IN THE MATTER OF THE TENURE HEARING OF AMANDA EISENHOUR SCHOOL DISTRICT OF THE TOWNSHIP OF HOWELL, MOMMOUTH COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE TENURE

HEARING OF AMANDA EISENHOUR,

SCHOOL DISTRICT OF THE TOWNSHIP

OF HOWELL, MOMMOUTH COUNTY.

________________________________

June 18, 2014

Before Judges Simonelli and Haas.

On appeal from the New Jersey Commissioner of Education, Docket No. 14-1/12.

Oxfeld Cohen, PC, attorneys for appellant Amanda Eisenhour (Nancy I. Oxfeld, of counsel and on the brief).

Bathgate, Wegener & Wolf, P.C., attorneys for respondent School District of the Township of Howell, Monmouth County (Jan L. Wouters, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Amanda Eisenhour appeals from the penalty imposed by the Commissioner of Education (Commissioner) for two sustained tenure charges of conduct unbecoming a teacher. We reverse and remand for further proceedings.

We derive the following facts from the record. In September 2004, appellant began her employment as a special education teacher with the Howell Township School District (District). During her employment, she consistently received ratings of either "effective" or "highly effective" in all areas of her teacher evaluations. She was also praised by her school's principal as a dedicated and talented teacher with a high level of professionalism and expertise.

During the 2010-2011 school term, appellant was assigned to a self-contained classroom where, with the aid of two Teacher's Assistants, she taught seven students between eight and eleven years of age who had a variety of conditions, including Down Syndrome, Fragile X autism, neurofibromatosis, and Wolf Syndrome. One of appellant's students, E.F., had Fragile X autism, cognitive impairment, and an inability to communicate. He became aggressive at times, and also exhibited negative behaviors, such as hitting himself, biting his knuckles, vomiting, defecating, yelling, and grabbing shirts and necklaces. Appellant described E.F. as the "second most difficult student in her class."

According to appellant, on February 2, 2011, E.F. was upset and agitated when he arrived at school. He grabbed a door frame with both hands as he walked into the building, dropped to his knees about six or seven times, became angry and combative, and refused to follow instructions. She and a Teacher's Assistant removed E.F.'s hand from the door frame using a "finger peel." She then raised E.F. from the floor using two "foot sweeps," whereby she placed her foot against the back of E.F.'s foot to get him to stand up. She and the Teacher's Assistant then used a "double lead-along" to get E.F. into his classroom.

Witnesses saw the incident differently. They testified that appellant used excessive force on E.F. by "yanking" his arm, bending his fingers, kicking his leg, and dragging him across the floor. One of the witnesses reported the incident to the school principal, who then notified the Howell Township Police Department, the Division of Youth and Family Services (DYFS), and E.F.'s parents.1 After the principal met with appellant and her union representative, appellant was instructed to leave the building and placed on administrative leave.

Prior to this incident, in January 2011, the District's supervisor of special education, Julia Sandler, discovered that appellant's students had performed well on the Alternative Placement Assessment (APA) test. She became concerned that appellant was aiding her students, and met with appellant to discuss the matter. Appellant denied she aided her students, but admitted she used testing worksheets to help them with answers. This was a breach of APA testing protocol.

After the incident with E.F., Sandler reviewed the APA portfolios of appellant's students and discovered that appellant had not completed all of the assessments, and several dates were erased during the period January 5 to 30, 2011. Sandler notified the New Jersey Department of Education (Department of Education), which thereafter issued a report concluding that appellant "did not adhere to proper testing procedures for the NJ APA tests when she reused materials for student assessments and failed to date assessment materials as required."

The District filed two tenure charges against appellant, charging her with conduct unbecoming a teacher by: (1) exhibiting abusive behavior towards students, improperly restraining students, and otherwise using improper physical contact with students; and (2) failing to follow procedures set forth by the Department of Education for security during APA testing, and breaching the security measures as provided by the Department of Education, as well as causing inconsistencies to be included in portfolio binders provided by appellant.

Following a hearing in the Office of Administrative Law, an Administrative Law Judge (ALJ) concluded that the District sustained the two charges. After conducting a Fulcomer2 analysis and considering mitigating factors, the ALJ concluded that the totality of the circumstances did not justify a loss of tenure or warrant dismissal. Instead, the ALJ recommended the following penalty: loss of employment and adjustment increments and forfeiture of 120 days' pay following the certification of the tenure charges; an additional suspension of 150 days without pay; and forfeiture of any increments for two years. The ALJ also recommended that appellant be provided appropriate training and assistance in connection with the use of assistive techniques for dealing with difficult students and the protocols for the APA.

The Commissioner adopted the ALJ's findings on the charges, but found the penalty was insufficient based on the serious nature of the charges. The Commissioner agreed with the ALJ's recommended penalty of a two-year increment withholding and 120-day suspension without pay, but increased the additional suspension without pay to 360 days, and ordered appellant to receive and pay for the training and assistance. This appeal followed.

Our review of an administrative agency's decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not reverse an agency's decision unless it is arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. Dennery v. Bd. of Educ. of the Passaic Cnty. Reg'l High Sch. Dist., 131 N.J. 626, 641 (1993). Nonetheless, "although the determination of an administrative agency is entitled to deference, [our] appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Accordingly, our function is not to merely rubberstamp an agency's decision, rather, we must "engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't. of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

We give 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." In re Herrmann, 192 N.J. 19, at 34-35 (2007) (citations and internal quotation marks omitted). We may "alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority.'" Id. at 28 (quoting In re Revocation of License of Polk, 90 N.J. 550, 578 (1982)). "[W]hen reviewing administrative sanctions, 'the test . . . 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). That threshold is an objective standard and requires more than a reviewing court's determination that it "would have reached a different result." Id. at 29.

In education matters, the Commissioner must determine the appropriate penalty based on "findings as to 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." Fulcomer, supra, 93 N.J. Super. at 422. Moreover, the discipline imposed on a public employee for an offense must be generally fair and proportional to the discipline imposed for similar offenses by other public employees. Stallworth, supra, 208 N.J. at 192.

Here, except to state that the charges were "serious in nature," the Commissioner provided no reasons for rejecting the ALJ's recommended penalty, and failed to conduct a Fulcomer analysis or consider mitigating factors and the proportionality of the penalty. "[A]n 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 & Rehab. Ctr. v. N.J. Dep't. of Health & Senior Servs., 403 N.J. Super. 562, 571 (App. Div. 2008) (citation omitted). Accordingly, we reverse and remand for the Commissioner to conduct the proper analysis and consider the mitigating factors and proportionality of the penalty.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 The police department and Monmouth County Prosecutor's Office investigated the matter and filed no charges against appellant. DYFS also investigated the matter and found the allegations of child abuse were unfounded.

2 In the Matter of the Tenure Hearing of David Fulcomer, 93 N.J. Super. 404, 421-22 (App. Div. 1967).