IN THE MATTER REVOCATION OF THE CERTIFICATE OF DAVID TOLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5847-04T15847-04T1

IN THE MATTER OF THE REVOCATION OF

THE CERTIFICATE OF DAVID TOLER

___________________________________

 

Submitted March 13, 2006 - Decided March 30, 2006

Before Judges Cuff and Lintner.

On appeal from the State Board of Education.

Dennis J. Cummins, Jr., attorney for appellant, David Toler.

Zulima V. Farber, Attorney General, attorney for respondent State Board of Education (Michael J. Haas, Assistant Attorney General, of counsel; Melanie M. Brookes, Deputy Attorney General, on the brief).

PER CURIAM

On February 21, 2002, the State Board of Examiners (the Board) issued an Order to Show Cause (OTSC) why David Toler's teaching certificate should not be revoked. The matter was transferred to the Office of Administrative Law (OAL) as a contested matter, following which an Administrative Law Judge (ALJ) granted the Board's application for summary decision, N.J.A.C. 1:1-12.5, revoking Toler's teaching certificate for unbecoming conduct as a teacher, N.J.A.C. 6A:9-17.5. The Board adopted the ALJ's decision in an opinion issued on October 28, 2004. The Board denied Toler's motion to stay the revocation pending appeal on March 3, 2005. The Board entered its order affirming the ALJ's decision on June 3, 2005. Toler appeals. Although we conclude that the Board was justified in determining summarily that Toler participated in conduct unbecoming a teacher, we remand the matter to permit further proceedings limited to his claim that he was selectively and unfairly singled out for revocation of his teaching certificate.

The underlying facts are substantially undisputed. On January 19, 1999, a State Grand Jury returned Indictment Number 99-01-00010-S, charging Toler with theft by deception, conspiracy, and official misconduct for participating in a scheme with Dr. Carl H. Lichtman, a psychologist. The indictment alleged that Toler submitted false insurance claims to the State Health Benefits Program (SHBP) based upon treatment services not rendered by Lichtman, with whom he split the funds following payment. On February 16, 1995, Toler provided a sworn statement admitting his participation in the scheme. On May 6, 1999, he pled guilty to third-degree conspiracy, N.J.S.A. 2C:5-2, and third-degree theft by deception, N.J.S.A. 2C:20-4, testifying that he allowed Lichtman to apply for monies from his medical insurer for treatment not rendered, in return for which he received checks from Lichtman for over $2300. The State agreed to allow Toler to enter Pretrial Intervention (PTI) conditioned on restitution, entry of a consent judgment, and resignation of his tenured position with the Newark Public Schools. He completed PTI and on December 15, 2000, a Law Division Order was entered dismissing the indictment.

On April 8, 2002, the Board issued its OTSC why Toler's Teacher of the Handicapped certificate should not be revoked or suspended based upon his willing, knowing, and/or intentional involvement in the scheme to defraud the SHBP. The Board filed its motion for summary decision based upon Toler's sworn statement and testimony at the plea hearing. On July 2, 2004, Toler requested an adjournment and forwarded a copy of the December 15, 2000, Order dismissing the indictment. On August 10, 2004, Toler filed a letter brief requesting an opportunity to present testimony, claiming selective prosecution or unequal treatment. He also argued that because the indictment was dismissed and he completed PTI, his sworn statement and testimony at the plea hearing was inadmissible.

The ALJ found that Toler's sworn statement and testimony at the plea hearing were admissions under oath of his participation in Lichtman's scheme. Noting that his findings were not based upon Toler's conviction of a crime but on Toler's testimony and statement admitting his involvement, the ALJ concluded that Toler's completion of PTI and the resulting dismissal of the indictment were of "no moment." The ALJ found that Toler's failure to meet the high standards of conduct expected of a teacher, by participation in the scheme, required revocation of his teaching certificate.

Rejecting Toler's claim that he was entitled to a plenary hearing, the ALJ pointed out that Toler did not offer any evidence to counter his admissions, his legal position that the dismissal of the indictment prevented the Board from revoking his certificate was disingenuous, and he offered no circumstances or character witness that justified mitigation.

The ALJ found that Toler's claim that he did not know of any other teacher whose license had been revoked for participation in the insurance fraud scheme was "irrelevant" and that Toler offered no proof that he was treated unequally. The ALJ then noted that the Board had submitted two Board decisions revoking certificates for teachers involved in the same scheme. Notwithstanding her referencing the decisions submitted by the Board, the ALJ found additionally that she did not have jurisdiction to determine Toler's claim of selective enforcement. Affirming the ALJ's decision, the Board found that Toler's involvement in the insurance scheme constituted conduct unbecoming a certificate holder, justifying revocation under N.J.A.C. 6A:9-17.5.

Toler raises several arguments on appeal. In Point V of his appellate brief, Toler asserts, for the first time, that because N.J.A.C. 6A:9-17.10 permits a teacher to reapply for his certification four years after it has been revoked, he should qualify for immediate restoration. Normally, an appellate court will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available, "'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999). Nonetheless, we address Toler's contention as lacking merit. Toler misreads N.J.A.C. 6A:9-17.10 as allowing reinstatement or restoration. N.J.A.C. 6A:9-17.10(a) provides in pertinent part that a "certificate that has been revoked . . . shall not be reinstated." (emphasis added). Further, an "individual who has had a certificate revoked may file an application for a new certificate with the Board of Examiners." Ibid. (emphasis added). To grant a new certificate "four years shall have passed since the effective date of the revocation of the previous certificate." N.J.A.C. 6a:9-17.10(b)(2).

Equally misplaced and devoid of merit are Toler's Point I and II contentions that the Board should not have considered his participation in the fraudulent scheme because he successfully completed PTI and there were factual issues respecting his conviction and the voluntariness of his plea to justify a plenary hearing. The ALJ correctly pointed out that the basis for entering summary disposition was Toler's statement and testimony, both given under oath, in which he admitted participation in the scheme to defraud the SHBP. The summary decision was not based upon the indictment or Toler's guilty plea. Toler did not offer any facts contrary to his admission concerning his involvement with Lichtman. The ALJ correctly determined that there were no factual issues presented respecting the nature of Toler's conduct. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We next consider Toler's claim that his one-time involvement did not constitute unbecoming conduct. N.J.S.A. 6A:9-17.5 provides in pertinent part that the Board "may revoke or suspend the certificate(s) of any certificate holder on the basis of demonstrated inefficiency, incapacity, conduct unbecoming a teacher or other just cause." Teachers work in "a sensitive area in a schoolroom" where they "shape[] the attitude of young minds towards the society in which they live." Adler v. Bd. of Educ. New York, 342 U.S. 485, 493, 72 S. Ct. 380, 385, 96 L. Ed. 517, 524 (1952). In that regard, there can be no doubt that "the state has a vital concern . . . [and] the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools . . . ." Ibid. Certainly, Toler's participation in a scheme that would constitute theft by deception reflected a lack of integrity, which could adversely affect the shaping of student attitudes and militate against his being an appropriate role model. Accordingly, we are satisfied that the proof amply supports the Board's finding that Toler's participation in the fraudulent scheme was conduct unbecoming a teacher, which might otherwise warrant revocation. That being said, we are not convinced, given Toler's claim that he has been singled out, that the sanction of revocation should have been decided in a summary manner.

We address Toler's argument that the Board cannot justify revocation where it sought only two other revocations besides his out of a total of 150 similarly situated school employees. Although the record before the ALJ does not disclose the number of teachers involved, we are not unfamiliar with the breadth of Lichtman's fraudulent scheme. In State v. Decree, 343 N.J. Super. 410, 412 (App. Div.), certif. denied, 170 N.J. 388 (2001), we recognized that the defendant's convictions of second-degree conspiracy, theft by deception, and official misconduct stemmed from a fraudulent scheme involving Lichtman and "a multitude of employees of the Newark Board of Education." In Debell v. Board of Trustees, 357 N.J. Super. 461 (App. Div. 2003), we dealt with an appeal from a decision by the Board of Trustees of the Public Employees' Retirement System partially forfeiting the petitioner's pension based upon her conviction for theft by deception, arising from Lichtman's criminal conduct.

Here, the ALJ dismissed Toler's assertion that he was unfairly singled out as irrelevant, notwithstanding the Board's submission of two similar cases involving teacher certificate revocation. Other than reiterating the ALJ's additional comment that she had no jurisdiction to decide Toler's claim, the Board never addressed the issue. Because the resolution of Toler's claim that he was singled out by the Board is fact sensitive and impacts upon the reasonableness of the decision to revoke or otherwise suspend his teaching certificate, it should not have been summarily dismissed as irrelevant. We are, therefore, constrained to remand the matter to the OAL to permit further proceedings limited to Toler's claim that he was selectively and unfairly singled out. We take no position on the merits of Toler's claim or whether it provides sufficient justification to warrant a lesser sanction, such as suspension, for his unbecoming conduct as a teacher.

Remanded for further proceeding consistent with this opinion.

 

The letter of August 10, 2004, is not made part of the appendix. Its contents are taken from both the Board's appellate brief and the ALJ's decision.

Neither of these decisions is included in the appendix on appeal.

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A-5847-04T1

March 30, 2006