DIVISION OF YOUTH AND FAMILY SERVICES v. V.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1731-05T51731-05T5

DIVISION OF YOUTH AND

FAMILY SERVICES,

Petitioner-Respondent,

v.

V.R.,

Respondent-Appellant,

and

IN THE MATTER OF THE TENURE HEARING

OF V.R., STATE-OPERATED SCHOOL

DISTRICT OF THE CITY OF NEWARK,

ESSEX COUNTY.

_______________________________________

 

Submitted August 15, 2006 - Decided August 24, 2006

Before Judges Parrillo and Sabatino.

On appeal from the State Board of Education, Docket No. 24-05.

Eugene G. Liss, attorney for appellant.

Zulima V. Farber, Attorney General, attorney for respondent, Division of Youth and Family Services (Melissa T. Dutton, Deputy Attorney General, on the brief).

Lucille E. Davy, Acting Commissioner of Education, attorney for respondent, State-operated School District of the City of Newark (Arsen Zartarian, Senior Associate Counsel, on the brief).

PER CURIAM

This teacher tenure case is the companion appeal to A-3810-04T5, in which we affirmed today the final agency determination of the Division of Youth and Family Services (DYFS) that appellant, V.R., committed acts of child abuse or neglect within the meaning of N.J.S.A. 9:6-8.21 on November 1, 2002. Briefly stated, the underlying incident involved V.R. slamming a classroom door on a seven-year-old student's fingers and then failing to escort him to the nurse's office to attend to his injuries. We incorporate by reference the more detailed facts recited in our companion opinion in A-3810-04T5.

The sole issue in this separate appeal is the April 27, 2005 determination of the Commissioner of Education, which was affirmed on November 2, 2005 by the State Board of Education, concluding that appellant's proven act of child abuse or neglect amounted to conduct "unbecoming a . . . teaching staff member" under N.J.S.A. 18A:28-5 and N.J.S.A. 18A:6-10 and warranted appellant's dismissal as a teacher with the Newark School District. For the reasons set forth, infra, we affirm the Commissioner and the State Board's final agency decision on these penalty matters.

We begin by noting that our scope of review of the education agencies' determination is quite limited. Our role is simply to "examine the record to determine whether sufficient or credible evidence exists therein to support the agenc[ies'] decision." Dore v. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982). "The agency determination is not to be vacated in the absence of a showing that the decision is arbitrary or capricious, that it lacks support in the record or that it violates legislative policies expressed or fairly to be implied in the statutory scheme administered by the agency." Ibid. Viewed through the prism of this deferential standard of review, we are satisfied that the State Board's ultimate decision concerning V.R. is supported by substantial credible evidence, neither arbitrary nor capricious, and consonant with the legislative policies of the education statutes.

First, we are satisfied by the record facts, as was the administrative law judge who heard this case, that V.R.'s actions and inactions on November 1, 2002 constituted conduct "unbecoming" a public school teacher. "[T]hose persons who enter the teaching profession exercise a significant influence upon those they teach and, consequently, must exhibit a high degree of exemplary behavior." In re Tyler, 13 N.J.A.R. 297, 308 (1991). Appellant deviated from that high standard when she slammed the door on her young student's fingers and then further compromised his welfare by leaving him, bleeding and screaming in pain, all alone in the hallway without an escort to the nurse's office.

We do not hesitate in affirming the unanimous view of V.R.'s school district employer, the administrative law judge, the Commissioner and the State Board that such conduct is "unbecoming" a teacher under the applicable statutory provisions. See generally City of Asbury Park v. Dep't of Civil Service, 17 N.J. 419, 429-30 (1955)(conducting unbecoming a public employee "need not be predicated upon the violation of any particular regulation or rule" but can be evidenced by an "approach to the obligations of [one's] office fundamentally at variance with [one's] sworn duty"). As the State Board stressed in its written decision, "the appellant's conduct in leaving the student unattended in the hallway after he was injured and neither escorting him to the nurse's office nor seeking assistance was inexcusable." We agree.

As to the severity of the penalty determined by the Commissioner and the State Board, we reiterate our limited scope of review and our recognition of the expertise of the education agencies that must deal with such disciplinary matters on a routine basis. We are well aware that appellant has not had any other reported disciplinary sanction in nearly three decades of teaching and that she has received commendations in the past for her work as an educator. Nevertheless, that positive track record was duly taken into account by the Commissioner of Education, who nevertheless concluded that those mitigating factors are "greatly outweighed by the seriousness of her conduct in this matter."

A single incident, if sufficiently flagrant, may suffice to justify the removal of a teacher. In re Fulcomer, 93 N.J. Super. 404, 421 (App. Div. 1967); Redcay v. State Bd. of Educ., 130 N.J.L. 369 (Sup. Ct. 1943), aff'd o.b., 131 N.J.L. 326 (E. & A. 1944). The need to deter such conduct, and to maintain a safe environment for schoolchildren, weighs against the appellant's pleas for leniency.

Although we are mindful of the strong nature of the sanction and that the administrative law judge had recommended a lesser penalty, we are not persuaded that the State Board or the Commissioner acted arbitrarily or capriciously, or that the sanction of dismissal was "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." In re Polk, 90 N.J. 550, 578 (1982)(citations omitted).

Affirmed.

 

As we noted in our recent opinion in In re Herrmann, No. A-1724-04T5 (App. Div. August 16, 2006), the general principle favoring progressive discipline for public employees can be surmounted where an employee's single instance of conduct is "so pervasively unbecoming the duties of the position as to merit discharge." (Slip. op. at 10). We acknowledge that, based upon the specific circumstances in Herrmann, we vacated the discharge of a DYFS worker because the agency had not justified in the record its departure from progressive discipline and because the agency had relied upon uncharged prior conduct by the worker. Id. at 7-11. That is not the case here. Moreover, the facts in Herrmann, where a DYFS worker had flicked a cigarette lighter in the face of a foster child but where the child sustained no injury, are distinguishable from the facts before us here, involving a child that was injured at the hands of the employee and then abandoned in a hallway while in medical distress.

(continued)

(continued)

6

A-1731-05T5

RECORD IMPOUNDED

 

August 24, 2006