IN THE MATTER OF THE TENURE HEARING OF GILBERT YOUNG, JR SCHOOL DISTRICT OF THE BOROUGH OF ROSELLE, UNION COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0309-08T30309-08T3

IN THE MATTER OF THE TENURE

HEARING OF GILBERT YOUNG, JR.,

SCHOOL DISTRICT OF THE BOROUGH

OF ROSELLE, UNION COUNTY.

_________________________________

 

Argued: May 6, 2009 - Decided:

Before Judges Axelrad and Parrillo.

On appeal from the Department of Education, Docket No. 295-10/07.

Louis P. Bucceri argued the cause for appellant Gilbert Young (Bucceri & Pincus, attorneys; Mr. Bucceri, of counsel and on the brief).

John E. Croot argued the cause for respondent Roselle Board of Education (Schwartz Simon Edelstein Celso & Kessler, LLC, attorneys; Mr. Croot, of counsel and on the brief; Ariel S. Peikes, on the brief).

Anne Milgram, Attorney General, attorney for respondent Department of Education (Susan M. Huntley, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Plaintiff Gilbert Young, Jr. appeals from a final determination of the Commissioner of the Department of Education (Commissioner) removing him from his employment as a tenured teacher based on a finding of "conduct unbecoming and other just cause" predicated on allegations of engaging in improper sexual contact with a minor student. The Department of Children and Families, through its Institutional Abuse Investigation Unit (IAIU), had made an independent determination the charges were unfounded. Young argues the IAIU's determination statutorily precluded the school district from bringing the tenure charges, and alternatively argues there was insufficient evidence to support the Commissioner's determination. We affirm.

On October 11, 2007, the school district of the Borough of Roselle (the District) filed charges under the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 to -18.1, against Young seeking to remove him from his employment as a tenured teacher of the district for "unbecoming conduct or other just cause." The two charges were based on the accusations of C.W., a former student of Young's, who claimed that he and Young had engaged in sexual activity on two occasions. The charges were as follows:

Charge I

In or about December 2004 or January 2005, Young drove C.W. home after school on a couple of occasions. On one such trip, Young drove C.W. to Warinanco Park instead of bringing him home. It was dark at the time. Young turned off the motor and kissed C.W., putting his tongue in his mouth. He also caressed and touched his body, including his genitals, over his clothing. After 15 or 20 minutes, Young drove C.W. to a location near C.W.'s house and dropped him off.

The foregoing conduct by Young constitutes conduct unbecoming a teaching staff member and/or other just cause for dismissal.

Charge II

In or about January or February 2005, C.W. was staying at his grandmother's home in Irvington, New Jersey for a weekend visit. Young telephoned at approximately 5:30 a.m. and informed C.W. that he would pick him up in front of the house. Shortly thereafter, Young arrived and C.W. left with him in Young's vehicle. After stopping at a CVS store in Roselle to pick up a prescription for Young's daughter, they proceeded to the daughter's house to drop it off, and then to the Linden Motor Inn.

After checking in, Young parked the car and he and C.W. entered a room at the Inn. Shortly thereafter, Young and C.W. disrobed and started kissing. They eventually engaged in oral and anal sex. Later, Young drove C.W. back to his grandmother's house.

The foregoing conduct by Young constitutes conduct unbecoming a teaching staff member and/or other just cause for dismissal.

Young filed an answer, denying the charges and asserting affirmative defenses. The matter was transmitted to the Office of Administrative Law (OAL), where it was scheduled for a hearing as a contested case. Prior to the hearing, Young filed a motion to dismiss all charges pursuant to N.J.S.A. 18A:6-7a, claiming that the same factual basis investigated by the IAIU, which made a determination those charges were unfounded, precluded the District from bringing tenure charges predicated upon the same allegations. The administrative law judge (ALJ) reserved decision on the motion until after the hearing, at which time it was denied.

Prior to the hearing, at the request of both parties, the ALJ ordered the release of records from the IAIU concerning its investigation of Young, as well as for a protective order. The ALJ also ordered the production of C.W.'s student records. Hearings were conducted on February 20, 21 and March 7, 2008. The ALJ issued a twenty-page initial decision on May 27, 2008, sustaining the tenure charges brought by the District. On August 18, 2008, the Commissioner adopted the initial decision, dismissing Young from his employment as a tenured teacher and referring the matter to the State Board of Examiners for further action relating to Young's teaching certification. This appeal ensued.

On appeal, Young argues: (1) N.J.S.A. 18A:6-7a requires the dismissal of the tenure charges by operation of law; (2) the Commissioner's decision was not based upon substantial credible evidence in the record and must be reversed; and (3) on multiple instances the ALJ and Commissioner shifted the burden of proof from the Board to Young, effectively imposing a requirement that he prove himself innocent by a preponderance of the evidence. Based on our review of the record and applicable law, we are not persuaded by any of these arguments. We affirm substantially for the reasons articulated by the agency.

Young testified that he met C.W. in 2002 when the thirteen year old transferred mid-year as a seventh grader to the school in which he was teaching and was assigned to his math class. Young referred C.W. to the Pupil Assistance Committee (PAC), comprised of staff members, to discuss improvement strategies for C.W.'s academic and behavioral problems. After C.W. informed Young he was a homosexual and was currently communicating with a sixteen-year-old male online and his parents were aware of his sexual orientation, Young suggested C.W. provide this information to the PAC, which he did. At a subsequent PAC meeting involving C.W., with C.W.'s parents in attendance, Young volunteered to enroll C.W. in his after-school group tutoring program. Young tutored C.W. until the end of the school year. C.W. then entered eighth grade at a high school two blocks away and continued to be tutored by Young after school on a daily basis. Whether at the request of C.W.'s mother, as Young claimed, or from C.W. himself, as the boy claimed, Young drove C.W. home from tutoring.

Tutoring sessions continued into the 2004-2005 academic year when C.W. was in tenth grade. According to Young, during the fall of 2004, C.W. participated in group tutoring sessions about two to three times a week. On October 22, 2004, Young received a note from C.W. stating, "I love you daddy" with X's and O's written on it. Young had never received a note similar to this, but after conferring with a colleague, he decided not to report the note to the administrators or C.W.'s parents. Instead, he informed C.W. the note was inappropriate and told him not to give him any more notes like that. Nevertheless, on November 5, 2004, C.W. wrote Young another note, this time thanking him for giving him rides home and stating, "I still love you." Young acknowledged he did not notify administrators this time either, although he reiterated to C.W. not to write any more notes.

Young explained that he would give students his cell phone number if requested to call him to access the building for tutoring sessions. He denied, however, he gave C.W. his phone number and claimed C.W. obtained it when Young left his phone on his desk and exited the room to make copies of papers. Young commented that he would have provided C.W. his phone number but resented the underhanded way that C.W. obtained it. Young further testified that during the fall of 2004, C.W. called and told him he was just getting out of the shower and was only wearing a towel. Around that time, C.W. also sent him two or three text messages inquiring about his well-being. Young did not report the phone call or text messages. Young related that after November 2004, C.W. stopped attending tutoring sessions, and Young asserted he never drove C.W. in his car after that time.

According to C.W.'s testimony, it was during one of these rides home in the fall of 2004 that Young drove to Warinanco Park, turned off the car's engine and rubbed C.W.'s genitals through his pants. Young then turned C.W.'s face towards him and kissed C.W. As indicated above, these facts formed the basis of Charge I, which Young denied ever occurred.

The salient facts comprising Charge II are also disputed. In the early morning hours of New Year's Day 2005, Young testified his daughter NaTia called him at church and asked him to pick up a prescription at CVS for his sick grandchildren. He left church at 1:00 a.m., went home to Roselle and made a few calls then arrived at CVS around 2:00 a.m. Young testified that upon arriving, he received a call from C.W. who asked for a ride to his grandmother's house in Irvington. Young refused, telling C.W. he was at CVS picking up a prescription for his grandchildren. Young then got the prescription and went home. His sons came back home from another church and he went to bed around 3:30 a.m.

Young testified he awoke at around 6:15 a.m. to a phone call from NaTia claiming she had been punched in the face by one of his nephews, R.C., when she tried to stop him and his brother from fighting with each other. Young thus went to NaTia's apartment in Linden around 6:45 a.m. When he arrived at the building, the police were there, having been notified at 6:19 a.m., as reflected in the investigation report. Young testified that even though R.C. had already left, his daughter was upset and he persuaded her to let him take her to a hotel room to calm down and avoid any return of R.C. After giving his three grandchilden, ages one, three and seven, to NaTia's neighbor and best friend, LaTynia Wyse, to watch for a few hours, Young took his daughter to the Linden Motor Inn, which was less than a mile away.

Young testified that as they arrived at the motel, he received a call from C.W. at 7:06 a.m. asking for another ride. He refused, telling C.W., "[l]ook boy, I am at the Linden Motor Inn in a crisis with my daughter[;] I don't have time for this," and hung up the phone. Young then registered for Room 106 and paid for a "short stay," which was two hours, and left his daughter alone at the motel. He then picked up his grandchildren from Wyse's and brought them to his house. Young left the children with his sister and niece who also live there, and picked up NaTia from the motel around 9:00 a.m. and took her back to his house.

On cross-examination Young explained that even though he was aware that R.C. had inadvertently punched NaTia while he was fighting with his brother and she was not bruised or otherwise injured, he was still concerned for his daughter's safety from R.C. Because Young lived ten blocks from his daughter, he did not immediately perceive his own home as safe, particularly as R.C. often slept there in a bed in the attic, although R.C. had no key to the house and could not get in unless one of the occupants opened the door for him. Young's telephone records showed that he neither received nor made any calls between 7:06 a.m. and 8:59 a.m., and his explanation for not calling his daughter at the motel during that period to check on her was that "she needed her time."

NaTia corroborated Young's story about the prescription, his coming over, dropping her children off at Wyse's, going to the motel, and Young's receiving a phone call en route. She denied, however, that she was able to reach Young by phone that morning and testified she left the message about the altercation and her father just showed up. Young's phone records admit of one incoming call at 6:17 a.m. that lasted for one minute. NaTia also acknowledged that R.C. clearly was not trying to hit her but that she got hit while trying to break up the fight and that she suffered no injuries.

Wyse, who had known NaTia and Young for eleven years and called Young "daddy," also testified on Young's behalf. She stated that in the early morning of January 1, 2005, "like in the middle of the night," the children were dropped off by NaTia, who was crying. She did not ask NaTia any questions and did not know why the children were left with her. Young then picked up the children "early in the morning" when "the sun probably was getting ready to come up."

In contrast, C.W. testified that Young had responded positively to the 2:00 a.m. call at CVS but that C.W. had not asked for a ride since he was actually already at his grandmother's house in Irvington. During the call, Young told C.W. that he had just come from church and he would either call C.W. or C.W. should call him. Young then called C.W. at 5:00 a.m. or 6:00 a.m. and told C.W. he was waiting for him outside his grandmother's house. Then Young and C.W. drove to CVS in Roselle, picked up a prescription for Young's daughter through the drive-thru window, drove to Young's house where he went inside for about five minutes, and from there went to Young's daughter's apartment. C.W. provided a description of the location of both Young and his daughter's residences.

According to C.W., Young was at his daughter's apartment for five minutes while C.W. remained in the car, after which time Young drove to the Linden Motor Inn and checked into a room on the first floor. While there, Young performed oral and anal sex on C.W., which C.W. claims he initially resisted but after C.W. would not let go, he did not resist further. C.W. then informed Young that he wanted to go home, after which Young got dressed and returned C.W. to his grandmother's house in Irvington. C.W. had no further contact with Young except for one time when Young was visiting the high school.

On February 15, 2007, after C.W. conveyed the accusation involving Young to a school nurse and vice principal, police officers came to the school that afternoon, conducted an interview with C.W. and took a handwritten statement. The accusation related to events occurring during the 2004-2005 school year, although at the time of the investigation, C.W. stated to the police that the timeframe of the alleged abuse was in later January or February 2005.

Because C.W. could not remember the name of the hotel, on February 21, 2007, the officers made a surprise visit to C.W.'s high school and asked him to direct them to the hotel where the alleged incident took place. He directed them to the Linden Motor Inn, where he pointed to a room on the first floor. The police then procured a receipt signed by Young for Room 106 from 7:10 to 9:10 a.m., on January 1, 2005. The matter was referred to the prosecutor's office, who declined to prosecute because at the time C.W. had been sixteen years old, the age of consent, and Young was not currently his teacher. See N.J.S.A. 2C:14-2c(3)(b).

The IAIU conducted its own investigation, interviewing, among other witnesses, C.W., his mother and Young. On May 9, 2007, it issued a report finding C.W.'s allegations to be unfounded, stating as follows:

Sexual Abuse/Sexual Penetration was unfounded regarding the actions of the Teacher Gilbert Young, in accordance with N.J.S.A. 9:6-8.21. [C.W.] sustained no injuries as a result of this incident. Although [C.W.] reported that he and Mr. Young engaged in sexual genital contact on one occasion, there was not enough information gathered to corroborate the allegations. The actions of Gilbert Young placed [C.W.] at no risk of harm and were not to the degree required by statu[t]e to find sexual abuse.

The Board proceeded with its own investigation and filed these charges.

As a preliminary matter, the ALJ found that N.J.S.A. 18A:6-7a did not preclude the District from bringing tenure charges for unbecoming conduct and other just cause. Rather, that statute only precluded charges for termination on the basis of "child abuse or neglect." Moreover, the District did not rely on the IAIU investigation at its hearing but "produced its own witnesses and documents in support of its charges, focusing on the conduct of [Young], which had a tendency to destroy public respect and confidence."

The ALJ also made credibility assessments, finding the testimony of C.W. to be "credible and compelling" as he "was clear and straightforward in recounting the events involved [and] had nothing to gain by his testimony and no evidence of ill will or ill motive was presented." The ALJ also found the investigating detective to be "compelling and credible." In contrast, the ALJ considered Young "lacking in credibility" for the following reasons:

His accounts of disclosing his trips to C.W., one to the CVS pharmacy and the other to the Linden Motor Inn, were totally incredulous. His daughter's testimony was similarly not believable in light of the several inconsistencies between her testimony and his. Both claimed it was his or her own idea for her to go to a motel, they were at odds about when she was to be picked up at the motel, and she could not recall the exterior of the motel, when, according to her, the events leading her to the motel were traumatic. Equally incredulous was that respondent, who only lived a short distance from his daughter's apartment, took his daughter to a motel rather than to his house, because of "concerns" about his nephew, R.C., who had accidentally hit his daughter and who had no key or other access to respondent's home.

Of compelling importance was the lack of testimony from the police officer who was present at NaTia Young's apartment during the early-morning hours of January 1, 2005. NaTia Young claimed that he had arrived at the same time as respondent. Respondent also claimed that while he was there, he spoke with the officer. Yet that officer never testified to corroborate respondent's presence at the apartment, nor was anything mentioned in his police report about respondent's presence.

The ALJ concluded that the District met its burden on the charges of conduct unbecoming and other just cause, and although Young was not prosecuted criminally, nor were the allegations of sexual abuse/sexual penetration substantiated by the IAIU, Young's "actions were violative of the trust placed in him as a teacher. His conduct, both in the park and at the motel, was not the 'high degree of exemplary behavior' expected of him." (internal citation omitted). Accordingly, the ALJ recommended that Young be removed from his teaching position.

The Commissioner adopted the ALJ's initial decision, sustaining the tenure charges and terminating Young's employment. The Commissioner responded in detail and rejected Young's exceptions challenging the ALJ's credibility determinations as arbitrary, capricious and not based on substantial evidence, and asserting the District consequently did not carry its burden to prove the charges. As to the first charge, the Commissioner did not find it contrary to court procedure or fatal to C.W.'s credibility and the Board's case that the providing to C.W. of copies of his dated notes to Young caused him to change his testimony about when the incidents occurred, and could not find fault with the ALJ's determination that for C.W.'s story to be "off" by two months was insignificant. The Commissioner also determined, along with the ALJ, that the lack of testimony by C.W's parents about the purpose of the tutoring sessions and giving consent to Young to drive their son home was immaterial to a resolution of whether C.W. "was taken advantage of as a result of the after-school visits and rides home."

As to the second charge, the Commissioner was not convinced that C.W.'s failure to pinpoint the exact date of the motel incident until after he was shown the receipt adversely impacted on his credibility in the context of the entire testimony. The Commissioner rejected Young's claims that the absence of C.W.'s phone number on the bills identifying outgoing calls contradicted C.W.'s testimony that Young called him on New Year's Day morning. The Commissioner also addressed Young's allegations about potential inconsistencies in C.W.'s testimony, and Young's explanation that his telephone conversations with C.W. telling him that he was at CVS and the Linden Motor Inn explained why C.W. knew about Young's whereabouts and the name of the motel. Finally, the Commissioner rejected Young's statutory preclusion challenge, noting that no action was taken against him as a result of the IAIU investigation and the tenure action was based on facts generated by an independent police investigation more thorough than the IAIU investigation and information collected by the Board in anticipation of tenure charges.

Young essentially raises the same arguments on appeal that were addressed and rejected by the ALJ and Commissioner. It is well settled that we have a limited scope of review of administrative decisions and ordinarily will not reverse such determinations unless they are arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. Dennery v. Bd. of Educ. of the Passaic County Regional High Sch. Dist., 131 N.J. 626, 641 (1993); Dore v. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982).

In the field of education, "[c]ourts will be vigilant to assure the proper application of the school laws and to forestall capricious or arbitrary administrative action. However, the courts cannot supplant educators; they are not at liberty to interfere with regulatory and administrative judgments of the professionals in the field of public education unless those judgments are palpably arbitrary or depart from governing law." Dennery, supra, 131 N.J. at 643. Furthermore, we generally defer to the interpretation and application of a statute by an agency charged with administering it, provided it has done so reasonably, Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443, 448 (App. Div. 2001), aff'd, 175 N.J. 54 (2002), and further defer to the ability of the factfinder to make credibility determinations, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

The Commissioner has jurisdiction to hear and determine all controversies and disputes arising under the school laws or under the rules of the State Board, which includes the interpretation and application of N.J.S.A. 18A:6-10, N.J.S.A. 18A:6-7a and N.J.S.A. 18A:28-5 to the tenure charges at issue. See N.J.S.A. 18A:6-9.

The Commissioner properly determined that N.J.S.A. 18A:6-7a did not preclude the filing of tenure charges in this matter. This statute provides, in pertinent part:

When a complaint made against a school employee alleging child abuse or neglect is investigated by the Department of Children and Families, the Department shall notify the school district and the employee of its findings. Upon receipt of a finding by the department that such a complaint is unfounded, the school district shall remove any references to the complaint and investigation by the department from the employee's personnel records. A complaint made against a school employee that has been classified as unfounded by the department shall not be used against the employee for any purpose relating to employment, including but not limited to, discipline . . . termination of employment or any right or privilege relating to employment.

After investigating a complaint made a against a school employee alleging child abuse or neglect, the IAIU must classify allegations as either "unfounded" or "substantiated." In re A.I., 393 N.J. Super. 114, 128 (App. Div. 2007). The IAIU is also authorized to make recommendations to a district for action when it uncovers behavior that falls short of child abuse but is nonetheless undesirable. Ibid. A district, then, has the authority to exercise its own independent judgment in deciding what action, if any, to take. See In re L.R., 321 N.J. Super. 444, 453-54 (App. Div. 1999). If a district decides to take action, the IAIU's findings may not by themselves provide a basis for the action. A.I., supra, 393 N.J. Super. at 130.

Thus, a finding by the IAIU of "unfounded," as here, simply means that no child abuse existed. See A.I., supra, 393 N.J. Super. at 124 n.3; N.J.A.C. 10:129-1.3. As noted by the Commissioner, no reference to the IAIU investigation was placed in Young's file in compliance with N.J.S.A. 18A:6-7a. We are not persuaded the plain language or spirit of the statute supports the interpretation urged by Young, i.e., that once the IAIU finds a complaint of child abuse/neglect against the teacher to be unfounded, the teacher is statutorily immune from being removed by a school district on the basis of the facts underlying the complaint. If we were to accept Young's argument, a school district's right of remediation irrespective of IAIU findings, which is a right identified by case law, would be severely limited. Such interpretation would be contrary to precedent establishing that IAIU findings do not generally encumber a district from taking remedial action. See L.R., supra, 321 N.J. Super. at 457 (a "district has the sole authority to determine whether to initiate disciplinary proceedings or take other personnel action which may affect a teacher's employment rights"); A.I., supra, 393 N.J. Super. at 130 (if a district decides to take action against a teacher, "it must accord all the due process and contract rights that must be honored before formal action may be taken, and the IAIU's findings may not by themselves provide a basis for the action"). The reason for this is that IAIU findings are purely investigatory in nature and are not adjudicatory, thus not subject to the due process requirements that govern the proceedings of an agency. L.R., supra, 321 N.J. Super. at 457-58. Moreover, while the IAIU investigated Young for his alleged commission of child abuse or neglect under Title 9 of the New Jersey Statutes, the District's tenure charges were brought pursuant to N.J.S.A. 18A:28-5 and N.J.S.A. 18A:6-10 to -18.1. Accordingly, there is nothing in the law that precludes the school district from conducting its own independent investigation and based thereon from pursuing charges for conduct unbecoming a teacher and/or other just cause for dismissal under its own statutory scheme and pursuant to its own jurisdiction. See Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998) (defining unbecoming conduct as that "which has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services"); In re Grossman, 127 N.J. Super. 13, 29 (App. Div.) (a teacher found to have committed unbecoming conduct may be found unfit to discharge the duties and functions of the office or position), certif. denied, 65 N.J. 292 (1974).

Moreover, the Commissioner correctly noted that the IAIU investigator, at the time of reaching her conclusions, did not have access to all of the evidence obtained by police and the district. For example, the investigator did not have the hotel receipt or any knowledge or copies of the affectionate notes C.W. gave to Young in the fall of 2004. Nor did she obtain a copy of the full statement C.W. gave to the police department or Young's cell phone records.

On the merits, Young challenges the agency's credibility assessments and findings, contending the agency ignored the significance of certain facts and gave improper weight to others. Young asserts that all of the evidence produced supported his credibility and discredited C.W.'s, which finding to the contrary was clearly mistaken and thus the Board was unable to sustain its burden of proof as to either charge. Young focuses, in particular, on Wyse's testimony, which he asserts confirms he was not with C.W. in the motel at the time the Board alleges they were together, asking us to take judicial notice of the U.S. Naval Observatory record that sunrise on January 1, 2005 in Linden was 7:21 a.m. Young asserts as a deficiency the ALJ's failure to expressly address why he disregarded this critical testimony in favor of the uncorroborated testimony of one person, C.W.

Young further reiterates his arguments regarding the cell phone records. He also contends the ALJ's drawing of a negative inference from the fact that Young did not call the Linden Police Officer who was at NaTia's apartment to substantiate Young's presence there, particularly in light of the lack of such reference in the investigation report, was unjustifiable reversible error because it erroneously placed the burden of proof on Young.

 
We find Young's arguments unpersuasive. As the Commissioner found, the ALJ had the "opportunity to observe C.W. and [Young] at the OAL hearing. He was able to make determinations about the viability of each witness's testimony and about both the overall internal consistency of witness testimony, and its consistency with all of the evidence presented at the hearing." It is clear that among other items, the factfinder was satisfied that C.W. knew too much about the events in the early morning hours of January 1, 2005 for him not to have been there. It is not ordinarily our function to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence, and to resolve conflicts therein. Grossman, supra, 127 N.J. Super. at 23. We are satisfied there was substantial credible evidence in the record as a whole to support the agency's findings and discern no improper shifting of the burden of proof or other legal error that would justify disturbing the agency's determination.

Affirmed.

C.W.'s counsel represented at the OAL hearing that after the IAIU report was issued, he sent these records to the investigator and requested the investigation be reopened. After the IAIU took no action, the Board proceeded with the tenure charges.

(continued)

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A-0309-08T3

 

June 25, 2009