COURT OF MELINDO PERSI v. DANIEL WOSKA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

 

MELINDO PERSI,

 

Petitioner-Respondent,

 

v.

 

DANIEL WOSKA, TOWNSHIP OF

BRICK BOARD OF EDUCATION,

OCEAN COUNTY,

 

Respondent-Appellant.

December 11, 2013

 

Argued November 6, 2013 Decided

 

Before Judges Alvarez, Ostrer and Carroll.

 

On appeal from the Commissioner of Education.

 

Michael V. Elward argued the cause for appellant Daniel Woska (Montenegro, Thompson, Montenegro & Genz, attorneys; Mr. Elward, of counsel and on the brief).

 

Geoffrey N. Stark, Deputy Attorney General, argued the cause for respondent Commissioner of Education (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stark, on the brief).

 

Robert C. Shea argued the cause for respondent Melindo Persi (R.C. Shea & Associates, attorneys; Mr. Shea, of counsel; Dina M. Vicari, on the brief).

 

PER CURIAM

Appellant Daniel Woska is a former member of the Brick Township Board of Education (Board). He appeals the final agency decision of the Commissioner of Education (Commissioner), finding that he violated the School Ethics Act, N.J.S.A. 18A:12-21 to -34. Specifically, the Commissioner determined that, in unilaterally directing the issuance of a "Rice notice"1 to a school superintendent without consulting any other Board member, Woska took private action that had the potential to compromise the Board, contrary to N.J.S.A. 18A:12-24.1(e). Because we conclude that the Commissioner's decision lacks sufficient clarity, fails to provide the level of guidance that is necessary, and does not fully address other aspects of Woska's conduct that are alleged to constitute ethical violations, we remand to the Commissioner for further proceedings consistent with this opinion.

I.

The underlying facts, as initially found by the School Ethics Commission (Commission) and thereafter adopted by the Commissioner, are undisputed. Complainant, Melindo Persi, served as Interim Superintendent of the Brick Township School District pursuant to a contract that began in July 2007, and ended in November 2008. The contract provided that either party could terminate it upon thirty days written notice. Woska was a Board member and was present when the terms of Persi's employment contract were negotiated. Hence, Woska either knew, or should have known, of its thirty-day notice provision.

On April 15, 2008, an election was held, and three new members were elected to serve on the seven-member Board. The Board's reorganization meeting was scheduled for April 29, 2008, at which these three newly-elected members were to be sworn in.

On April 25, 2008, Woska called the School Business Administrator and Board Secretary, James Edwards, and directed him to prepare a Rice notice to send to Persi so that Persi's employment could be discussed at the April 29, 2008 reorganization meeting. Edwards in turn directed Marie Barnes, the Assistant Secretary, to send Persi the Rice notice. The notice was prepared under Barnes' name. Drawing on his fifty years of experience in education, Persi testified that an individual board member cannot request the issuance of a Rice notice. Rather, such action requires a majority vote of the board authorizing it. Woska was not the Board President when he directed that the Rice notice be sent. Nor did he discuss it with the Board President or any other sitting member of the Board, or with Board counsel, before taking such action.

Woska was not satisfied with Persi's performance, and wanted him terminated. In addition to directing issuance of the Rice notice, prior to the reorganization meeting Woska privately discussed "in passing" Persi's employment with the three newly-elected Board members, although they were not yet sworn in. Woska also contacted Mary Ann Ceres, a former assistant superintendent, in advance of the April 29, 2008 meeting, which he asked her to attend. Woska told Ceres that the Board was dissatisfied with Persi, that he was going to raise the issue of Persi's continued employment at the meeting, and that the Board would then need a new interim superintendent. He also discussed salary and benefits with her. Further, Woska discussed Ceres' potential appointment with the three newly-elected but unsworn members during the weekend preceding the reorganization meeting.

The three new Board members were sworn in at the April 29, 2008 meeting, which Persi and Ceres both attended. Woska was appointed Board president. Persi's employment was discussed in closed session, following which the Board voted five-to-two to terminate his employment, effective that evening. Four of the five affirmative votes were cast by Woska and the new members, with whom he had previously spoken. The Board, which had been presented with Ceres' resume while in closed session, then appointed her as the Interim Superintendent. A resolution accompanied that appointment, although Edwards had not prepared it.

Persi filed two actions against Woska and the Board. The first complaint, filed in Superior Court, concerned breach of his employment contract, while the second, filed with the Commission, alleged violations of the School Ethics Act. The Superior Court action was transferred to the Department of Education, and was heard first, before the Office of Administrative Law (OAL). Following three days of hearings, the Administrative Law judge (ALJ) found, and the Commissioner concurred, that Persi had a valid contract with the Board that required he be given thirty days' notice prior to termination. Accordingly, Persi was awarded the $21,000 compensation he would have earned during that thirty-day period.

Persi's ethics complaint was held in abeyance pending resolution of the contract action, pursuant to N.J.S.A. 18A:12-32. In his complaint filed with the Commission, Persi alleged that Woska's series of actions prior to the April 29, 2008 Board reorganization meeting violated subsections (a)2, (c)3, (d)4, (e)5 and (f)6 of N.J.S.A. 18A:12-24.1, the Code of Ethics for School Board Members. When the matter subsequently proceeded, Woska moved to dismiss the complaint in lieu of filing an answer. The Commission granted Woska's motion with respect to subsection (f) of the statute, but denied it as to the remaining subsections. The Commission memorialized its decision in a written opinion issued June 29, 2011, ruling in relevant part:

The Commission next considers complainant's allegation that the respondent violated N.J.S.A. 18A:12-24.1(e), which provides:

 

I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.

 

Here, "private action" means action taken by a Board member that is beyond the scope of the duties and responsibilities of the Board member. N.J.A.C. 6A:28-7.17. The Commission finds that if it is established that the respondent, prior to the 2008 reorganization meeting, surreptitiously discussed and intentionally planned removing the complainant from his position (complaint at paragraph 16), and that the respondent repeatedly contacted Mary Ann Ceres in furtherance of this agenda (id. at paragraph 17), such facts may be sufficient to support a finding that the respondent failed to recognize that authority rests with the Board and made personal promises and/or took private action that was of such nature that it had the potential to compromise the Board. Accordingly, the Commission denies the respondent's motion to dismiss the allegations that he violated N.J.S.A. 18A:12-24.1(e).

 

After Woska filed an answer, the parties agreed that the transcripts of the OAL hearing on the contract action would be utilized in lieu of the Commission conducting an evidentiary hearing in the ethics matter. In its written decision issued on February 29, 2012, the Commission determined that Woska did not violate N.J.S.A. 18A:12-24.1(a), (c) or (d), but did violate N.J.S.A. 18A:12-24.1(e) by directing the issuance of the Rice notice to Persi without the consent of the sitting Board president, or any of his fellow Board members. The Commission reasoned:

[T]he Commission finds that issuing a Rice notice to Persi was not an administrative function, but, rather a function of the Board. Yet, Mr. Woska was not the Board President at the time he directed the issuance of the Rice notice and he did not call the sitting Board President to discuss the matter with her or ask her to make the request. Additionally, Woska had no discussions with any other sitting Board member or with Board counsel prior to directing Mr. Edwards to issue the Rice notice, although he acknowledged that prior to the reorganization meeting, he discussed issues related to Mr. Persi with the [three] newly-elected [members] "in passing."

 

The Commission notes that "private action" means action taken by a Board member that is beyond the scope of the duties and responsibilities of the Board member. N.J.A.C. 6A:28-7.1. The Commission finds that when Mr. Woska called Mr. Edwards on April 25, 2008 and told him he wanted a Rice notice prepared in order to discuss Mr. Persi's employment at the April 29, 2008 meeting, he took private action, or action outside the scope of his duties as a Board member. Although the Commission acknowledges the argument advanced by counsel for the respondent that there is no legal requirement that a Rice notice be issued only by a Board President or that a Board member first consult with the Board, [] and notwithstanding that it does not call into question Mr. Woska's right to bring to the table the question of who should be the chief school administrator in the District, the Commission must disagree with the respondent that it was his prerogative to be able to direct the issuance of a Rice notice. Instead, the Commission finds that, under these circumstances it was the Board's prerogative to issue the Rice notice to Mr. Persi or determine who should issue the notice.

 

. . . .

 

Although the Commission acknowledges that the respondent believed that Persi was not the best person to be the chief school administrator, the Commission is persuaded that the respondent lost sight of his duty to recognize that authority rests with the Board, including the decision to discuss and review the chief school administrator's employment.8 Accordingly, the Commission finds that the complainant has established that the respondent violated N.J.S.A. 18A:12-24.1(e).

 

Woska appealed the Commission's decision, and on June 22, 2012, the Commissioner accepted the Commission's finding that Woska violated the School Ethics Act, and that a reprimand was the appropriate penalty.9 The Commissioner determined that the Commission's decision was not arbitrary and capricious, and was supported by sufficient credible evidence in the record that when Woska "determined to unilaterally issue the Rice notice to Persi, he acted outside the scope of his authority and duties as a board member as described in N.J.A.C. 6A:28-6.4(a)5. . . . Moreover, [Woska's] conduct compromised the [B]oard because his actions resulted in litigation involving Persi's contract." This appeal followed.

II.

We begin our analysis with the oft-stated principle that our review of agency determinations is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We recognize that agencies have "expertise and superior knowledge . . . in their specialized fields." In re License Issued to Zahl, 186 N.J. 341, 353 (2006) (quotations omitted). "Deference to an agency decision is particularly appropriate where interpretation of the Agency's own regulation is in issue." I.L. v. Div. of Med. Assistance & Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006); see H.K. v. Div. of Med. Assistance & Health Servs., 379 N.J. Super. 321, 327 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also Estate of F.K. v. Div. of Med. Assistance & Health Servs., 374 N.J. Super. 126, 138 (App. Div.) (indicating that we give "considerable weight" to the interpretation and application of regulations by agency personnel within the specialized concern of the agency), certif. denied, 184 N.J. 209 (2005). Because the agency decision must be supported by substantial credible evidence, the reviewing court must examine the record to ascertain whether the action was "arbitrary, capricious or unreasonable[,] or beyond the ambit of the agency's delegated powers." K.P. v. Albanese, 204 N.J. Super. 166, 176 (App. Div.), certif. denied, 102 N.J. 355 (1985); see Univ. Cottage Club of Princeton v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007); see also In re Taylor, 158 N.J. 644, 656-57 (1999).

Also, "a court may not substitute its judgment as to the wisdom of an administrative action so long as it is statutorily authorized and not otherwise defective." K.P., supra, 204 N.J.Super.at 176. Ultimately, the party challenging an agency's action bears the burden of demonstrating that the decision is arbitrary, capricious or unreasonable. In re Arenas, 385 N.J.Super.440, 443-44 (App. Div.), certif. denied, 188 N.J.219 (2006); see alsoBarone v. Dep't of Human Servs., 210 N.J.Super.276, 285 (App. Div. 1986), aff'd, 107 N.J.355 (1987). Thus, our analysis is guided by these standards.

With the enactment of the School Ethics Act, the Legislature has declared that school board members must conduct themselves so as to "avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such is being violated." N.J.S.A. 18A:12-22. The Legislature has further declared that public confidence in school board members is preserved through "specific standards to guide their conduct." Ibid. Those standards include a Code of Ethics for School Board Members, embodied in N.J.S.A. 18A:12-24.1. Pertinent here is N.J.S.A. 18A:12-24.1(e), which as noted provides:

A school board member shall abide by the following Code of Ethics for School Board Members:

 

. . . .

 

e. I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.

 

On appeal Woska argues, as he did before the Commissioner, that the issuance of the Rice notice to Persi did not constitute private action under the statute. Here, the Commissioner interpreted "private action" as action taken by a board member that is beyond the scope of his authority and duties as a board member. That interpretation is consistent with the definition of private action contained in N.J.A.C. 6A:28-7.1, in effect at the time, as well as with N.J.A.C. 6A:28-6.4(a)(5), upon which the Commissioner expressly relied. It is also consistent with several past agency decisions. See In the Matter of Freilich, Docket Nos. C18-04 and C19-04 (Sch. Ethics Comm'n April 4, 2005; Comm'r Decision No. 156-05, decided May 2, 2005), available at http://www.nj.gov/education/legal/ethics/2005/c18-04c19-04v.pdf, (finding that the respondent engaged in private action by sending a letter, in his capacity as chair of the Technology Department, to a private donor, as the Board did not authorize the letter, and had not reviewed or approved it). See also Dericks v. Schiavoni, Docket No. C41-07 (Sch. Ethics Comm'n February 24, 2009; aff'd Comm'r Decision No. 260-09SEC, decided August 18, 2009), available at http://www.nj.gov/education/legal/ethics/2009/C41-07%20C46-07C47-07.pdf, (board member improperly sent a letter to the editor without the full knowledge and consent of the board, purporting to speak on behalf of the board).

The shortcoming, we perceive, is in the Commissioner's failure to resolve the issue of who is authorized to issue a Rice notice for the purpose of reviewing a school superintendent's employment. In its decision, which the Commissioner adopted, the Commission expressly recognized, but did not decide, the "unique issue raised in this matter, i.e., who determines how or when the chief school administrator's employment is reviewed and assessed?"

Testimony at the hearing pertinent to this issue was less than clear. Persi appeared to indicate that a board president separate from a full board can cause a Rice notice to issue to a superintendent. When asked whether "the only way a Rice notice could be served upon a superintendent is if he Rices himself," Persi responded, "[w]ell, it would seem to me that at the time, the board president was not consulted about the Rice notice." He then went on to indicate that a majority of the Board can dictate the sending of a Rice notice, over a Board president's objection. He conceded it was not in the statute, but it "made sense." Edwards, the Board Secretary and Business Administrator, testified that Woska was not the first board member to ask him to send a Rice notice out to a superintendent. When Edwards held a similar position in Plumsted, a single board member asked him to issue a Rice notice, and he complied. He declined to state whether this was a common occurrence in other districts.

In several respects we find the Commission's reasoning equally unclear. One might read the Commission decision to endorse the notion that a board president without the approval of a full board possesses the requisite authority. Such implication may be drawn from the following portion of the Commission's statement:

[T]he Commission finds that issuing a Rice notice to Persi was not an administrative function, but, rather a function of the Board. Yet, Mr. Woska was not the Board President at the time he directed the issuance of the Rice notice and he did not call the sitting Board President to discuss the matter with her or ask her to make the request.

 

On the other hand, the Commission goes on to state that authority to issue the notice belongs to a board apparently the entire board, by majority vote. "[T]he Commission finds that, under these circumstances, it was the Board's prerogative to issue the Rice notice to Mr. Persi or determine who should issue the notice."

The Commission further stated that a board member retains the authority to "bring to the table the question of who should be the chief school administrator in the District." But, the Commission does not specify how that would be done, without running afoul of Rice and the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA).10

We find this lack of clarity hampers our review on appeal. Even if we accept the principle, adopted by the Commissioner, that "private action" equates to action "beyond the scope of the duties and responsibilities" of a board member,11 the agency decision nonetheless fails to clearly delineate the respective authority of a board member, board president, and full board in determining how and when a school superintendent's employment is reviewed. Only when the agency, drawing on its expertise, clarifies this issue, can it then properly determine whether Woska exceeded the scope of his authority and, if so, whether his issuance of the Rice notice, standing alone, was properly sanctionable. The agency's decision also fails to provide adequate guidance for boards and board members who may be confronted with this issue in the future. Accordingly, we remand this matter to the agency for further clarification and determination of this issue.12

We further discern a second reason why a remand to the agency is necessary. In his complaint, Persi did not confine his allegations of unethical conduct to the singular act of Woska's issuance of the Rice notice. Rather, Persi pled a series of misdeeds by Woska, which also included allegations that (1) prior to the 2008 reorganization meeting, Woska surreptitiously discussed and intentionally planned Persi's removal with the three newly-elected but unsworn Board members, and (2) Woska "repeatedly contacted" Ceres to see if she was interested in replacing Persi as Superintendent.

As noted, in denying Woska's motion to dismiss Persi's complaint, the Commission determined that those series of acts by Woska, if established, "may be sufficient to support a finding that [he] failed to recognize that authority rests with the Board and made personal promises and/or took private action that was of such a nature that it had the potential to compromise the Board," contrary to N.J.S.A. 18A:12-24.1(e).

At the conclusion of the hearing, the Commission expressly found that "[p]rior to the reorganization meeting, Mr. Woska discussed issues relating to Mr. Persi with the newly-elected [members] 'in passing', although there were no set [Board] meetings." The Commission further found that "Mr. Woska also discussed Ceres' potential employment with the three newly-elected Board members . . . sometime the weekend before the meeting." After making these findings, however, the agency then failed to determine whether these actions by Woska, either viewed independently, or as part of a course of conduct which included issuance of the Rice notice, violated N.J.S.A. 18A:12-24.1(e), as alleged in Persi's complaint.

The Commission also found that Woska contacted Ceres in advance of the reorganization meeting, which he requested that she attend. "Woska told Ms. Ceres that the Board was unhappy with Persi, that he was going to bring up the issue of Persi's continued employment and that the Board would then need an interim superintendent." Further, the Commission determined that "Mr. Woska discussed with Ms. Ceres her salary and benefits package." In a footnote, the Commission concluded that "[Woska's] actions relative to Ms. Ceres, as set forth in the Factual Findings herein, are [in]sufficient to base a finding of a violation of the Code of Ethics for School Board Members." The Commission's bald conclusion, however, is bereft of any analysis as to why Woska's actions did not constitute private action under the statute, or how his discussion of salary and benefits with Ceres did not have the capacity to compromise the Board. Similarly, the agency's decision again fails to consider Persi's allegation that Woska's actions relative to Ceres were integrally related to a broader course of unethical conduct, which also included issuance of the Rice notice and his private discussions with the incoming Board members.

We have said that "an administrative agency must conduct an independent evaluation of all relevant evidence and legal arguments presented in support of and in opposition to proposed administrative agency action." Mainland Manor Nursing & Rehabilitation Ctr. v. N.J. Dep't. of Health & Senior Svcs., 403 N.J. Super. 562, 571 (App. Div. 2008) (citation omitted). "The failure to do so may make the agency's decision arbitrary and capricious and require a remand for reconsideration." Ibid. (citation omitted). Here, a remand is necessary so that the agency may conduct "a full analysis" of the evidence and its factual findings, in light of the allegations set forth in Persi's complaint and the legal arguments of the parties, and render "a complete explanation of [its] decision." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 436 (2008). We thus remand this matter to the agency for further consideration, without prejudice to Woska filing a new appeal upon completion of the remand if the outcome is unfavorable to him.

Remanded. We do not retain jurisdiction.

1 "Rice notice" refers to the right of a public employee to receive notice when personnel matters related to him/her will be discussed by the Board of Education, as established in Rice v. Union Cnty. Reg'l High Sch. Bd. of Educ., 155 N.J. Super. 64, 74 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978).

2 N.J.S.A. 18A:12-24.1(a) provides, "I will uphold and enforce all laws, rules and regulations of the State Board of Education, and court orders pertaining to schools. Desired changes shall be brought about only through legal and ethical procedures."

3 N.J.S.A. 18A:12-24.1(c) provides, "I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them."

4 N.J.S.A. 18A:12-24.1(d) provides, "I will carry out my responsibility, not to administer the schools, but, together with my fellow board members, to see that they are well run."

5 N.J.S.A. 18A:12-24.1(e) provides, "I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board."

6 N.J.S.A. 18A:12-24.1(f) provides, "I will refuse to surrender my independent judgment to special interest or partisan political groups or to use the schools for personal gain or for the gain of friends."

7 N.J.A.C. 6A:28-7.1 was previously contained within Subchapter 7, Definition of Words and Terms Used in the Code of Ethics. Subchapter 7 was repealed as part of R. 2009 d. 163, effective April 21, 2009. Because the complaint here was filed prior to that date, the Commission followed procedures and rendered its determination in accordance with the regulations in effect when the complaint was filed. Notwithstanding, N.J.A.C. 6A:28-6.4(a)(5) continues to provide that "factual evidence of a violation of N.J.S.A. 18A:12-24.1(e) shall include evidence that the respondent . . . took action beyond the scope of his or her duties . . . ."

8 In so finding, the Commission indicated in a footnote that it did not find Woska's actions relative to Ceres, as set forth in its factual findings, were sufficient to base a finding of a violation of the Code of Ethics for School Board Members.

9 A reprimand is the least severe sanction authorized under N.J.S.A. 18A:12-29c, which also allows for imposition of a censure, suspension, or removal from office.

10 The requirements of the OPMA specifically apply to a board of education. N.J.S.A. 10:4-12.

11 We note that an interpretation that renders every ultra vires action unethical appears anomalous when one juxtaposes the ethics code with the statute authorizing indemnification of board members, N.J.S.A. 18A:12-20. We have held that board members were entitled to indemnification for a board action the adoption of a resolution to indemnify their board president even though it was "invalid for want of authority," and even though the members "may have been legally mistaken in their belief that the resolution could be validly adopted." Errington v. Mansfield Bd. of Educ., 100 N.J. Super. 130, 137 (App. Div. 1968). Nonetheless, the invalid and unauthorized actions still "arose out of and during the course of the performance of their duties." Ibid. We further note that the indemnification provision was amended and expanded to include administrative proceedings in the same bill that imposed the Code of Ethics. See L. 2001, c. 178, 1 (codified at N.J.S.A. 18A:12-20) (indemnification provision); L. 2001, c. 178, 5 (codified at N.J.S.A. 18A:12-24.1) (Code of Ethics).

12 On remand, the agency may wish to consider the effect of and interplay between various statutory and regulatory provisions. See, e.g., N.J.S.A. 18A:11-1 (describing general power of boards of education); N.J.S.A. 18A:12-1 to -2.2 (describing qualifications of board members, but not their duties and powers); N.J.S.A. 18A:12-24 (setting forth prohibited conduct by board members, among others); N.J.S.A. 18A:15-1 (requiring election of board president and vice president, but not defining their duties); N.J.S.A. 18A:25-6 (requiring president's approval of certain suspensions by superintendent); N.J.S.A. 18A:17-20(a) (discussing general powers and duties of superintendents, including "general supervision over the schools of the district" and "such other powers and . . . duties as may be prescribed by the board"); N.J.S.A. 18A:17-20.3 (requiring that every local board of education evaluate the performance of the superintendent at least annually); and N.J.A.C. 6A:32-3.1(a) (stating that a board president is empowered to call a special board meeting, but so is a majority of the full board).