by Hop T. Wechsler, Esq.
Under the New Jersey Tenure Act, teaching staff members are entitled to tenure if they work in a position for which a teaching certificate is required, they hold the appropriate certificate for the position, they have served the requisite time period, and—for teaching staff members hired on or after the TEACHNJ Act took effect on Aug. 6, 2012 only—they met mentoring and evaluation requirements.
Delsea Education Association member Paula Melnyk fulfilled all of these requirements with respect to her part-time special education English teacher position in the Delsea Regional High School Board of Education’s “Bookbinders” alternative school program. The Bookbinders program was offered to special education students after school hours and during evenings to fulfill needs that could not be met during the regular day’s instruction. The Delsea Board removed Melnyk from the program in June 2015 and replaced her with a nontenured teacher—plainly violating the Tenure Act, which states that tenured teachers “shall not be dismissed or reduced in compensation” unless tenure charges are successfully brought.
NJEA supported Melnyk’s tenure right claim to the Bookbinders position, assigning her a network attorney who filed a petition of appeal with then-Commissioner of Education Kimberley Harrington in August 2015. The Delsea Board’s defense? Melnyk was already a tenured full-time special education English teacher in the general education program; therefore, the board claimed, Melnyk’s Bookbinders position was “extracurricular.”
An administrative law judge (ALJ) agreed with the board, ruling in a July 2017 initial decision that, even though Melnyk fulfilled all Tenure Act criteria with respect to the Bookbinders position, the position was “extracurricular” because it was outside Melnyk’s regular duties, did not require an additional certificate, and because Melnyk was paid a separate stipend for her position. Commissioner Harrington then adopted the ALJ’s initial decision as the agency’s final decision in October 2017, dismissing Melnyk’s petition of appeal while conceding that, had Melnyk exclusively taught in the Bookbinders position, she would have accrued tenure in the position under the Tenure Act.
Convinced that both the ALJ and commissioner were wrong, NJEA supported Melnyk’s appeal to the Appellate Division of the Superior Court of New Jersey. Melnyk’s NJEA network attorney, Hop T. Wechsler of Selikoff & Cohen, P.A., argued that tenure is a statutory, not a contractual, matter, and that if Melnyk fulfilled the Tenure Act criteria with respect to the Bookbinders position, she was tenured in the position.
Nonetheless, the Appellate Division ruled against Melnyk, determining that the commissioner’s interpretation of the Tenure Act was entitled to deference and affirming ALJ’s the decision in December 2018.
“When I was told the Appellate Division ruled against me, I just assumed it was over,” Melnyk recalled.
But it wasn’t. NJEA persisted, supporting the filing of a petition for certification with the Supreme Court of New Jersey on behalf of Melnyk.
“I was quite surprised and very pleased that NJEA appealed my case to the highest court in the state,” Melnyk noted. “It validated my contribution to my students.”
The odds were long, though, as during the court’s previous term, only 99 petitions for certification were granted out of more than 1,200 petitions filed.
For Paula Melnyk, the fourth time was the charm. The Supreme Court granted certification. Wechsler argued Melnyk’s case before the court, and on Jan. 30, 2020, the court issued a unanimous decision in Melnyk’s favor.
The court found that Melnyk’s Bookbinders position was “eligible for tenure separate and distinct from any considerations of tenure eligibility” as to her full-time general education position, and it rejected the characterization of her Bookbinders position as “extracurricular.” In other words, Melnyk could have, and did have, tenure rights to two different teaching positions at the same time. The court remanded the case to the commissioner to calculate Melnyk’s damages.
NJEA fought (and fought, and fought) on Melnyk’s behalf, supporting her tenure rights claim for four-and-a-half years with repeated appeals filed by her NJEA network attorney, all the way to the Supreme Court.
“We’re extremely pleased with the result in this case,” noted NJEA Managing Attorney Aileen O’Driscoll. “We believe Ms. Melnyk’s tenure rights were vindicated, and the decision provides strong precedent for all our members.”
Thanks to NJEA’s persistence, Melnyk v. Board of Education of Delsea Regional High School District is now a published, precedential decision that will benefit current and future NJEA members as well as Melnyk herself. In fact, the commissioner has already cited Melnyk in a February 2020 decision recognizing a Somerville Education Association member’s tenure rights claim.
“NJEA support was invaluable,” noted Melnyk. “I never would have been able to afford an attorney to take my case up to the Supreme Court on my own. I never would have been brave enough, quite honestly, for fear of retribution. Knowing I had the whole NJEA force behind me gave me the ability to persevere and go in and do my job every day.”
Hop T. Wechsler is an attorney with Selikoff & Cohen, P.A. in Mount Laurel. Wechsler is one of NJEA’s network attorneys