BOARD OF EDUCATION OF THE TOWNSHIP OF LYNDHURST, BERGEN COUNTY v. JOHN A. BLEVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6004-07T36004-07T3

BOARD OF EDUCATION OF THE

TOWNSHIP OF LYNDHURST, BERGEN

COUNTY,

Petitioner-Respondent,

v.

JOHN A. BLEVIS,

Respondent-Appellant.

________________________________________________________________

 

Submitted September 21, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the State Board of Education, Docket No. 29-1/07.

Mets Schiro & McGovern, LLP, attorneys for appellant (Roosevelt Porter, of counsel and on the briefs; Brian J. Manetta, on the briefs).

Francis J. DeVito, P.A., attorney for respondent Board of Education of the Township of Lyndhurst, Bergen County (Karen M. Reis, on the brief).

Anne Milgram, Attorney General, attorney for respondent Commissioner of Education (Bryant Lawrence Horsley, Jr., Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant, John A. Blevis, a teacher in the Lyndhurst Public School System, appeals from the December 5, 2007 decision of the Commissioner of Education (Commissioner). That decision adopted the August 7, 2007 decision of an administrative law judge (ALJ), which upheld the decision of the Lyndhurst Board of Education (Board) directing him to submit to a psychiatric and physical examination pursuant to N.J.S.A. 18A:16-2a. Appellant argues that the Commissioner's decision should be reversed because (1) the burden of proof was improperly placed on appellant, (2) the Board failed to prove that appellant's behavior affects his ability to teach, discipline or associate with his students, and (3) the Commissioner relied on several factual errors by the ALJ. We reject these arguments and affirm.

Because the appeal issues implicate the provisions, interpretation, and application of N.J.S.A. 18A:16-2a, we set forth at the outset its relevant provisions:

Every board of education may require its employees and shall require any candidate for employment who has received a conditional offer of employment to undergo a physical examination. The board may require individual psychiatric or physical examinations of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal, physical or mental health.

[N.J.S.A. 18A:16-2a (emphasis added).]

Appellant has been a teacher at Lyndhurst High School since 1986. During the ensuing years, he was a well regarded teacher. He had no disciplinary infractions. However, by the fall of 2006, appellant was exhibiting behaviors regarded by his teaching colleagues and supervisor as inappropriate. Appellant's behavior was viewed as hostile, belligerent, uncooperative, unstable, and threatening. Although appellant's behavior was directed at fellow staff members, some of the conduct occurred in the presence of students. Moreover, some of the conduct pertained to teaching methods and protocols and deviated from school policy. Staff members reported incidents in which appellant was totally out of control, ranting and raving, exhibiting redness in his face, shaking, talking to himself, flailing his arms, and otherwise acting in a disturbing manner. It was also reported that appellant unjustifiably expressed his view on various occasions that there were conspiracies against him. Appellant had begun secretly recording conversations with staff members.

In light of these reports, on October 16, 2006, the Superintendent of Schools wrote to appellant informing him that the Board would be discussing issues pertaining to his employment in a closed executive session, and that he had a right to have the session conducted in public. Appellant did not avail himself of that right, and the meeting was held in closed session. On October 20, 2006, the Superintendent wrote to appellant and advised that the Board determined that appellant had "shown evidence of a deviation from normal physical and mental health, and said condition is thought to be a possible danger to the health or welfare of the pupils and/or other employees." The Board therefore directed appellant to submit to a physical and psychiatric examination. The Superintendent attached various documents upon which the Board relied in reaching its decision, and set forth the following reasons for ordering the examination:

1. The incidents of erratic and unusual behavior are increasing in frequency and intensity; other staff members have confirmed incidents that evidence harmful, significant deviation from normal mental health including but not limited to, angry and unstable behavior exhibited by ripping up workshop documents and discarding them in the garbage, ranting and raving, pacing, and arms flailing which was described as adversarial, disruptive and alarming.

2. Staff members have complained of harassing and intimidating behavior by you which is distracting and disruptive including, but not limited to sabotaging experiments, making unnecessary derogatory and threatening comments, and staring staff members down at meetings and constant snide and derogatory statements.

3. Staff members have commented that they feel physically threatened and are uncomfortable in your presence as you are angry, hostile, and constantly grumbling under your breath.

4. Incidents of deliberate failure to conduct laboratory activities or following required protocol on clean up and supplies.

The letter also informed appellant of his right to a hearing before the Board. Appellant requested a hearing, which was held on November 15, 2006. Appellant was represented by counsel at the hearing. Five staff members, including teachers and appellant's supervisor, testified. Defendant's attorney cross-examined the witnesses. Defendant did not testify or address the Board and did not present any witnesses. Based upon the evidence presented, the Board upheld its earlier determination and directed appellant to submit to the physical and psychiatric examinations.

Appellant refused to submit to the examinations. He advised the Board of his intent to appeal its determination. Because appellant did not appear for the examinations and did not file an appeal, the Board suspended him with pay on January 22, 2007, pending his compliance with the required examinations and receipt of proof of recovery or a report that he was fit to teach. The Board then filed a petition with the Commissioner requesting that its decision be affirmed and that appellant be required to attend the physical and psychiatric examination.

The Commissioner referred the matter to the Office of Administrative Law. The ALJ conducted an extensive evidentiary hearing on May 24 and 30, 2007. She received the testimony of various staff members, including those who had testified before the Board. Appellant also testified, but he did not present any other witnesses. Numerous documents were admitted into evidence. No expert testimony was presented by either side.

In the August 9, 2007 Initial Decision, the ALJ recounted the evidence extensively and made detailed findings of fact. Those findings included the following:

4. Mr. Blevis' behavior during the past 3-4 years has become more threatening, erratic and confrontational.

5. During a Workshop in October 2006, Mr. Blevis became upset with the special education teachers, who were making suggestions about modifying the curriculum in his Earth Science class to accommodate the mainstreamed special education students. As a result, he became loud and obnoxious and began muttering under his breath that the workshop was a waste of time. His behavior completely disrupted the workshop. As a result, he was asked to leave by his supervisor, Ms. Zak. When he left the workshop, he ripped up the workshop papers.

6. During the workshop Mr. Blevis advocated for having the special education students taught in a separate class. This was in contravention of their Individual Education Plans, which required mainstreaming of the students. Mr. Blevis refused to consider any suggestions put forward by the special education teachers to modify the curriculum to accommodate to the needs of the special education students.

7. Mr. Blevis claimed that Earth Science should be taught in the sophomore instead of the freshman year, because the students needed algebra in order to understand the concepts of the Earth Science. After Mr. Blevis' suspension, the substitute teacher was able to teach the algebra concepts involved in the Earth Science course.

8. On another occasion, Mr. Blevis came into Ms. DeCarlo's classroom. He became very upset and flushed; he was pacing and sweating. He told her that she (Ms. Zak) was a liar and had made a big mistake. He referred to the "political girls club" and how he was going to take action against them.

9. Ms. Cowell, the school librarian, had encounters with Mr. Blevis in which he claimed that there were conspiracies against him. When he came to the library, where she was working, he became very agitated and angry and his body started to shake. When Ms. Cowell tried to calm him down, he would not listen to reason.

10. Mr. Blevis took his briefcase with him at all times and would not let it out of his sight.

11. Beginning in March 2006, Mr. Blevis began secretively taping conversations with his fellow teachers and supervisors.

12. A number of his fellow teachers noted that Mr. Blevis was demeaning toward the women teachers in the department. In addition, he would smirk and leer into their classrooms, when he had hall monitor duty.

13. Mr. Blevis refused to assist his fellow science teacher, Ms. Vladescu, in her attempt to have the students keep the laboratory clean. He refused to work in conjunction with her in developing a laboratory curriculum.

14. Mr. Blevis would make negative remarks about his supervisor, Ms. Zak, during staff meetings and in front of students.

15. Mr. Blevis has failed to follow protocol. He has not had his students clean up after laboratory and he has not adhered to chemical and equipment sign out procedures.

16. Mr. Blevis and Mr. Russo, another Earth Science teacher, were supposed to follow the same test protocol in their mid-term exams for the course. Mr. Blevis did not follow the protocol. As a result almost all of his students failed the exam, because they did not answer the essay questions. It was therefore necessary to disregard the mid-term exam grades. As a result, a number of students, who might have been exempt from taking the final examination, had to take the exam.

17. On one occasion Mr. Blevis left the members of the student government alone after school unsupervised, when he left the building.

18. Ms. Cowell, Mr. Blevis' co-advisor to the Student Government, resigned from her position. She did so because she observed that Mr. Blevis was so rigid and controlling that he would not allow the students to direct activities on their own. As a result, the student's [sic] interest in student government dwindled and the activity became defunct.

19. Mr. Blevis had claimed that he had to leave school on a Friday because he was ill. A fellow teacher, Mr. Williams, agreed to fill in for him at a student science competition on Saturday. Mr. Williams drove to the school and found Mr. Blevis there awaiting the students. He claimed that he tried to call Mr. Williams at home, but no one answered. Mrs. Williams was at home and claimed that Mr. Blevis never called.

20. Ms. DeCarlo and Ms. Vladescu both sent letters stating that they would not work at Lyndhurst High School, if Mr. Blevis returned to the school, because they were afraid for their safety.

The ALJ concluded that

there was ample proof that Mr. Blevis' behavior toward his colleagues and supervisors had become more and more erratic and irrational during the past few years. Testimony that he was so perturbed that he became red in the face and shook all over are signs of a person who is losing control. Statements about conspiracies against him and taping of fellow staff members indicate issues of mental stability. His passion about the curriculum and proper school procedure does not explain away his unusual behavior. As the respondent has pointed out, N.J.S.A. 18A:16-2 was designed to protect students from the actions of teachers who show evidence of deviation from normal physical or mental health. While[] the majority of the incidents cited by the Board dealt with erratic behavior by the respondent against staff members, this type of behavior cannot be isolated from the student body. In a school setting there is constant interaction among teachers and students. Problems with staff will ultimately affect the students. Teachers who feel threatened will eventually react to the tension they are feeling. This is bound to impact on students as well. In addition, if the staff is threatening to leave, that certainly affects the student body. This does not mean that, if a group of teachers, for no good reason, have decided that they do not wish to work with a fellow teacher[,] that the Board should acquiesce to their demands. However, that is not the case in this situation. There is ample evidence that Mr. Blevis has acted in an irrational and threatening manner to his fellow teachers and supervisor. There is also evidence that Mr. Blevis' unusual behavior has increased in frequency in the past several years. The Board is obligated to protect its student body. While there ha[ve] been no direct threats to students, the behavior exhibited by the respondent could certainly spill over to the classroom.

The ALJ accordingly held that the Board's determination requiring appellant to present himself for a physical and psychiatric examination was reasonable and necessary to ensure the safety and well-being of students and staff. She therefore ordered the Board's decision upheld.

Appellant filed exceptions and the Board filed a reply. Based upon a complete independent review of the hearing transcripts and exhibits, the Initial Decision, and the exceptions and reply, the Commissioner issued her Final Decision on December 5, 2007. The Commissioner adopted the factual findings articulated by the ALJ. The Commissioner found that the Board met its burden of showing that appellant's behavior "deviated significantly from the behavior one would expect from an individual in normal mental health" and that appellant failed to rebut that showing with competent evidence.

The Commissioner further noted that appellant's behavior had a negative impact on students as well as appellant's co-workers. As examples of such direct negative impact on students, the Commissioner referenced appellant's conduct regarding the mid-term exam and regarding special education students. The Commissioner further noted that in addition to direct adverse impact that already occurred to students, a local board of education is within its rights in "determining that hostile and abnormal behavior directed by one teacher towards several others, and outbursts of temper displayed on multiple occasions warrant a psychiatric evaluation, including an assessment of the likelihood that [appellant]'s control could further deteriorate, and that his negative behavior could be visited upon students."

The Commissioner concluded that the weight of the evidence adduced at the hearing before the ALJ "abundantly depict[ed] a level of hostility, belligerence and lack of control on the part of [appellant] that arguably exceeds the bounds of normal mental health." The Commissioner therefore found that "[i]t was not unreasonable for [the Board] to seek an evaluation of [appellant] to ascertain the likelihood that his antagonism and poor control might spill over to the classroom."

Our role in reviewing an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to the decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distr. of Liquid Assets, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-67; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Brady, supra, 152 N.J. at 210-11; In re Petition of S.D., 399 N.J. Super. 107, 121 (App. Div. 2008) (citing In re Musick, 143 N.J. 206, 216 (1996)); Boardwalk Regency Corp. v. N.J. Casino Control, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's "'findings . . . 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)).

"[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency, such as [the Commissioner], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

Appellant's first argument is that the ALJ improperly imposed upon appellant the burden of proving that his behavior was not a deviation from normal physical and mental health, thus justifying the Board's order for a physical and psychiatric examination. The final decision before us is that of the Commissioner, not the ALJ. The Commissioner noted the ALJ's position on the burden of proof and appellant's exception in that regard, and addressed the issue thusly: "Because the Commissioner concludes that [respondent] made the necessary showing that [appellant]'s behavior reflected a deviation from normal mental health, the question of who bore the burden of proof is academic, and will not be addressed." The Commissioner therefore found that the Board met its burden of proving that appellant "show[ed] evidence of deviation from normal . . . mental health." N.J.S.A. 18A:16-2a. The bar set by the statute is low, which comports with the overriding purpose in this and related statutes that the health, safety and well-being of students is paramount. Our review of the record satisfies us that the Commissioner's determination on this point is well supported by the evidence. Therefore, appellant's burden of proof argument provides no basis for reversal.

Appellant's next argument is also unavailing. Relying on Kochman v. Keansburg Bd. of Educ., 124 N.J. Super. 203, 211-12 (Ch. Div. 1973), appellant argues that the evidence must support and the Commissioner must find that his behavior affected his ability to teach, discipline, or associate with children of the age subject to his control in order to justify an examination pursuant to N.J.S.A. 18A:16-2a. For purposes of our analysis, we do not take issue with that basic proposition. However, the proposition should not be interpreted so narrowly as to conflict with the widely accepted principle that "fitness to teach is not based exclusively on a teacher's classroom proficiency or the absence of misconduct" but "depends upon a broad range of factors." In re Grossman, 127 N.J. Super. 13, 30 (App. Div.), certif. denied, 65 N.J. 292 (1974).

One of the plaintiffs in the Kochman case was John N. Gish, Jr. After Kochman was decided, upholding the constitutionality of N.J.S.A. 18A:16-2, Gish continued to resist the order of his board of education that he submit to a psychiatric examination. Gish v. Bd. of Educ. of Paramus, 145 N.J. Super. 96, 99 (App. Div. 1976), certif. denied, 74 N.J. 251, cert. denied, 434 U.S. 879, 98 S. Ct. 233, 54 L. Ed. 2d 160 (1977). The Commissioner and State Board of Education upheld the decision of the local board to require the examination, and Gish appealed to this court. Id. at 102-03. Notably, none of the reasons for which the local board required Gish to submit to a psychiatric examination "include[d] a single instance of any undue conduct or actions in the classroom or out of the classroom with respect to a particular student." Id. at 103. We nevertheless upheld the administrative order, recognizing the propriety of the local board to rely upon "evidence of deviation from normal mental health which may affect his ability to teach, discipline and associate with students." Id. at 104 (emphasis added).

We reasoned that local school boards are entrusted with the duty to determine "the general issue of fitness of teachers," and should evaluate that fitness in light of the board's duty to protect students from harm, and not be required to wait until the harm occurs. Id. at 104-05. Thus, a reasonable possibility that harm to students will occur is sufficient. Id. at 105. This reasoning recognizes that a teacher's fitness is not measured solely by his or her ability to teach but also involves the consideration "'that the teacher's presence in the classroom might, nevertheless, pose a danger of harm to the students for a reason not related to academic proficiency.'" Ibid. (quoting Grossman, supra, 127 N.J. Super. at 32). We accordingly were satisfied in Gish "that the board's determination was a fair and reasonable one." Ibid.

We reach the same conclusion here. The Commissioner found that some direct adverse impact on students had already occurred. The Commissioner further found that there was a reasonable likelihood that further harm was occurring indirectly or might likely occur in light of appellant's erratic behavior. The Commissioner's determination that the Board acted reasonably in ordering the examinations is well founded. We accordingly find nothing in the Commissioner's Final Decision to render it unreasonable or unsupported by the record.

Finally, we find no merit in appellant's argument that the ALJ and Commissioner relied on several factual errors. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

(continued)

17

A-6004-07T3

October 8, 2009