IN THE MATTER TENURE HEARING OF LEWIS SHINKLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2286-04T22286-04T2

IN THE MATTER OF THE TENURE

HEARING OF LEWIS SHINKLE,

SCHOOL DISTRICT OF THE

TOWNSHIP OF HAMILTON,

MERCER COUNTY.

______________________________

 

Argued January 17, 2006 - Decided April 21, 2006

Before Judges Cuff, Parrillo and Gilroy.

On appeal from the State Board of Education.

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

Michael R. Paglione argued the cause for respondent School District of the Township of Hamilton, Mercer County (Paglione & Massi, attorneys; Mr. Paglione, of counsel and on the brief; and Christopher S. Tretola, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent State Board of Education (Carolyn Grace Labin, Deputy Attorney General, filed a statement in lieu of brief).

PER CURIAM

Petitioner, Lewis Shinkle (Shinkle), appeals from the decision of the State Board of Education (State Board) entered on December 1, 2004, affirming the decision of the Commissioner of Education (Commissioner) dismissing him from his position as a tenured teacher at Nottingham High School (Nottingham), Township of Hamilton, Mercer County.

On May 5, 1997, Shinkle was escorted from Nottingham, and suspended pending outcome of an investigation into allegations of sexual misconduct with a student at the high school. On November 25, 1997, respondent, School District of the Township of Hamilton (School District), filed and served Shinkle with tenure charges alleging unbecoming conduct and a pattern of conduct unbecoming a teacher, together with a statement of evidence in support of the charges, pursuant to N.J.A.C. 6A:3-5.1(b)1 and (b)2. On December 22, 1997, the School District certified the charges to the Commissioner pursuant to N.J.S.A. 18A:6-11, and directed that Shinkle be suspended without pay. Shinkle filed an answer denying the charges, and the Commissioner referred the matter to the Office of Administrative Law (OAL) as a contested case for a hearing before an Administrative Law Judge (ALJ). N.J.S.A. 52:14B-9; N.J.S.A. 52:14F-6a. On June 22, 1998, the School District filed an addendum to the statement of evidence (addendum) with the OAL, and served Shinkle with the same. Shinkle filed a motion in limine requesting an order barring admission of any evidence referenced in the addendum that was not contained in the original statement filed on November 25, 1997. Shinkle contended that the addendum raised new allegations that were not presented to the School District at its meeting on certification of tenure charges. Concluding that the "addendum states that it was made necessary by newly discovered information that came to light after the matter was transmitted to the Commissioner," the ALJ denied the motion, and both the Commissioner and the State Board declined to grant interlocutory review.

Following twelve days of trial, commencing November 20, 2003, and ending May 7, 2004, the ALJ issued an initial decision on July 14, 2004, recommending that Shinkle be dismissed from his tenured teaching position. On August 3, 2004, Shinkle filed exceptions to the OAL decision, and the School District replied. On August 19, 2004, the Commissioner issued a final decision, adopting the OAL decision, and directed that Shinkle be dismissed. On September 14, 2004, Shinkle filed a notice of appeal to the State Board. On December 1, 2004, the State Board affirmed the Commissioner's decision in the matter.

We recite the following undisputed facts. Shinkle was a tenured social studies teacher at Nottingham, having worked for the School District for twelve to thirteen years. During the 1996-1997 school year, he taught five courses, and served as Yearbook Advisor and Stage Manager for the high school's annual play. During that school year, A.B., a sixteen year old blonde-haired female, was an eleventh grade student at Nottingham, and up until about March 7, 1997, she was a member of the stage crew supervised by Shinkle. The stage crew worked after school during preparation for the spring play, commencing February 28, 1997, and through performances on March 6, 7, and 8, 1997.

A.B. testified as follows. On the evening of February 28, 1997, between 6:00 and 7:00 p.m., A.B., Shinkle, and several students were in the school auditorium setting up for the play. Shinkle asked A.B. to accompany him to the audiovisual aids room (AV aids room) to look for extension cords. After finding the cords, Shinkle turned off the lights in the room, grabbed A.B., and began touching her breasts and genitalia through her clothing. She resisted, and he released her. Shinkle instructed A.B. not to tell anyone what had happened, and they both left the room. Later that evening, Shinkle asked A.B. to accompany him to the music room to find something, and she complied. Once in the room, he sat on a chair, pulled A.B. down on top of him, and rubbed her back and shoulders. A.B. continued to assist as part of the stage crew the evenings of the first week of March, during which period she and Shinkle engaged in sexual conduct on multiple occasions in various locations throughout the school, including: both the girls' and the pool locker rooms, which Shinkle opened with a key; the yearbook room, where Shinkle opened an interior closet door to cover the glass window in the exterior door; and Shinkle's classroom.

On or about March 15, 1997, A.B. began keeping a diary concerning her relationship with Shinkle. She also confided in a few friends, and began writing notes and letters to them about her encounters with Shinkle.

On March 20, 1997, A.B. and Shinkle engaged in sexual intercourse for the first time, when she had a substitute teacher for her ninth period pre-calculus class. Shinkle and A.B. met in the auditorium, and Shinkle took A.B. to a janitor's closet, which he opened with a key. Inside the closet, Shinkle directed A.B. to climb a metal ladder leading to a second-story loft, where they engaged in sexual intercourse on a chair. On either March 24 or 25, 1997, Shinkle and A.B. again went to the janitor's loft, and engaged in sexual intercourse. During one of their encounters, they engaged in intercourse leaning against a wooden ladder in the loft.

Shinkle and A.B. participated in a school trip to Europe between March 27, and April 6, 1997. On the departing flight, A.B., while switching seats, left her diary in the pocket of her seat, and several students read her entries regarding Shinkle.

After they returned from Europe, A.B. and Shinkle continued to engage in sexual intercourse. On April 8, 1997, Shinkle drove A.B. to his home in his van. Upon arrival, Shinkle took A.B. to the guest bedroom where they engaged in sexual intercourse. Afterwards, Shinkle drove A.B. back to Nottingham, dropping her off on a street which runs behind the athletic field.

On April 17, 2004, during fourth period, A.B.'s English teacher, Carol Sokel, received an internal telephone call from Shinkle, stating that A.B. was needed in the guidance office. A.B. complied, but was told at the guidance office that no one had requested her presence. While across from the guidance office, Shinkle motioned for A.B. to follow him, and they engaged in sexual intercourse in the AV sound booth at the rear of the auditorium that day, and again on or about April 22, 1997. On the latter occasion, they engaged in intercourse on a desk, and a curtain was placed over the window in the booth to prevent anyone from viewing them

On May 1, 1997, after being excused from her seventh period gym class, A.B. and Shinkle engaged in sexual intercourse in the janitor's loft against the wooden ladder. This was their last sexual encounter. A.B. admitted at the hearing that prior to the incident of April 8, 1997, she had been to Shinkle's residence on a few other occasions because Shinkle's wife, who was a physical education teacher and coached the swim and track teams, had hosted pasta parties at their home. A.B. also acknowledged that some details in the notes and letters she wrote to friends were exaggerated because at the time she had wanted to cast the relationship with Shinkle in a more romantic light. Lastly, she admitted that her letters were incorrect where they stated that Shinkle wore a condom, because he did not.

On April 10, 1997, Patricia Coplin, a guidance counselor at Nottingham, spoke to Principal Michael Zapicchi, informing him that a parent had called her alleging that Shinkle and A.B. were involved in a sexual relationship. Zapicchi spoke with A.B. that morning in the presence of Gloria Cheeseman, the school nurse, and A.B. denied the allegations. In the presence of Vice-Principal Steven Simmick, Zapicchi later spoke with Shinkle, who also denied the relationship.

On May 2, 1997, while A.B. was on a class trip to New York City, several students gave Zapicchi the notes and letters written to them by A.B., while informing him that A.B. was involved sexually with Shinkle. Later that day, A.B. told her mother about the relationship. On the morning of May 5, 1997, A.B. and her mother met with Zapicchi, and A.B. admitted that she had been involved in a sexual relationship with Shinkle. Shinkle was escorted from Nottingham later that morning, and was suspended pending investigation.

An investigation was conducted between May 2, and May 29, 1997, during which multiple parties were interviewed by police detectives. A.B. made a statement to the police on May 6, 1997, wherein she stated that between February 28, and May 1, 1997, she and Shinkle had a sexual relationship. Her statement described their sexual encounters at various locations throughout the school and at Shinkle's home. A.B. stated that on May 1, 1997, two people, who she assumed to be teachers, saw her and Shinkle coming out of either the yearbook or janitor's room. She stated that after the incident on April 17, 1997, in A.B.'s presence, Sokel saw Shinkle in the hallway and told him that she had recognized his voice when he had called A.B. down to the guidance office. Lastly, she stated that the letters she wrote to her friends were not completely accurate, because she embellished the relationship between herself and Shinkle in terms of quality and the use of contraceptives. A.B. made several corrections to the statement, and signed it.

In addition to A.B., the School District presented testimony from the following witnesses: Nottingham High School custodians, Donna Ireland and Karl McRae; teachers Carol Sokel, Catherine Cimino, and Leonard Santamaria; guidance counselor Patricia Coplin; Principal Michael Zapicchi; Vice-Principal Steven Simmick; Dr. Charlotte Word; Detectives Ralph Petty and James Molinaro; and Investigator Nancy Beiger. A.B.'s diary was also admitted into evidence.

Detective Ralph Petty testified that on June 7, 1997, he went to Shinkle's residence to retrieve keys to Nottingham. He retrieved seventeen keys from Shinkle, and proceeded to check Nottingham's doors for matches. The keys opened doors to some of the locations where A.B. alleged that there had been sexual contact, i.e., the girls' locker room, the AV light control and sound booth in the auditorium, the auditorium, the music/band room, and the janitor's closet and loft. However, the keys did not open doors to the AV aids room, the girls' pool locker room, classroom 208, or the yearbook room.

In June 1997, blood samples of A.B. and Shinkle, together with a sperm sample from an unknown donor, were sent to Celmark Diagnostics (now Orchid Celmark) in Maryland for testing. A report was issued on June 26, 1997. Subsequent to the investigation, the matter was presented to a Mercer County Grand Jury in June 1997, and a "no bill" was returned. A.B. was re-interviewed on August 27, October 2, and November 4, 1997, and a memorandum of interview was created.

On August 26, 1998, Detective James Molinaro along with three other detectives, and Investigator Nancy Beiger, of the New Jersey State Police and the Division of Criminal Justice, respectively, went to Nottingham to examine nine potential locations, namely, the janitor's closet and loft area; the yearbook room; the AV light control/sound booth; the AV aids room; classroom 208; the library; the guidance office; the girls' locker room; and the girls' pool locker room. Ultimately, the detectives did not examine the library. Using a light source, which visualizes objects and stains not visible under normal lighting conditions, the detectives examined the janitor's loft. Drip patterns were discovered on the top surfaces of the bottom two steps of the wooden ladder in the loft. The entire ladder was removed, and was subsequently handed over to Investigator Beiger. Various hairs and fibers were also collected from the lower steps of the ladder and from the floor. Use of the light source revealed positive results on the desk in the AV sound booth. The suspect portion of the desk surface was removed by Detective Molinaro, and handed over to Investigator Beiger.

Later, the wooden ladder was dismantled, and sections of the bottom two steps were sent to Celmark for testing. Celmark received further samples for testing, and issued two additional reports on December 31, 1998, and December 4, 2001. In February or March 1999, Shinkle was indicted by a State Grand Jury, but that indictment was subsequently dismissed.

Donna Ireland testified that she worked the 3:00 p.m. to 11:00 p.m. shift as a custodian at Nottingham during the 1996-1997 school year, and was responsible for cleaning several rooms, including the nurse's room, the yearbook room, and the cooking room. Sometime between December 1996 and March 1997, which was during the play practice season, at about 6:00 or 6:30 p.m., as Ireland was cleaning the nurse's room, she saw Shinkle with a blonde-haired female student, who was wearing jeans and a baseball cap, walking down the hall in the direction of the yearbook and cooking rooms. Ireland heard the yearbook room door open and close. She went to clean the yearbook room, but the lights were off. The interior closet door was open against the glass panel of the exterior hall door, and the exterior door was shut. Consequently, Ireland proceeded to clean the cooking room, after which, as Ireland was standing in the hallway, she saw Shinkle and the same blonde-haired student come out of the yearbook room. She noticed that Shinkle's T-shirt was partially un-tucked from his pants.

Karl McRae testified that during the 1996-1997 school year, he was the night custodial supervisor at Nottingham, and worked the 3:00 p.m. to 11:00 p.m. shift. He was responsible for knowing who would be in the building after hours. On one night preceding the play production in spring 1997, as he was standing in the hallway, he saw Shinkle, with his shirt partially un-tucked and his belt hanging down, leaving the yearbook room with a blonde-haired female student, whom McRae recognized as attending Nottingham. McRae testified that Ireland informed him of her observations, and he subsequently reported his observations to Vice-Principal Harvey Highland. McRae also testified, consistent with A.B., as to the description of the interior of the janitor's closet.

Catherine Cimino testified that during the 1996-1997 school year, she was A.B.'s ninth period pre-calculus teacher. Cimino testified that she was absent from teaching duties on March 25, through March 27, and on April 25, 1997. Cimino also stated that A.B. was marked absent on April 8, 1997.

Patricia Coplin testified that she was the guidance counselor during the 1996-1997 school year. Coplin testified that she received a telephone call on the evening of April 9, 1997, from a parent stating that a friend of her daughter was having a sexual relationship with a teacher. The next day, Coplin obtained the names of A.B. and Shinkle from the parent, and relayed the information to Principal Zapicchi.

Principal Zapicchi testified that in May 1997, it was brought to his attention that there was a "blanket" type material covering the glass window in the AV sound booth, and that it appeared that the cloth had been duct taped to the window. Zapicchi testified that upon his investigation, the cloth was, in fact, covering the sound booth window. Zapicchi also testified that when A.B. admitted to the sexual relationship with Shinkle, she stated: "When it happened in school, it happened during periods seven and nine[,] . . . that the first time they were together was February 28th during school play rehearsals[, and] . . . the last time they were together was May the first."

Leonard Santamaria, the producer of the play, testified that he noticed that during play practices, A.B. and Shinkle were together a substantial portion of the time. Santamaria testified that he was a social studies teacher and the chairperson of the social studies department at Nottingham. He stated that on February 28, 1997, Shinkle boasted about having sex with C.D., a former Nottingham student, at various places in the school, and the morning when Shinkle was escorted out of the school, Shinkle had expressed concern that there could have been allegations that he had engaged in sex with C.D. Santamaria testified that on the evening of May 6, 1997, he visited the Shinkle residence, and that in a private conversation with Shinkle, Shinkle had asked him to go to the janitor's loft with cleaning supplies to clean up "any traces of ejaculate" that may have been present. Santamaria testified that Shinkle claimed any such ejaculate would have been from relations he had in the loft with C.D., and he did not want the police to mistake the ejaculate as relating to A.B. Deciding not to do what Shinkle requested, Santamaria later told another teacher, John Cox, about what Shinkle had asked him to do. However, Santamaria never told the School District's investigator, Mary Jane Cooper, about Shinkle's request, because he was told by the New Jersey Education Association attorneys to only answer questions directly posed to him. Some months later, the conversation with Shinkle was disclosed to Zapicchi by Santamaria when discussing a possible lost laptop, which Santamaria thought Shinkle may have given to C.D. Santamaria subsequently disclosed the conversation with Shinkle to Cooper on December 16, 1997.

Dr. Charlotte Word, from Celmark, was qualified as an expert in forensic DNA and molecular biology. She testified that Celmark used PCR/STR (polymerase chain reaction/short tandem repeats) testing, and stated that both methods were generally accepted in the scientific community as reliable. Word testified as to the chain of command for the samples received in the case, which included two pieces of wood (taken from the wooden ladder in the janitor's loft), and a vial of Shinkle's blood. Referring to the December 4, 2001 report on these samples, Word explained the testing methods and use of controls, and concluded that the DNA found on the wood samples contained sperm cells. She also testified that the DNA profile from each of the wood samples matched the DNA profile from Shinkle's blood specimen. Word stated that the non-sperm fraction of the DNA from one of the wood samples indicated "a mixture of DNA from one major donor and a minor donor."

Word noted that the 1997 and 1998 tests excluded A.B. as a source of the sperm fraction of various specimens; A.B.'s DNA was not tested in 2001, and therefore was not excluded as a source for the minor donor in the non-sperm fraction; that the 1997 and 1998 tests used three and nine loci (genetic markers), respectively, whereas the 2001 test used thirteen loci; and that the 1997 and 1998 tests were not inconsistent with the results of the 2001 tests. Word also indicated that the lab analyst who analyzed the 2001 samples followed Celmark's standard operating procedures, and that she concurred with the conclusions in the December 4, 2001 report. Word testified that the conclusions in the 2001 report meant that Shinkle "certainly cannot be excluded as the source of those samples[,] . . . he is included as a source of that DNA sample." She testified that the statistical likelihood of the sperm fraction DNA profiles from the wood samples identically matching a Caucasian individual's DNA, as it did with Shinkle's, was 1 in 3.1 quadrillion. Word opined that Shinkle was "the source of the DNA from the sperm from the two wood samples," and that "[w]e would [not] expect anyone else on the earth to have that profile."

Read into the record, over Shinkle's objection, was Carol Sokel's statement of November 12, 1997, where she stated that she had received a request via classroom telephone to excuse A.B. from English class, and that she recognized the voice to be that of Shinkle.

Shinkle presented several witnesses. His father, Lewis Shinkle, Sr., his sister-in-law, Deborah Gottlick, and his father-in-law, Bob Callahan, testified that during the 1996-1997 school year, they visited the Shinkle residence unannounced, somewhat daily. Raymond Gibbs, who was chief custodian in 1997, testified that he knew that an aquatics club would use the school's pool from 6:00 to 11:00 p.m. nightly, and that he periodically went to the janitor's loft. The parties stipulated that the aquatics club had access to the pool, but did not make use of it all of the time. Officer Robert Hamilton testified that using the light source, he took a suspect swab from an area of the desk in the AV sound booth that fluoresced, and a control swab from an area several inches away; that the suspect swab returned negative for semen, while the control swab returned positive for semen; and that it was possible that smearing could have occurred. A student who was a senior at Nottingham during the 1996-1997 school year, testified that as the yearbook senior editor, she and other students would use the yearbook room in the evenings during the week of play preparation and rehearsal. However, she stated that it was possible that the yearbook room could have been "idle" for between fifteen and twenty minutes at a time. She also stated that other female students had long blonde hair, and that she and other students would use the AV sound booth to hang out or eat lunch periodically, but "I know I was [not] there every day."

Shinkle denied: 1) any relationship with A.B.; 2) having a private conversation with Santamaria; 3) asking Santamaria to clean up ejaculate; and 4) knowledge of how his sperm may have ended up on the ladder in the loft, speculating that it may have traveled there on the bottom of his shoe.

At some point during the proceedings, the ALJ conducted a site visit to the janitor's closet and loft, and indicated that he, three attorneys, and an assistant principal were all able to "climb[] into the area and [stand] there together with adequate elbowroom."

On July 14, 2004, the ALJ issued an initial decision. Accepting that A.B.'s recollection of some dates was blurred, the ALJ found her testimony credible, based on her continued ability to provide detailed accounts, despite the passage of time. The ALJ found Santamaria credible as well, stating that his recitation of the conversation with Shinkle was believable and "[n]o evidence was developed that points to any animus, or other motive that might have stirred Mr. [Santamaria] to fabricate so strange and ruinous a story." The ALJ summarized Shinkle's witness testimony as a means "to show that the locations [A.B.] described were unlikely venues for an assignation." He stated that he did not give significant weight to the suggestion of "improbability by factor of risk." As to the cumulative weight of the testimony, the ALJ stated:

Importantly, this is not a case of "he said she said," where subtle facts must be carefully sifted to reach an answer that narrowly preponderates in one or another direction. The evidence is fairly one-sided. Dr. Word, a highly qualified expert, testified that the sperm specimen found on the wood pieces she tested came from [Shinkle.] The level of statistical likelihood, 1 in 3.1 quadrillion, creates a fact bordering on certainty. [Shinkle] called no DNA expert to disagree with Dr. Word's methods or conclusions. The wood pieces tested are actually two rungs from the ladder in the loft above the janitor's closet, a location identified by A.B. as a place where she and [Shinkle] engaged in sexual relations. She recalled that during one encounter in the loft they leaned against the ladder. No better explanation suggests itself for the presence of [Shinkle's] issue in this location. His apparent befuddlement concerning the presence of his sperm on the ladder was feigned and his surmise concerning his shoes reached for a benign account. The testimony of Officer Hamilton concerning the possibility that samples can smear from one spot on a desk was supposed to underpin this suggestion.

The ALJ determined that the School District had demonstrated by a preponderance of the credible evidence that Shinkle engaged in unbecoming conduct, namely engaging in a sexual relationship with A.B., and concluded that dismissal was warranted. The Commissioner subsequently adopted the ALJ's decision, and issued a final decision to that effect. The State Board affirmed the final decision, directing that Shinkle be dismissed. Shinkle appeals.

On appeal, Shinkle raises the following arguments:

POINT I.

THE BOARD FAILED TO ADHERE TO THE STATUTORY AND REGULATORY REQUIREMENTS FOR FILING STATEMENTS OF EVIDENCE.

A. THE PROCEDURAL REQUIREMENTS OF THE RELEVANT STATUTORY AND ADMINISTRATIVE CODES ARE APPLICABLE TO STATEMENTS OF EVIDENCE.

B. THE ADDENDUM IS A STATEMENT OF EVIDENCE.

C. THE ILLEGAL PROCESS VIS- -VIS THE ADDENDUM DENIED RESPONDENT DUE PROCESS OF LAW.

POINT II.

THE TESTIMONY PRESENTED ON BEHALF OF THE BOARD OF EDUCATION DOES NOT PERMIT A FINDING BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE AGAINST RESPONDENT.

A. A.B. IS NOT CREDIBLE.

B. THE TESTIMONY OF KARL MCRAE AND DONNA IRELAND CANNOT BE CREDITED.

C. THE TESTIMONY OF THE CELLMARK EXPERT CONCERNING SEMEN IN THE LOFT ROOM IS INSUFFICIENT TO SUPPORT THE BOARD'S ALLEGATIONS.

POINT III.

THE WITNESSES FOR RESPONDENT WERE CONSISTENT AND CREDIBLE. HOWEVER, THE ALJ BELOW ARBITRARILY DISMISSED THEIR TESTIMONY, IPSE DIXIT.

A. THE WITNESSES HAVE ESTABLISHED THAT IT WOULD BE NEARLY IMPOSSIBLE FOR RESPONDENT AND A.B. TO SPEND TIME UNDISCOVERED IN THE SHINKLE HOME.

B. THE WITNESSES HAVE ESTABLISHED THAT IT WOULD BE NEARLY IMPOSSIBLE FOR A.B. AND RESPONDENT TO HAVE SPENT TIME IN THE JANITOR'S LOFT AND THE GIRS' POOL LOCKER ROOM UNDISCOVERED.

C. IT IS HIGHLY UNLIKELY THAT RESPONDENT AND A.B. COULD HAVE ENGAGED IN SEXUAL RELATIONS IN THE AUDITORIUM SOUND BOOTH AND YEARBOOK ROOM WIOUT BEING DISCOVERED.

D. THE DECISION BELOW NOT ONLY FAILS TO DISCUSS THE TESTIMONY OF THESE WITNESSES, BUT IT IS SPECULATIVE.

Shinkle first argues that the School District's filing of the addendum to the statement of evidence on June 22, 1998, six months after the tenure charges were certified, violated statutory and regulatory requirements, and denied him due process of law. We disagree.

N.J.S.A. 18A:6-10 provides that a person holding tenure in a public school cannot be dismissed "except for inefficiency, incapacity, unbecoming conduct, or other just cause." Even then, dismissal may be effected "only after a hearing" and after written charges have been filed and served on the person in the proceeding. N.J.S.A. 18A:6-10. The charges are required to be "accompanied by a supporting [s]tatement of [e]vidence" when filed to District Board of Education, and when served on the affected employee. N.J.A.C. 6A:3-5.1(b)1 and (b)2. Here, the School District filed a statement of tenure charges, along with a fifty-seven page statement of evidence, and served both documents on Shinkle in November 1997. These documents were reviewed by the School District at a meeting in December 1997, and the School District determined by majority vote that there was "probable cause to credit the evidence in support of [the] charges" and that the charges were "sufficient to warrant a dismissal." N.J.A.C. 6A:3-5.1(b)4.

Shinkle does not dispute that the School District was in procedural compliance with the initial filing and service of the charges and statement of evidence. Instead, he quarrels with the three-page addendum, arguing that it should have been submitted to the School District for a probable cause vote. We conclude that this argument is devoid of merit. Although the addendum is a statement of evidence, in that it provides support for the allegations in the statement of charges, it did not have to be certified by the School District. Only the initial statement of evidence, that is filed contemporaneous with the statement of charges, is required to be addressed by the School District's vote. N.J.S.A. 18A:6-11.

The purpose of the statute is to ensure that probable cause exists to submit the case for a hearing. Therefore, if in considering the first fifty-seven pages of the original statement of evidence, the School District found probable cause to credit the tenure charges in the statement of charges, it does not follow that the addendum would uproot the prior finding of probable cause. The addendum contained new information provided by Santamaria, and is in addition to, not in place of, the information in the statement of evidence. Furthermore, as admitted by the School District and noted by the ALJ, Shinkle was not confronted with any new charges. Shinkle misconstrues the language in N.J.A.C. 6A:3-5.1, as mandating that he be provided an opportunity to respond to each and every item of evidence before a hearing is held. It is not the "statement of evidence" to which he responds with a statement of position; it is the "tenure charges" in receipt of which he is provided an "opportunity to submit . . . a written statement of position and [his own] written [s]tatement of [e]vidence." N.J.A.C. 6A:3-5.1(b)3.

Shinkle's argument that the School District's investigator, Mary Jane Cooper, improperly authored the addendum because the School District was required to author the charges is also meritless. Shinkle confuses the charging document with the addendum. Additionally, Cooper authored the initial statement of evidence, which Shinkle does not challenge; and the School District is only required to certify the charges, not statements of evidence, to the Commissioner. N.J.A.C. 6A:3-5.1(b)6, and N.J.S.A. 18A:6-11. The procedural guides applicable to the statement of charges and initial statement of evidence are not applicable to the addendum which was filed after the School District found probable cause.

Shinkle argues next that he was denied due process because he was not provided with a "fair opportunity to respond to the [addendum]." We conclude otherwise.

One may not be deprived of a protected property interest without first being provided with "an opportunity to present [a] claim of entitlement." Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S. Ct. 1148, 1157, 71 L. Ed. 2d 265, 277 (1982). Notably, "[t]he interest in tenured public employment is not one of the 'fundamental property interest[s] entitled to substantive due process protection.'" Emri v. Evesham Tp. Bd. of Educ., 327 F. Supp. 2d 463, 471 n.9 (D.N.J. 2004) (quoting Nicholas v. Pa. State Univ., 227 F.3d 133, 140 (3d Cir. 2000)). Such interest is entitled only to procedural due process. Id. at 472. "Procedural due process requires notice and an opportunity to be heard 'at a meaningful time and in a meaningful manner' that is 'appropriate to the nature of the case.'" Ibid. (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62, 66 (1965)).

In Emri, the court's discussion of procedural due process was in the context of an opportunity to be heard prior to the initial suspension, which the court concluded was provided to the affected employee. Id. at 473. In that case, the school district followed New Jersey's statutory scheme requiring the service of tenure charges, providing the respondent an opportunity to respond, and later, holding a hearing on the charges. Ibid.; see also N.J.S.A. 52:14B-9 (outlining procedure for notice and hearing in contested cases); N.J.S.A. 18A:6-11 (providing for procedure from service of tenure charges to certification of charges to Commissioner). In a contested case, due process requires an opportunity to "respond, appear and present evidence and argument" on the issues at a hearing. N.J.S.A. 52:14B-9(a) and (c). This procedure was followed. Shinkle's hearing before the ALJ spanned seven months, and included the full panorama of exhibits, testimony, and argument. Shinkle was present throughout all of the testimony, conducted cross-examination, and was not denied an opportunity to confront witnesses. See In re Wolf, 231 N.J. Super. 365, 377 (App. Div.), certif. denied, 117 N.J. 138 (1989).

Contrary to Shinkle's argument, the statement of evidence is not required to be supplemented by a sworn certification by each informant. There is no requirement that individuals who provide information used in a statement of evidence execute certifications as to their knowledge. See In re Tenure Hearing of Cowan, 224 N.J. Super. 737, 746 (App. Div. 1988). The provisions in N.J.S.A. 52:14B-9, for a hearing in a contested case and the presentation of witness testimony, address a respondent-teacher's right to due process in this regard. Shinkle had almost five years' notice of Santamaria's proposed testimony; Santamaria testified at the hearing; and Shinkle presented several witnesses in an attempt to undermine Santamaria's credibility. There is no support for Shinkle's argument that he was denied procedural due process.

Assuming that there was a procedural deficiency concerning the non-submission of the addendum to the School District, we would still conclude that such omission would not warrant a dismissal of the charges. Where there is a finding of procedural deficiency, the respondent must be prejudiced by the deficiency, or there must be an significant disregard of tenure procedure, before the charges will be dismissed. See Cowan, supra, 224 N.J. Super. at 743-45, 747-48; see also In re Tenure Hearing of Beam, 93 N.J.A.R.2d (EDU) 320 (distinguishing "fatal defects," which warrant dismissal of the charges, from insubstantial "technical violations" of tenure procedure).

Shinkle argues that he was prejudiced in that he was required to defend against evidence that was not presented to the School District. He argues that had the School District considered the addendum, it may have "found the addendum insufficient for a probable cause determination." Shinkle's argument disregards the fact that it is the cumulative evidence which must rise to the level of probable cause, not each independent account. Because the School District found probable cause to support dismissal in the original statement of evidence, then any additional evidence derived from the addendum would be over and above that amount needed to find probable cause.

We reject Shinkle's arguments under Points II and III. The judicial role in reviewing decisions of an administrative agency is limited. "[T]he appropriate standard of review to be applied by an appellate court reviewing the final decision of an administrative agency is for the court to examine the record to determine whether sufficient or substantial credible evidence exists therein to support the agency decision." Dore v. Bedminister Tp. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982). Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Tp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is "'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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Furthermore, should there be substantial evidence in the record to support more than one result, it is the agency's choice which governs." Dore, supra, 185 N.J. Super. at 453. Although we must give deference to "an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001).

"A trier of fact may 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). If the ALJ specifies what testimony has been rejected, and provides reasons, then the decision will have "great weight" with the reviewing court. Ibid.

 
After analyzing the record in light of the arguments presented under Points II and III, we determine that they are devoid of merit, and conclude that the decision of the State Board is supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(D).

Affirmed.

 

Following a criminal investigation into Shinkle's conduct with the student, the matter was presented to a Mercer County Grand Jury in June 1997, and the Grand Jury returned a "No Bill." After the tenure charges were filed on November 25, 1997, the matter was re-presented to a Grand Jury in February or March 1999, and an indictment charging Shinkle was returned. The OAL hearing on the tenure charges was postponed pending disposition of the indictment that was dismissed by the State in November 2000.

We have used fictitious initials to refer to A.B. and C.D., who were minors at the time of the alleged events.

Subsequent to making the statement, Sokel had suffered a stroke and did not remember anything from her previous statement.

(continued)

(continued)

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A-2286-04T2

RECORD IMPOUNDED

April 21, 2006