A Capehart Scatchard Blog

Appellate Division Rules Teacher Not Entitled to Tenure in Extracurricular Assignment

By on January 2, 2019 in Labor & Employment with 0 Comments

*Please note that on January 20, 2020, the New Jersey Supreme Court reversed the Appellate Division in this matter. You can find our blog article on the Supreme Court’s decision here.*

On December 17, 2018, the New Jersey Appellate Division in Melnyk v. Board of Education of the Delsea Regional High School District upheld the Commissioner of Education’s decision that a teacher who already has attained tenure based upon his or her years of service in a particular position cannot also acquire separate tenure in an extracurricular assignment if the teacher is not required to possess a different certificate other than the one he or she already possesses in the tenured position and the teacher receives a stipend for the additional assignment that is not an integral part of the teacher’s contractual salary.

The Delsea Regional High School District Board of Education (“Board”) hired Paula Melnyk in 1991 as a full-time special education teacher. She held an Instructional Certificate with Teacher of the Handicapped and Elementary School Teacher endorsements. It is undisputed that Melnyk was tenured in this position.

Beginning in 2002, the Board assigned Melnyk to teach special education classes after her regular school day in an alternative education program (“AEP”). Her assignment to the AEP was voluntary. Melnyk was not required to hold any additional certification – the Instructional Certificate with Teacher of the Handicapped endorsements were sufficient. She received $20 per hour for the time she worked in the AEP.  Except for the 2009-2010 school year, Melnyk worked in the AEP until the end of the 2014-2015 school year. At that time, the Board assigned another teacher to Melnyk’s position, and this litigation ensued.

Melnyk appealed the Board’s decision to the Commissioner, which assigned the matter to an Administrative Law Judge (“ALJ”). Relying upon a series of previous cases, the ALJ determined that a board of education retains the authority to assign and reassign teachers to extracurricular duties as it deems fit. This discretion, coupled with the facts that Melnyk was not required to hold any additional certification and she voluntarily sought the AEP position, led the ALJ to determine that Melnyk was not entitled to tenure in the AEP position.

Melnyk then sought review of the ALJ’s decision by filing exceptions with the Commissioner, who affirmed the ALJ. Melnyk further appealed to the Appellate Division, which upheld the Commissioner, as it found that the decision was not arbitrary, capricious, or unreasonable.


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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


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