IN THE MATTER OF THE CERTIFICATES OF KEVIN JORDAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0155-08T30155-08T3

IN THE MATTER OF THE

CERTIFICATES OF KEVIN

JORDAN

 
 

Submitted September 16, 2009 - Decided

Before Judges Stern, Graves, and J. N. Harris.

On appeal from the New Jersey Commissioner of Education, Agency Docket No. 5-7/08A.

Wills, O'Neill & Mellk, attorneys for appellant Kevin Jordan (Arnold M. Mellk, of counsel; Edward A. Cridge, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Department of Education (Melissa H. Raksa, Deputy Attorney General, of counsel; Melissa T. Dutton, Deputy Attorney General, on the brief).

PER CURIAM

This is an appeal from the final determination of the Commissioner of Education (Commissioner) that revoked Kevin Jordan's teaching credentials, finding him presently unfit under N.J.A.C. 6A:9-17.5. We affirm the decision of the Commissioner because it is supported by substantial credible evidence in the record, notwithstanding a contrary conclusion by the Administrative Law Judge (ALJ) who initially heard the matter.

I.

 
Beginning in September 2002, Jordan was employed as a public school teacher assigned to teach eighth grade mathematics. On two separate occasions, first in 2002 and then again on January 2, 2003, he publicly masturbated in the presence of an unwilling female employee of the Casual Male Big and Tall store in Cinnaminson. After the second incident, the employee complained to the local police. Subsequently, Jordan was convicted of the petty disorderly persons offense of improper behavior under N.J.S.A. 2C:33-2(a)(2):

a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . .
 
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

[N.J.S.A. 2C:33-2(a)(2).]

Jordan was sentenced on June 19, 2003, pursuant to a plea agreement, as follows: 1) ninety days in jail (suspended), 2) "must complete counseling with proof," 3) "do not go back to Big and Tall," and 4) fined $1,155 (including costs).

Jordan started teaching in a different school district in January 2005, where he was employed as a middle school math teacher assigned to the sixth, seventh, and eighth grades. In satisfaction of the plea agreement, Jordan attended six counseling sessions with Dr. Fred Chase, Ph.D., starting on August 22, 2003. Jordan's last session with Dr. Chase was in the beginning of 2005. At the conclusion of this counseling, Dr. Chase opined that Jordan's prognosis "was excellent[.] I mean, it was the prognosis for that problem was excellent in terms of his not repeating it."

On July 26, 2006, following its receipt of evidence of Jordan's conviction of the petty disorderly persons offense, the Board of Examiners in the Department of Education (Board) commenced a revocation/suspension proceeding against Jordan by an order to show cause. N.J.S.A. 18A:6-38; N.J.A.C. 6A:9-17.6. The sole gravamen of the Board's order to show cause was Jordan's conviction three years prior as constituting "conduct unbecoming a teacher or other just cause." N.J.A.C. 6A:9-17.5.

Four witnesses testified at the hearing conducted by the ALJ: Jordan, Dr. Chase, Sergeant William Covert of the Cinnaminson Police Department, and the female employee of the Casual Male Big and Tall store in Cinnaminson. The Board did not present any evidence concerning Jordan's current circumstances; its entire case relied upon the events of 2003 that resulted in the conviction of a petty disorderly persons offense. Jordan attempted to demonstrate through his and Dr. Chase's testimony that the events of 2003 were ancient history.

The Initial Decision of the ALJ dated December 6, 2007, held:

I am convinced by a preponderance of the credible evidence that Jordan does not pose a threat and that his misconduct is remote enough that it will not disserve his status as a role model for his students. For that reason, I CONCLUDE that no sanction should be invoked and the Order to Show Cause should be DISMISSED.

Almost three months later, while deferring to the credibility determinations of the ALJ, the Board rejected the Initial Decision and issued an Order of Revocation dated February 28, 2008, finding:

Jordan has not denied that, at a minimum, he exposed himself in full sight of an unwilling witness. His behavior leaves no doubt that he clearly has engaged in conduct unbecoming a teacher, one of the grounds for revocation or suspension of a teaching certificate. N.J.A.C. 6A:9-17.5. Accordingly, the remaining decision for this Board is one of penalty.

After considering its options, the Board revoked Jordan's teaching certificates (Teacher of Elementary School and Teacher of Elementary School Certificate of Eligibility with Advanced Standing). The Board concluded that its role in the revocation/suspension process need not include an evaluation of whether Jordan had demonstrated indicia of rehabilitation. Without any mention of Dr. Chase's opinions, the Board merely noted, "the fact that Jordan has taught successfully in another district has no bearing on the decision the Board of Examiners must make with regard to his certification."

The Commissioner affirmed the Board on August 13, 2008, in complete reliance upon the expressed rationale of the Board. This appeal followed.

II.

Jordan's primary arguments revolve around his views that 1) the Board and Commissioner failed to properly consider the conclusions of the ALJ who initially discharged the Board's order to show cause, 2) any loss of teaching credentials must be linked to conduct directly related to teaching duties and not to private conduct outside of the classroom, and 3) the sanction of revocation is pre-empted by statute. We find these positions unpersuasive.

Under the deferential standard of review of state agency action, the determination to revoke appellant's teaching credentials is unassailable. A strong presumption of reasonableness attaches to the actions of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed, 459 U.S. 962, 103 S. Ct. 256, 74 L. Ed. 2d 272 (1982); Newark v. Natural Res. Council, Dep't of Envt'l Protection, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). This presumption is even stronger, as here, when the administrative agency is involved with particularized matters that invoke its delegated expertise. Newark, supra, 82 N.J. at 540.

The scope of judicial review of a final agency determination is severely limited. See In re Carter, 191 N.J. 474, 482 (2007); In re Musick, 143 N.J. 206, 216 (1996). Ordinarily, an appellate court will not upset such a quasi-judicial determination absent a clear showing that it was arbitrary, capricious or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also In re Herrmann, 192 N.J. 19, 27-28 (2007).

We may not vacate an agency's decision because of doubts as to its wisdom or because the record may support more than one result. See generally, Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Moreover, we will not substitute our judgment for that of an administrative agency unless the agency's determination is "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The Board's decision is especially entitled to deference because it is invested with gatekeeper responsibilities and has developed vast experience related to who will be allowed to teach children in the classrooms of our public schools. N.J.S.A. 18A:6-38. Its decision, at variance on the same facts with the ALJ's, is simply a difference of opinion concerning the significance of Jordan's wholly inappropriate conduct. In the end, the Board is entitled to make that exquisite value judgment and we must sustain it unless it is found wholly unsupportable.

Although the Board took a somewhat limited view of its role by subordinating Jordan's present circumstances in favor of its focus upon the events of 2003, the record is not so plainly favorable to Jordan that the Board may be declared to have acted arbitrarily, capriciously, or unreasonably. For example, although Dr. Chase opined that Jordan's conduct was "aberrational" and not likely to be repeated, the last counseling session between Jordan and Dr. Chase was several years ago, in the beginning of 2005. Thus, although there was no competent evidence disputing Dr. Chase's testimony concerning his opinions about Jordan, likewise there was no expert evidence concerning Jordan's current life circumstances. The question of present unfitness is not so palpably obvious that clear error in the Board's decision may be discerned. If Jordan's assertion that the events of 2003 were aberrational and he continues a life of rectitude for the foreseeable future, he may be able to successfully invoke the reapplication benefits of N.J.A.C. 6A:9-17.10 and regain teaching credentials.

Jordan's preemption argument turns on his view that N.J.S.A. 18A:6-7.1 and N.J.S.A. 2C:51-2 are the exclusive vehicles for revocation of teaching certificates. Because Jordan's conviction for a petty disorderly persons offense is not subject to either of these statutes, he claims immunity from revocation.

The contrary view is embodied in N.J.S.A. 18A:6-38, which gives the Board the authority to revoke certificates to teach under appropriate regulations, such as N.J.A.C. 6A:9-17.5. The regulation provides for revocation or suspension if there is a finding of "conduct unbecoming a teacher or other just cause."

Our responsibility in interpreting statutes "is to give effect to the legislature's intent." Wildwood Storage Center, Inc. v. Mayor and Council of Wildwood, 260 N.J. Super. 464, 470 (App. Div. 1992). When so engaged, "[w]e must consider 'the language of the statute, the nature of the subject matter, the contextual setting, the policy behind the statute, statutes in pari materia, and concepts of reasonableness.'" Id. at 470-71 (quoting County of Essex v. Waldman, 244 N.J. Super. 647, 656 (App. Div. 1990), certif. denied, 126 N.J. 332 (1991)).

We do not believe that the legislative delegation to the Board regarding oversight of teaching certificates was intended to be constrained solely by reference to criminal conduct and convictions. All of the cited statutes readily may be harmonized and reasonably applied to give the public a high degree of confidence that there will be several layers of protection against allowing unfit persons to teach in the public schools. The Board's oversight is not controlled exclusively by N.J.S.A. 18A:6-7.1's automatic disqualifiers or N.J.S.A. 2C:51-2's forfeiture-upon-conviction provision.

Affirmed.

Technically, Jordan is not asking us to apply the preemption doctrine, which compares the relative authority of different levels of government (e.g., federal versus state; state versus municipal). Instead, Jordan's argument is best understood as one directed towards legislative intent.

(continued)

(continued)

2

A-0155-08T3

2C:33-2. Disorderly conduct
 
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
 
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
 
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

October 5, 2009