IN THE MATTER OF THE CERTIFICATES OF ANTHONY PARASKEVOPOULOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1026-10T2

A-3657-10T2

IN THE MATTER OF THE CERTIFICATES

OF ANTHONY PARASKEVOPOULOS.

_________________________________

ANTHONY PARASKEVOPOULOS,

Plaintiff-Appellant,

v.

STATE BOARD OF EXAMINERS and

COMMISSIONER OF EDUCATION,

Defendants-Respondents.

_________________________________

April 18, 2012

Argued March 5, 2012 - Decided

Before Judges Grall and Hoffman.

On appeal from the Commissioner of

Education, Agency Docket No. 5-6/10A

and from Superior Court of New Jersey,

Law Division, Essex County, Docket

No. L-9122-10.

Charles I. Auffant argued the cause for

appellant Anthony Paraskevopoulos in

A-1026-10T2 and A-3657-10T2 (Stuart

Ball, LLC, attorneys; Marc D. Pereira

and Mr. Auffant, on the briefs).

Susan M. Huntley, Deputy Attorney

General, argued the cause for respondents

State Board of Examiners and Commissioner of Education (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel

in A-1026-10T2 and Lewis A. Scheindlin,

of counsel in A-3657-10T2; Ms. Huntley,

on the briefs).

PER CURIAM

On our own motion, we consolidate two appeals filed by Anthony Paraskevopoulos. Both involve the Acting Commissioner of Education and the Board of Examiners and arise from the same operative facts.

Paraskevopoulos was formerly a teacher of music in the State-Operated School District of the City of Newark. On May 7, 2007, he and a younger colleague had an argument spurred by his colleague's criticism of Paraskevopoulos' piano playing. Later that day, they argued again when Paraskevopoulos insisted on an apology. Paraskevopoulos reported the incident to the principal and also complained about his colleague's excessive touching of his students. The principal reported his complaint about the colleague's conduct to the Division of Youth and Family Services (DYFS), but on May 10 and 11 Paraskevopoulos wrote letters retracting his accusations of inappropriate touching and stating that he may have exaggerated his concerns about his colleague's conduct with students. DYFS investigators subsequently concluded that the allegations were unfounded.

The district then filed tenure charges against Paraskevopoulos, but the district and Paraskevopoulos settled that matter; the district agreed to withdraw the charges, and Paraskevopoulos agreed to resign. The Commissioner approved that settlement.

Thereafter, the Commissioner referred the matter to the Board of Examiners. Upon considering the charges leading to Paraskevopoulos' resignation, the Board found just cause to consider revocation of his certificates in accordance with N.J.A.C. 6A:9-17.5, which permits the Board to revoke or suspend a certificate on specified grounds including "conduct unbecoming." Because Paraskevopoulos filed an answer and affirmative defenses asserting that he acted in good faith and in conformity with the law, the Board transmitted the matter to the Office of Administrative Law (OAL) for a hearing as a contested case pursuant to N.J.S.A. 52:14B-2(b).

An Administrative Law Judge (ALJ) took testimony during a two-day hearing and found these facts. The music teachers had a "heated argument," and "Paraskevopoulos earnestly believed he had been affronted." No children were present during either incident. He "believed that the intervention of his principal was immediately needed" and may have "exaggerated" when he spoke with the principal that day because of his "anger and upset." Paraskevopoulos did not fabricate his concern about the younger teacher's behavior; prior to the argument, he had shared that concern with another teacher. Based on the principal's filing of a report with DYFS, however, the ALJ found that Paraskevopoulos "somewhat hysterically overstated" his concerns to the principal. Additionally, the ALJ found that Paraskevopoulos retracted his "unfair" statements when he was "calmer and able to reflect" but not before he had "disrupted school operations."

On those findings, the ALJ concluded that the Board failed to establish conduct unbecoming. The ALJ also rejected Paraskevopoulos' claim that the Board could not take action against him for reporting his concerns about his colleague's behavior with the students because N.J.S.A. 9:6-8.13 grants immunity to those who report child abuse as required by N.J.S.A. 9:6-8.10. The ALJ determined that N.J.S.A. 9:6-8.13, by its terms, applies to reports of "abuse" that are filed "immediately," and Paraskevopoulos' concerns were not about conduct amounting to sexual or harmful contact and were not voiced "immediately."

The parties filed exceptions to the ALJ's decision. Although the Board accepted the ALJ's findings on credibility and adopted all of the ALJ's factual findings, it disagreed with the ALJ's legal conclusion and determined that Paraskevopoulos' conduct was unbecoming and sufficient to warrant suspension of his certificates for six months but not revocation. The Board explained:

Regardless of Paraskevopoulos' motivation or the fact that all of these interactions occurred solely among adults, his conduct was inappropriate and merits consequences beyond the loss of his tenured position, [pursuant to his settlement with the district]. . . . The damage he inflicted on [his colleague's] reputation and the potential harm he could have caused . . . should not be minimized simply because he acted in a fit of pique and later attempted to retract his allegations. Moreover, as [the ALJ] noted, Paraskevopoulos' actions resulted in a DYFS investigation that disrupted school operations. . . . The Board believes that Paraskevopoulos' conduct is unbecoming a teaching staff member and reflects negatively on his ability to act as a role model to both students and colleagues.

After receiving the Board's written decision, Paraskevopoulos filed an administrative appeal with the Commissioner. The Commissioner, however, affirmed the decision substantially for the reasons stated by the Board. Accordingly, Paraskevopoulos filed a notice of appeal with this court.

In addition, Paraskevopoulos filed the civil action against the Commissioner and the Board that is the subject of his second appeal. He filed that action pursuant to N.J.S.A. 9:6-8.13, which in addition to immunity from all civil and criminal liability, provides a cause of action for equitable relief that is available to a person who is subject to adverse employment action because that person made a good faith report of child abuse as required by N.J.S.A. 9:6-8.10.

The Commissioner and Board moved to dismiss on the ground that Paraskevopoulos was denied relief pursuant to N.J.S.A. 9:6-8.13 in the administrative proceeding and had an appeal pending from that decision in this court. Concluding that Paraskevopoulos could not pursue the same claims in that court and the Appellate Division at the same time, the trial court dismissed the complaint with prejudice.

With that background, we turn to consider the merits of the appeals.

I

In his first appeal, A-1026-10, Paraskevopoulos challenges the agency's final decision suspending his certificates. He argues that the determination is arbitrary and capricious because it is not supported by the record and is contrary to law and express and implied legislative policies found in N.J.S.A. 9:6-8.13.

We affirm an administrative agency determination that is supported by the record unless it is clearly mistaken. In re Young, 202 N.J. 50, 70-71 (2010). Although Paraskevopoulos urges us to conclude that the Board's decision lacks support in the record, he has not provided us with a transcript of the OAL proceeding or his letters retracting his allegation. Because he has not provided these essential portions of the record, the argument presented does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

To the extent that Paraskevopoulos argues that the Board and Commissioner rejected the ALJ's factual findings in violation of N.J.S.A. 52:10B-14c, he is mistaken. The Board did adopt the ALJ's findings of fact. The members of the Board, and subsequently the Commissioner, appropriately applying their expertise in matters of education, rejected the ALJ's legal conclusion that the facts did not amount to conduct unbecoming. See Nelson v. Bd. of Educ., 148 N.J. 358, 364-65 (1997).

Finally, we reject Paraskevopoulos' claims that the facts found by the ALJ do not establish conduct unbecoming but do establish entitlement to immunity from discharge pursuant to N.J.S.A. 9:6-8.13. The ALJ's factual findings support the Board's conclusion that suspension for conduct unbecoming was warranted, and the findings do not establish grounds to afford Paraskevopoulos statutory immunity.

Conduct unbecoming to a teacher or school administrator includes conduct that "has a tendency to destroy public respect" for those public employees or "confidence in the operation of" schools. Young, supra, 202 N.J. at 66. "The touchstone of the determination lies in the certificate holder's 'fitness to discharge the duties and functions of one's office or position.'" Ibid. (quoting In re Grossman, 127 N.J. Super. 13, 29 (App. Div. 1974)). We cannot conclude that the Board erred in determining that disruption of school operations attributable to accusations about a fellow teacher that have been exaggerated in response to anger about a perceived personal affront meet that standard.

While the Board did not address immunity pursuant to N.J.S.A. 9:6-8.13, that law does not apply in this case. The immunity afforded by N.J.S.A. 9:6-8.13 is available to one who acts pursuant to N.J.S.A. 9:6-8.8 to -8.15 (L. 1971, c. 437,

1-8). The operative provision, N.J.S.A. 9:6-8.10, requires a person who has "reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse" to immediately report it to DYFS. The ALJ found that Paraskevopoulos did not report abuse as defined in N.J.S.A. 9:6-8.9, and the ALJ found that he subsequently acknowledged that his allegations "were based on misperceptions." In other words, he admitted he did not have reason to suspect his colleague abused students and acted in "anger" because he was "upset" by his colleague's criticism of his work.

For the foregoing reasons, the order suspending his certificates is affirmed.

II

In his appeal from the dismissal of the civil action, A-3657-10, Paraskevopoulos argues that he is entitled to the protection afforded by N.J.S.A. 9:6-8.13. Because Paraskevopoulos fully litigated the question of his entitlement to relief under N.J.S.A. 9:6-8.13 as an affirmative defense before the OAL in the administrative proceeding initiated by the Board to revoke his certificates, we disagree.

As we explained in Ensslin v. Twp. of No. Bergen, 275 N.J. Super. 352, 369 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995):

Generally speaking, a party is pre-cluded by collateral estoppel from relitigating claims or issues which the party actually litigated, were determined in a prior action, and were directly in issue between the parties. Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, Switzerland, 26 N.J. 307, 314-16 (1958). It is now generally recognized that judicial determinations by administrative agencies are entitled to preclusive effect if rendered in proceedings which merit such deference. City of Hackensack v. Winner, 82 N.J. 1, 31-33 (1980).

Where, as here, the issue is identical to the one fully and fairly litigated and resolved in a prior proceeding involving the same parties, a subsequent proceeding on the same issue is barred unless application of the equitable bar would be unfair. See Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002) (setting forth the essential elements of collateral estoppel). We recognize that the Supreme Court has held that this equitable doctrine of claim preclusion does not apply where an employee opted to file a civil complaint alleging discrimination instead of litigating the claim in an administrative proceeding before the OAL. Hennessey v. Winslow Twp., 183 N.J. 593, 594, 604 (2005). But that is not what happened here. Paraskevopoulos fully litigated the claim in the OAL, failed to take exception to the ALJ's determination before the Board or Commissioner and, only after failing in that proceeding, filed his civil complaint. In Hennessey, the Court stressed the importance of the "stage" in administrative proceedings at which the plaintiff shifted gears and pursued the civil action, which was prior to a full hearing providing a fair opportunity to litigate the claim. Id. at 604-05. Thus, this case is comparable to Ensslin, not Hennessey.

Furthermore, in this case we have reached the merits of Paraskevopoulos' claim of entitlement to relief under N.J.S.A. 9:6-8.13 on his appeal from the Commissioner's final decision and found it lacking in merit. For that additional reason, we are confident that application of the bar is neither unfair nor inequitable.

The orders in A-1026-10 and A-3657-10 are affirmed.