IN THE MATTER OF THE TENURE HEARING OF JOANNE BRUNO SOUTH HUNTERDON REGIONAL SCHOOL DISTRICT HUNTERDON COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3010-11T3

IN THE MATTER OF THE TENURE

HEARING OF JOANNE BRUNO,

SOUTH HUNTERDON REGIONAL

SCHOOL DISTRICT, HUNTERDON

COUNTY.

_______________________________

October 17, 2012

 

Argued October 3, 2012 - Decided

 

Before Judges Axelrad and Haas.

 

On appeal from the Commissioner of Education, Docket No. 544-9/10.

 

Arnold M. Mellk argued the cause for appellant JoAnne Bruno (Wills, O'Neill & Mellk, attorneys; Mr. Mellk, of counsel and on the brief; Gidian R. Mellk, on the brief).

 

Allan P. Dzwilewski argued the cause for respondent South Hunterdon Regional Board of Education (Schwartz, Simon, Edelstein & Celso, L.L.C., attorneys; Mr. Dzwilewski, of counsel and on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant JoAnne Bruno, a teacher in the South Hunterdon Regional School District, appeals from the January 30, 2012 decision of the Commissioner of Education. That decision affirmed the December 14, 2011 decision of an administrative law judge (ALJ), that appellant had engaged in multiple acts of unbecoming conduct, which warranted her suspension for one year without pay and the forfeiture of her salary increment for the following school year. The Commissioner also modified the ALJ's decision to require appellant, as a condition of her re-employment, to provide a medical report from a new cardiology examination performed by District-selected physicians. Appellant argues the Commissioner's decision should be reversed as arbitrary and capricious and the penalty imposed was too severe. We reject these contentions and affirm.

I.

Appellant has been employed as a business teacher with the District for over thirty years. On August 11, 2010, the District's Board of Education (Board) filed tenure charges against her for conduct unbecoming a teacher. Appellant disputed the charges and the matter was referred to the Office of Administrative Law (OAL), where the Board developed the following proofs at a two-day hearing.

The school principal, James Bevere, sent appellant a memo on December 23, 2008, expressing concern that she was frequently arriving late to class, thus leaving her students unsupervised. On January 8, 2009, Bevere advised appellant he would be observing her teach one of her classes on January 12. He also scheduled a pre-observation conference. Appellant did not appear for the conference and, as a result, Bevere had to reschedule the observation.

The class visit took place on January 21, 2009. Bevere observed that appellant had not prepared properly for the class and "[t]here was entirely too much wasted time in this class." He also noted, however, that the students "seemed to like the class."

After a class visit, the normal procedure is to have a post-observation conference between principal and teacher. However, appellant did not respond to Bevere's several attempts to schedule this conference. After seventeen days, appellant told Bevere she would not be able to meet with him until her "medical person" was available. Bevere advised appellant she could bring a union representative with her to the meeting, but not any medical personnel because he was not aware of her having any condition that would require the presence of such a person. He also asked her to provide documentation pertaining to the condition that required her to have a "medical person" accompany her and he asked her to undergo a medical and psychological examination by District-recommended physicians. Bevere made this request because "if the medical concerns were so bad that she couldn't sit in a post[-]observation, there would be concerns" about her ability to carry out daily activities as a teacher.

Appellant responded by saying she had wanted to bring the school nurse with her to the post-observation meeting, but she no longer felt that was necessary. She refused to comply with Bevere's request that she undergo a medical or psychological examination, despite advising him for the first-time that she was "on a heart monitor." Bevere postponed the meeting to contemplate a future course of action.

On February 18, 2009, appellant called out sick. Contrary to school policy, she had not left lesson plans and a list of her students in her classroom for the substitute teacher. Appellant sent in an e-mail attachment from home with a lesson plan, but other faculty members were unable to open it until later in the day. The class list had to be supplied by the main office.

During this time period, Bevere sent appellant another memo warning her for being seventeen minutes late for cafeteria duty on March 3, 2009. He also reminded her that, when she had this duty, she had to patrol the cafeteria and not sit "at a table eating her lunch."

On that same date, appellant left seventeen students unsupervised in her classroom. She had not locked the classroom and the students were able to enter it. Bevere documented this incident in a March 4 letter to appellant.

Bevere also testified that appellant planned to take some of her students on an overnight field trip to the Future Business Leaders of America (FBLA) conference in Edison, New Jersey between March 11 and 13. Because of appellant's unspecified medical condition, Bevere told her that an additional adult supervisor would accompany the group. Appellant was directed to provide the chaperone with a list of the student's names, room arrangements and assignments, information about the conference sessions, and transportation and meal arrangements. At that point, it was discovered that appellant had changed the hotel arrangements without clearing this with the school in advance. On March 10, the Board Superintendent sent appellant a letter confirming the incident.

On March 11, 2009, the Board passed a resolution to require appellant to undergo medical and psychiatric examinations and placed her on paid administrative leave pending further action. Appellant's attorney responded by demanding a hearing to contest the resolution. The matter was referred to the OAL and, after the ALJ denied appellant's motion to dismiss the case, a hearing was scheduled for March 17, 2010, to determine whether appellant would be required to undergo the examinations. At a pre-hearing conference, however, appellant agreed to submit to the examinations and the parties soon reached an agreement on the cardiologist to perform the medical examination. Appellant was given the names of three psychiatrists and told she could be examined by whichever one she chose. The reports were to be completed by July 15, 2010.

Appellant subsequently objected to the cardiologist selected by the Board and the ALJ ordered her to comply with the medical examination requirement. Because appellant refused to select a psychiatrist from the list, the ALJ designated the doctor appellant was to see. Appellant refused to comply with this order.

After further intervention by the ALJ, appellant advised she had scheduled an appointment with the designated cardiologist and asked the ALJ to choose three more psychiatrists for her review. Appellant was eventually examined by the cardiologist, but she never underwent the required psychiatric examination. The parties mutually agreed to withdraw the matter from the OAL and it was returned to the Board.

The Board then filed tenure charges against appellant, seeking her removal from employment. The Board alleged appellant's conduct in connection with the scheduling of the post-observation conference, request for medical supervision at the conference, refusal to provide documentation verifying the need for this accommodation, and failure to comply with its resolution requiring medical and psychiatric examinations was "contrary to her duties and responsibilities as a teacher and role model for students, sets an example unbecoming a teaching staff member who is entrusted with the education of students and constitutes unbecoming conduct and/or other just cause for dismissal."

The Board also alleged that appellant's conduct throughout the 2008-2009 school year constituted further evidence of unbecoming conduct warranting dismissal. Specifically, the Board claimed appellant

fail[ed] to carry out her professional responsibilities regarding student supervision, fail[ed] to follow observation protocols, [sought] unsubstantiated employment accommodations and[], abandon[ed] same when asked for supporting documentation, [and] fail[ed] to follow school rules and administrative directives regarding lesson plans, supervision of students, field trip documentation and reporting of her absences.

 

 

As she does before us on appeal, appellant did not argue at

the hearing that "she did not engage in the challenged acts." Rather, her contention was that her actions did not constitute unbecoming conduct. She testified she did not schedule the post-observation conference because the school nurse was unavailable on the date Bevere chose. Ultimately, she abandoned her demand that the nurse attend the meeting with her and, therefore, believed there was no further need for her to comply with the Board's directive that she undergo a medical or psychiatric examination. She attributed her failure to comply with the ALJ's orders that she attend these examinations to scheduling difficulties beyond her control.

Appellant acknowledged she was late for cafeteria duty on March 3, 2009, but asserted she had been helping a student with an assignment in her classroom and, at most, she was only "a couple of minutes" late. She denied previously being warned about being late to class. Appellant also conceded that seventeen students were alone in her classroom on that date, but explained that she was "right around the corner" in the school store. Although appellant also agreed that her lesson plan and class list were not in her classroom as required when she was absent, she stated she was able to later e-mail a copy of the lesson plan to the school.

With regard to the incorrect information she had provided about the field trip and her change of hotel accommodations, appellant testified the written information she had prepared was not complete and, in any event, the forms are "frequently amended" as an event approaches. She stated she changed hotels because one of the students, "who was running for state-wide office" in the FBLA, was booked at another hotel. Appellant then moved all the other students to that hotel. She testified she never advised the superintendent of this change, because she did not have time to do so.

On the basis of this evidence, the ALJ found the Board had met its burden of establishing that appellant engaged in conduct unbecoming a teacher. While appellant may have had a "legitimate medical condition," she nevertheless refused to document it and this refusal "create[d] a very strong inference that she simply did not want to attend" the post-observation conference. Appellant thereafter disregarded the ALJ's orders directing that she be examined.

The ALJ found that appellant also engaged in conduct unbecoming a teacher by failing to notify school authorities of the change in hotel accommodations for the FBLA field trip. She also failed to supervise students when she was late for cafeteria duty and when she allowed seventeen students to enter a classroom alone. In addition, the ALJ found appellant had failed to follow the District's lesson plan policy when she was absent. Finally, the ALJ found the Board had not proven that appellant was chronically tardy to class.

Noting appellant had been employed as a teacher for over thirty years, and she had no prior record of formal discipline, the ALJ concluded that, rather than termination, "a one-year suspension and withholding of her annual increment for the following year is appropriate." In a written opinion, the Commissioner concurred with the ALJ's findings, but determined that the decision should be modified to require appellant to produce a medical report from a cardiologist as a condition of her re-employment and return to duties.

II.

Our review of administrative agency actions is limited. In re Herrmann, 192 N.J.19, 27 (2007). An administrative agency's final decision should be sustained "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. As such, administrative agency action is accorded a "strong presumption of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006)(quotations and citations omitted).

The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging it. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Our appellate role is merely to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

If this standard is met, we afford substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "expertise and superior knowledge of a particular field." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). Thus, "[a] reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)).

Appellant argues the record does not support the Commissioner's conclusion that she engaged in conduct unbecoming a teacher and, therefore, the decision is arbitrary, capricious, and unreasonable. We disagree.

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 Atlantic City, 152 N.J. 532, 554 (1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). Unbecoming conduct "need not 'be predicated upon the violation of a 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, 39-40 (App. Div. 1992)).

Applying these standards, there was clearly sufficient credible evidence in the record to support the Commissioner's determination that appellant had engaged in conduct unbecoming a teacher. She failed to supervise students on at least two occasions. She changed student hotel accommodations for a field trip without consulting with, or advising, her superiors. She did not have a lesson plan or class list available when she was absent.

Just as significantly, she refused to meet with her principal for a routine post-observation meeting and claimed she could only do so if medical personnel were present. When the principal reasonably asked her to document her request for a medical accommodation, she initially refused and then withdrew her request to have a nurse accompany her to the meeting. When the Board prudently directed her to undergo a medical and psychiatric examination, she refused and the matter was litigated at the OAL. Although she kept saying that she would participate in the examinations, she continually failed to do so.

Based upon the record developed at the hearing, the Commissioner determined that appellant "engaged in multiple acts of unbecoming conduct." Her "conduct manifested a fundamental disregard for authority [and appellant] exhibited no regret or qualms about engaging in behavior that undermined the public's trust and confidence in her services."

The Commissioner further found it significant that appellant "was the first to mention her medical condition and the need to have medical personnel accompany her to her post-evaluation conference." Once the subject was raised and the principal observed appellant having some "planning and execution issues" during the class observation, the Commissioner found that the principal "believed that her medical and mental condition could have an impact on her teaching and her students" and he properly "sought to protect both [appellant] and her students" by directing that she undergo medical examinations. Appellant's "unwillingness to follow certain directives - whether a Board resolution, an ALJ order or district policies - led to a protracted, time-consuming sequence of events." We find no basis to disturb the Commissioner's detailed findings, which fully support his conclusion that appellant had engaged in conduct unbecoming a teacher.

Appellant also objects to the severity of the penalty. Our "deferential standard applies to the review of disciplinary sanctions as well." Herrmann, 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 Polk, 90 N.J. 550, 578 (1982)). The test for reviewing an administrative sanction 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 principal repeatedly attempted to work with her to address her asserted medical issue and to explain district policy and protocols. She remained recalcitrant despite these efforts. Under these circumstances, a one-year suspension, and the forfeiture of her salary increment for the upcoming school year was not an excessive penalty.1

The Commissioner also properly required appellant to produce a medical report from a new cardiology examination as a condition of her re-employment and return to duty. Contrary to appellant's argument, the Commissioner fully explained the basis for this modification, noting that, as a result of her suspension, appellant "will not have performed her teaching duties for an extended period of time." The requirement that she produce a medical report, therefore, "will reassure the Board and [appellant] that she is able to resume her responsibilities of serving her students, the Board and the community."

Affirmed.

1 The Board filed, but subsequently withdrew, a notice of cross-appeal to challenge the Commissioner's decision not to remove appellant from employment.