IN THE MATTER OF THE TENURE HEARING OF GILBERT ALVAREZ SCHOOL DISTRICT OF LAKEWOOD OCEAN COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5223-09T3

IN THE MATTER OF THE TENURE

HEARING OF GILBERT ALVAREZ,

SCHOOL DISTRICT OF LAKEWOOD,

OCEAN COUNTY.

____________________________________________________________

October 31, 2011

Submitted September 21, 2011 - Decided

Before Judges Graves, Harris and Koblitz.

On appeal from the Commissioner of Education,

Docket No. 36-2/09.

Zazzali, Fagella, Nowak, Kleinbaum & Friedman,

attorneys for appellant Gilbert Alvarez

(Richard A. Friedman, of counsel and on the

brief).

Michael I. Inzelbuch attorney for respondent

Lakewood Board of Education.

Paula T. Dow, Attorney General, attorney for

respondent Commissioner of Education (Bryant

Lawrence Horsley, Jr., Deputy Attorney General,

on the brief).

PER CURIAM

Gilbert Alvarez appeals from a final decision of the Commissioner of Education (the Commissioner) that terminated him from his tenured teaching position with the school district of the Township of Lakewood for conduct unbecoming a teacher. We affirm.

Alvarez was hired by the Lakewood Board of Education (the Board) in September 2004 and acquired tenure on September 1, 2007. On February 23, 2009, the Board filed tenure charges alleging a pattern of unprofessional and improper conduct. Among other things, the Board claimed that while Alvarez was teaching a class at the Lakewood Middle School on December 23, 2008, he responded to an unruly student by using inappropriate language and pushing a desk in such a manner as to cause the student's finger to be pinched between his desk and a heater.

After the Commissioner rejected a settlement agreement proposed by the parties, an administrative law judge (ALJ) conducted a contested hearing on December 7, 8, and 14, 2009. During the administrative hearing, Alvarez admitted that his behavior on December 23, 2008, was "inappropriate" because he let an argument with a student "go on for too long," and he "came down to the student's level a little too much." Additionally, Alvarez testified that during the argument the student said he would "deal" with Alvarez and Alvarez responded, "You don't have the balls." Alvarez also acknowledged saying "I don't have to take this crap," and he admitted he had violated school policy by asking another student (who may have "said something") to stand outside the classroom door.

The Board also established that the incident on December 23, 2008, was not an isolated event. For example, a special education teacher, who provided in-class support for Alvarez's classroom during the 2006-2007 school year, estimated that Alvarez lost his temper and was "verbally abusive" to the students "between five and ten times." Another teacher testified that Alvarez appeared "angry" and "red-faced" when he "burst" into her classroom in pursuit of a student. The teacher testified that she was "frightened" by the incident, and Alvarez subsequently apologized to her for his behavior.

The ALJ's findings and conclusions, which were set forth in a comprehensive written decision dated March 5, 2010, included the following:

Alvarez engaged in inappropriate and unbecoming conduct for a tenured teacher. His repeated inability to properly control and channel his frustration and anger at the conduct, attitudes and faults of his students led him to outbursts of inappropriate language, to the use of words and phrases not proper for a teacher to utilize in a classroom setting, to the use of physical force to push a student out of a room and to push a desk that he must have known would also cause another desk with a student in it to be similarly pushed. He also violated school policy on several occasions by removing students to the hallway when such action was not permitted. And on more than one occasion, he himself appears to have recognized that his emotions had the best of him and that if he did not "cool down" or was not calmed down by another faculty member he might "lose it" and might even "hit someone," a concern whose validity may be said to have been confirmed by his actions on December 23, 2009.

The ALJ concluded the appropriate penalty was a forfeiture of the pay withheld during the initial suspension, an additional two-month suspension, and the forfeiture of any increment Alvarez may have been entitled to during the 2009-2010 school year.

On June 3, 2010, the Commissioner accepted the ALJ's finding that Alvarez "acted in a manner which is wholly inappropriate for a professional educator and not commensurate with a teacher's function as a role model." However, the Commissioner also found that his behavior was not an aberration, and it was possible that such conduct would be repeated in the future. Thus, the Commissioner modified the ALJ's recommended penalty and removed Alvarez from his tenured teaching position.

On appeal, Alvarez presents the following arguments:

POINT I

THE COMMISSIONER OF EDUCATION'S DECISION TERMINATING APPELLANT'S EMPLOYMENT IS NOT ENTITLED TO ANY DEFERENCE BY THIS COURT BECAUSE IT WAS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND IS CONTRARY TO N.J.S.A. 52:14B-10(c).

A. THE COMMISSIONER'S MIS- CHARACTERIZATION OF THE ALJ'S FACTUAL FINDINGS CONSTITUTES REVERSIBLE ERROR.

B. THE COMMISSIONER'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF N.J.S.A. 52:14B-10(c) CONSTITUTES REVERSIBLE ERROR.

We conclude from our examination of the record and the applicable law that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(D) and (E). We affirm substantially for the reasons stated by the Commissioner with the following comments.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Appellate courts must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988)).

Generally, "an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In determining whether the agency's action is arbitrary or unreasonable, we consider: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the action violated express or implied legislative policies; (3) whether there is substantial credible evidence in the record to support the agency's findings; and (4) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. George Harms Constr. Co., supra, 137 N.J. at 27 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

"That deferential standard applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007) (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431 (1975)). The test for reviewing an administrative sanction 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.'" In re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (1974)).

In the present matter, the Commissioner's determination that Alvarez repeatedly engaged in inappropriate and unbecoming conduct is adequately supported by substantial credible evidence. Moreover, we agree that Alvarez's behavior was sufficiently egregious to warrant termination.

A