IN THE MATTER OF THE REVOCATION OF THE CERTIFICATES OF BENJAMIN NORTON BY THE NEW JERSEY STATE BOARD OF EXAMINERS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE REVOCATION

OF THE CERTIFICATES OF BENJAMIN

NORTON BY THE NEW JERSEY STATE

BOARD OF EXAMINERS.

____________________________________

October 20, 2016

Argued September 20, 2016 Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from the Commissioner of Education, Docket No. 10-10/13A.

Harold N. Springstead argued the cause for appellant (Springstead & Maurice, attorneys; Mr. Springstead, on the brief).

Melissa D. Shaffer, Assistant Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ms. Shaffer, of counsel; Geoffrey N. Stark, Deputy Attorney General, on the brief).

PER CURIAM

Benjamin Norton appeals from a September 25, 2014 final agency decision by the Commissioner of Education (Commissioner) upholding the decision of the State Board of Examiners (Board) to revoke Norton's teaching certificate. Norton was found to have engaged in conduct unbecoming of a teacher, which included giving test answers to certain students, purchasing alcohol and allowing students to drink alcohol on trips he was chaperoning, and having sexually explicit conversations with female students. We affirm because the agency decision was supported by substantial credible evidence and the Commissioner acted within his discretion in upholding the sanction of a revocation.

I.

In 2007, Norton was indicted in Massachusetts on charges of rape, indecent assault and battery, and purchasing alcohol for a minor. The charges arose out of a student trip that Norton had organized and that involved New Jersey students traveling to Cape Cod. At the time of the trip, Norton was a chemistry teacher at Ramapo Indian Hills High School (Ramapo High School). Following a trial, which was conducted in 2011, a jury acquitted Norton of all criminal charges.

Thereafter, a lawyer representing the female student sent the Commissioner documents concerning the Massachusetts criminal action. The Commissioner referred the matter to the Board and, in September 2011, the Board issued an order directing Norton to show cause why his teaching certification should not be revoked or suspended. Norton disputed the charges, and the matter was transferred to the Office of Administrative Law (OAL) as a contested case.

An Administrative Law Judge (ALJ) conducted a four-day hearing and issued an Initial Decision on May 31, 2013, finding that Norton had engaged in unbecoming conduct warranting revocation of his teaching certification. The Initial Decision was fifty-four pages and it detailed the testimony of seven witnesses and the documentary evidence that the ALJ considered. The testimony and evidence established that in 1993 Norton received a certification as a teacher of comprehensive science. In the spring of 2002, Norton was working as a chemistry teacher at Ramapo High School. Thereafter, from the fall of 2002 to 2007, Norton taught at Lodi High School.

During the academic years of 2002 and 2003, Norton organized and chaperoned several student trips, including two trips to Cape Cod and a trip to the Keys in Florida. Based on the evidence at the hearing, the ALJ found that Norton had committed numerous acts of inappropriate conduct during those student trips. In that regard, the ALJ found that (1) Norton allowed students to drink alcohol on several of the trips; (2) Norton purchased alcohol on a trip to Florida and knew that students were consuming alcohol; (3) Norton was aware that students were smoking marijuana and drinking alcohol on several trips, but he failed to discipline the students and he did not report their misbehavior to school administrators or their parents; (4) Norton tried to convince two female students to take off the tops of their bathing suits while he was with them and he told them about a sexual act that his wife had performed on him; and (5) Norton selected an untrained and inexperienced male college student to be a chaperone on several of the trips and he left some students in the chaperone's individual care one evening during one of the trips. Independent of the student trips, the ALJ also found that Norton had "inappropriately fed test answers to certain select students."

The ALJ rejected the most serious charges against Norton. In that regard, the ALJ found that the Board had not proven that Norton sexually assaulted a female student during one of the trips. The ALJ also found that the Board had not sustained the charge that Norton had sexual contact with another student.

Norton filed exceptions with the Board, but the Board adopted the ALJ's Initial Decision. Norton then appealed to the Commissioner. The Commissioner affirmed the decision of the Board, concluding that the evidence in the record supported the findings concerning Norton's unbecoming conduct, "which included a pattern of highly inappropriate and unprofessional behavior." The Commissioner also found that the appropriate penalty was the revocation of Norton's teaching certificate.

In addition, the Commissioner rejected Norton's challenge to the Board's inclusion of certain documents in the record. Norton objected to certain items being included, arguing that not all of those items had been admitted into evidence during the OAL hearing. Specifically, Norton contended that not all the documents concerning the Massachusetts criminal proceeding, which had been sent by the attorney for the female student, had been admitted by the ALJ. The Commissioner ruled that the items that had been sent to the Board were the basis for the Board's order to show cause, and were part of the record in accordance with N.J.A.C. 6A:4-2.5(a). Norton now appeals from the Commissioner's final agency decision.

II.

On this appeal, Norton makes numerous contentions that can be grouped into four arguments: (1) the ALJ's fact findings were arbitrary and capricious because they were based on inaccurate credibility findings or not supported by sufficient evidence; (2) the ALJ erroneously excluded print outs from a website offered by Norton to show that he was a well-regarded teacher who had good relations with students, parents, and colleagues; (3) certain of Norton's behaviors did not constitute misconduct or did not warrant revocation of his teaching certificate; and (4) the record before the Board and Commissioner included documents not admitted into evidence before the ALJ and, therefore, Norton's due process rights were violated. We reject all of these arguments because they ignore the appropriate standard of review and the substantial credible evidence in the record.

Our review of agency action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial 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." Id. at 27-28. We restrict our role to three inquiries

(1) whether the agency's action violates express or implied legislative policies;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors.

[R & R Mktg. v. Brown-Forman, 158 N.J. 170, 175 (1999).]

When the agency's decision satisfies these criteria, we are obligated to afford substantial deference to the agency's expertise. In re Taylor, 158 N.J. 644, 657 (1999).

The same deferential standard applies to our review of the particular disciplinary sanction the agency chose to impose. In re Stallworth, 208 N.J. 182, 195 (2011). In reviewing a sanction, we only determine whether the "punishment is so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness." Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)). Under N.J.S.A. 18A:6-38 and N.J.A.C. 6A:9B-3.2(b), the Board is granted the express authority to "revoke" teaching certificates on the basis of "inefficiency, incapacity, conduct unbecoming a teacher or other just cause." N.J.A.C. 6A9B-4.4. Applying this scope of review, we affirm.

Norton first makes numerous arguments that the ALJ abused her discretion in making credibility determinations and in making fact findings concerning when Norton acted inappropriately. The short and definitive answer to these arguments is that the Commissioner adopted the ALJ's fact findings and those fact findings are supported by substantial, credible evidence in the record.

The ALJ heard testimony from seven witnesses, including Norton. The ALJ also reviewed numerous documents that had been admitted into evidence, including photographs that corroborated certain witnesses' testimony. Most of the fact findings made by the ALJ were based on determinations of witnesses' credibility. For example, the ALJ found that two former students were credible with regard to their testimony concerning certain events. In contrast, the ALJ often found Norton's testimony incredible or not relevant.

Norton challenges the credibility of the students and points to inconsistencies and discrepancies in their testimony. The ALJ, however, considered those same arguments and found the former students to be credible regarding certain events. There is nothing inconsistent with the ALJ not relying on their testimony with regard to other events. We defer to the Commissioner's adoption of the ALJ's credibility findings because the ALJ had the first-hand opportunity to evaluate the witnesses. In re Taylor, supra, 158 N.J. at 656.

Next, Norton argues that the ALJ erred when she ruled that printouts from a website were inadmissible. Norton sought to offer printouts from a website created in 2000. Norton represented that the website was set up by students and parents when he was employed by the Bergen County Academies and the Board of Education wanted to transfer him to the Bergen County Vocational Technology School over his objection. The ALJ ruled that the printouts were inadmissible because they were not authenticated and they were hearsay.

Initially we note that Norton has failed to show that the printouts were relevant. The printouts related to his teaching in and before 2000. Whatever the students, parents, and colleagues thought about him in that period of time is not relevant to whether he engaged in unbecoming conduct in 2002 and 2003.

Moreover, we review evidentiary rulings under an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). Applying that standard, we find no abuse of discretion because the printouts were not authenticated. Moreover, while hearsay can be admitted in certain agency proceedings, here there was no showing that the printouts had any reliability. See N.J.S.A. 52:14B-10(a) (stating "[t]he administrative law judge may, in his discretion, exclude any evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either necessitate undue consumption of time or create substantial danger of undue prejudice or confusion.").

We also reject Norton's arguments that certain of his behaviors did not constitute misconduct or did not warrant revocation of his teaching certificate. Specifically, Norton points to the finding that he selected an inappropriate chaperone to accompany him on student trips and that his failure to tell school administrators and parents about the students' use of marijuana and alcohol did not violate any formal policy.

These contentions miss the fundamental point that Norton was found to have engaged in numerous actions that constituted unbecoming conduct. We discern no abuse of discretion by the Commissioner in adopting the ALJ's findings regarding the events that constituted unbecoming conduct and in determining that the appropriate sanction for that pattern of unbecoming conduct was revocation of Norton's teaching certificate.

Finally, we reject Norton's argument that the record before the Board and Commission erroneously included certain documents. N.J.A.C. 6A:4-2.5(a) states "[t]he record on appeal shall include all papers and exhibits, including audio and video recordings, on file with the Board of Examiners . . . together with all entries as to matters made on the record, any stenographic transcript, and all papers filed with the Commissioner." The documents that Norton objects to include certain police reports, photographs, witness statements, and transcripts from his criminal trial.

Norton objects to the inclusion of the documents on the grounds that they were not formally admitted into evidence before the ALJ. There is no dispute, however, that those documents had been submitted to the Board and were the basis for the Board's order to show cause. Consequently, under a plain reading of the regulation, the documents were appropriately included as part of the record before the Board and the Commissioner.

Norton's due process argument is without merit. Norton does not dispute that he actually received the documents that were part of the record. Thus, he had access to and the ability to use all of those documents. Furthermore, Norton cannot point to anything in the record indicating that the Board or Commissioner relied on documents not admitted by the ALJ in making their determinations. In other words, Norton is complaining about documents that were simply part of the record, but were not necessarily relied on by the Commissioner in making the final agency determination.

Affirmed.