JENNIFER DERICKS v. MICHAEL SCHIAVONI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0538-09T1

JENNIFER DERICKS, MAUREEN

SHARPE, DARYL SAVAGE, SHIRLEY

BOUSHELL, ARMEN KOOCHAGIAN

and RONALD BASSANI,

Complainants,

v.

MICHAEL SCHIAVONI,

Respondent-Appellant,

and

LINDA CURCIO, PAUL JOHNSON,

MICHAEL SCHILL, KAREN SCOTT,

RICHARD SULLIVAN, and SPARTA BOARD OF

EDUCATION, SUSSEX COUNTY,

Respondents.

__________________________________

June 1, 2011

Submitted January 31, 2011 - Decided

Before Judges Reisner and Sabatino.

On appeal from the Commissioner of Education, Docket No. 4-5/09A.

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for appellant Michael Schiavoni (Howard Mankoff and Victoria A. Cabalar, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Commissioner of Education (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Huntley, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Michael Schiavoni, a member of a local Board of Education, seeks review of a final administrative decision of the Commissioner of Education dated September 15, 2009 and the Acting Commissioner's subsequent denial of appellant's motion for reconsideration. The Commissioner determined that appellant had violated certain provisions within the School Ethics Act, specifically N.J.S.A. 18A:12-24.1(c) and (d), by unduly interfering with the school district's hiring process in selecting new principals for an elementary school within the district and the district's high school. The Commissioner censured appellant based on these proven violations.

Applying the deferential standard of review that we must accord to such administrative agency decisions within an agency's field of expertise, we affirm the Commissioner's determination and the denial of reconsideration.

I.

The following pertinent facts and circumstances emerged from the administrative record.

At all times relevant to this matter, appellant was the president of the Sparta Board of Education ("the School Board"). As noted, the present case stems from appellant's personal involvement in various aspects of the school district's hiring of a principal for the Helen Morgan Elementary School ("the elementary school") and the separate hiring of a principal for the Sparta High School ("the high school").

According to the evidence adduced at hearings before the School Ethics Commission ("the Ethics Commission"), the operative events began in 2006, when appellant personally prepared "a series of staffing document packets to be used in the hiring process for administrative staff positions. The staffing packets consisted of several documents including rating forms, interview forms, rating sheets, an assessment interview guide, an administrative recruiting guide, selection criteria, a list of interview questions, a general recruiting guide and a 'white paper' entitled 'Predicting Future Performance Based on Past Behavior.'" The packets grew out of a staffing process for filling vacant administrative positions that the School Board had approved at its July 17, 2006 meeting.

In April 2007, the principal of the elementary school submitted her letter of resignation to the School Board. The School Board accepted the principal's resignation at its April 25, 2007 meeting. The resignation was effective June 30, 2007, thereby creating the need to find a replacement principal for the upcoming 2007-08 school year. According to the Commission's findings, appellant would not allow the Superintendent of Schools to post the vacancy for nearly six weeks, until he personally developed a detailed process and various forms.

On May 15, 2007, the staffing team charged with identifying candidates for the elementary school principal vacancy had its first meeting. Appellant was a member of that staffing team. The position was advertised in the newspaper, and a deadline of June 1, 2007 established for the submission of applications.

Numerous resumes were received by the school district for the elementary school vacancy. Appellant, along with another member of the School Board on the staffing team, temporarily removed the resumes as the record describes it, "out of the district" in order to review them personally. This removal of the resumes was alleged to be an irregular action that impeded the district's hiring processes.

According to the allegations against appellant, which both the Ethics Commission and the Commissioner ultimately credited, appellant's interference into the selection process unduly delayed the selection of a new elementary school principal. When the new principal was finally hired, on the brink of the new school year, she was only able to be in the position for three days before the school year began in September 2007. Similarly, the record reflects that appellant also interjected himself into the selection of a new high school principal to replace the outgoing incumbent, who resigned on June 11, 2007.

In November 2007, complainants Jennifer Dericks, Maureen Sharpe, Daryl Savage, Shirley Boushell, Armen Koochagian, and Ronald Bassani (collectively, "complainants") filed a complaint with the Ethics Commission against appellant and several other members of the Sparta Board of Education (collectively, "respondents").1 The five-count administrative complaint alleged that respondents had violated the Code of Ethics for School Board Members, N.J.S.A. 18A:12-24.1. The complaint was consolidated with another complaint raising similar allegations.

After a hearing before the Ethics Commission on January 27, 2009, the parties agreed to dismiss counts four and five, as well as one allegation in count three. Respondents then moved to dismiss counts one, two, and three of the complaint. The parties submitted briefs on respondents' motion to dismiss, and on March 24, 2009, the Ethics Commission granted respondents' motion as to counts one and three of the complaint, and denied respondents' motion as to count two.

After hearing the proofs on the remaining counts, the Ethics Commission issued a decision on April 28, 2009. In that decision, the Ethics Commission concluded that appellant had violated N.J.S.A. 18A:12-24.1(c) and (d), and recommended a penalty of censure.

Appellant sought review of the Ethics Commission's determination with the Commissioner. On September 15, 2009, the Commissioner affirmed the decision of the Ethics Commission, concurring that appellant had indeed violated the School Ethics Act. The Commissioner also adopted the Ethics Commission's recommendation that a penalty of censure be imposed upon appellant.

In the course of her final agency decision, the Commissioner observed that the record provided "ample evidence" that, appellant, "as a Board member went well beyond [permissible] policy making and appraisal and instead acted to administer the schools by his direct and extensive involvement in functions and responsibilities properly within the purview of the school administration." The Commissioner found nothing arbitrary, capricious, or contrary to law in the Ethics Commission's decision. In addition, the Commissioner rejected appellant's contention that the recommended penalty of censure was too severe. The Commissioner noted that, "however worthy his intentions may have been," appellant's conduct in interfering with the personnel decisions "evince far more than a 'good faith disagreement' about the extent to which a [school] board member may become involved in the hiring process for staff." Rather, the Commissioner regarded appellant's actions as "tantamount to a willful, full-scale usurpation of the role and responsibilities of the district administration." Moreover, the Commissioner rejected appellant's argument that he should be exonerated from any violations because the filing of the administrative complaint may have been prompted by "community politics," as that possible motivation did not "alter the fact that a violation occurred." The Commissioner was also unswayed by the fact that appellant derived no personal benefit from his acts of undue interference.

Appellant contends that the Commissioner's decision should be set aside because: (1) he was never given proper notice of the charges against him; (2) that the decision was arbitrary, capricious, and contrary to law; and (3) his motion for reconsideration, in which he tendered additional exhibits to the Commissioner, should have been granted.

II.

The Ethics Commission is responsible for resolving complaints alleging unethical conduct of members of a local school board. N.J.S.A. 18A:12-29. Pursuant to the School Ethics Act, if a complaint has been filed against a member of a local school board, the Ethics Commission: "[s]hall determine whether the conduct complained of constitutes a violation of. .. th[e] Act or the code of ethics, or whether the complaint should be dismissed." N.J.S.A. 18A:12-29(c). The Ethics Commission's decision shall be in writing and shall state its findings of fact and conclusions of law. Ibid.

A member of the local school board against whom a complaint has been filed must be given adequate notice of the administrative proceedings before the Ethics Commission so that he or she can prepare and respond to the allegations. H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (citing McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). Adequate preparation contemplates that the notice "reasonably apprise the party of the charges[.]" Nicoletta v. N. Jersey District Water Supply Comm'n, 77 N.J. 145, 162 (1978) (quoting Dep't of Law & Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971)). In addition, adequate preparation cannot be completed "where the issues litigated at the hearing differ substantially from those outlined in the notice." Ibid.

As charged in their complaint, complainants alleged that appellant had violated N.J.S.A. 18A:12-24.1(c) and (d).2 These statutes provide that school board members will: "confine [their] action to policy making, planning, and appraisal, and [they] will help to frame policies and plans only after the board has consulted those who will be affected by them[,]" N.J.S.A. 18A:12-24.1c, and that "[they] will carry out [their] responsibility, not to administer schools, but together with [their] fellow board members, to see that they are well run[,]" Id. at -24.1d. Complainants alleged that appellant violated the Act by interfering with the hiring process of the Helen Morgan School principal. Complainants contended that appellant's interference resulted in a six-week delay in the hiring process.

Appellant maintains that, in finding that he violated the Act, "[t]he Ethics Commission improperly amended the complaint to include charges outside the scope of the allegations [in the complaint]." He contends that "he was unable to properly prepare a defense in this matter because he was never made aware of the allegations against him." He further argues that he did not have adequate notice and an opportunity to prepare since count two did not itemize that the factual allegations "of taking home resumes, preparing staffing documents, and [involving himself] in the interviewing process were violations of the School Ethics Act." Although appellant failed to raise that particular objection at the hearing, he now contends on appeal that "[the] issues that were litigated are substantially different from the issues that were outlined in the Second Count of [the c]omplaint."

We detect no such substantial difference between the allegations set forth in the administrative complaint and the gravamen of the violations adduced through evidence at the hearing before the Ethics Commission. The administrative complaint is quite detailed and, although certain specific events were developed at the hearing that were not recited explicitly in the four corners of that document, appellant was afforded fair notice of the critical aspects of the contentions. For example, appellant argues that "[the] allegation that [his] participation in the hiring process was a violation of the School Ethics Act was beyond the scope of the original complaint." Yet, appellant himself addressed the issue of his involvement in the hiring process in his answer to the complaint, stating that:

In addition to being factually incorrect, the Complainants' legal conclusions are also incorrect. The School Board being involved in the selection of a school principal in no way violates the sections of the School Ethics Act, cited by the Complainants. The Complainants cite no legal authority for the proposition that a School Board becoming involved in the selection process for a school principal violates the School Ethics Act. In fact, the evidence submitted by the Complainants demonstrates that the Sparta Board of Education moved rapidly in devising search criteria and completing the search itself.

[(Emphasis added).]

In sum, appellant had fair notice of the allegations, and the issues litigated before the Ethics Commission did not differ substantially from those outlined in the complaint.

We next turn to appellant's claim that the Commissioner's final agency decision was arbitrary, capricious, or contrary to law. In evaluating that claim, we must be mindful that the scope of appellate review with respect to a final agency decision is limited. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). "Appellate courts must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Moreover, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Ibid.

It is well settled that an agency decision will be upheld on appeal unless it is shown to be "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]" Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

In initially evaluating whether his conduct violated N.J.S.A. 18A:12-24.1(c), the Ethics Commission determined that appellant's action in relation to this creation and development of the staffing process constituted Board action. The Commission further found that "[i]n reviewing the staffing documents that [appellant] created, it is apparent to the Commission that [appellant] went far beyond policy making, planning and appraisal." The Ethics Commission determined that "[t]he documents were very specific, all encompassing and covered every step of the hiring process leaving very little discretion to anyone utilizing them."

In finding a violation of the statute, the Ethics Commission acknowledged appellant's testimony at the hearing that "neither the Superintendent nor any Assistant Superintendent had made an objection when [appellant] volunteered to come up with the staffing process[.]" Nevertheless, the Ethics Commission found that "there is no evidence to show that he consulted with anyone in the [district's] administration during the development of these documents."

In determining that appellant violated N.J.S.A. 18A:12-24.1d, the Ethics Commission found that his actions constituted "administering the schools," as defined by N.J.A.C. 6A:28-7.1. As the Ethics Commission found, to "'[a]dminister the schools' means, in part, that a board member has become directly involved in activities or functions that are the responsibility of school personnel." The Ethics Commission found credible the Superintendent's testimony that "virtually every step of the interview process for the Helen Morgan School Principal position was controlled by [appellant] who would not allow [the Superintendent] to continue any aspect of the hiring process without [appellant's] approval." The Ethics Commission also noted that "[the Superintendent] did not even review the resumes of the candidates; it was [appellant] who took the resumes home to review them." The Ethics Commission concluded that "by taking the only copy of the resumes out of the district for review, [appellant] became directly involved in a function that was the responsibility of [the Superintendent]."

The Ethics Commission further noted that "[the Superintendent] testified that [appellant] wrote the questions for the interview of the Helen Morgan School Principal, directed the interview process and analyzed which candidates were the best candidates." The Ethics Commission did acknowledge appellant's testimony that "as chief staffing office[r], [the Superintendent] had the ability to use or not use the questions," yet, the Ethics Commission nonetheless reasonably found that "[appellant]'s overall conduct in relation to the interview shows that [appellant] administered the schools and became directly involved in a function that was the responsibility of the Superintendent."

Given these factual findings by the Ethics Commission, which the Commissioner subsequently adopted, the determination that appellant, in essence, overstepped his bounds and violated the statutes in question is a reasonable one, and is neither arbitrary nor capricious. We concur with the Commissioner that there is substantial credible evidence in the record to support the determination of a violation. Moreover, we defer to the sanction of censure recommended by the Ethics Commission and imposed by the Commissioner, and do not, under the circumstances, perceive that sanction to be unjust or excessive. See In re Herrmann, 192 N.J. 19, 28-29 (2007) (instructing that a reviewing court should not alter a sanction imposed by an administrative agency unless it is "shocking" to the court's sense of fairness); see also In re Polk, 90 N.J. 550, 578 (1982).

To be sure, we are cognizant that appellant generally appears to have been well-intended in his overzealous personal involvement in the district's hiring process for these two principals. Appellant seems to have been trying to adapt certain hiring criteria and processes, which he was familiar with from the private sector, to the district's own hiring processes. The problem is that appellant went beyond suggesting ideas to the appointing authorities but instead injected himself into their operational functions. Despite his apparently benign motives, appellant violated the plain terms of applicable codes, which prohibit school board members from directly involving themselves in the administration of the schools.

Appellant's transgression, while clearly proven, comprised an "ethical violation" solely in the nuanced regulatory context of the public school laws. We stress that the decisions of the Commissioner and the Acting Commissioner by no means signify that appellant is an unethical person in general, or that he was attempting in this case to engage in patronage or self-dealing. He simply crossed over a functional line that must be observed in order for the school administrators to perform their responsibilities effectively. Given our limited scope of appellate review, we will not interfere with the Commissioner's exercise of her regulatory authority in this case.

Lastly, we are unpersuaded by appellant's contention that the Commissioner's successor, the Acting Commissioner, abused her discretion in denying reconsideration. Under the pertinent regulations, the Commissioner of Education has discretion to grant a motion for reconsideration based on newly-discovered evidence that is "likely to alter the outcome of a matter, where such evidence could not have been previously discovered by due diligence[.]" N.J.A.C. 6A:4-3.6(b)(2). In his reconsideration motion, appellant tendered an August 30, 2007 newspaper article that he contends would have lent further support to his defense that he did not exert control over the district's hiring process and that his role was purely advisory. Appellant also tendered an e-mail dated June 8, 2007 that he had sent to the Superintendent, indicating that he was unable to attend an upcoming interview session with a candidate for principal due to a business conflict, but he did not object to the interview occurring in his absence. Even assuming, for the sake of argument, that these supplemental proofs might have been probative on the litigated issues, appellant fails to demonstrate that the news article and the e-mail "could not have been previously discovered by due diligence[.]" Ibid. For similar reasons, we deny appellant's motion to supplement the appellate record with additional materials, and grant the Commissioner's reciprocal motion to strike those items.

In sum, although we share the Commissioner's recognition that appellant may well have had "worthy intentions," there is substantial credible proof that his actions in this case exceeded the boundaries of policy-making and thereby violated N.J.S.A. 18A:12-24.1(c) and (d).

Affirmed.

1 As reflected in the Commissioner's final agency decision, none of the other respondents were found to have committed any violations.

2 The additional counts in the complaint are not contested on appeal.