IN THE MATTER OF THE TENURE HEARING OF STEVEN E ROTH JR.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5742-11T2

IN THE MATTER OF THE TENURE

HEARING OF STEVEN E. ROTH,

JR., GLOUCESTER COUNTY

SPECIAL SERVICES SCHOOL

DISTRICT, GLOUCESTER COUNTY.

__________________________________________

July 1, 2013

Argued February 12, 2013 - Decided

Before Judges Alvarez and St. John.

On appeal from the Commissioner of Education, Docket No. 358-12/11.

Barbara E. Riefberg argued the cause for appellant Steven E. Roth, Jr., (Shimberg & Friel, P.C., attorneys; Ms. Riefberg, on the briefs).

Michael J. DiPiero argued the cause for respondent Gloucester County Special Services School District (Brown & Connery, LLP, attorneys; Mr. DiPiero and Abigail M. Green, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Angela L. Velez, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Steven Roth appeals from a final decision of the Commissioner of Education (Commissioner) which adopted the Administrative Law Judge's (ALJ) finding of unbecoming conduct but modified the penalty, granting the Board of Education of the Gloucester County Special Services School District's (Board) request that Roth's employment be terminated. After careful examination of the record we find that there was sufficient evidence in the record to support the Commissioner's decision to terminate Roth's tenure. Accordingly, we affirm.

I.

The record discloses the following facts and procedural history leading to the administrative determination under review.

The Board filed charges of conduct unbecoming against Roth, a tenured special education teacher, seeking to terminate his employment. The charges arose following an October 21, 2011 incident between Roth and J.A., a fifteen-year-old student in his geometry class. Bankbridge Regional School, where Roth taught, is a special education facility which educates students with behavioral and emotional disabilities. J.A. was a classified student with an Individualized Education Plan.

On October 21, 2011, J.A. came to class but put his head down and was listening to audio headphones. Roth says he tried to motivate J.A. and get him to complete work. Roth maintains that J.A. then began calling him names, telling him he was a bad teacher and that he was just there to collect a pay check. After this interaction, approximately twenty minutes into class, J.A. turned on his cellular phone video recorder. Roth was not aware he was being filmed. There is no dispute as to the authenticity or accuracy of the video recording. The following is the ALJ's description of what was recorded:

The recorded portion of the class starts with some audio comments that are not accompanied by any visual content. These related to another student and it was after this that the comments shifted to J.A.

At first, before there is visual content, Mr. Roth is speaking about another student, one who he notes has only been in his class four times in the month since school started. In regards to a comment that is hard to discern about this other student being "totally screwed" and possibly a question voiced as to why he doesn t just drop out, Roth says that the student is wasting both his and Roth's time. A door slams during this interchange, and it apparently signals that the classroom aide, Dawn Ross, had left the classroom at that time. . . . Roth comments that "he don t want to be here" and is being "forced to be here." J.A. says that the other student is still coming to get an education, which prompts Roth's observation about his very limited attendance. There is a remark about "trying" that seems to come from J.A. The visual portion of the recording begins at this point. Roth starts to talk about the "real world." He says that "I'm being real, real sucks, real hurts, real things hurt." He is "not here to pat his head" (apparently referring to the other student). It is at this point that Roth first becomes fully visible on the recording. He continues that he cannot be saying "everything's gonna be okay cause guess what, when he leaves here, nobody gives a fuck. I'm not going to be out there to teach this lesson again." At this moment Ms. Ross is visible, as she apparently reenters the room.

What the recording reveals is that Roth says that "when you leave here, J . . ., who cares that you had a special ed, who cares that you're special. Nobody dude." When he says this Roth is standing towards the front of the classroom, arms folded. J. responds, "don t call me special." Roth responds, "oh my God, what are you here for." He flays his arms and points towards the classroom door, saying something, that is not entirely distinct, but clearly includes a remark about "right in front of the school it says 'special education,'" apparently a reference to the "Special Services District." Again, . says, "don t call me special" and Roth asks him "what would you like me to call you, J.? J. says, "Normal, don t call me special." Roth now points to his own head and says, "what's your definition of normal. You want me to call you normal but you don t even know what it is." Roth now approaches the spot where J. is seated, although not actually reaching the front of J.'s desk at this time. There is some response to his remark that seems to come from some other student(s). Roth responds to these comments, "that doesn t make a whole lot of sense" and he returns to the whiteboard in the front of the classroom. Something is then said by someone in the classroom and Roth, whose back was at that moment to the class, turns back towards the class and says, "what would you like me to call you, J.?" J. says, "I don t know, just don t call me special." There is then an exchange that is difficult to make out, but it leads to another comment by J., "don t call me special." Roth then states, "what's going to happen to me?" J. says, "I'm just telling you don t call me special." Roth replies, "I'll say whatever I want to say, you don t like it, oh well. You know what, the truth hurts. Reality hurts." J. answers with a comment, not completely audible, that includes words "when I get out of this school, you won t call me special."

In reply to J.'s comment about Roth not calling him special after J. is no longer a student at the school, Roth approaches J.'s desk and says that he could "kick your ass till eighty years old" continuing to tell J. that J. will never be as big or as buff as Roth is. He remarks "that the real world," spreading his arms and asking, "what are you gonna do to me" and something that sounds like, "like I'm scared." J. replies, "don t fucking threaten me." Now, Roth approaches J. directly, presumably across his desk. Although the exact distance between them cannot be determined from the video, it is abundantly apparent that Roth's frame has now come so close as to have him filling the screen. He says, "you threatened me" and something about, "when you get out of school, you're going to do something, what are you gonna do?" There is then an exchange, or more pointedly an argument, about what J. did or did not say. Roth is now yelling. He states, "when you get out of this school you tell me where you are and I'll be right there, there aren t gonna be nothing for you to do." Roth says, "Nothing, ever, ever, ever, ever, ever do." J. replies twice, "just get out of my face." Roth, still standing in front of the student, says, "you don t see me moving, do you? Again, J., "get out of my face." Roth: "you ain't gonna do a thing." J: "get out of my face." Roth now turns and walks back away from J., but turns back toward him and says, "you ain't never gonna be big enough or bad enough. Never," moves back towards J. and says, "that's why they put me in this circumstance" and again, that J. will "never be big enough or bad enough." Roth moves to the front of the room. He now comments, . . ., "and you know what, you ain't never making it back to regular ed." Mr. Roth is at the front of the classroom. He says, "I hate to tell you, life sucks."

At this point there is a gap in the recording. It is not clear if the phone was turned off for a short time, but there is nothing recorded for just a few seconds and then the recording resumes.

At the point where the recording resumes, Mr. Roth is standing in front of J.'s desk with his foot apparently on the bottom rung of another desk. Only his legs are visible. He asks J. if J. takes anything upon himself and tries at all. J. replies, "Yes I do" and Roth queries, "every day?" J. then says that he's trying and adds something about his "punk ass back to district." Roth says, "I don t think you're trying." J. says something "extra, extra help and trying to get some help" and acknowledges that in the year he "shut down . . . and I do shit." He yells about asking for extra help and an exchange takes place about whether he asks for extra help and whether Roth provides it. J. agrees that he does, but adds that Roth tells him that Roth is "pissed." When another student says something that is indiscernible, Roth comments about "special ed" and that the school is a special service school and "you have an IEP." He asks J., "I haven t given you special help?" J. says "yeah, but you're sitting there getting mad." Roth replies, "If you were the boss and had to teach your employees the same thing over and over" at which point there is another gap in the recording.

When [the third] portion begins, Roth, either yelling or speaking loudly, refers to there being seven minutes left and tell J. to write definitions and refers to how his own son learns to read and write, coming home with homework to write words. J. says that he has asked for extra help and that Roth "gets in his face" about this. Roth says that he is "up here teaching the same thing over and over" and the teacher comes back to J.'s desk and sits on a desk that appears to be in front of J.'s desk. There is a discussion about points and Roth denied that he has ever taken any points from J., saying that "points don t matter." He accuses J. of "making up crap." He tells the student that he must "take responsibility for yourself instead of me constantly telling you the answers. You want me to give you everything. You want me to do it." J. denies this assertion and Roth says, "Well then start taking a little responsibility for yourself." J. claims, "I have been" and says that he has been at the library "24/7." There is some indistinguishable comments and Roth says, "I don t care about getting back to district, I'm asking you to do my work once you're here." He then tells J., "you're not going to like this, you're not ready to go back to district. I would never, ever, ever give my recommendation for you to go back to district." He then asks J. what district J. is from and is told "West Deptford." Roth asks if he thinks West Deptford is taking him back. J. claims that he is being good, which Roth says he doesn t really know if that is so. He asks how long J. has been at the Special Services school and J. does not recall. Roth asks why J. has not been taken back and J. says that he has not ever tried to go back. Roth suggests that one and one-half months is not enough and J. says that he has never tried for a month and a half and has never been platinum (referring to the point system) for a month and a half. Roth says that he has not been J.'s teacher before, but he knows that he is not ready to go back to district. He then asks J. if he think that a return to the district is only about whether he has behaved and whether he thinks that education and learning [to] play a part in that decision. J. ultimately says that he does not know. Roth notes that West Deptford had "plenty of money" and are "not worried about spending $35,000 a kid to send you here." Other students seem to then comment and he asks another student whether that student believes that his behavior is "85 times" better than "his," apparently thereby referring to J. There is a further query as to that other student thinking he is smarter. This ends the recording.

Roth acknowledged that some of the statements he made on the video could be characterized as threats. He maintains that his temper got the best of him but that he would never have physically hurt J.A. Roth stated, "[s]ince day one I have felt terrible about this. I expressed my feelings and my deepest regards. And I felt bad."

J.A. is no longer enrolled at Bankbridge, after the incident he requested to be taken out of the school. J.A. said he felt like "trash" after the incident with Roth.

Roth was suspended with pay on October 27, 2011. Tenure charges were served upon him on November 17, 2011, after which he was suspended without pay. The case was transferred to the Office of Administrative Law on December 22, 2011, pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13, where it was filed for determination as a contested case. Hearings were conducted before an ALJ, and, on May 11, 2012, the ALJ issued an initial decision finding that Roth's conduct constituted conduct unbecoming and violated the District's policy against harassment, intimidation, and bullying. The ALJ recommended a penalty of forfeiture of 120 days pay, suspension for the remainder of the 2011-2012 school year following the initial statutory unpaid suspension, no pay increment for the 2012-2013 and 2013-2014 school years, completion of anger management training at his own expense, and the issuance of a written apology to the Board, J.A., J.A.'s parents, and the students who were in the classroom during the incident. The ALJ further recommended that if Roth failed to complete the required training by the end of December 2012, or other dates as agreed upon by the Board, his tenure was to be terminated.

The Board filed exceptions to the ALJ's initial decision. On June 25, 2012, the Commissioner issued a decision adopting the ALJ's finding that Roth's conduct was unbecoming, but modifying the ALJ's penalty, determining that it was appropriate to terminate Roth's tenure. It is from this decision of disciplinary sanction that Roth appeals.

II.

Judicial review of administrative agency actions is limited. In re Herrmann, 192 N.J. 19, 27 (2007). An administrative agency's final decision should "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. The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

The Court has noted there are "[t]hree channels of inquiry" that inform the function of appellate review. In re Herrmann, supra, 192 N.J. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

When an agency decision satisfies this criteria, an appellate court should accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

An appellate court has "no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency," In re Herrmann, supra, 192 N.J. at 28 (internal quotation marks and citation omitted), and is cautioned against substituting its own views on the penalty imposed for that of the administrative body, In re Carter, 191 N.J. 474, 486 (2007). Rather, we owe substantial deference to the agency's "choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated." Herrmann, supra, 192 N.J. at 35 (internal quotation marks and citations omitted). In our review of a sanction imposed by an administrative agency, we alter the sanction imposed "only 'when necessary to bring the agency's action into conformity with its delegated authority.'" Id. at 28 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).

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.'" Id. at 28-29 (quoting In re 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." Ibid. See also City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (holding that in the context of disciplinary actions, we will not disturb the penalty imposed unless it is "so utterly disproportionate to the offense as to amount to a clear abuse of discretion." (internal quotation marks and citation omitted)).

The tenure of education personnel is authorized by the Education Tenure Act. N.J.S.A. 18A:28-1 to -18. Pursuant to N.J.S.A. 18A:6-10, no person under tenure of office, position, or employment shall be dismissed or reduced in compensation except for inefficiency, incapacity, unbecoming conduct, or other just cause. While tenure was designed to protect education personnel "from dismissal for 'unfounded, flimsy or political reasons,'" Wright v. Bd. of Educ. of East Orange, 99 N.J. 112, 118 (1985) (quoting Zimmerman v. Newark Bd. of Educ., 38 N.J. 65, 72 (1962)), tenured employees must act in a professional manner and serve the welfare of the students in their care. Tenure charges may be sustained based on a pattern of unprofessional conduct, In re Riddick, 93 N.J.A.R.2d (EDU) 345 (1993), or on a single incident, if found to be "sufficiently flagrant." In re Fulcomer, 93 N.J. Super. 404, 421 (App. Div. 1967).

III.

On appeal, Roth argues the Commissioner's decision to reject the ALJ's proposed penalty and order termination of his tenure, was arbitrary, capricious and unreasonable because: (1) the Commissioner's decision failed to give due regard to the mitigating factors present in the case; (2) the Commissioner's decision did not comport with case law on the issue of the appropriate penalty; (3) the Commissioner's decision to terminate his tenure could not have reasonably been made on a showing of the relevant factors; and (4) the Commissioner's decision to terminate his tenure was disproportionate to his offense.

The Commissioner found:

[The] mitigating factors do not outweigh the gravity of respondent's conduct on October 21, 2011. Careful review of the recording of the incident . . . shows the sustained use of demeaning language including profanity, aggressive body language, intimidation and threats, taunting, and tirades about issues unrelated to those that are properly addressed in a classroom. The conduct cannot be characterized as a spontaneous slip, as it continued over a long period of time and was recommenced several times over the course of the class period. Any "badgering" behavior that J.A. may have presented prior to respondent's misconduct pales in comparison to what was evident on [the video recording].

Further, the Commissioner finds the behavior particularly troubling insofar as respondent was modeling to J.A. and the other adolescents in the class, all of whom are special education students and some of whom have behavioral problems that threats, intimidation and disparagement are appropriate responses to frustration. . . . Respondent's conduct constituted the kind of negative reinforcement that can thwart any progress made by petitioner's teaching staff in helping students overcome their behavior difficulties. Thus, it impacted the proper administration of the school district, and the confidence of the community in same.

. . . .

Finally, respondent's lack of judgment and control on October 21, 2011 was prolonged and acute, shedding some doubt on respondent's representation that the behavior had never happened before and/or was completely foreign to the way he normally comported himself.1 . . . The penalty recommended by the ALJ must be modified to reflect the fact that the use of intimidation, ridicule and disparagement has no place in the school environment.

In In re Fulcomer, we stated that when the Commissioner makes penalty determinations he should consider "the nature and gravity of the offenses under all the circumstances involved, any evidence as to provocation, extenuation or aggravation, and should take into consideration any harm or injurious effect which the teacher's conduct may have had on the maintenance of discipline and the proper administration of the school system." Supra, 93 N.J. Super. at 422. The Commissioner specifically noted that before the October 2011 incident, Roth had never had formal disciplinary actions taken against him. The Commissioner also considered testimony from Roth's classroom aide that J.A. had provoked Roth before Roth's outburst. The Commissioner further acknowledged Roth's remorse and contrition. The Commissioner simply determined that these mitigating factors did not outweigh the gravity of Roth's conduct. The Commissioner properly considered the appropriate factors from Fulcomer. Accordingly, Roth has failed to show that the Commissioner's penalty determination was arbitrary or capricious for failing to consider appropriate mitigating factors.

Roth's next asserts that termination of his tenure was disproportionate to his conduct. We find this argument unpersuasive.

Roth maintains that his conduct was akin to the conduct of the teachers in In the Matter of the Tenure Hearing of Desly Getty, Bd. of Educ. of the City of Asbury Park, Monmouth Cnty., OAL Docket No. EDU 08750-08 (June 4, 2009), In the Matter of the Tenure Hearing of Cory Forman, Clearview Regional School Dist., Gloucester Cnty., OAL Docket No. EDU 10976-11 (April 4, 2012), and In the Matter of the Tenure Hearing of Edith Craft, Docket No. 24-2/11, Aff d, Docket No. A-0415-11 (App. Div. July 5, 2012), and thus his termination was unduly harsh. However, Roth's conduct is distinguishable from the conduct of the teachers in those cases.

In In re Getty, plaintiff teacher used her cell phone for a personal call during a class, failed to respond appropriately to a student "dancing incident" which occurred while she was occupied with her phone call, and later made a related foray into another teacher s classroom. In that case the Commissioner was in accord with the penalty recommendation of the ALJ, to issue a reprimand along with the loss of 120 days salary, because under the circumstances removal of plaintiff from her tenured position would have been an unduly harsh penalty. In re Getty, supra, slip op. at 3-4. However, unlike the teacher in that case who passively talked on her cell phone during class, Roth's unbecoming conduct was threatening, intimidating, disparaging, and directed at a student.

In In re Forman, a teacher's tolerance of student provocation and horseplay, and the teacher's "light slap" and joking offer to give student 100s the rest of the year, was unbecoming conduct. The Commissioner determined that the ALJ's recommendation of removal was unduly harsh, specifically noting that the proven conduct did not establish respondent s unfitness to discharge the duties of his position and that the conduct was not premeditated, cruel or vicious, or done with the intent to punish. In re Forman, supra, slip op. at 6, (quoting In re Fulcomer, supra, 93 N.J. Super. at 421). In that case the Commissioner concluded that the teacher's conduct did not establish his unfitness to discharge his duties, whereas here, the Commissioner specifically noted the negative reinforcement Roth's conduct had on his students, many of whom had behavior problems, and the impact his conduct had on the administration and confidence of the community in same.

Finally, in In re Craft, a special education teacher slapped one of her students in the face after the eight year old student slapped her. This court upheld the Commissioner's imposition of an additional 120 days suspension beyond the ALJ's recommendation of 120-day suspension without pay and loss of increments for the following school year. The teacher's slap of her student was, she argued reflexive, but unquestionably brief. Here, Roth badgered and engaged in bullying J.A. for an extended period of time, it was not spontaneous. There is nothing to suggest that the Commissioner's decision to terminate Roth's tenure was arbitrary or capricious because of the penalties conferred in other cases.

Roth's third argument, that the Commissioner's decision to terminate his tenure could not reasonably have been made on a showing of the relevant factors, is meritless. The Commissioner properly considered the relevant factors of Roth's offense. In particular, he noted that the use of intimidation, ridicule, and disparagement have no place in the school environment. Further, he determined that Roth's conduct was especially egregious as it was prolonged, clearly not spontaneous, and directed at a special education student. The Commissioner also emphasized the negative effects that Roth's conduct had on J.A., the students, and the administration of the school. Based on these factors, the Commissioner's determination that termination of tenure was the proper penalty was not arbitrary, capricious, or unreasonable.

Roth's final assertion, that the termination of his tenure is disproportionate to his offense, is likewise unpersuasive. As previously noted, his conduct was prolonged, disparaging, and negatively affected J.A., as well as others. Roth's unbecoming conduct was sufficiently flagrant to sustain tenure charges based on this single incident. See In re Fulcomer, supra, 93 N.J. Super. at 421.

The Commissioner's decision to grant the Board's request to terminate Roth's employment was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to our sense of fairness. See Herrmann, supra, 192 N.J. at 28-9.

A

1 Indeed, J.A. maintained that the reason he took the video was because of respondent's prior behavior towards him.