IN THE MATTER OF THE TENURE HEARING OF KEVIN HARRIMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE TENURE HEARING OF KEVIN HARRIMAN, SCHOOL DISTRICT OF THE BOROUGH OF ELMWOOD PARK, BERGEN COUNTY.

March 12, 2014

Submitted February 3, 2014 - Decided

Before Judges Parrillo, Harris and Guadagno.

On appeal from the Commissioner of Education, Agency Docket No. 50-3/12.

Feintuch, Porwich & Feintuch, attorneys for appellant Kevin Harriman (Philip Feintuch and Matthew Kohut, on the brief).

Schwartz, Simon, Edelstein & Celso, LLC, attorneys for respondent Elmwood Park School District Board of Education (Nicholas Celso, III, of counsel and on the brief; John G. Geppert, Jr., on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Lauren C. Jensen, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Kevin Harriman appeals from the final agency decision of the Commissioner of Education (Commissioner), which adopted the initial decision of the administrative law judge (ALJ), terminating his tenure pursuant to N.J.S.A. 18A:6-10. We affirm.

Harriman had been employed as a health and physical education teacher in the Elmwood Park school system for ten years, and had obtained tenured status. Throughout his tenure, he was assigned on a rotating basis to three elementary schools in the district, and in addition coached various sports (wrestling, football, and baseball) for recreation programs as well as the Elmwood Park High School.

On February 29, 2012, the Board of Education of the Borough of Elmwood Park (Board) certified four tenure charges against Harriman, containing a total of thirty-two counts, alleging that Harriman had engaged in a pattern of "conduct unbecoming [of] a teaching staff member, insubordination and/or other just cause warranting dismissal and reduction in salary, pursuant to N.J.S.A. 18A:6-10 . . . ."

The first charge, containing four counts, accused Harriman, "[a]t various times beginning in or about 2003 to the present," of engaging "in deceptive and untruthful conduct . . . ." The first count, for instance, alleged that on May 6, 2003, Harriman "made a false representation in a memo to [the high school athletic director, Richard] LaGrotta [by stating] that he had been advised by Principal [Michael] Nazzaro to add [a negative] addendum to the evaluation of [assistant wrestling coach, George] Galler." Another count claimed Harriman deceived Allison Jackter, the principal of the elementary school where he was assigned at the time, about leaving his class unattended.

The second tenure charge, containing fourteen counts, accused Harriman of acting "in an inappropriate, defiant and insubordinate manner, repeatedly demonstrating a blatant disregard for and open defiance of administrative directives despite numerous warnings and admonitions." Illustrative of this charge is the count alleging Harriman acted "unprofessionally and inappropriately in response to a decision by the [New Jersey State Interscholastic Athletic Association] NJSIAA regarding the seeding of Elmwood Park's wrestling team that . . . Harriman coached."

According to Dr. Richard Tomko, the principal of the high school at the time, in February 2006, he received a phone call from Robert Baly, the executive director of the NJSIAA, who

complained that Harriman "had a major argument" with him and the seedings manager and said, "this is bullshit," before hanging up the phone. Both Dr. Tomko and Baly agreed that Harriman should attend a compliance meeting as a result of this incident. While Harriman admitted he told the NJSIAA representative that this is "B.S.[,]" he denied being disrespectful. According to Richard Saper, the then-Athletic Director, Harriman's behavior "was embarrassing" and "a black eye on our sports program."

On February 10, 2006, Saper sent Harriman a memorandum discussing the dispute with the NJSIAA's decision on the State wrestling seedings. Although Saper conceded that Harriman "had a legitimate argument in questioning the process by which seedings were established and [had] the right to do so," he explained that the manner in which Harriman spoke with the NJSIAA representatives "was unprofessional, inappropriate and reflected poorly on [the] school." He directed Harriman to not contact the NJSIAA for one year and to attend a compliance meeting. Further, Saper notified Harriman that he would be "closely monitoring [his] actions and communications between students, parents, league officials, and any members of the NJSIAA during this time period."

Perhaps the most serious counts (nine through fourteen) involve Harriman's alleged non-compliance with, and open defiance of, a ninety-day action plan designed by Dr. Tomko to correct Harriman's behavior. By way of background, Dr. Tomko, the Superintendent of Schools at the time, met with Harriman, along with the President of the Elmwood Park Education Association, who was also Harriman's union representative, to discuss recent issues Harriman was having with his supervisors. However, "nothing was accomplished[,]" at this meeting and Harriman "was very upset" and "irate . . . ."

Afterwards, Dr. Tomko placed Harriman on a "90-day action plan to ensure that [he] maintain professional conduct, refrain from being insubordinate, and continue to improve [his] relationship with [his] direct supervisors." This plan directed Harriman to do the following from July 6, 2011 to November 14, 2011:

(1) Refrain from making insubordinate comments.

(2) Refrain from discussing professional dealings with the administration with colleagues.

(3) Refrain from discussing professional or personal issues with the administration or staff with students.

(4) Enroll in an anger management professional development course.

However, as the Board charged, Harriman failed to comply. Instead, in a letter of September 6, 2011 to all members of the Elmwood Park Board of Education, Harriman accused Dr. Tomko of trying to slander, harass, and threaten him. Further, in his rebuttal memorandum, Harriman characterized Dr. Tomko's 90-day action plan as "another invalid attempt . . . to turn this deceitful circumstance into my fault." Harriman also claimed that the "action plan [was] completely without grounds or merit[,]" and directed Dr. Tomko to "please stop 'cautioning' me to refrain from doing this and doing that[,]" and that he does not "respond passively to threats." As to Dr. Tomko's directive to attend an anger management course, Harriman responded: "We all know there isn't now, never were and never will be any anger management problems with me. Therefore, I will not be attending any A.M. course. You're not sending me to any programs unjustifiably again." According to Dr. Tomko, Harriman's memorandum was "insubordinate" and "goes against any form of communication to a superior that [he had] ever witnessed or ever learned about."

The third charge, also containing fourteen counts, claimed that "in or about 2010 to the present, . . . Harriman has treated his supervisors in a contumacious, discourteous, and overtly disrespectful and personally demeaning manner." The counts in this charge referenced incidents where Harriman ignored directives from the school principal, acted inappropriately and belligerently towards Jackter and Saper during meetings, and harassed Harrison Werner, a school security guard, who had reported Harriman's violation of school policy during "gate duty." There were also accusations regarding Harriman's rebuttal memoranda, addressed to his supervisors, which the Board charged were unprofessional, insulting, accusatory and insubordinate.

For instance, counts one and two claimed that on May 23, 2011, Harriman "screamed" at Jackter "you're wrong, you're wrong" for moving the students inside when it began to rain at the field day event and that he later raised his voice toward her in the presence of staff members and parents. Another count, based on Harriman's rebuttal memorandum to Jackter regarding their argument at the field day event, charged him with "insubordinate, condescending, disrespectful, accusatory and unprofessional" conduct directed at a supervisor. And still another count alleged that Harriman "placed his hand on his genitals and 'moved' his hand for a prolonged period of time" during his meeting with Jackter on May 23, 2011.

In yet another incident involving Jackter, the Board alleged, in count seven, that Harriman yelled at Jackter regarding a misunderstanding about coverage for another teacher's class in front of students, staff members, and parents. This count further claimed that, in a rebuttal memorandum, Harriman denied Jackter's explanation of the incident and accused her of instigating trouble, fabricating stories and nagging.

Harriman's relationship with another superior, Richard Saper, was no less contentious. Count four claimed that Harriman "interacted in an [in]appropriate, defiant, insubordinate and threatening fashion with Principal [Saper]," when Saper called Harriman "to discuss a series of inappropriate actions [he] had engaged in during the course of that day." Count five asserted that Harriman's rebuttal memorandum, in response to Saper's memorandum summarizing this meeting, was "riddled with disrespectful, insulting, defiant and accusatory language . . . ."

Three separate counts in the third charge involved Harriman's conduct in opening car doors for students while on "gate duty," a violation of Saper's directive. On December 9, 2011, Saper met with Harriman to discuss his concerns over safety and liability. According to Saper, Harriman's "response

was totally insubordinate" and that he directed Saper to point to a policy "where it says that [he] can't open up a car door for a student." Harriman then threatened to disclose his personal log on Saper and to retain a lawyer. Moreover, Harriman then confronted the school security officer, Harrison Werner, whom Harriman suspected of reporting him to Saper. According to Werner, Harriman "came at [him] very aggressively and . . . got nose to nose with [him]," and called him a "mole" and a "snitch."

On December 12, 2011, Harriman issued a rebuttal to Saper about the "gate duty" write up. Therein, he accused Saper of fabricating stories to write him up and "cowardly planting MOLES such as . . . Harrison Werner along the way." Harriman further indicated that Saper was "insecure and jealous" of him. Saper, on this same date, issued a memorandum to Harriman which accused him of disclosing confidential information by telling a parent that he had been "written up" for opening car doors.

The fourth charge alleged that charges one through three and the counts within, demonstrate that

Harriman has been [sic] engaged in a course of misconduct over a prolonged period of time that constitutes a pattern of unbecoming conduct, insubordination, and/or other just cause for dismissal, such that, even assuming arguendo that any particular charge or count is insufficient as a matter of law to warrant dismissal, the charges and counts viewed in their totality supply ample justification for termination and/or reduction in salary.

On February 28, 2012, after reviewing the tenure charges and other evidence, the Board found probable cause existed to authorize the dismissal of Harriman. The next day, the Board "passed a resolution certifying the tenure charges against [Harriman] alleging that he was guilty of deceptive and untruthful conduct; conduct that was inappropriate, defiant and insubordinate; failure to follow specific administrative directives; failure to enroll in anger-management courses; and disregard for corrective actions." On March 13, 2012, Harriman filed an answer to the tenure charges largely denying the allegations.

The matter was then transferred to the Office of Administrative Law (OAL), where a five-day trial took place. At the close of evidence, the ALJ found all four tenure charges against Harriman were sustained and ordered the termination of his tenure. More specifically, the ALJ upheld twenty-five of the thirty-two counts of the Board's complaint, which established "unbecoming conduct" and "other just cause" warranting termination of tenure.

First, the ALJ found that Harriman did engage in deceptive and untruthful conduct in his representation that Nazzaro recommended he attach an addendum to his evaluation of an assistant coach and his explanation for leaving a class unattended. Second, the ALJ determined that Harriman acted in an inappropriate, defiant and insubordinate manner on twelve separate occasions. Specifically, the ALJ found Harriman (1) acted inappropriately toward representatives from the NJSIAA; (2) openly defied numerous administrative directives; and (3) violated school policy by calling a student's parent during instruction time. Third, the ALJ concluded that Harriman was contumacious, discourteous, overtly disrespectful and personally demeaning towards his supervisors on numerous occasions.

Having concluded the Board's tenure charges were substantiated, the ALJ ordered the termination of Harriman's tenure. In assessing that penalty, the ALJ credited Harriman as a highly-qualified instructor, but nevertheless found that his pattern of "unbecoming conduct" outweighed this consideration. The ALJ reasoned:

The penalty in a tenure case is often a judgment call. There are cases that have called for the termination of tenure, and cases that have permitted a lesser penalty.

. . . .

A school system cannot operate if the staff and administrators are constantly at odds with one another. In this case, the disagreements reached mammoth proportions, with administrators spending inordinate amounts of time responding to voluminous "rebuttals" authored by [Harriman]. At some point the system ceases to function, when there is outright warfare amongst the teacher and administrators. If one or possibly two administrators had problems with [Harriman], then it could be attributed to a personality clash. However, in this case there was intense friction between [Harriman] and Ms. Jackter, Mr. Saper, Dr. Tomko, Mr. Schwartz and Mr. Werner.[] What was telling also was that even at the hearing [Harriman] did not seem to have a good understanding of how his actions had led to the tenure charges. He seemed to think that the charges arose totally out of a conspiracy against him and not out of any behavior on his part. The fact that he got multiple write-ups during a short period of time did not reflect on him at all, but rather was the result of a campaign by administrators to ruin him. When he talked about the tone of his rebuttals, he explained that he was detail oriented, which led him to write the three-page diatribes. [Harriman] testified that he was no longer taking medication for his depression, and yet his behavior exhibited a continuing disconnect regarding the actions that had led him to his present situation. While it is unfortunate that a qualified teacher should lose his tenure, a teacher cannot continue to function in a District when he is adversarial with almost all of the people with whom he interacts. Unfortunately, that is the situation in this case.

Thereafter, the Commissioner, deferring to the ALJ's credibility findings, adopted the ALJ's Initial Decision, concluding that the tenure charges were substantiated and the penalty of termination of Harriman's tenure was appropriate. Most significantly, the Commissioner found Harriman's rebuttal memoranda "defensive, accusatory, demeaning, and often threatening legal action[]"; his inability to cooperate with his supervisors negatively impacted "the smooth operation of the school"; and his response to Dr. Tomko's 90-day action plan was "[e]specially serious." Specifically as to the former, the Commissioner stated:

[Harriman's] rebuttal memoranda were defensive, accusatory, demeaning, and often threatened legal action. They would typically begin with versions of the subject events that [Harriman] would describe as the truth, and characterizations of the supervisors' observations as falsehoods. In each rebuttal, [Harriman] belittled his supervisor and depicted himself as superior. In each rebuttal, respondent attributed to his supervisor[s'] intentions and motives as to which [Harriman] could not possibly have had any insight. Finally, each memorandum ended with [Harriman's] rejection of his supervisor's directives and a warning that further "harassment" would not be tolerated.

More than any witness testimony, [Harriman's] rebuttal memoranda provide insight into the reasons not just for Charge 3, but for all of [the Board's] charges. The memoranda demonstrate [Harriman's] undisguised disdain for his supervisors, his failure to appreciate their responsibilities and authority, his defiance of their directives and his failure to understand his obligation to cooperate with them for the smooth operation of the school.

On appeal, Harriman raises the following issues:

I. THE COMMISSIONER'S FACTFINDINGS COULD NOT HAVE REASONABLY BEEN REACHED ON SUFFICIENT OR SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD, AND THE DECISION TO UPHOLD THE CHARGES WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AND NOT SUPPORTED BY THE EVIDENCE.

II. THE DECISION OF THE COMMISSIONER TO IMPOSE A PENALTY OF DISMISSAL WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AND NOT SUPPORTED BY THE EVIDENCE.

We find no merit to these contentions. R.2:11-3(e)(1)(E).

As a threshold matter, our review of a final administrative agency decision is limited. In re Carter, 191 N.J. 474, 482 (2007). Our review of the agency's decision is restricted by the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

"Ordinarily we will not reverse the determination of an administrative agency unless it is arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record as a whole." Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993). "[S]hould there be substantial evidence in the record to support more than one result, it is the agency's choice which governs." Dore v. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982). As such, an administrative agency's determination is accorded "a strong presumption of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (internal quotation marks omitted). "The burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

Our role in reviewing the Commissioner's decision then is 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) (internal quotations marks omitted). Thus, we will not "weigh the

evidence, . . . determine the credibility of witnesses, . . . draw inferences and conclusions from the evidence [or] . . . resolve conflicts therein." In re Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974).

Pursuant to N.J.S.A. 18A:6-10, no person under tenure of employment "shall be dismissed or reduced in compensation . . . except for inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing [is] held pursuant to this subarticle, by the commissioner . . . ." Thus, at the hearing, the Board was required to demonstrate by a preponderance of the evidence that the tenure charges against Harriman were substantiated. See SSI Med. Servs., Inc. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614, 622 (1996). The preponderance of the evidence

standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. The evidence must be such as to lead a reasonably cautious mind to the given conclusion. 'It need not have the attribute of certainty, but it must be well founded in reason and logic; mere guess or conjecture is not a substitute for legal proof.'

[Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 279 (App. Div. 1998) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989)).]

"Unbecoming conduct" is an "elastic" phrase "'that has been defined as any conduct which adversely affects the morale or efficiency of [a government agency] . . . [or] that has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services.'" Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). "[I]t is sufficient that the complained-of conduct and its attending circumstances be such as to offend publicly accepted standards of decency." Karins, supra, 152 N.J. at 555 (internal quotation marks omitted). This type of conduct does not necessarily need to "'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." Hartman v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992) (quoting Asbury Park v. Dep't of Civil Serv., 17 N.J. 419, 429 (1955)). In the context of dismissal based on tenure charges, "the touchstone is fitness to discharge the duties and functions of one's office or position." Grossman, supra, 127 N.J. Super. at 28-29.

Based on our review of the record, we are satisfied that there is sufficient, credible evidence to support the Commissioner's determination, and therefore we affirm substantially for the reasons stated by the ALJ in her initial decision of August 31, 2012, and the Commissioner's final decision of October 12, 2012. We add only the following comments.

The substantial evidence consisting of written documents and credible testimony at the hearing clearly demonstrates that Harriman's pattern of misconduct was "unbecoming" of a tenured teacher. Although Harriman's main contention is that the ALJ just accepted the Board's evidence over his testimony, we defer to the ALJ's credibility findings, Clowes v. Terminix Int'l, Inc., 109 N.J.575, 587 (1988) ("As a general rule, the reviewing court should give due regard to the opportunity of the one who heard the witnesses to judge of their credibility

. . . . ") (internal quotation marks omitted), as did the Commissioner. SeeN.J.S.A.52:14B-10(c) ("The [Commissioner] may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.").

The totality of the allegations against Harriman, twenty-five counts of which the ALJ found substantiated, established "unbecoming" behavior and "other just cause" to warrant the penalty of termination. Perhaps most telling is Harriman's open defiance of Dr. Tomko's attempt to remediate his disruptive behavior through a 90-day action plan, which Harriman labeled "invalid." First, Harriman, admittedly so, did not attend an anger management course as directed by the plan. Also, during this 90-day period, Harriman issued a letter to all Board members and attached a rebuttal memorandum addressed to Dr. Tomko. In the letter, Harriman asserts that he has not "done anything wrong at all" and that his "write-ups were all predetermined and fabricated for some reason." He also threatened to file lawsuits against "the novice principals if the harassments and bogus write-ups [continued] . . . ." The rebuttal memorandum declared the action plan as "another invalid attempt by [Dr. Tomko] to turn this deceitful circumstance into [his] fault." In this document, Harriman also demanded that Dr. Tomko "stop 'cautioning' [him] from doing this and doing that[,] . . . [because he considers this as] a written 'threat . . . .'" He then asserted that he does "not respond passively to threats."

This same conduct exhibited itself in Harriman's dealings with other colleagues and superiors, most notably Saper and Jackter, repeatedly challenging their honesty and integrity, depriving them of the dignity to which they are entitled, and creating an uncomfortable work environment. Thus, Harriman's failure to comply with numerous directives from his supervisors Dr. Tomko, Saper and Jackter clearly constitutes insubordination, and his overall "unbecoming behavior," N.J.S.A.18A:6-10, demonstrates an "[un]fitness to discharge the duties and functions of [his] . . . position." Grossman, supra, 127 N.J. Super. at 28-29.

As noted, the twenty-five incidents wherein Harriman either violated school policy, defied administrative directives, demeaned, disrespected and threatened his supervisors, were all substantiated through credible testimony and documentary evidence. Clearly, Harriman's internal battle with the administration not only impaired his ability to instruct his students, but it also diverted the administrators from their important responsibility as supervisors. Specifically, the amount of time and effort expended to draft the numerous memoranda impacted Harriman's ability to discharge his duties as an instructor, and it disrupted the functions of the administration. Grossman, supra, 127 N.J. Super. at 28-29. Undoubtedly, the struggle between Harriman and Dr. Tomko, Saper and Jackter negatively impacted the smooth and efficient functioning of the Elmwood Park school district.

We thus conclude the Commissioner's decision to dismiss Harriman from his tenured position was not arbitrary; Harriman's many instances of "unbecoming" and other inappropriate conduct are well-documented and supported by the evidence at the hearing; and the decision does not violate any legislative policies.