an administrative assistant to any of the cabinet, you
know, positions, correct?" The superintendent replied: "Correct. I don't do
those ordinary things. That's what you have secretaries for."
                                                                            A-0990-19
                                        8
out-of-district seminars."     During her testimony before the ALJ, Saylor

acknowledged her duties in these two administrative assistant positions "were

greater and beyond the scope of clerical or secretarial duties than . . . when [she

was] the secretary in the Business Department." But petitioner maintained her

job was still secretarial in nature; although her responsibilities expanded, she

said they were still in line with "the goal of handling correspondence and

managing a routine and detail work for her superior."

      The superintendent testified that Saylor interfaced with the public, other

district employees and the Board on her behalf and served as a confidential

assistant, unlike the other secretaries in the District. The superintendent further

emphasized that Saylor had "duties district-wide that a normal secretary would

not" have, such as "prepar[ing] things and coordinat[ing] things district -wide"

and the confidentiality of her position that required "prepar[ing] many

confidential documents for [the superintendent]" and reviewing resumes for

position qualifications for the superintendent to recommend to Human

Resources.

      In her merits brief, Saylor acknowledges her position took on a district-

wide element but notes that "[t]he [s]uperintendent is responsible for the district -

wide duties; Saylor simply executed tasks for the [s]uperintendent through the


                                                                              A-0990-19
                                         9
means afforded a typical secretary."         The record is clear that she took on

additional duties when she left the Business Department, commensurate with the

increased responsibilities of the assistant superintendent and superintendent.

But she continued to perform secretarial duties.

      In fact, when questioned by the ALJ about the difference between a

secretary and administrative assistant, the superintendent focused on, what she

termed, the "confidential title" of the position:

            [THE COURT]: The person who's the assistant to the
            superintendent, does it matter, in terms of what they're
            doing, that the title is "secretary" versus "administrative
            assistant"? That's one question.

            [SUPERINTENDENT]: Okay.

            [THE COURT]: Yes or no?

            [SUPERINTENDENT]: I'm going to say, for the
            purposes of confidentiality, they are two different
            things. Administrative - -

            [THE COURT]: What do you mean by "purpose of
            confidentiality"?

            [SUPERINTENDENT]: Well, secretary - - secretary to
            the superintendent is now dealing with the Board of
            Education as well and things that are being prepared for
            the Board of Education.

            [THE COURT]: But an administrative assistant is also
            doing that, no?


                                                                           A-0990-19
                                        10
[SUPERINTENDENT]: It's a - - it's a confidential title.

[THE COURT]: Which?

[SUPERINTENDENT]: Both. I'm going to say both,
in this capacity to the superintendent because it's
attached to the superintendent.

[THE COURT]: So what's the - - is the secretary to the
superintendent, that confidential position, worth a
salary of 72,500, is that synonymous with the
administrative assistant to the superintendent, at a
salary of 72,500? Are they synonymous?

[SUPERINTENDENT]: I don't think I understand.

[THE COURT]: Are they synonymous?

[SUPERINTENDENT]: No, they're not.

[THE COURT]: Do you have a different secretary?
You have a secretary and an administrative assistant?

[SUPERINTENDENT]: There is an administrative
assistant that is part-time that also works with me as a
part-time basis.

[THE COURT]: Did the titles change between when
Ms. Saylor was appointed and when she was fired? Did
the labels change in those three years when you were
the superintendent?

[SUPERINTENDENT]: Oh, the superintendent? No.

[THE COURT]: So when she was hired, she was hired
as a secretary.

[SUPERINTENDENT]: Yes.

                                                           A-0990-19
                          11
[THE COURT]: But when she was fired - - I'm not sure
it specifies. But when she got that salary change, she
was - - it was administrative assistant to the
superintendent.

[SUPERINTENDENT]: But that's in a template.
You're reading that in a template that they did in an
office downstairs where there are many clerical
mistakes. The resolution read "secretary." It's a
different position.

[THE COURT]: Okay. So officially and formally,
Crystal Saylor was secretary to the superintendent - -
happened to be you - - and that's a confidential position
to a cabinet member. Is that accurate?

[SUPERINTENDENT]: To the superintendent.

[THE COURT]: To the - - but the superintendent is a
cabinet position?

[SUPERINTENDENT]: Leads the cabinet.

[THE COURT]: What?

[SUPERINTENDENT]: I'm outside of - - I lead - - I
oversee the cabinet.

[THE COURT]: Okay.

[SUPERINTENDENT]: I'm outside the cabinet.

[THE COURT]: You're the president.

[SUPERINTENDENT]: Yes.

[THE COURT]: They're your - - they're your cabinet.

                                                            A-0990-19
                          12
             [SUPERINTENDENT]: Yes.

             [THE COURT]: Okay, okay.

             [SUPERINTENDENT]: So the cabinet members have
             the administrative assistants; the superintendent has the
             confidential secretary assigned to the superintendent.

The superintendent later explained:

             [a] confidential employee is one that maintains all
             records totally confidential, can manage and work with
             documents that no one else will see other than myself,
             and when I'm writing, to show them to someone else.
             They should never leave the purview of her sight or his
             sight, for that matter - - I'm not being sexist - - and can
             represent me and my signature in the entire district.

      She clarified there were other titles in the district that were "confidential":

administrative assistants.       When asked on cross-examination if the

administrative assistants had "the same responsibilities as [her] secretary[,]" the

superintendent replied affirmatively. The Board attorney followed, asking "isn't

it true, . . . as testified by . . . Saylor, the secretary to the superintendent does

basically a lot of the same responsibilities as the admin assistants do, but also , a

number of more responsibilities, correct?"         The superintendent answered:

"Yes."

      The testimonial evidence was not the only proof that showed the Board

did not differentiate between "secretary" and "administrative assistant." At least

                                                                               A-0990-19
                                        13
one employment contract in the record uses the term "Administrative Assistant

to the Assistant Superintendent."     A "Salary Change Form" for "Human

Resource Dept. Only" also designates the job title as "Administrative Assistant."

But the resolution set forth in the details for the Board Work Session/Bu siness

Meeting Agenda for July 15, 2015 reads:

            WHEREAS, the Superintendent of Schools has a need
            for a Secretary to the Superintendent of Schools; and
            WHEREAS, Crystal Saylor currently holds the position
            of secretary assigned to the Board Office; and
            WHEREAS, the Superintendent of Schools in
            recommending the promotion of Crystal Saylor to the
            position of Secretary to the Superintendent of Schools.
            NOW THEREFORE, BE IT RESOLVED, that upon the
            recommendation of the Superintendent of Schools,
            Crystal Saylor is hereby appointed as Secretary to the
            Superintendent of Schools effective immediately at the
            pro-rated salary of $72,500.00.

      Even the Board attorney, when questioning the superintendent, used the

terms interchangeably:

            [BOARD COUNSEL]: With respect to the position of
            secretary to the superintendent and/or administrative
            assistant to the superintendent, it's accurate that Ms.
            Saylor did not serve three years and a day in that
            capacity, correct?

            [SUPERINTENDENT]: In which capacity?

            [BOARD COUNSEL]: As - - when she worked for you
            as superintendent, she served just under three years
            right?

                                                                           A-0990-19
                                      14
            [SUPERINTENDENT]: Yes.

      The evidence presented does not support the Commissioner's conclusion

that the positions held by Saylor after she left the Business Department were not

secretarial positions. The Board did not adopt job descriptions differentiating

the positions. Saylor's continued function as a secretary, in addition to the

additional duties required by her positions with the superintendent and assistant

superintendent evokes our nearly-sixty-year-old holding:

            We . . . take the view that where an employee holding
            a position covered by tenure is promoted to a position
            which encompasses his former duties and additionally
            requires the performance of services which are not
            covered by tenure, and he thereafter continues to render
            services in both capacities, his right in his tenure
            position continues until terminated in accordance with
            the statute.

            [Quinlan v. Bd. of Educ. of Twp. of N. Bergen, 73 N.J.
            Super. 40, 51-52 (1962).]

We think that holding has application here, especially where the lines between

secretary and administrative assistant are so blurred. If a secretary moves to a

position that still requires secretarial duties, but adds additional duties in a

position that is not specifically culled from the tenure statute's "secretarial

position," we see no reason why the employee should not retain tenure-track

status.

                                                                           A-0990-19
                                      15
       Indeed, the statute allows a person holding "any secretarial position" to

gain tenure. N.J.S.A. 18A:17-2(b) (emphasis added). Saylor moved from one

secretarial position to others in which she continued her secretarial role with

extra duties required by her superior's status. The evidence supports that Saylor

was still referred to as a secretary, buttressing the conclusion her positions were

still secretarial.

       Our interpretation is consistent with the liberal construction accorded the

Tenure Act in order "to achieve its beneficent ends." Spiewak v. Bd. of Educ.

of Rutherford, 

90 N.J. 63

, 74-75 (1982). "[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. Bd. of Educ. of the City of Jersey City, 

85 N.J. Super. 42

, 45 (App.

Div. 1964) (quoting Sullivan v. McOsker, 

84 N.J.L. 380

, 385 (E. & A. 1913)).

"[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." Kasper v. Bd. of Trs. of the Tchrs' Pension &

Annuity Fund, 

164 N.J. 564

, 581 (2000) (citation omitted); see also Matturri v.

Bd. of Trs. of the Jud. Ret. Sys., 

173 N.J. 368

, 381-82 (2002). We conclude the

Commissioner did not properly construe N.J.S.A. 18A:17-2 in concluding


                                                                             A-0990-19
                                       16
Saylor did not hold a secretarial position in service to the assistant

superintendent and superintendent.

        We note, although the Commissioner adopted the ALJ's initial decision as

the final decision, the final decision did not discuss the ALJ's conclusion that

Saylor was a "confidential employee." To the extent it was adopted, we disagree

that that designation excluded Saylor from tenure.

        Other than the superintendent's testimony that Saylor was considered a

"confidential employee," we see no other evidence in the record to support that

conclusion. Again, there was no job description or other documentary proof ,

including the Board resolution appointing Saylor to the position, that established

the position was "confidential." Furthermore, there is no evidence that Saylor

was designated a confidential employee under N.J.S.A. 11A:3-4(h), the statute

cited by the ALJ in support of her finding that Saylor was one, or that a

corresponding "certification and appointment . . . [was] recorded in the minutes

of the Civil Service Commission" as required by that statute. 3


3
    N.J.S.A. 11A:3-4(h) provides:
              The State unclassified service shall not be subject to the
              provisions of this title unless otherwise specified and
              shall include the following:

                     ....


                                                                            A-0990-19
                                         17
      Moreover, N.J.S.A. 18A:17-2 does not carve out "confidential" secretarial

positions from its purview. Again, the Legislature conferred tenure status on

any secretarial position. See Perez v. Zagami, LLC, 

218 N.J. 202

, 209-10 (2014)

("There is no more persuasive evidence of legislative intent than the words by

which the Legislature undertook to express its purpose[.]"). "[T]he words of the

enactment are to be accorded a rational meaning in harmony with the obvious

intent and purpose of the law." State v. Brown, 

22 N.J. 405

, 415 (1956); see

also State v. Tischio, 

107 N.J. 504

, 511 (1987). "Where the Legislature's intent

is remedial, a court should construe a statute liberally." Young v. Schering

Corp., 

141 N.J. 16

, 25 (1995).

      If the Legislature intended to exclude "confidential employees" from

N.J.S.A. 18A:17-2, it could have done so directly. We therefore reject any

interpretation of the statute that would exclude "any secretarial position"

because "it is not [our] function . . . 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.'" DiProspero v. Penn, 183 N.J.



            h. One secretary and one confidential assistant to each
            department head, board, principal executive officer and
            commission. Each certification and appointment
            hereunder shall be recorded in the minutes of the Civil
            Service Commission[.]
                                                                            A-0990-19
                                       18
477, 492 (2005) (third alteration in original) (quoting O'Connell v. State, 

171

N.J. 484

, 488 (2002)). We will not "'write in an additional qualification which

the Legislature pointedly omitted in drafting its own enactment,' or 'engage in

conjecture or surmise which will circumvent the plain meaning of the act.'"

Ibid.

(first quoting Craster

v. Bd. of Comm'rs of Newark, 

9 N.J. 225

, 230 (1952); then

quoting In re Closing of Jamesburg High Sch., 

83 N.J. 540

, 548 (1980)).

      We conclude Saylor achieved tenure in the secretarial position she held

since beginning employment with the Board in 2010 and continuing until her

termination in 2018. She was thus entitled to face tenure charges at a tenure

hearing. N.J.S.A. 18A:6-10.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




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                                      19

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