BOARD OF EDUCATION OF THE TOWNSHIP OF MIDDLETOWN v. DR. DAVID L. WITMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5128-07T35128-07T3

BOARD OF EDUCATION OF THE

TOWNSHIP OF MIDDLETOWN,

Petitioner-Respondent,

v.

DR. DAVID L. WITMER,

Respondent-Appellant.

________________________________________________________________

 

Argued May 11, 2009 - Decided

Before Judges Carchman, R. B.

Coleman and Sabatino.

On appeal from the State Board of

Education, Docket No. 62-2/06.

Frank S. Gaudio argued the cause for

appellant (Miller & Gaudio, attorneys;

Mr. Gaudio, on the brief).

Daniel R. Roberts argued the cause for

respondent (Kenney, Gross, Kovats &

Parton, attorneys; Mr. Roberts and

Christopher B. Parton, on the brief).

PER CURIAM

Appellant David L. Witmer appeals from a final decision of the State Board of Education (State Board) finding appellant guilty of four charges of conduct unbecoming a Superintendent of Schools and imposing a six-month suspension without pay.

The State Board adopted the Commissioner of Education's acceptance of the findings of the administrative law judge (ALJ) on three tenure charges, that Witmer, the Superintendent of Schools of the Township of Middletown, had attempted to confer unauthorized benefits upon himself in violation of various provisions of his employment contract by misdirecting vacation and personal time to himself and had failed to respond truthfully to an inquiry by the Board of Education of the Township of Middletown (the School Board).

As to tenure charge four, the ALJ had found no abuse of authority by appellant. The Commissioner rejected the finding and concluded that appellant had abused his position by directing subordinates to take action to effectuate the misdirection of his vacation and personal leave time. The State Board adopted the Commissioner's findings.

Appellant raises a threshold issue and asserts that the findings of violation of all charges must be reversed because the Commissioner lacks jurisdiction over issues of contract interpretation and jurisdiction should properly be in the Superior Court. In addition to this primary and dispositive argument, appellant also contends that the ALJ ignored the doctrines of estoppel, laches and waiver; the findings of the ALJ as to tenure charges two, three and five were unsupported by the evidence; and appellant's due process rights were violated when he was denied specific discovery.

Specifically as to tenure charge four, appellant argues that the Commissioner's overturning of the decision of the ALJ was arbitrary, capricious and unreasonable because (contrary to the Commissioner's finding) a disparate balance of power alone does not create a nonrebuttable presumption of intimidation, undue influence or coercion. Appellant also raises another critical point as to the six month suspension imposed as a penalty, claiming that no basis in fact or in law existed for the imposition of such a penalty.

We conclude that Commissioner and State Board properly exercised jurisdiction in this matter and we reject appellant's additional arguments as to tenure charges two, three and five.

As to tenure charge four, we reverse the Commissioner's finding, as adopted by the State Board. We conclude that the credibility findings of the ALJ were supported by sufficient, competent and credible evidence in the record, and that the Commissioner did not have the authority to reject them.

As to the penalty, for the reasons set forth infra, we reverse and remand for further consideration of the quantum of the penalty imposed.

I.

These are the relevant facts. Appellant became the superintendent for the Middletown Township School District in 2003. He negotiated his own contract with the School Board attorney for an initial term of three years, but subsequently extended it to June 30, 2008.

We first review the details of the various tenure charges. In tenure charge two, the School Board alleged that appellant had directed the school district's personnel office to carry over vacation time in excess of that authorized by his employment contract.

Under the original employment contract, appellant was entitled to carry over ten unused vacation days from year to year:

The Superintendent shall be provided with benefits specified below:

a) Twenty (20) annual vacation days with pay, exclusive of the holidays set out on [sic] the twelve-month employee calendar. The Superintendent is encouraged to take all vacation days during the year in which they are earned. The Board, in its discretion, shall determine whether the Superintendent will be reimbursed annually at his daily rate of pay for any unused vacation days, not to exceed ten (10) per year. In the event the foregoing discretion is not exercised by the Board, the Superintendent may carry over from year to year unused vacation days, not to exceed a total of ten (10) accumulated days being carried at any given time; however, he is not permitted to utilize more than thirty (30) vacation days in any school year.

. . . .

Upon his separation from employment, the Superintendent shall be entitled to payment for all accumulated vacation time at his then-current per diem rate.

[(Emphasis added).]

The contract was subsequently amended to allow Appellant to "carry over unused vacation days from year to year, not to exceed a total of twenty (20) days being carried forward."

Appellant felt that his contract was ambiguous concerning how many vacation days he could have in the bank. He believed that under the contract addendum, he was permitted to carry over forty vacation days in his bank in addition to twenty current vacation days, for a total of sixty days.

On July 1, 2004, appellant wrote an e-mail to Laurie Allocco, personnel director of the school district, stating: "Please see that my 20 days are carried over," bringing his vacation day total to forty vacation days. The ALJ agreed that his contract, with the amendment, permitted this. The next year, on June 29, 2005, appellant wrote a memorandum to Allocco stating: "carry over all unused vacation days into my 2005/06 allotment." According to a report prepared by Rosemarie Shopp, a secretary in the school district personnel office, appellant accrued a total of sixty vacation days. Appellant did not receive payment for any unauthorized vacation days.

Any unused vacation time is paid at a per diem rate when the contract expires. An employee receives payment for unused days only after a review by the personnel office and the School Board's finance committee, and final School Board approval.

In tenure charge three, the School Board alleged that appellant had misdirected his personal leave time by directing the personnel office to transfer his unused personal days to his sick leave bank.

Appellant's employment contract provided for the following sick and personal leave:

11. Sick Leave and Other Leaves: In addition to the aforementioned vacation entitlement, the Superintendent shall be provided with annual sick leave of twelve (12) days; four (4) personal days per year; up to five (5) days annually in the event of the death or serious illness of the Superintendent's spouse, child, parent, grandchild, sibling, son- or daughter-in-law, grandparent, or any other member of the immediate household; and such other leave as may be granted by the Board of Education for good reason.

Upon his retirement consistent with the regulations of the TPAF, the Superintendent shall be entitled to payment for all accumulated sick time at his then-current per diem rate. However, in the event that the Superintendent voluntarily terminates his employment with the Board prior to the expiration of this Agreement, he shall not be entitled to any such payment for sick leave.

The contract did not contain language addressing the conversion of unused personal days into sick days. Yet, the contract did state that "[t]he parties agree that this Agreement contains the entire understanding between the parties and that there are no representations, promises or considerations of any nature whosoever, except as herein expressed."

Appellant acknowledged that his employment contract contained no provision regarding what would happen to unused personal leave. He initially understood that he would lose any unused days. But after learning that he might be able to change some personal days into sick days, he sent an e-mail to Shopp in the personnel office on June 14, 2004, at 2:20 pm, stating "[a]s I review my absences, I have 3 unused personal days and I have 14 sick days not used this year. I know all my sick days can accrue, how many of the personal days can become sick days and carried [sic] over?"

Appellant testified that after receiving his e-mail, Shopp came to his office and told him that he could carry over three unused personal days. Shopp requested that appellant send her an e-mail to that effect, and therefore at 2:38 p.m. he sent an e-mail to Shopp and Alloco stating: "Please transfer my 3 earned and unused personal days from this school year to my accrued number of sick days effective July 1, 2004." No one in the personnel office questioned his request to change personal days to sick days, and appellant had no knowledge that his request was contrary to his contract. He thought that the School Board condoned this change because a benefits comparison chart prepared by the school district business administrator was handed out to the School Board, stating that appellant could change four personal days to sick days.

(Shopp, however, denied telling appellant that he may convert personal days into sick days.) Shopp indicated that she transferred three unused personal days into appellant's sick leave account in 2004 pursuant to his June 14, 2004, e-mail. In 2005, she again transferred unused personal days into his sick leave account after appellant sent her a memo on June 29, 2005, stating "please transfer all my unused personal days to my accumulated sick days."

William J. Doering, the school district business administrator and the School Board secretary, indicated that at one time he believed appellant could transfer unused personal days into his sick leave bank. He presumed this without reviewing appellant's contract, because other union and non-affiliated positions within the school district allowed rollover of unused personal days into sick days. In late June 2004, Doering prepared a study comparing the terms and conditions of appellant's employment with other administrators in preparation for appellant's contract addendum. In this study, he included the transfer of personal days into sick days as a benefit received by appellant. However, he included this carryover erroneously, as appellant's contract did not address the rollover of personal days into sick days, and no School Board policy addressed this.

In tenure charge four, the School Board argued that appellant had misused the personnel office staff and abused his authority by directing them to carry over unauthorized vacation and personal leave days.

Alloco and Shopp both noted that appellant directed the personnel office to carry over forty vacation days on his account and that they complied with his directions because of his position as superintendent. They carried over the days despite their understanding that, under the amended contract, carryover was limited to twenty vacation days, for a total of forty days, which included the current year's allotment of vacation days.

As to the carryover of personal days, Shopp complied with appellant's e-mail of June 14, 2004, and his memorandum of June 29, 2005, directing her to transfer his remaining personal leave days for each year into his sick leave account. According to Allocco, even though no provision in appellant's contract allowed him to transfer his personal days, the personnel office did as appellant directed them to.

Appellant denied intimidating anyone about these transfers and denied knowing that his requests were contrary to his contract. He denied that he was able to intimidate Shopp or Allocco, explaining that there were instances in which they disagreed with him and did not do as he requested. For example, he disagreed that family leave should be deducted from sick leave, and he disagreed with having his benefit days prorated when he first started in his position. Despite his objections, the personnel office did not change its position.

In tenure charge five, the School Board claimed that appellant intentionally deceived the School Board by disclaiming knowledge on issues about which he was familiar and by failing to inform School Board members that he had provided edited versions of certain documents when responding to the School Board's request for information.

The witnesses regarding this charge offered contradictory testimony. School Board President Joan Minnuies indicated that at a Board meeting on December 19, 2005, she asked appellant two questions regarding litigation matters that involved the removal of a teacher and depositions that had taken place that day in litigation by a former guidance counselor. Appellant denied knowing the details of either situation and that he would have to call Assistant Superintendent Christopher Halpin to find out.

Christopher Parton, the School Board Attorney, attended the December 19, 2005 meeting. He recalled that Minnuies raised the deposition issue and another School Board member inquired into the removal of a teaching staff member. Appellant said that he would check with Halpin and report back to the School Board. Parton's own recollection was that appellant, Halpin and two building principals had handled the investigation involving the teaching staff member.

Halpin was on a medical leave of absence and did not attend the December 19, 2005 School Board meeting. After the meeting, he learned that appellant had stated that Halpin had failed to keep him informed about the two pending litigation matters. Halpin testified that he had previously advised appellant about both of these matters. He had advised appellant he would be in the office on December 19, 2005, to coordinate depositions in the guidance counselor litigation. As to the litigation involving the termination of a teacher, Halpin had provided appellant with a written report. Also, Halpin asserted that appellant wrote the memorandum to the teacher terminating her services, so appellant was fully aware of the situation.

According to appellant, at the December 19, 2005 meeting, Minnuies asked him two questions. First, she asked about the details of the deposition that had occurred that morning. Appellant responded that he was not sure what had happened in the deposition. Second, she asked for a list of all outstanding litigation in the school district and did not ask him to discuss any of the matters. Appellant noted that after the Board meeting, on the night of December 19, 2005, he met individually with Parton, who told him that "the Board unanimously wants you to leave. They want you out of here." Appellant asked when they wanted him to go, and Parton responded "[a]s soon as possible." Appellant told him that he had a contract, and they could buy him out if they wanted him to leave. Parton testified that he told appellant that the School Board was frustrated with its relationship with him and wanted to know if appellant had any suggestions as to how to fix this relationship. Appellant responded that it could "buy [his] ass out."

On December 20, 2005, Appellant sent an e-mail to Halpin requesting information about the litigation concerning the guidance counselor. It stated:

I need a brief summary of the details associated with the deposition that was taken on Dec 19. It is my understanding this was about a "contracted service" person who was working at Ocean Ave school a few years ago. What is the nature of the action and who is involved.

On December 22, 2005, Halpin provided appellant with a written report addressing both the litigation involving the guidance counselor and litigation involving the teacher.

Appellant sent a weekly update to School Board members on December 23, 2005. He attached the memo from Halpin explaining the litigation issues, but changed the original memo, excising several paragraphs critical of himself and removing information unrelated to the matter at hand.

Appellant admitted that the memo from Halpin that he attached to his weekly update to the School Board was not in its original form. He removed sections of Halpin's memo because they were not related to the questions asked by the School Board, and he excluded portions of the memo criticizing him because he had previously been criticized by the School Board for including information that was critical of another, as they wanted no negative comments from a subordinate about a cabinet member. He denied that he misrepresented anything to the School Board.

The ALJ made the following findings of fact with regard to the tenure charges. As to tenure charge two, the ALJ found that appellant had directed a memorandum to the personnel office in June 2005, to transfer all of his unused vacation days forward into his 2005-2006 vacation account. The personnel office interpreted this directive to mean that he was asking them to transfer twenty unused vacation days, thereby amassing sixty vacation days in his account. Although appellant believed that he was entitled to carry a total of sixty vacation days in that account, no basis supported that interpretation. In directing the transfer of all of his unused vacation days, he violated his employment agreement by directing the personnel office to confer an unauthorized benefit upon him, exceeding his contractual authority.

As to tenure charge three, the ALJ found that the employment contract made no provision for the transfer of personal days. In 2004 and 2005, appellant directed the personnel office to transfer his unused personal days into his sick leave account. Appellant contended that he relied on the advice of the personnel office staff and on the chart prepared by the business administrator for the School Board; however, there was no justification for this reliance. The transfer of seven personal days into his sick leave account at the direction of appellant lacked both the contractual authority and the knowledge or consent of the School Board and, thus violated his employment agreement.

With regards to the penalty, the ALJ noted that the critical issue was whether appellant's actions rose to the level of unbecoming conduct, reviewed several cases and concluded that when determining whether dismissal is the appropriate penalty, "the touchstone of any charge is fitness to discharge the duties and functions of one's office or position." Applying this standard to tenure charges two and three, the ALJ found that while it was true that appellant had not yet realized any benefit from attempting to carry over more vacation days than allowed and attempting to transfer personal days into sick leave, he would have been entitled to full payment of any accumulated and unused vacation days and sick leave.

The ALJ acknowledged that appellant unlikely would have been reimbursed for these benefits days, since the School Board reviews any claims for reimbursement when an employee leaves the school district. Nevertheless, appellant's conduct was unbecoming because he attempted to obtain something of value to which he was not entitled. However, the ALJ found that these findings did not justify his removal as superintendent because they did not establish appellant's unfitness for office.

As to tenure charge four, the ALJ found that, notwithstanding the provisions of his employment agreement, appellant attempted to carry over vacation and personal days by written directives to the personnel office staff. Appellant did not request approval from the School Board or provide the School Board notice of his directives to personnel office staff regarding the transfer of his personal and vacation time.

Appellant did not abuse his authority as there was no evidence of intimidation, coercion or improper influence. While he did attempt to increase his vacation account and carry over personal days as sick days by issuing written directives to the staff of the personnel office, there was no testimony or evidence that the personnel staff objected to these directives. The ALJ found appellant's testimony, that he was unable to intimidate the staff of the personnel office, to be supported by examples in the record. Notably, the staff deducted his personal leave from his sick leave, despite his objection, and pro-rated his benefit days during his first year of employment despite his disagreement with their doing so. The staff also regularly sought the advice of Doering and the School Board attorney.

As to tenure charge five, the ALJ found that during the December 19, 2005 School Board meeting, Board members asked appellant for information regarding the status of several legal matters. Appellant advised the School Board that he had no knowledge of these matters and that Halpin could respond to their questions. No evidence in the record established that appellant lied in his answer regarding knowledge of depositions that had taken place earlier that day. Regarding the investigation leading to the termination of a teacher, appellant was fully familiar with the details of the investigation and did not respond truthfully when questioned by the School Board.

The ALJ found that appellant did not commit acts of dishonesty and intentional deception of the School Board for his own benefit when he attached versions of a memorandum and e-mail written by Halpin to his weekly update to the Board of December 23, 2005. The portions omitted by appellant did not contradict his statements to the Board and were irrelevant to the original questions asked of him.

Appellant's failure to respond truthfully to the School Board as to the details of the investigation leading to the termination of a teacher was unbecoming conduct. However, because appellant gained no benefit from his untruthful response, there was no indication that the School Board accused him of any wrongdoing and the underlying termination matter was resolved, this offense did not support appellant's removal from his job. While any untruthfulness between a superintendent and a board of education is a matter of serious concern, appellant was not unfit to execute the duties and functions of his office.

Finally, the ALJ found that the infractions of charges two, three and five, even when taken together, did not establish appellant's unfitness or necessitate his removal. Instead, the ALJ imposed a six-month suspension without pay.

The Commissioner, in reviewing the initial decision of the ALJ, specifically noted the deference she was required to give to the ALJ's assessment of the credibility of witnesses:

The applicable standard of review in this regard is clear and unequivocal - 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." (N.J.S.A. 52:14B-10(c)). A reasoned review of the record, with this governing standard in mind, provides no basis for concluding that the ALJ's credibility assessments and resultant fact finding were without the requisite level of support. To the contrary, the Commissioner is satisfied that the ALJ's recitation of testimony is both accurate and thorough and that he carefully measured conflicts, inconsistencies and potential biases in deciding what testimony to credit.

The Commissioner affirmed the initial decision as to charges two, three and five. However, with respect to charge four, the Commissioner rejected the ALJ's conclusion that the School Board had not sustained its burden of establishing unbecoming conduct. Charge four accused appellant of obtaining the unauthorized carryover of excess vacation days and rollover of personal days into sick leave days by providing written directives to subordinates, ordering them to confer these benefits upon him. "To the extent that intimidation, undue influence or coercion may be necessary for a finding of guilt on this charge," such a requirement was inherently satisfied here due to the disparate balance of power existing between appellant and the staff members.

The Commissioner noted that testimony from the involved personnel established that they felt unwilling or unable to question or deny appellant's order. "Intrinsic in a directive made by this individual to a subordinate is the expectation, by both parties, that such an order will be obeyed without challenge." Appellant was "guilty of unbecoming conduct for abusing the authority of his position as a Superintendent by directing his subordinates to take actions for his financial benefit, to which he knew or should have known he did not possess entitlement."

The Commissioner rejected as "disingenuous" appellant's attempt to categorize the tenure charges as "mere technical violations of his employment contract based on the parties' differing interpretations of this document." Because appellant was a school administrator with thirty years of experience, he should have known of the restrictions placed on him by his employment contract. Instead, appellant felt he deserved benefits received by other district administrators or by superintendents in other districts above and beyond what was given to him in his employment contract. The fact that appellant had not yet realized immediate monetary gain was of no consequence, as "he possessed a reasoned expectation of realizing such gain at some future date."

In assessing the appropriate penalty, the Commissioner noted that a superintendent of schools "is held to a standard of behavior unequaled by any other school employee . . . ." However, while appellant's conduct was extremely serious, it did not warrant dismissal. The Commissioner instead concurred with the ALJ's recommendation that appellant receive a six-month suspension without pay from his position. The State Board affirmed the Commissioner's decision "for the reasons stated therein."

II.

Although appellant raises a number of issues on appeal, the dominant issue focuses on the jurisdiction of the Commissioner to consider respondent's claims against appellant. Appellant asserts that the issues in dispute are contractual and as such, jurisdiction is properly in the Superior Court rather than with the Commissioner.

The Commissioner "has primary jurisdiction to hear and determine all controversies arising under the school laws." Bower v. Bd. Educ. of East Orange, 149 N.J. 416, 420 (1997); see N.J.S.A. 18A:6-9. However, "[w]here the controversy does not arise under the school laws, it is outside the Commissioner's jurisdiction even though it may pertain to school personnel." Bd. of Educ. of East Brunswick v. Twp. Council of East Brunswick, 48 N.J. 94, 102 (1966).

"[T]he Commissioner does not have jurisdiction over disputes which are purely contractual in nature . . . ." B.P. v. Bd. of Educ. of Lenape Reg'l High Sch. Dist., 2 003 N.J. AGEN LEXIS 1198 (N.J. Adm) (at *4). "A dispute between parties to a contract who simply happen to be a school board and an employee does not present a controversy over which the Commissioner had jurisdiction . . . . Such matters do not require the educational expertise of the Commissioner and are properly brought in a court of competent jurisdiction." Smith v. Bd. Of Educ. of Willingboro, 97 N.J.A.R 2d (Vol. 7E) 206-207 (EDU). The Commissioner will not rule on the enforceability of a contract where "the interpretation of the contract is the primary issue at hand and not merely implicated in a questions of the school laws." Id. at 11.

However, "incidental interpretation of the contract necessary to resolve the education claims is properly done by the Commissioner." N.J. Educ. Ass'n v. Trenton Bd. of Educ., 92 N.J.A.R 2d (Vo. 7A) 489 (EDU). See also K.L. v. Bd. of Educ. of Borough of Kinnelon, 2 008 N.J. AGEN LEXIS 328 (N.J. Adm) (at *4) (noting that "the existence of a contract does not by itself defeat the Commissioner's jurisdiction"). The Commissioner has "jurisdiction over contractual claims which are incidental to his obligation to resolve education claims that are the subject of litigation." B.P., supra, 2 003 N.J. AGEN LEXIS 1198.

In Dunn v. Elizabeth Bd. of Educ., 96 N.J.A.R 2d (Vol. 7D) 280 (EDU), aff'd 96 N.J.A.R 2d (Vol. 7D) 282 (EDU), the ALJ dismissed the petitioner's claim for malicious interference with contract as that claim was not under the Commissioner's jurisdiction. The petitioner was appointed to serve a five-year term as superintendent of schools. Ibid. His contract contained no termination provision, but required the board of education to provide the petitioner with at least a one-year notice of its intention not to renew the contract. Ibid. On June 29, 1994, the board of education adopted a resolution not to renew the petitioner's contract and terminated his services as superintendent effective the next day, June 30, 1994. Ibid. The board of education continued to pay the petitioner pursuant to his contract although he no longer functioned as superintendent. Ibid. The board did not bring any proceedings against the petitioner for inefficiency, incapacity or conduct unbecoming a superintendent. Ibid.

In discussing whether the Commissioner had jurisdiction over the petitioner's claim of malicious interference with contract, the ALJ noted that the Commissioner does not have jurisdiction over contractual disputes "unless only incidentally [sic] interpretation of the contract is necessary to resolve the claim." Id. at 281. He noted that there is no need to defer to administrative expertise when the only question properly presented to the court in contract disputes is one of contract interpretation. Ibid.

The petitioner's claim for malicious interference with contract was dismissed because it was "purely one of contract interpretation and requires no administrative expertise and is, therefore, not within the scope of the Commissioner's jurisdiction." Ibid. However, the ALJ did consider the petitioner's argument as to his entitlement to the position of superintendent under the school laws. Id. at 281-82.

We discussed the jurisdiction of the Commissioner in contract cases in Archway Programs, Inc. v. Pemberton Bd. of Educ., 352 N.J. Super. 420 (App. Div. 2002). Plaintiff Archway Programs, Inc. sought recovery under a contract for the rendering of educational services to the defendant, Pemberton Township Board of Education. Id. at 423. The board counterclaimed for judgment against Archway for alleged overcharges in prior contract years and raised the affirmative defense that primary jurisdiction over Archway's claim resided with the Department of Education. Id. at 423-24. After the trial court denied Archway's motion for dismissal of the counterclaims, we granted its motion for leave to appeal to address the issue of whether the entire Law Division matter should be transferred to the Department of Education. Id. at 424. We noted that contract claims arising from statutory or common law are "typically and appropriately adjudicated by the courts." Id. at 425. However,

This is not to say that courts must apply their jurisdictional authority to resolve all contract claims before cognate issues pending on the administrative level are resolved. The concept of primary jurisdiction suggests otherwise. Where one aspect of a single, integrated dispute is pending before an administrative agency and another aspect of the same dispute is pending before a court, logic commends [sic] that the entire matter be dealt with, at least initially, by the entity with plenary authority over the subject matter field involved.

. . . .

Thus, it may be appropriate, in order to avoid piecemeal adjudication or duplicative, anomalous or contradictory results, for a court to defer in its jurisdictional exercise, even if only temporarily, while the administrative agency with the primary interest sorts out the issues and the claims . . . . Concomitantly, if resolution of the action at law is the key element to resolving the entire dispute, the administrative agency may defer its consideration until the lawsuit is resolved.

[Id. at 425-26.]

We concluded that while the plaintiff's claim, based on a contract, was within the purview of the courts, "because it bears upon a larger controversy still pending on the administrative level, . . . the trial court should stay its consideration of the matter pending resolution of the underlying administrative issues." Id. at 430. We noted that it was possible that after the agency had decided all issues within their purview, there might be no factual issues left for the trial court to decide. Id. at 431-32. On the other hand, questions of law between the parties, "not amenable to practical administrative resolution, [may] remain to be determined by the trial court." Id. at 432. We held that the trial court should have deferred to the Commissioner and the Department of Education's subject matter interest in addressing all issues raised by the parties. Ibid. See also Wall Twp. Educ. Ass'n v. Bd. of Educ. of Wall, 149 N.J. Super. 126, 130 (App. Div. 1977) (holding that the question of whether military service credit statutorily granted to teachers for longevity increments contained in collective bargaining agreement between teachers' association and school district was matter of substantive law involving construction of a statute, and therefore within the jurisdiction of the Commissioner of Education); K.L., supra, 2 008 N.J. AGEN LEXIS 328 (at *3-5) (holding that Commissioner had jurisdiction in a case challenging a residency determination regardless of any alleged contract between parties, as petitioners claimed that the child was denied free education and respondent failed to follow notice requirements as required by school laws); Boyce v. Bd. of Educ. of Ocean City, 2 007 N.J. AGEN LEXIS 301 (N.J. Adm) (at *4-5) (holding that Commissioner had jurisdiction over the issue of whether respondent violated the sixty-day notice clause in his employment contract because it was "ancillary to the main issues in the case" thus the "Commissioner would be loathe [sic] to send the parties to another forum for a determination concerning a maximum of sixty days of pay"); Howard v. Bd. of Educ. of East Orange, 2 001 N.J. AGEN LEXIS 1391 (N.J. Adm) (at *9-14) (concluding that the Commissioner had authority to decide issues in matter involving renewal of superintendent's contract where legislation established contractual tenure for superintendents and provided specific conditions for renewing a superintendent's contract).

On appropriate facts we have held that the Commissioner lacked jurisdiction to decide a contractual issue, see Picogna v. Bd. of Educ. of Cherry Hill, 249 N.J. Super. 332, 334-35 (App. Div. 1991) (holding that jurisdiction over a purely contractual claim of wrongful termination of non-tenured assistant superintendent was properly venued in Superior Court and not before Commissioner); South Orange-Maplewood Educ. Ass'n v. Bd. of Educ. of South Orange and Maplewood, 146 N.J. Super. 457, 462-63 (App. Div. 1977) (holding that the Commissioner did not have jurisdiction over a dispute involving interpretation of sabbatical leave provisions of an agreement entered into by the school board and the teachers association as there was nothing in the dispute involving interpretation of any specific statute).

The Commissioner had jurisdiction over the contractual issues in this case. Although the issues here involve contract disputes and interpretation, they are integrated with claims brought under school laws. Ultimately, the issue is whether appellant's conduct in dealing with subordinates or even seeking contractual accommodation for his vacation time and personal days was unbecoming. Charges relating to misrepresentations to the School Board, no matter how tenuous, invoke the Commissioner's jurisdiction and are an area of expertise for the Commissioner to determine. The contractual issues involved are incidental to resolving the education claims that are the subject of this litigation.

We conclude that the Commissioner properly invoked her jurisdiction to resolve the extant issues.

III.

As to the merits, appellant asserts that the ALJ's findings on tenure charges two, three and five were not supported by the record and were arbitrary, capricious and unreasonable. We disagree.

Pursuant to N.J.S.A. 52:14B-10(c), an agency head may reject or modify the findings of an ALJ. However, an agency head may not reject or modify findings of an ALJ as to issues of credibility of lay witnesses, unless those findings are arbitrary, capricious, unreasonable or are not supported by the record.

In reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. The agency head 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. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.

[Ibid. (Emphasis added).]

Once the agency head has issued a final decision, the scope of judicial review is severely limited. In re Carter, 191 N.J. 474, 482 (2007). We will not upset the ultimate determination of an agency "unless there is a clear showing that it was arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007).

As to tenure charges two, three and five, the ALJ found that appellant attempted to confer unauthorized benefits upon himself and exceeded his contractual authority by attempting to carry twenty more vacation days than authorized by his employment agreement and by attempting to transfer seven personal days into his sick leave account despite the fact that this was not permitted by his employment agreement. The Commissioner and State Board adopted these findings.

There is sufficient evidence in the record to support these findings. The contract addendum provided that appellant could carry over twenty vacation days, for a total of forty days in his account. In June 2005, he directed the personnel office to carry over all of his unused vacation days, resulting in more than forty days in his account.

Appellant's contract did not provide for the conversion of personal days into sick days. But in both 2004 and 2005, he directed the personnel office to transfer his unused personal days into his sick leave account, despite his knowledge that his contract lacked a provision allowing this. There was sufficient evidence to support the findings of the ALJ on tenure charges two and three, as adopted by the Commissioner and State Board.

As to tenure charge two, appellant argues that based on the School Board witnesses' and his testimony, he could not have had a reasoned expectation of realizing payment for benefit days that were inappropriately obtained, because the personnel office, the business administrator and the finance committee would have to review his request. However, the record established that appellant had the benefit and value of the immediate use of these days as soon as they were added to his leave bank. Also, while there was testimony that it was unlikely that appellant would be paid for the days when he left the school district, there was still a possibility that he could be paid for the days. There was sufficient, credible evidence in the record to support the finding that respondent had a reasoned expectation of realizing payment for the excess days.

We disagree with appellant's argument that the ALJ erred in interpreting the contract. The applicable provision of appellant's amended contract allowed him to "carry over unused vacation days from year to year, not to exceed a total of twenty (20) days being carried forward." The ALJ's conclusion that the contract allowed for carryover of twenty vacation days, for an aggregate total of forty days, was based on sufficient evidence.

Ibid.

Appellant next asserts that the June 2005 memorandum in which he directed the personnel office to "carry over all unused vacation days" should not have been interpreted by the ALJ to mean that he was directing the personnel office to transfer twenty additional unused vacation days. However, the ALJ found that in directing the personnel office to transfer all of his unused vacation days, he was referring to more than the number of vacation days he was contractually allowed to carry at the time of the request.

Appellant testified that he felt the original employment contract was ambiguous as to unused days, and he believed the addendum to the contract allowed him to carry over forty vacation days in his bank plus twenty current vacation days, totaling sixty days. Given appellant's testimony and the language in his contract limiting the days he could carry in his bank to forty, the finding of the ALJ was supported by sufficient, credible evidence in the record.

As to tenure charge three, appellant argues that the ALJ ignored the School Board's own interpretation of the contract and erred in concluding that, because the contract did not provide for the conversion of personal days into sick days, such a conversion was prohibited. However, he acknowledges that his employment contract contained no provision allowing for the conversion of personal days into his sick leave account. The ALJ's conclusion that such a conversion was prohibited under the contract is likewise supported by the record.

Moreover, appellant's argument that the ALJ ignored the School Board's own interpretation of the contract contradicts the record. Doering believed at one time that a conversion of personal days into sick leave was allowed, but this was before he reviewed the contract. No other evidence in the record suggests that the School Board interpreted appellant's contract to allow for a transfer of personal days.

Finally, appellant asserts that the ALJ did not consider the credibility and motivation of the School Board's own witnesses. However, in his lengthy recitation of the testimony, the ALJ compared the credibility of the various witnesses and discussed their contradictory testimony. In essence, appellant challenges the ALJ's finding of credibility. The Commissioner may not reject or modify the ALJ's findings of fact as to the credibility of lay witnesses, unless those findings were arbitrary, capricious, unreasonable or not supported by sufficient, competent and credible evidence in the record. N.J.S.A. 52:14B-10(c). There is no showing that such is the case; the Commissioner and State Board properly accepted the ALJ's findings.

Appellant argues that the finding of violation of tenure charge five that he intentionally deceived the School Board was not based on credible testimony from the School Board's own witnesses because the testimony of these witnesses was contradictory. The ALJ acknowledged inconsistencies in the witness testimony in his credibility determinations. The factual findings made by the ALJ, as adopted by the Commissioner and the State Board, were supported by the record and will not be disturbed. N.J.S.A. 52:14B-10(c)

Tenure charge five asserted that on December 19, 2005, respondent lied to the School Board when he disclaimed any knowledge about litigation involving the termination of a teacher. The ALJ acknowledged that witness recollections about that night conflicted. However, he determined that appellant was responsible for transmitting information to the School Board and that on December 19, 2005, School Board members asked him questions about the status of several matters. A preponderance of the credible evidence supported a finding that he lied in response to questions about the litigation matter involving the teacher because he said that he did not know the details of the investigation process that led to the firing of the teacher, even though he had previously been provided a written report. There was testimony from several witnesses that appellant participated in the investigation of the teacher, and a report written by Halpin to appellant about the situation was in evidence.

The Commissioner reviewed and accepted the ALJ's credibility assessments on tenure charge five. She noted that the ALJ had recited the testimony in an accurate and thorough manner and "carefully measured conflicts, inconsistencies and potential biases in deciding what testimony to credit." The findings of the ALJ, as adopted by the Commissioner and State Board, were based on sufficient credible evidence in the record. Herrmann, supra, 192 N.J. at 27-28.

In sum, we perceive of no basis to overturn the determination of the Commissioner and State Board as to the merits of the tenure charges.

IV.

As to appellant's arguments that the Commissioner improperly refused to apply the doctrine of estoppel, waiver and laches to tenure charges two and three and the additional argument that appellant was denied discovery, we have carefully reviewed the briefs and the record. We are satisfied that the arguments are without merit and do not require additional discussion. R. 2:11-3(e)(1)(E). We do, however, make the following observations.

We have determined that the ALJ's findings, as adopted by the Commissioner and State Board, were not arbitrary, capricious or unreasonable. We find no merit in the arguments regarding estoppel, waiver and laches. The factual predicate of the estoppel argument - Doering's chart was not prepared until after appellant first requested a conversion of the personal days into sick days; the waiver argument has no factual predicate, and the laches argument does not apply, as the charges were filed after the School Board became aware of appellant's underlying conduct.

As to the discovery issue, the procedure utilized by the ALJ to consider the challenged letter conformed with the procedures we outlined in Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003). Moreover, the e-mails and other discovery sought were properly considered. There was no denial of appellant's due process rights.

V.

We reach a different result regarding tenure charge four. Appellant argues that the Commissioner should not have rejected the ALJ's finding that the School Board had not proven tenure charge four (abuse of authority), as a disparate balance of power alone does not create an unrebuttable presumption of intimidation, undue influence or coercion. We agree and reverse the finding of the Commissioner on this charge.

N.J.S.A. 52:14B-10(c), provides that an agency head

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.

With regard to Charge Four, The ALJ found:

There is no testimony or evidence in the record of this matter that the staff of the personnel office voiced their objection to or unwillingness to comply with these directives regarding the transfers of his personal and vacation time, and that Dr. Witmer forced them to carry out his bidding. There is also no testimony or evidence in the record of this matter to establish that Dr. Witmer otherwise intimidated or coerced the personnel office staff concerning these transfers of his personal and vacation time.

Dr. Witmer's [sic] denied that he was able to intimidate Ms. Allocco and Ms. Shopp. This testimony is supported by examples in the record that support this denial. These examples include the fact that the personnel office staff deducted Dr. Witmer's family leave from his sick leave, despite his contention that this was not permitted. They also pro-rated his benefit days during his first year of employment despite his disagreement with their doing so. In addition, they were regularly seeking the advice and guidance of Mr. Doering and the Board attorney.

Nevertheless, the Commissioner rejected the ALJ's conclusion that the School Board had not sustained its burden of establishing unbecoming conduct. She found that "[t]o the extent that intimidation, undue influence or coercion" was necessary for a finding of guilt on this charge, such a finding was inherently satisfied here due to the disparate balance of power between respondent and the staff of the personnel office. The Commissioner specifically noted the testimony from the personnel office staff that they felt unwilling or unable to question or deny respondent's orders in support of this conclusion.

The Commissioner inappropriately reversed the finding of the ALJ on this tenure charge because the ALJ's finding that respondent was not able to intimidate the personnel office staff was supported by sufficient, credible evidence on the record. The personnel office staff indicated that they carried over the vacation and personal days because appellant directed them to do so. However, the ALJ noted that the staff disagreed with appellant over several issues and did not always do as he asked. The finding of the ALJ that appellant did not force the personnel office staff to do as he directed was likewise supported by sufficient, credible evidence in the record. N.J.S.A. 52:14B-10(c).

VI.

Lastly, we address appellant's argument that the penalty imposed was excessive and was based on unsupported assumptions and findings of fact.

Appellant argues that the six-month suspension was an excessive penalty because there was no possibility he would benefit from receiving vacation, sick and personal days to which he was not entitled, that this matter arises out of differing contract interpretations that he has already paid the costs of litigation and his reputation has been affected. We have a more fundamental problem with the penalty.

The Supreme Court has clearly defined the proper scope of review as to the penalty imposed in an administrative action. Herrmann, supra, 192 N.J. at 27-29. The Court noted that an administrative agency's determination "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 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "[If] an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Id. at 28.

This deferential standard of review "applies to the review of disciplinary sanctions as well." Ibid. We "should alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency.'" Ibid. (quoting In re Polk, 90 N.J. 550, 578 (1982)). The test when reviewing administrative sanctions is "'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

In Herrmann, supra, 192 N.J. at 26-27, the Merit System Board (MSB) had concluded that a Division of Youth and Family Services employee had committed conduct unbecoming a public employee and terminated her employment when she waved a lit cigarette lighter in front of a five-year old child's face. On appeal, we affirmed the MSB's conclusion that the employee had committed conduct unbecoming a public employee, but vacated her removal from her position. Id. at 27. The Supreme Court reversed, holding that we "impermissibly imposed [our] own judgment as to the proper penalty in this matter when the MSB's penalty could not be said to be either illegal or unreasonable, let alone 'shocking' any sense of fairness." Id. at 39.

The penalties that may be imposed upon tenured school employees are governed by N.J.S.A. 18A:6-10 which states that:

No person shall be dismissed or reduced in compensation,
 
(a) if he is or shall be under tenure of office, position or employment during good behavior and efficiency in the public school system of the state. . . .
 
. . . .

 
except for inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing held pursuant to this subarticle, by the commissioner, or a person appointed by him to act in his behalf, after a written charge or charges, of the cause or causes of complaint, shall have been preferred [sic] against such person, signed by the person or persons making the same, who may or may not be a member or members of a board of education, and filed and proceeded upon as in this subarticle provided.

[(Emphasis added).]

The "touchstone" of cases in which a board of education seeks the dismissal of a tenured individual is "fitness to discharge the duties and functions of one's office or position." In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 28-29 (App. Div.), certif. denied, 65 N.J. 292 (1974).

A superintendent of schools

serves as chief executive officer of a school district who is statutorily responsible for the "general supervision over the schools of the district . . . under rules and regulations prescribed by the state board . . . . " N.J.S.A. 18A:17-20. The occupant of such a position is one in whom the board and the members of the community are required to place considerable reliance with respect to his ability, honesty, integrity, efficiency, judgment and faithfulness in the performance of his duties. As such, the professional conduct demanded of this individual is significant.

[In Re Tenure Hearing of Robert R. Vitacco, (Vol. 7E) 456 (EDU), aff'd 347 N.J. Super. 337 (App. Div. 2002).]

The Commissioner has ordered termination of superintendents whose behavior has rendered them unfit to execute the duties and functions of their position. See ibid. (ordering dismissal of district superintendent for unbecoming conduct for tax evasion, misappropriation of public funds, misuse of vacation days, destruction of public records and financial mismanagement); In re Tenure Hearing of Horowitz, Bridgewater-Raritan Reg'l Sch. Dist., 93 N.J.A.R 2d (Vol. 7A) 264-65 (EDU) (termination of employment of district superintendent who, among other things, engaged in unbecoming conduct by allowing payment of invoices without contracts in violation of New Jersey statutes and deceiving the Board of Education and voters as to true cost estimates for building project); In re Tenure Hearing of Peter J. Romanoli, Bd. of Educ. of Willingboro, 93 N.J.A.R 2d (Vol. 7A) 90 (EDU) (terminating employment of district superintendent for unbecoming conduct when he absented himself from the district for vacation during period in which Board of Education was preparing the budget), aff'd No. A-2346-92 (App. Div. April 13), certif. denied, 137 N.J. 310 (1994).

Although there are no cases wherein a suspension of a superintendent was determined to be the appropriate penalty, several cases discuss the suspension of teachers and other school employees. See In re Tenure Hearing of Iesha McCain, 2 007 N.J. AGEN LEXIS 535 (N.J. Adm) (at *4,7-8) (imposing six-month suspension of secretary for unbecoming conduct of leaving work early without permission, failing to heed the prohibition against selling goods, and using disrespectful and profane language toward her supervisor in front of other employees); In re Tenure Hearing of Adelphia Poston, 2 006 N.J. AGEN LEXIS 923 (N.J. Adm) (at *15-19) (disagreeing with ALJ that a 30-day suspension was an appropriate penalty and imposing suspension without pay for 120 days on a teacher who used profane language in the classroom, noting that it was very serious matter, even in light of mitigating circumstances); and In re Certificate of Larry Schumacher, 2 005 N.J. AGEN LEXIS 1229 (N.J. Adm) (at *7-8) (suspending a guidance counselor for five years for abusing his sick time).

Appellant first argues that he would never be paid for the leave days to which he was not entitled, and the ALJ's finding that he would be paid was unsupported by the record. We do not deem that to be the crux of the charges. There was certainly a possibility that he could receive payment for the days. Also, the days became available for his use as soon as they were credited to his account. The ALJ's conclusion that respondent could receive payment for the unearned days was supported by sufficient, credible evidence in the record. Herrman, supra, 192 N.J. at 27-28.

Appellant next argues that this matter merely involves differing interpretations of the contract, and therefore suspension was not the appropriate penalty. However, as noted above, there was support for the finding that he should have known what was in his contract. Also, his conduct on tenure charge five, in which the Commissioner found that respondent intentionally deceived the School Board, did not involve respondent's employment contract in any way.

In reviewing the penalty imposed by the Commissioner and affirmed by the State Board, we must determine whether the punishment is "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Hermann, supra, 192 N.J. at 28-29 (internal quotations and citation omitted). A tenured employee may be suspended without pay for unbecoming conduct under N.J.S.A. 18A:6-10. Appellant's conduct was found to be unbecoming in three instances: (1) the carryover of vacation days to which he was not entitled in 2004; (2) the conversion of unused personal days to sick days in 2004 and 2005; and (3) being untruthful with the School Board members when he told them that he did not know the details of the teacher litigation.

Certainly, reasonable minds might differ as to the appropriateness of a six-month suspension, however, as noted in Vitacco, the professional conduct demanded of superintendents is "significant," and we are constrained by the limitations enunciated in Hermann. The Hermann threshold of "shocking" our sense of fairness is a difficult one to meet, and is not met simply by a disagreement as to the quantum of the penalty. In cases involving suspension of teachers and other school employees, a suspension was imposed in several of those cases for only a single incident of misconduct.

A superintendent is the chief executive officer of a school district and an example for all other employees, and we cannot say that the penalty is so disproportionate to the offenses committed to shock our sense of fairness. We cannot accept appellant's argument that he has already paid in terms of the cost of litigation and that his reputation has suffered, as these are the burdens imposed by any disciplinary proceeding involving a finding of culpability and the imposition of a penalty of suspension and the result of his own improper conduct.

However, our concern here is that we have concluded that one of the charges underpinning the Commissioner's imposition of a six-month suspension has been reversed and is no longer extant. We have indicated that reasonable minds may differ as to the quantum of an appropriate penalty, and while we have significant reservations as to whether these offenses warranted a six-month suspension, especially given the record's depiction of the hostility between the School Board and appellant, we recognize that our role is constrained by Hermann. Nevertheless, where a six-month suspension is based on the Commissioner's finding of guilt on four offenses, and one of the significant offenses has been reversed, the Commissioner should be obligated to revisit the appropriateness of the penalty imposed consistent with the merits' determination contained in this opinion.

 
We affirm the findings of the Commissioner, as adopted by the State Board as to tenure charges two, three and five; we reverse as to charge four and we reverse and remand as the penalty imposed. We do not retain jurisdiction.

As the allegations of tenure charge one are not an issue on appeal, we do not set forth the facts regarding that charge.

At oral argument, appellant cited to Dunn for the proposition that the Commissioner lacks jurisdiction to interpret a contract in a tenure dispute. Dunn, supra, 96 N.J.A.R 2d (Vol. 7D) 281 (EDU). However, the case that is cited for this proposition, Salley v. Newark, 1 984 S.L.D. 1714, was not a tenure case. The petitioner in Salley was a superintendent who contested the board of education's action in suspending him without pay as being violative of his contract rights. Id. at 1. At the time, superintendents were not tenure eligible by law. Id. at 3. The Commissioner did not have jurisdiction over the case because petitioner's complaints involved violations of his contract and did not arise under the school laws. Id. at 4.

We recognize that the ALJ imposed the same penalty on the four charges; however, the Commissioner is obligated to make her independent review and determination.

(continued)

(continued)

47

A-5128-07T3

August 17, 2009