IN THE MATTER OF THE TENURE HEARING OF ARDEENA LONG, STATE OPERATED SCHOOL DISTRICT OF THE CITY OF PATERSON, PASSAIC COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4560-07T24560-07T2

IN THE MATTER OF THE TENURE

HEARING OF ARDEENA LONG, STATE-

OPERATED SCHOOL DISTRICT OF THE

CITY OF PATERSON, PASSAIC COUNTY.

__________________________________

 

Submitted: September 16, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the State Board of Education No. 47-06.

Schenck, Price, Smith & King, LLP, attorneys for appellant State-Operated School District of the City of Paterson (Joanne L. Butler, of counsel and on the brief; Leslie A. Saint, on the brief).

Oxfeld Cohen, PC, attorneys for respondent Ardeena Long (Nancy I. Oxfeld, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent Commissioner of Education (Bryant Lawrence Horsley, Jr., Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The State-Operated School District of the City of Paterson (School District) appeals from a final decision of the State Board of Education (the State Board) affirming the findings of misconduct of Ardeena Long, a teacher in the School District, and imposing a six-month suspension, loss of pay, and loss of increments for two years rather than removal as determined by the Commissioner of Education (Commissioner). The School District argues that the State Board decision is inconsistent with the findings of fact and public policy. We affirm.

Long commenced her employment with the School District in the 1980-81 school year as an English teacher. During the 1985-86 school year, while assigned to East Side High School, she was suspended for five days. At the conclusion of that school year, she was transferred to another school and no other disciplinary proceedings were filed until the charges filed in January 2006 for incidents that occurred at the beginning of the 2004-05 school year.

In the 2000-01 school year, Long was assigned to a special alternative high school operated by the School District. Several incidents occurred between September 8, 2004, and October 5, 2004, that led the School District to file charges and to seek to remove Long, a tenured teacher, from her teaching position. The January 19, 2006 Statement of Charges alleged insubordination, leaving her class unattended, conduct unbecoming a teacher, dishonesty, theft of district property, conduct of personal business during instructional time, improper entry into supervisor's personal portfolio, improper taking of supervisor's personal material, possession of stolen items, dishonesty during the investigation, and unwillingness to cooperate in the investigation. The matter was transferred to the Office of Administrative Law as a contested case and, following a five-day hearing, an Administrative Law Judge (ALJ) rendered an Initial Decision in which she sustained seven of the fifteen charges and part of two other charges.

The ALJ prefaced her analysis of the evidence and the governing law with the following observation:

It is clear that the relationship between Ms. Long and Mr. Moody [the principal of the special alternative high school to which Long was assigned] deteriorated rapidly in September 2004. It can be gleaned from the testimony that, prior to the 2004-2005 school year, the parties maintained a strained, but working, relationship. However, this bubbled over immediately at the start of the 2004-2005 school year. It was apparent from the testimony that the two main characters in this case, Ms. Long and Mr. Moody, had entirely different philosophies and orientations. Ms. Long was from the "old school," rigid in her approach and set on "going by the book." Mr. Moody was more experimental and did not necessarily know all the rules and regulations that govern school administration. Neither party behaved admirably in dealing with the other; the situation soon deteriorated into a storm of memos filled with recriminations. It is in this context that the charges against Ms. Long must be judged.

The ALJ proceeded to find that Long entered her principal's file cabinet, removed, copied and replaced material about her in a personnel file, but when confronted, denied that she had done so. Therefore, the ALJ sustained the charge of dishonesty in Charge 4.

The ALJ also found that Long was responsible for the removal of the sign-out book and sustained the charge of theft in Charge 6. The ALJ found that Long did not leave her classroom unattended in order to make personal photocopies but did at some time during the school day make personal photocopies. Therefore, the ALJ partially sustained Charge 7. The ALJ also found that Long conducted personal business on her computer during instructional time (Charge 8) and that Long improperly opened her supervisor's personal portfolio, and removed her supervisor's notes of her observation of Long's performance in the classroom (Charges 9 through 12).

The ALJ found that Long did not commit an act of insubordination by objecting to another preparation that was not required under her contract (Charge 1), that Long did not leave students unattended because no students were in the room (Charge 2), that Long did not permanently remove any item from her personnel file (Charge 3), and that Long had a right to have a union representative present at a meeting requested by Moody and her emotional state precluded completion of a report requested by Moody (Charge 5). The ALJ also found that the School District failed to submit sufficient evidence to support its charge that Long committed an act of insubordination that was an act of unbecoming conduct by failing to cooperate in an investigation of the charges against her (Charge 13). Finally, the ALJ found that Long could not be considered insubordinate when she refused to meet with a union representative because she had a right to refuse to participate in the grievance process (Charge 14).

In fashioning a penalty, the ALJ noted that the two theft charges involved the theft of the sign-out book and a supervisor's notes and pre-observation report. The ALJ also recognized that Long lied when she denied entering Moody's file cabinet and denied making copies of personal material. In addition, the ALJ questioned the credibility of Long's version of her interaction with the supervisor sent to her classroom to conduct regular observations of her teaching performance. The ALJ concluded that Long has difficulty taking instruction and direction from superiors whose experience and authority she questions. Nevertheless, the acts were limited to her interaction with other professionals in the school and did not involve or have a negative impact on the students assigned to her classroom. Furthermore, the only discipline imposed in her long career had occurred in 1985. While her dishonesty represented by one act of theft and several instances of lack of candor within a relatively short period of time were serious, the ALJ recommended a six-month suspension without pay.

The Commissioner accepted the findings of fact but disagreed with the recommended penalty. Stating that the ALJ "inexplicably concludes that these charges do not rise to the level so as to warrant the loss of her tenured position," the Commissioner noted that the School District had proven multiple charges of unbecoming conduct that amply demonstrated her unfitness to discharge her duties as a teacher. The Commissioner observed that the import of even a single act of theft should not turn on the value of the stolen item. Characterizing Long's dishonesty as flagrant and not ascribable to a momentary lapse or an impulsive indiscretion, the Commissioner concluded that Long "is either incapable of recognizing truth or she recognizes it but has absolutely no hesitation to lie repeatedly in order to avoid the consequences of her actions." Such conduct warrants removal rather then a lengthy suspension.

On appeal, the State Board also accepted the findings of fact but disagreed with the Commissioner's penalty determination. It agreed with the ALJ's assessment of the nature of the sustained charges and the positive reviews garnered by Long over the course of her lengthy career and concluded that removal from her tenured employment was "an unduly harsh penalty" under the circumstances of the case.

Our review of the decision of the State Board is limited. Its determination should not 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." Dore v. Bd. of Educ. of Bedminster, 185 N.J. Super. 447, 453 (App. Div. 1982). Here, the State Board occupied the position of "ultimate administrative decision maker in school matters." In re Tenure Hearing of Tyler, 236 N.J. Super. 478, 485 (App. Div. 1989), certif. denied, 121 N.J. 615 (1990). Its primary responsibility as the "final arbiter in school law controversies is to assure that its decision is supported by a preponderance of the credible evidence and is consistent with public policy and the pertinent principles of law." Ibid.

We reject the contention of the School District that the review of the record by the State Board is entitled to less deference because the Legislature streamlined the process of adjudicating school law controversies shortly after it rendered its decision. At the time it rendered its decision, the State Board was the final arbiter of school law controversies. The deference due to its decisions is not diluted in any fashion by subsequent legislative adjustments to the process.

In this appeal, we need not determine whether the facts found by the State Board are supported by the evidence. The issue is one of penalty, which requires consideration of the nature and context of the facts as found. This evaluation is uniquely within the expertise of the State Board as the final arbiter of school law controversies. Indeed, the Supreme Court has emphasized that the decision of an agency that implicates the "expertise and specialized knowledge" of its specialized field is entitled to deference. In re License Issued to Zahl, 186 N.J. 341, 353 (2006). See also Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001). Moreover, when the issue on appeal involves the penalty imposed by the agency, an appellate court will modify the sanction

only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency. It can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority.

[In re Zahl, supra, 186 N.J. at 354 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).]

The test of the suitability of a penalty has also been phrased in terms of whether the penalty is disproportionate to the offense. Ibid.

Applying this standard to the facts of this case, we discern no basis to hold that the State Board exceeded or misapplied its power as the final arbiter of school law controversies. The difference of opinion among the ALJ, the Commissioner, and the State Board readily suggests that the appropriate penalty was subject to debate. Of greater significance is the vast experience of the State Board in these matters and its opportunity to consider not only the facts of the various charges but also the entire course of Long's career. Her conduct was not commendable and the School District had every expectation that Long would have resolved any annoyance, grievance, or frustration in a professional and non-disruptive manner. Nevertheless, we cannot hold that the penalty is disproportionate to the sustained charges. We, therefore, affirm the April 21, 2008 State Board decision.

Affirmed.

 

Shortly after the State Board rendered its decision in this case, the process for determination and review of controversies and disputes within the jurisdiction of the Department of Education was streamlined. L. 2008, c. 36, codified at N.J.S.A. 18A:6-9.1, provides that on and after July 7, 2008, decisions by the Commissioner in all controversies and disputes arising under the school laws shall be considered final agency actions. Appeals from a final decision of the Commissioner no longer proceed to the State Board.

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A-4560-07T2

October 8, 2009