NJ Appeals Court Rules Municipal Employee Lost “Bumping” Rights After Accepting Non-Tenured Position

NJ Appeals Court Rules Municipal Employee Lost “Bumping” Rights After Accepting Non-Tenured PositionIn a recent public employment case, the Appellate Division of the New Jersey held that a municipal employee relinquished her tenure rights when she subsequently accepted a non-secretarial position. As highlighted in DiNapoli v. Board of Education of the Township of Verona, tenure rights are largely governed by statute, and in this case, lawmakers failed to provide that tenure rights survive a promotion or transfer.

The Facts of the Case

In March of 1977, Judith DiNapoli commenced employment with the Board of Education of the Township of Verona (Board) as a bus driver/coordinator, an hourly, non-tenurable position. She was then transferred to the position of accounts payable/transportation secretary on August 1, 2003 and acquired tenure as a secretary.

DiNapoli later agreed to be reassigned as the assistant to the school business administrator, which was a non-certified position. She held that position from October 25, 2006 until June 30, 2009. She then accepted a 12-month position as the assistant school business administrator. During a reduction in force, the Board abolished that position, and DiNapoli was released from employment.

Thereafter, DiNapoli filed a petition of appeal with the Commissioner of Education alleging the Board violated her tenure rights by not employing her in a secretarial or clerical position held by a non-tenured employee after her position as assistant business administrator was eliminated. The Commissioner agreed that DiNapoli retained her secretarial tenure rights and could “bump” a non-tenured employee when her then position was eliminated. The Board appealed

The Court’s Decision

The Appellate Division ultimately sided with the Board. As explained by the panel, “the plain language of the statute does not support the Commissioner’s determination that DiNapoli retained her tenure rights upon transfer to a certificated position. Nor does N.J.S.A. 18A:17-2 reflect a legislative design to provide secretaries, who have relinquished their positions for non-secretarial certificated employment, the right to retain tenure. Rather, the 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.”  As such, the Court held that DiNapoli relinquished her tenure rights when she accepted a non-tenure position.

The Court further noted that, unlike tenure statutes governing teachers, the statute fails provide protection for tenured secretaries in the case of a promotion or transfer. “If the Legislature had intended for a secretary, who acquired tenure pursuant to N.J.S.A. 18A:17-2 (b) or (c), to retain tenure upon relinquishment of his or her secretarial position, it would have provided for such protection in the statute, similar to the provisions found in other tenure retention provisions,” the Court noted.  The Court reversed the Commissioner of Education’s decision and held that DiNapoli did not have any bumping rights when her position was abolished.

For more information about this legislation or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.


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