IN THE MATTER OF THE TENURE HEARING OF CAROL ZIZNEWSKI SCHOOL DISTRICT OF THE TOWNSHIP OF EDISON MIDDLESEX COUNTY 2012 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0083-10T1

IN THE MATTER OF THE TENURE

HEARING OF CAROL ZIZNEWSKI,

SCHOOL DISTRICT OF THE

TOWNSHIP OF EDISON, MIDDLESEX

COUNTY.

____________________________________

April 13, 2012

Argued January 23, 2012 - Decided

Before Judges Sabatino, Ashrafi and Fasciale.

On appeal from the State Commissioner of Education, Docket No. 153-5/08.

Ronald J. Ricci argued the cause for appellant Carol Ziznewski (Ricci & Fava, LLC, attorneys; Mr. Ricci, of counsel and on the brief; Irene Kalavrouziotis, on the brief).

Stephen J. Edelstein argued the cause for respondent Edison Township Board of Education (Schwartz Simon Edelstein & Celso, attorneys; Viola S. Lordi, of counsel and on the brief; Mary H. Smith, on the brief).

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

PER CURIAM

Carol Ziznewski appeals from the August 3, 2010 decision of the Acting Commissioner of Education removing her from a tenured position as a reading specialist employed by the Edison Township Board of Education. We affirm.

Appellant began working for the Edison Township School District in 1973 as an elementary school teacher. In 1990, she became certified as a reading specialist. She worked in that capacity at elementary schools in Edison from 1990 until the Board of Education brought tenure charges against her in 2008.

Pursuant to statute, a tenured teacher may not be dismissed "except for inefficiency, incapacity, unbecoming conduct, or other just cause." N.J.S.A. 18A:6-10. The school district bears the burden of proving by a preponderance of the credible evidence its charges seeking removal of a tenured employee. Atkinson v. Parsekian, 37 N.J. 143, 149 (1962).

In this case, the charges generally alleged that appellant:

violated her professional responsibilities as a tenured teacher as follows: (1) by willfully failing to provide services to her students; (2) by engaging in improper conduct toward other teaching staff members and supervisors; and (3) by engaging in insubordination, which actions constitute unbecoming conduct and other just cause for termination of her employment . . . .

The Department of Education referred the charges to the Office of Administrative Law for a hearing.

After a period of discovery for the parties to gather and prepare evidence, the Administrative Law Judge (ALJ) began the hearing in September 2008. The hearing continued on forty-three dates over the next fifteen months, through December 2009. Twenty-two witnesses testified, including appellant. The ALJ also reviewed more than 190 documentary exhibits. At the conclusion of testimony, the parties were granted several weeks to prepare and present written arguments. On May 5, 2010, the ALJ issued a 220-page decision reciting at length the testimony and evidence presented and concluding that the school district had proven charges of insubordination and conduct unbecoming a teacher. The ALJ recommended that appellant be dismissed from her tenured position.

The Acting Commissioner of Education reviewed the record and the ALJ's decision. On August 3, 2010, he issued a written final decision adopting the recommendation of the ALJ and ordering that appellant be removed from her position.

On appeal in this court, appellant argues that: (1) the ALJ was biased against her, (2) there was insufficient evidence to support the charges, (3) the ALJ abused his discretion in denying her motion to extend discovery for the purpose of gathering additional documentary exhibits, (4) the ALJ abused his discretion in denying her motion to discharge her attorney after conclusion of the hearing but before the ALJ's decision was issued, (5) the tenure charges were legally flawed because appellant is a reading specialist and not a teacher, and (6) revocation of tenure was too severe a penalty and, instead, progressive discipline should have been imposed.

We have considered the lengthy record of testimony and other evidence together with appellant's and the school district's arguments. The degree of scrutiny given to these tenure charges and the quantity of evidence may be commensurate with appellant's length of service as a public school teacher, but we find no argument on appeal worthy of similarly lengthy discussion in a written opinion, and no basis on this record to disturb the decision of the Acting Commissioner.

The Acting Commissioner summarized the nature of appellant's conduct that led to the charges:

With respect to her performance, respondent repeatedly refused to conform to the overall district policy of balanced literacy, and instead continued to maintain her own method of teaching. Additionally, there were several documented incidents of unbecoming conduct including, respondent's failure to complete the appropriate reading assessments; the willful failure to provide basic skills services to certain students; and a total inability to work with the classroom teachers to properly identify, service and help those students in need of basic skills instruction. It is clear from the record that because of respondent's conduct the basic skills program was not being efficiently and effectively implemented at the [school]. Finally, respondent routinely disregarded requests of her supervisors and boldly refused to even accept that the elementary supervisors were her supervisors, despite the fact that the administration repeatedly informed respondent that the elementary supervisors were indeed her direct supervisors. This type of behavior by a teaching staff member undoubtedly amounts to unbecoming conduct and insubordinate conduct that cannot be tolerated.

In reviewing a final agency decision such as removal of an employee, an appellate court may only "examine the record to determine whether sufficient or substantial credible evidence exists therein to support the agency decision." Dore v. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982); accord Atkinson, supra, 37 N.J. at 149. The agency's final decision "will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Hermann, 192 N.J. 19, 27-28 (2007). "When resolution of a legal question turns on factual issues within the special province of an administrative agency, those mixed questions of law and fact are to be resolved based on the agency's fact finding." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001).

Here, the Acting Commissioner adopted the ALJ's findings, including the ALJ's determinations with respect to the credibility of witnesses. The ALJ found that each witness who had testified on behalf of the school district had presented credible testimony, often supported by memoranda, emails, letters, or conference summaries. In contrast, appellant's denials and explanations of her misconduct were found by the ALJ to be "self serving, sometimes contradictory, and suspicious at best."

An administrative factfinder is entitled to reject testimony "because it is inherently incredible, or because it is inconsistent with other testimony or with common experience, or because it is overborne by other testimony." Congleton v. Pura-Tex Stone Corp., 53 N.J. Super. 282, 287 (App. Div. 1958). Reviewing courts may not "balance the persuasiveness of the evidence on one side as against the other[,]" because "[t]he choice of accepting or rejecting the testimony of the witnesses rests with the administrative agency[.]" In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 26 (App. Div.), certif. denied, 65 N.J. 292 (1974). An appellate court accepts and defers to the credibility determinations and fact finding of the ALJ and the Acting Commissioner.

Furthermore, no basis appears on this record as a matter of law to disturb the conclusions of the ALJ and the Acting Commissioner. The term "unbecoming conduct" is an "elastic" concept that "'has been defined as any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for [government] employees and confidence in the operation of [government] services.'" Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (quoting In re Appeal of Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)).

Unbecoming conduct "need not 'be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" Id. at 555 (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)). The ALJ and the Acting Commissioner relied on ample precedent in the context of tenure charges and hearings to conclude that what they found to be appellant's "defiance, disrespect, lack of personal control of her emotions, and general disregard for policy" was unbecoming conduct within the meaning of that phrase in N.J.S.A. 18A:6-10.

"Insubordination" has been found in an employee's "'willful refusal of submission' to the authority of [his or] her superiors." Laba v. Bd. of Educ., 23 N.J. 364, 385 (1957) (quoting Harrison v. State Bd. of Educ., 134 N.J.L. 502, 505 (Sup. Ct. 1946)); see also Ricci v. Corp. Express of the East, Inc., 344 N.J. Super. 39, 45-46 (App. Div. 2001) ("a 'willful disregard of an employer's instructions . . .' or an 'act of disobedience to proper authority'" (quoting Black's Law Dictionary 802 (7th Ed. 1999))), certif. denied, 171 N.J. 42 (2002).

Here, ample evidence supported the findings of the ALJ and Acting Commissioner that appellant was insubordinate to her supervisors. Appellant argues that no one ever verified that two district curriculum supervisors had authority over her work, and so, she was not required to comply with their requests for lesson plans and other information. The record is to the contrary. Several witnesses testified that appellant received thorough explanations that the elementary curriculum supervisors had authority over all personnel who taught elementary students, including reading specialists. Appellant disregarded those explanations and insisted that she could make her own decisions as to the manner of conducting her lessons and enrolling students in reading classes. She refused to bring her lesson plans to meetings with the curriculum supervisors, despite instructions to do so by her direct supervisors, the school principal and the assistant superintendent.

Appellant disagreed with district policies and directives on Basic Skills Instruction (BSI) and the assessments used to determine which students she should teach, and also on the need to enroll students in the English as a Second Language (ESL) program. She refused to work in accordance with the district-wide curriculum and the programs developed for all teachers, and she refused to cooperate with classroom teachers on determining which students to accept for BSI and the manner of teaching that program. She argued loudly with classroom teachers, often in the presence of others, and she attempted to control exclusively the student enrollment in her reading classes. She did not have timely lesson plans ready, and she was late in completing developmental reading assessments. When she finally completed the assessments, her results were significantly different from those prepared by others. While appellant had a right to disagree with district policies and teaching methods, she did not have a right to disobey her supervisors' directives and to express her disagreements through a lack of cooperation with school administrators and displays of hostility toward other teachers working within the district programs.

We find no merit in appellant's argument that she could not be charged with failing to comply with district policy on determining which students should receive BSI because the school principal ultimately could have ordered her to instruct any student. An employee should not have to be specially ordered to do that which is inherently part of her job. Appellant's proven resistance to supervision and refusal to follow clear instructions constituted insubordination and also conduct unbecoming a teacher.

Appellant also argues that the ALJ was biased against her at the hearing, for example, in the manner that he posed questions to some witnesses. A judge is granted discretion over the conduct of a trial. Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). Judges may question witnesses "to elicit material facts on their own initiative and within their sound discretion." State v. Medina, 349 N.J. Super. 108, 131 (App. Div.), certif. denied, 174 N.J. 193 (2002); see N.J.R.E. 614; N.J.A.C. 1:1-14.6(o). Such intervention is part of the judge's "obligation to ensure a fair trial 'conducted in [an] orderly and expeditious manner.'" Id. at 130-31 (quoting State v. Laws, 50 N.J. 159, 181 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968)). Our review of the alleged incidents of bias shows no animus or improper conduct by the ALJ.

We find insufficient merit to warrant discussion in a written opinion with respect to appellant's arguments of error in denial of her request for extension of discovery and denial of her motion to dismiss her attorney after the conclusion of the hearing. R. 2:11-3(e)(1)(E).

Finally, we are not persuaded by appellant's argument that the dismissal penalty was overly harsh. Our deferential standard of review also applies to the discipline imposed by the government agency. Hermann, supra, 192 N.J. at 28. A reviewing court may "alter a sanction imposed by an administrative agency 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.'" Ibid. (quoting In re Revocation of License of Polk, 90 N.J. 550, 578 (1982)). "[W]hen reviewing administrative sanctions, 'the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578).

Appellant's superiors met repeatedly with her to explain district policy and protocols. She remained recalcitrant despite their efforts. She resisted implementing the district's balanced literacy program, in particular the teaching of BSI as remediation rather than as an enrichment program. Superiors also met repeatedly with her in vain attempts to overcome her obstructionism toward the ESL program. Her failure to cooperate with several classroom teachers and her public displays of intransigence and hostility demonstrated an inability or unwillingness to understand and to correct her misconduct, and thus the likelihood that she would continue to repeat it. The school district gave appellant more than two years to mend her ways, but she refused. Under these circumstances, her dismissal was not an excessive penalty.