Labor & Employment

Editor: Sanmathi (Sanu) Dev, Esq.

On March 31, 2020, the Third Circuit Court of Appeals decided the matter of Petti v. Ocean County Board of Health, 2020 U.S. App. LEXIS 10082 (3d Cir. 2020). Plaintiff B. Janet Petti was an accountant for the Ocean County Board of Health (“OCHD”) and worked in one of the two buildings at OCHD’s office campus. Construction began at the building next to where Petti worked. Petti reached out to OCHD’s Director of Administration and Program Development regarding construction debris and asbestos out of concern it could aggravate her unspecified medical condition. OCHD responded that an asbestos sampling survey had been completed and concluded there was no asbestos-containing material at the site. Petti also received a report, conducted at the construction site by an external consultant, indicating that the construction site was free of external debris or other hazards.  

Despite these reports, Petti submitted a letter to her supervisor requesting unspecified reasonable accommodations as well as a doctor’s note stating she was to avoid exposure to dust, chemicals, construction materials, and respiratory irritants, due to “pulmonary dysfunction.” OCHD provided Petti with leave under the Family Medical Leave Act (“FMLA”) and while Petti was on FMLA leave, OCHD had additional testing completed for mold. All tests also came back within the normal range.  In addition, the Public Employees Occupational Safety and Health Program conducted a full inspection and investigation of Petti’s work area and determined there were no violations of health standards.

OCHD also sent Petti a letter detailing the steps taken to ensure that her workplace was safe and further indicated that her work station was moved. She would be provided with a respirator or particulate dusk mask and “out of an abundance of caution,” an air scrubber would be installed in her department as well. OCHD also requested that Petti meet to discuss the proposed accommodations. Petti did not respond to this offer, claiming the only solution was to transfer to another location. At this point, the District Court and Third Circuit determined the employee caused a breakdown in the interactive process.  

Petti filed a lawsuit against OCHD alleging, inter alia, disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”).  The District Court granted OCHD summary judgment on Petti’s claims and the Third Circuit affirmed finding that Petti did not state a prima facie case of ADA discrimination based on the claim OCHD failed to provide her requested reasonable accommodations. The Third Circuit determined that communication ultimately broke down when Petti failed to respond to OCHD’s request for a meeting to discuss the proposed accommodations for her, for which OCHD could not be faulted. 

This case emphasizes interactive process required by both the employer and the employee.  A refusal by the employee to participate and/or refusal to consider only one accommodation could result in a breakdown of this process leading to dismissal of the employee discrimination claims under the ADA.

Last week, the New Jersey Supreme Court decided a teacher tenure case which it warned served as a cautionary tale that “demonstrates the ability of labels to cloud an analysis.”  Melnyk v. Bd. of Educ. of Delsea Reg’l High Sch. Dist., 241 N.J. 31 (2020).  The Delsea Regional School District (“District”) had employed the petitioner, Paula Melnyk, as a tenured special education teacher since 1991.  In 2002, the district began also employing Melnyk to work evenings as a teacher in its after-hours alternative program, in addition to her position as a special education teacher during the regular school day.  Melnyk held the position as a teacher in the alternative program every year from 2002 through the end of the 2014-2015 school year, except for the 2009-2010 school year.  In August 2014, the District decided to hire another, non-tenured teacher to teach the after-school program hours previously assigned to Melnyk.

Melnyk filed a petition of appeal, asserting that the District could not reduce her hours without violating her tenure rights to the teaching position in the alternative program.  The District accepted that Melnyk held tenure in her regular position during the school day, but argued that she did not acquire tenure as a teacher in the alternative program because it was an “extracurricular position” which did not require additional certification beyond what was required by Melnyk’s normal position as a special education teacher.  An administrative law judge (“ALJ”) accepted the District’s argument and ruled that Melnyk had not acquired tenure in the alternative school position.  The Commissioner of Education adopted the ALJ’s initial decision, and the Appellate Division affirmed. 

On further appeal, however, the New Jersey Supreme Court reversed, holding that the ALJ, Commissioner, and Appellate Division had all misconstrued the applicable law in accepting the District’s argument.  The Supreme Court held that the case should have been easily decided through a simple application of its earlier precedent in Spiewak v. Summit Bd. of Educ., 90 N.J. 63, 77 (1982).  Under Spiewak, Melnyk should have been entitled to tenure in the alternative program teaching position, because “staff members who work in positions for which a certificate is required, who hold valid certificates, and who have worked the requisite number of years, are eligible for tenure unless they come within the explicit exceptions in N.J.S.A. 18A:28-5 or related statutes such as N.J.S.A. 18A:16-1.1.”  Id. at 81. 

In this case, however, the Supreme Court noted that this “clear analysis was sidetracked by labeling Melnyk’s position in the [alternative] program as ‘extracurricular’ and . . . . imputing a requirement particular to traditional extracurricular activities to the program, namely that Melnyk could not acquire tenure rights to her position . . . unless that program required her to hold an additional instructional certification than that which she already held for her full-time regular education position.”  The Court rejected the imposition of this additional requirement, reasoning:  “There can be no tyranny of labels permitted in this analysis.”  Instead, the Court found that the requirements of the tenure statutes, as interpreted by Spiewak, were clearly met under the undisputed facts.  The teacher was entitled to tenure in the additional position, since it required a teaching certificate and she had worked in the position for the requisite number of years set forth in the tenure statute. 

Both parties had conceded before the Commissioner that a teacher serving exclusively in the alternative program position would have acquired tenure.  Since the alternative program position required a teaching certificate, there was no basis for the District to have treated Melnyk differently simply because she was already employed in a separate teaching position, for which she had already acquired tenure, which required the same instructional certification as the additional position.  The Supreme Court refused to allow the District to avoid Spiewak’s application by applying the label of “extracurricular” to the position, noting that school districts are required by State regulations to offer their students access to such alternative programs, either through their own district or through alternative programs outside the district, either of which must comply with State regulatory standards.

On May 18, 2018, the New Jersey Governor signed into law the Workplace Democracy Enhancement Act (“WDEA”), which allows union employees to withdraw from the union and cease paying dues upon notice to the employer during the 10 days following each anniversary date of their employment. On June 27, 2018, the United States Supreme Court issued its decision in Janus, holding that public-sector unions may no longer extract agency fees from non-consenting employees. On December 27, 2019, the U.S. District Court for the District of New Jersey issued a decision in Thulen v. AFSCME regarding union members’ argument that the First Amendment gives such employees a right to withdraw from the union and cease paying dues at any time, without restriction.

Many of us have been hoping that the Court would issue a substantive decision on whether the “10-day” window under the WDEA is constitutional in light of Janus. Instead, the Court dismissed the case on the basis that the union members failed to state a valid claim of relief. Plaintiffs in this case were three building inspectors for the Township of Lakewood, New Jersey who were current or former members of the union. When they began their positions, they signed union dues authorization cards. They alleged that after Janus, they wished to cease paying union dues but were prohibited from doing because of the WDEA. They argued that the revocation requirements under the WDEA unconstitutionally restrict employees’ First Amendment rights.

In dismissing the Plaintiff’s claims, the Court emphasized that it previously held that Janus does not allow employees, who voluntarily signed union dues authorizations, to override fair and reasonable contractual commitments. Here, the Court found that the Plaintiffs failed to allege (1) any opt-out restrictions in their union dues authorization forms and (2) that they tried to withdraw from the union and had a request denied. As a result, Court could not find that the WDEA was enforced against Plaintiffs and dismissed the case.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

On July 19, 2019, Governor Murphy signed new legislation, L. 2019, c. 169 (S-692 / A-3775), which eliminated the cap on maximum base salaries for superintendents of schools which had been in effect since February 2011.  At time of the new law’s passage, subject to several potential modifications allowable under law, the salary cap levels had been set by administrative regulations of the Commissioner of Education at $147,794 for schools districts with enrollments of 749 students or less, $169,689 for districts with enrollments of 750 to 2,999, or $191,584 for districts with enrollments of 3,000 students or more.  The new law expressly provides that the New Jersey Department of Education “shall not regulate the maximum salary amount a board of education may provide to a superintendent of schools, pursuant to an employment contract.”

In addition to repealing the salary caps, the legislation codified into statute the current standards under which superintendent contracts are reviewed by the Executive County Superintendent (“ECS”).  The legislation incorporates into the statute the existing standards of the accountability regulations, N.J.A.C. 6A:23A-3.1(e), governing ECS review of superintendents’ employment contracts and restrictions on various types of contractual provisions, including limits on payments of salary upon separation from service, payments for unused accumulated sick leave upon retirement, payments for accumulated vacation days at the time of separation, the prohibition on supplemental or duplicate fringe benefits, car allowances, travel costs and mileage reimbursements, additional compensation for attaining a graduate degree, and other forms of compensation. 

The legislation also maintained and codified existing provisions of the accountability regulations permitting superintendent contracts to include merit bonuses of up to 15% of base salary in each contract year, through no more than three quantitative merits bonuses of 3.33% each and no more than two qualitative merit bonuses of 2.5% each.  Payment of those bonuses remain subject to approval by the ECS each year.  The provision that the calculation of the per diem rate for 12-month employees, such as superintendents, be based on a 260-day work year is also included in the statute. 

The new statute did not expressly address various other types of salary increments available to superintendents under the provisions of the definitional section of the accountability regulations, N.J.A.C. 6A:23A-1.2, including the current $5,000 “additional administrative position salary increment” for holding more than one administrative position, the $15,000 “additional school district salary increment” for serving more than one school district, or the $5,000 additional “high school salary increment.”  As the Department of Education revises those regulations to remove the caps, school districts will be on the lookout for guidance on whether the Department intends to permit these provisions to remain as among the various regulated forms of “extra compensation,” or whether the Department will view them as extensions of base salary that must be removed from the accountability regulations in accordance with the new statutory mandate that it “shall not regulate the maximum salary amount” of superintendents. 

At the heart of this reform was an ongoing concern that the cap on superintendent salaries had resulted in increased turnover and a decline in the level of experience among superintendents.  Opponents of the cap argued that many areas around the State have seen their most experienced superintendents retire from their school districts either in anticipation of the cap, or as a result of it having gone into effect.  School board members, board attorneys, and interested statewide organizations have observed an apparent uptick in the use of interim superintendents, as experienced chief school administrators who have already retired but may serve by statute for a period of no more than two years, during the period the cap has been in effect.  With the elimination of the cap and the return of local control over superintendent salaries, school board members will now have greater flexibility in weighing how best to attract top tier talent among chief school administrators for the children of their district, while at the same time remaining vigilant over the use of public funds.

The Ridgefield Park Education Association (“Association”) filed an appeal with the New Jersey Appellate Division challenging a ruling by the Public Employment Relations Commission (“PERC”) in favor of the Ridgefield Park Board of Education (“Board”), which held that Chapter 78 preempted the terms of the parties’ collective negotiations agreement (“CNA”) for the period July 1, 2014 to June 30, 2018. On May 3, 2019, the Appellate Division reversed PERC’s determination in In the Matter of Ridgefield Park Board of Education and Ridgefield Park Education Association and remanded the matter to PERC to implement a remedial mechanism to refund the excess health insurance contributions to the Association members.

Chapter 78 gradually increased the health insurance contribution rates for public employees over a four-year period beginning July 1, 2011. The increasing rates are designated as Tier 1, Tier 2, Tier 3, and Tier 4. The parties’ CNA covering July 1, 2011 to June 30, 2014 and the subsequent CNA covering July 1, 2014 to June 30, 2018 stated that the Association members contribute 1.5% of their salary or the minimum set forth by statute, regulation, or code towards health insurance.

During the first and second years of the 2011-2014 CNA, the Association members contributed at the Tier 1 and 2 levels, respectively. During the last year of the 2011-2014 CNA, the Association members contributed at the Tier 3 level. Thereafter, in the first year of the 2014-2018 CNA, the Association members contributed at the Tier 4 level. At the start of the second year of the 2014-2018 CNA on July 1, 2015, the Association members initially contributed 1.5% of their salary. However, in December 2015, the Board unilaterally altered the contribution rate to the Tier 4 level for the duration of the 2014-2018 CNA, relying upon Chapter 78 and PERC’s August 13, 2015 decision in Clementon Bd. of Educ. v. Clementon Educ. Ass’n. In short, the Board argued that Chapter 78 preempted the terms of the 2014-2018 CNA regarding a 1.5% contribution level.

Based on the facts above, the Appellate Division determined that the parties did not contemplate that Chapter 78 would preempt the 1.5% contribution rate for the last three years of the 2014-2018 CNA. Rather, the Appellate Division found that the parties believed that Chapter 78 had been fully implemented at the end of the first year of the 2014-2018 CNA because the Association members completed all of their Tier 1 through 4 contributions at that point and at the beginning of the second year of the 2014-2018 CNA, the contribution level was 1.5%. 

Unlike PERC, the Appellate Division did not find it dispositive that full implementation of Chapter 78 occurred over two CNAs. The Appellate Division rejected PERC’s interpretation that Chapter 78 preempts any other contribution level in a multi-year successor agreement, such as the 2014-2018 CNA, for the first year as well as any additional years of the CNA until the “next” agreement when employee contribution levels would become negotiable.

Instead, the Appellate Division reasoned that interpreting Chapter 78 to require the Tier 4 contribution level for the remaining three years of the 2014-2018 CNA after the Association members contributed at the Tier 4 level in the first year of that CNA would create an “absurd result.”

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Statutes are to be read sensibly rather than literally. This was the message sent by the New Jersey Appellate Division on March 14, 2019 in Wall Township Education Association v. Board of Education of the Wall Township School District when it reversed the Commissioner of Education’s decision and held that a superintendent and school district may not avoid the requirements for public comment and public hearing under N.J.S.A. 18A:11-11 simply by rescinding an existing superintendent employment contract.

The Superintendent had a contract which was to expire on June 30, 2019. After new salary caps were put in place, the Superintendent and the Wall Township Board of Education (“Board”) agreed in principle to rescind the Superintendent’s five-year contract and approve a three year contract in its place that provided for increased compensation in accordance with the new caps. The Executive County Superintendent approved the new contract, and the Board, following direction from the Executive County Superintendent, voted to approve the contract without public notice and a public hearing. N.J.S.A. 18A:11-11 requires notice and a public hearing when a board renegotiates, extends, amends, or otherwise alters the terms of a contract with a superintendent and certain other school administrators.

Trouble came quickly. The Wall Township Education Association (“Association”), certain members of the Association, and a taxpayer in the school district challenged the Board’s action through a petition of appeal. The Commissioner dismissed the petition. The Commissioner adopted the administrative law judge’s recommended decision which concluded that the Board’s action constituted a rescission of the contract and that there was no amending, extending, or altering of the terms which would trigger the statute’s notice and hearing requirements.

The Appellate Division reversed the Commissioner on appeal. It directed the Board to vote on a new employment contract for the Superintendent subject to satisfying the public notice and public hearing requirements of N.J.S.A. 18A:11-11. In reaching its decision, the Court primarily relied upon a rule of statutory construction which provides that where a literal rendering will lead to a result not in accord with the essential purpose of the act, the spirit of the law will control. The Court found that the purpose of N.J.S.A. 18A:11-11 is to provide greater transparency between the public and boards of education with respect to employment contracts of certain administrators by requiring public notice and a public hearing when the board renegotiates, extends, amends, or alters an existing contract with its superintendent. The Court concluded that renegotiation and alteration were exactly what occurred in the case, and that a mutual rescission cannot be used to circumvent the statute’s requirements. Otherwise the result would be absurd since boards could routinely avoid the requirements by executing a contract rescission. The Court also relied upon the fact that the original contract had not “expired” thus pulling the exception to the notice and hearing requirements in an instance where the contract is a replacement for an expired contract.

Boards that have followed the same path taken by the Wall Township Board of Education should consult with their solicitor about whether corrective action is necessary.

On January 28, 2019, the Appellate Division affirmed an arbitrator’s decision to limit the withholding of a teacher’s increment to one year. In Trenton Board of Education v. Trenton Education Association, the Trenton Board of Education (“Board”) approved the withholding of a teacher’s increment for an indefinite period of time. The Trenton Education Association (“Association”) challenged that decision.

During the 2015-2016 school year, the Board employed Carmel Gabriel as a middle school teacher. The principal, who was Gabriel’s direct supervisor, and vice principal cited him for various deficiencies, such as problems with his teaching practices, failure to attend mandatory meetings, and failure to submit required reports. The administration also cited him for including vulgar, expletive filled quotations of students’ alleged comments to Gabriel in his students’ progress reports. Gabriel also allegedly slammed a door when he left a scheduled meeting after the vice principal was delayed and asked Gabriel to wait for him. After receiving warnings, Gabriel corrected his behavior.

Ultimately, the Board approved the withholding of Gabriel’s increment “effective September 1, 2016.” However, the Board did not set a termination date for that action.

In response, on behalf of Gabriel, the Trenton Education Association filed a grievance pursuant to the parties collective bargaining agreement. After the increment withholding was upheld at each stage of the grievance procedure, the Association demanded arbitration through the Public Employment Relations Commission (“PERC”).

The PERC arbitrator was tasked to decide whether the Board had just cause to withhold Gabriel’s salary increment effective September 1, 2016. The arbitrator found just cause for discipline but limited the period of salary increment withholding to one year. The arbitrator found the indefinite salary increment withholding to be too harsh, explaining that the Board failed to use progressive discipline and Gabriel mitigated his conduct.

The Board filed a complaint to vacate or modify the arbitration award and the Association filed a counterclaim to confirm the award. The trial court vacated the award concluding that because the arbitrator found just cause for a salary increment withholding, the Board had the prerogative to decide whether to restore it or keep it permanent.

On Appeal, the Appellate Division analyzed the arbitrator’s decision under N.J.S.A. 2A:24-8(d) – whether the arbitrator decided a legal question not placed before him or her. In short, the Appellate Division reasoned that even though the question before the arbitrator did not include the word “permanent,” she did not exceed her authority. The Appellate Division concluded that once she determined Gabriel’s conduct was “unbecoming,” the arbitrator was within her authority to determine whether there was just cause to impose an indefinite salary increment withholding or some other remedy.

*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.

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

The question of whether a school district with a collective bargaining agreement of less than five years in duration is required to pay the increment for teaching staff members at the expiration of the agreement has existed since the amendment of N.J.S.A. 18:29-4.1.  The amendment permits school districts to adopt a salary policy schedule for a period of up to five years.

In In the Matter of Englewood Board of Education and Englewood Teachers’ Association (decided October 29, 2018) and In the Matter of Cliffside Park Board of Education and Cliffside Park Education Association (decided October 16, 2018), the teachers unions requested payment of the increment at the expiration of three year agreements.  The Boards refused and the unions filed for interim relief with the Public Employment Relations Commission (“PERC”) seeking an order that the Boards pay the increment.

The Designee of PERC granted the application in each case.  The Designees reasoned that the increments must be paid after the expiration of the three year contracts because contract language expressed the parties’ intent to maintain all terms and conditions of employment after expiration. Accordingly, the Designees ordered the immediate payment of the increment to all eligible unit employees.

The Designees relied heavily, but not exclusively, on contract language in reaching the conclusion that the unions had demonstrated a likelihood of prevailing on the merits of their respective unfair labor practice charges. The New Jersey Supreme Court’s decision in In re County of Atlantic, 230 N.J. 237 (2017) provided guidance. The Court’s decision focused on analysis of contract language pertaining to continuation of salary and benefits upon expiration of the contract term, albeit in the context of county employees. The critical contract provision in In the Matter of Englewood Board of Education and Englewood Teachers’ Association read:

This Agreement shall be effective as of July 1, 2015, and continue in effect until June 30, 20 {sic}.  If this Agreement expires, it is expressly understood that all provisions and benefits contained herein shall remain in force until a new agreement is agreed upon and signed by the parties.

Two similarly worded contract provisions were important to PERC’s decision in In the Matter of Cliffside Park Board of Education and Cliffside Park Education Association.

This Agreement shall continue in full force and effect with all attendant benefits and obligations until a successor Agreement is ratified by the Board and Association.

This Agreement shall continue in full force and effect, with all attendant benefits and responsibilities to the Board and Association, until a successor agreement is ratified by the Board and Association.

Of particular interest, the Respondent Boards argued that their situations were distinguishable from the situation addressed by the Court in In re Atlantic County because school districts cannot recoup payments to tenured teaching staff members once made.  Without much analysis, the argument was dismissed as being “of no moment.”

The unions were found to have demonstrated irreparable harm.  PERC precedent was relied upon to hold that a failure to pay an increment amounted to repudiation of the exercise of employees’ statutory right to have such issues negotiated on their behalf by their majority representative.  The notion that ordering payment of the increment would effectively limit the ability of the Boards to negotiate compensation did not hold sway.

It is anticipated that these decisions will be appealed.  In the interim, these developments are significant because (1) most school districts have three year collective bargaining agreements, (2) the requirement to pay the increment upon expiration of the agreement amounts to an automatic salary increase, and (3) a district’s negotiations position may be impacted.  A district should evaluate past practice and the language in its agreement to determine whether it has a similar exposure.

On November 9, 2018, the New Jersey Commissioner of Education (“Commissioner”) concurred with an Administrative Law Judge’s finding in Mirda v. Board of Education of the Union County Educational Services Commission that the position of Bedside Tutor fell within the substitute teacher exception and is not eligible for tenure accrual. The Union County Educational Services Commission Board of Education (“Commission”) provides various services to school districts in Union County, including one-to-one bedside instruction at hospitals to students enrolled in Union County schools. Bedside Tutors are paid at an hourly rate, do not receive benefits or paid holidays, and are not guaranteed a certain number of work hours/days or yearly salary.

Gail Mirda, the Petitioner in this matter, was employed by the Commission as a Bedside Tutor for fifteen years. While her work hours varied, she worked about six to eight hours per day for the last seven years. Petitioner argued that because she worked more than three full-time years in the Bedside Tutor position, which required a teacher certification, she is entitled to tenure pursuant to N.J.S.A. 18A:28-5. She also argued that the substitute teacher exception under  N.J.S.A. 18A:16-1.1 did not apply because she was not replacing a specific employee of the Commission.

The Administrative Law Judge (“ALJ”) summarily rejected Petitioner’s arguments. In short, the ALJ analogized the Bedside Tutor position to that of a Home Instructor and followed a series of cases in which Home Instructors were determined not to be tenure-eligible because their positions and responsibilities fell within the substitute exception to the Tenure Act. Bedside Tutors, like Home Instructors, substitute for a regular classroom teacher due to a student’s inability to attend school and are not regular teaching staff members. The ALJ reasoned that Petitioner was not required to substitute for a specific employee of the Commission in order to escape the substitute teacher exception. As such, Petitioner was not entitled to tenure accrual in the position of Bedside Teacher.