IN THE MATTER OF THE TENURE HEARING OF ERROL GOODWATER

NOT FOR PUBLICATION WITHOUT THE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 ERROL GOODWATER, SCHOOL

DISTRICT OF THE CITY OF CAMDEN,

CAMDEN COUNTY,

and

ERROL GOODWATER,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

CITY OF CAMDEN, CAMDEN COUNTY,

Respondent-Respondent.

______________________________________

August 20, 2014

Submitted October 2, 2013 - Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from the New Jersey Commissioner of Education, Department of Education, Docket Nos. 185-7/11 & 187-7/11.

J. Michael Farrell, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Daniela Ivancikova, Deputy Attorney General, on the brief).

Brown & Connery, L.L.P., attorneys for respondent Camden City Board of Education (Louis R. Lessig and Eric D. Milavsky, on the brief).

PER CURIAM

Errol Goodwater, a former special education teacher at a middle school in Camden, appeals from the final decision of the Commissioner of Education finding him guilty of conduct unbecoming and inflicting corporal punishment on a student. Goodwater was also criminally charged based on this incident. He was tried before a jury in the Superior Court, Criminal Part, and acquitted of all of the charges. The Commissioner ordered appellant's termination as a teacher. Mindful of the standard of review applicable to decisions made by State administrative agencies, we affirm substantially for the reasons expressed by the Acting Commissioner in his April 27, 2012 decision.

Appellant began working as a special education teacher for the City of Camden Board of Education (Board) in 1995. On November 14, 2007, appellant struck R.R., a special education student in eighth grade, with a computer cord. The incident occurred in the hallway outside of appellant's classroom, at approximately 2:50 p.m. during homeroom, which was the last period of the day. The incident was captured on videotape by a video camera positioned to monitor the activities in the hallway directly outside appellant's classroom. Appellant was a tenured teacher at the time of this incident. See N.J.S.A. 18A:28-5.

The Board filed certified tenure charges against appellant based on conduct unbecoming of a teacher, unlawful corporal punishment, neglect of duty, and insubordination. Appellant filed a counterclaim petition challenging the Board's earlier action to withhold salary increments.1 The Commissioner referred both petitions to the Office of Administrative Law (OAL). With the consent of all parties, the OAL consolidated appellant's counterclaim petition with the tenure charges filed by the Board, and referred the entire matter for an evidentiary hearing before an Administrative Law Judge (ALJ).

As part of his testimony before the ALJ, appellant gave the following description of the incident with R.R.:

I was standing at the door. This time everybody was in the classroom. [The students are] supposed to be seated. And I came and I still had the laptop in one arm. It was in the left, and the cord in my right arm. And I was standing there. And I stood there with my back turned from the classroom. And I was facing the hallway, monitoring the halls like I'm supposed to do. And I stood there and I just had my head down and my eyes closed, when I sensed somebody coming up on me. And when I turned around, it was R.R. He was running right at me with his hands coming at me and he lunged at me. And before I knew it, I had swung the cord to stop him from running into me. And he turned around and he came back at me and he put his hands up, and that's when the cord hit him. If he had never turned around to come back at me, the cord would never have hit him. And when the cord hit him, I went down the hallway and I hollered, "Oh, my God, it hit him."

Appellant alleges he sent R.R. to the bathroom and asked to see his back. R.R. lifted up his shirt and showed appellant his back. According to appellant, the child's back had a "little red mark." Appellant testified he felt immediate remorse about what had occurred, and told R.R.: "You know I didn't mean that." He also told the child to go to the nurse, but he declined because he had to get on the bus to attend an after-school program.

Anticipating the need to memorialize the event while it was still fresh in his mind, appellant wrote a note documenting the incident to Vice Principal Scott Shanklin that afternoon. The note stated:

I went to the door holding a laptop computer with the extension cord in hand winding it up. [R.R.] tried to sneak behind me at the door. I felt someone running behind me. I turned around real fast and moved my arm to say to [R.R.] "stop." The extension cord slung around and hit him in his back. He walked down the hall crying. He showed me his back. It left a mark. The cord accidentally hit him in the back.

The Board called R.R. as a witness at the hearing before the ALJ. At appellant's request, the ALJ agreed to review the transcript of appellant's criminal trial, which included testimony from R.R., and incorporate the child's testimony in the criminal case as part of the record of the hearing. R.R. gave the following description of the incident at appellant's criminal trial:

A. [Appellant's] swinging the laptop cord.

Q. . . . Can you tell us what is happening at this point?

A. He hit me and I'm ducking down.

Q. Where did he hit you.

A. In my back.

Q. And where on your back did he hit you?

A. On the center part.

R.R. testified he told the school security guard about the incident before going to the bathroom.

The appellate record includes a compact disc containing a video recording of the event. The video camera that produced this recording was mounted to monitor the hallway directly outside appellant's classroom. The video recording does not include audio. This video recording can reasonably be characterized as the strongest evidence presented by the Board against appellant. It captured the incident from start to finish. It shows appellant standing by the entrance of his classroom, holding the door open with his body; appellant is holding a laptop computer with one hand and a long computer cord in his other hand.

As R.R. exits the classroom, he quickly walks by appellant, who in turn immediately turns around and lashes out at R.R. with the computer cord, striking the child on his back. Appellant walks after R.R., and they both leave the frame immediately thereafter. The video recording also shows R.R. going into the bathroom; he comes out of the bathroom a few minutes later; once in the hallway, R.R. lifts his shirt and turns, exposing his bare back to appellant; the video shows appellant and R.R. apparently speaking to one another. This incident forms the basis of the complaint against appellant.

Vice Principal Shanklin was responsible for disciplining students and supervising teachers at the time of the incident. He acknowledged receiving the note from appellant detailing the event. Shanklin testified he reported the incident to the principal of the school that R.R. attended for his after-school program. After watching the video recording, Shanklin also reported the incident to the Department of Children and Families, (formerly the Division of Youth and Family Services) Institutional Abuse Investigation Unit. By letter dated January 23, 2008, the Chief of Investigations of the Institutional Abuse Investigation Unit informed the Superintendent of Camden City Public Schools that pursuant to N.J.S.A. 9:6-8.11, her office investigated the incident between appellant and R.R., and found sufficient cause to recommend that "appropriate disciplinary action be taken against Mr. Goodwater."

With respect to R.R., Vice Principal Shanklin testified that, prior to this incident, he was aware the child was "mouthy[;]" he had been suspended for "[b]eing disrespectful, a lot of horse-playing, that type of thing." However, there was no record of R.R. being violent against any adult or fighting with other students. No staff member, including appellant, had ever informed him of being afraid of R.R. The Principal of the middle school corroborated Vice Principal Shanklin's testimony concerning R.R. in all respects.

Several teachers testified concerning appellant's reputation as an educator. They described him as a good teacher and spoke well of his overall character. Bruce Brown, a school social worker, described appellant as a "good[,]" "respectable" teacher, who "interacted well with the students." Brown also referred to appellant as "very professional." Ann Shepherd, a fellow teacher, testified that appellant was "an outstanding teacher. . . . his kids were actively engaged in learning."

Appellant testified in his own defense. He had worked as a special education teacher at this same middle school for twelve years. He taught R.R. science, social studies, and supervised him in his homeroom. He testified to being aware that R.R. was allegedly becoming increasingly "physically assaultive" from discussions with the child's social worker and an incident in which R.R. allegedly "stabbed" another teacher in the hand with a paperclip. Appellant testified that R.R. would "come at" him with his hands up on several occasions.

Appellant specifically wanted the ALJ to know the events that led up to the incident with R.R. on November 14, 2007. Appellant testified that another teacher had told him that R.R. "was more agitated today than others. He became more hyper and more violent." He testified that in the last period of the school day before homeroom, another student, whom we identify as "R.," came up behind him in an apparently threatening way. Appellant described how R. eventually grabbed him and "picked me up in the air. . . . the class, they ran at me and they jumped and they said '[f]ight, fight, fight.'" When the class period ended and appellant's homeroom period began, appellant testified he told the students to "'[s]it down and shut up.'" Appellant gave the following explanation for his classroom demeanor:

Well, I work in the hood, . . . my kids, they are -- they turn out to be murderers, attempted murderers. They're gang members. If you look at the video at R.R., he has on a red shirt. That's a color of the Bloods. Even his jacket was red. A lot of them are gang members. I've had students that murdered while they were yet in 8th grade in my class, took a gun and shot somebody in the head. I had one student one year who we warned the principal about, and he took and pushed -- he was bullying one of the students and pushed him in front of the New Jersey Transit bus, and the bus ran him over and broke both his legs. I've had desks hurled across the room at me, chairs hurled at me, books thrown at me. I've been hit. I've even been spit on. And not once have you heard any bad thing about me or me doing anything wrong.

[(Emphasis added).]

With respect to his state of mind at the time of the incident, appellant testified as follows: "I turned around. He was right there. [presumably referring to R.R.] I had no type of warning. He was up on me, and he was getting ready to tear me up. If I hadn't swung that cord, he would have knocked me down on that floor." (Emphasis added).

The ALJ issued an Initial Decision finding the Board had met its burden of proof and sustained the charges of corporal punishment and conduct unbecoming of a board employee. The ALJ recommended the dismissal of the charges of neglect of duty and insubordination for lack of evidence, and ordered a suspension until the rendering of a final decision in the matter. Both parties filed exceptions to the ALJ's findings with the Commissioner.

The Commissioner issued a final decision on April 27, 2012, finding appellant guilty of conduct unbecoming of a teacher and unlawful corporal punishment. The Commissioner also found sufficient grounds to order appellant's dismissal. Appellant now appeals to this court.

We start our analysis by noting that "unbecoming conduct" is one of the grounds established by the Legislature that, if proven after a hearing, is sufficient to dismiss a tenured teacher. N.J.S.A. 18A:6-10. Physical abuse of a student is a sufficient ground to dismiss a tenured teacher because it is the kind of conduct that "has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services." Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (internal quotation marks and citation omitted). However, unbecoming conduct may include "any conduct which adversely affects the morale or efficiency of the [school.]" Ibid. (internal quotation marks and citation omitted).

Our review of the Commissioner's decision here is limited to determining whether the evidence, as well as the rational inferences that can be drawn therefrom, support the agency head's decision. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If the answer to this threshold inquiry is "yes," we must affirm. Ibid. We may reverse an agency decision only if it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Here, we discern no legal basis to interfere with the Commissioner's well-reasoned decision, which is thoroughly supported by the evidence presented before the ALJ. Indeed, we conclude our analysis by adopting the following finding by the Commissioner:

Despite the fact that [Goodwater] has been a special education teacher for approximately 12 years, the Commissioner finds that his inexcusable use of physical force in striking a student with a computer cord necessitates the termination of his employment. It is well established that "unfitness to remain a teacher may be demonstrated by a single incident if sufficiently flagrant." Although, there is no indication that [Goodwater's] conduct was premeditated, the video demonstrates that it was cruel and vicious. [Goodwater] intentionally swung the computer cord and forcibly struck R.R. leaving him crying, with a raised welt on his back that was still noticeable the next day. [Goodwater's] persistent assertion that he was simply trying to defend himself is particularly troubling in light of the video evidence. Certainly, there would have had to be a significant physical provocation by a student to even remotely justify the way that [Goodwater] acted in this case. There is simply no rational excuse for this type of behavior and it cannot be tolerated.

[(Internal citations omitted).]

We also find it highly disturbing for a teacher of children with special needs to describe his students as "murderers, attempted murderers [and] . . . gang members." We may expect these sentiments to be uttered by a tired and frustrated Corrections Officer after completing an extra-long tour of duty inside a maximum security prison, but not for an educator charged with the responsibility of teaching our most vulnerable children.

We are equally appalled by appellant's reference to working "in the hood," as an attempt to explain why we should view his use of corporal punishment against R.R. as an acceptable means of maintaining discipline in a middle school located in the City of Camden. This statement connotes a bigoted, stereotypical image of school children in urban areas as dangerous street-thugs, who can only be controlled through the use of physical force. We are thus satisfied that appellant's actions here are not an aberration; they are in fact merely reflective of his utter unfitness to be responsible for our children's educational and physical welfare.

Affirmed.

1 "Salary increments" are collectively bargained increases in pay awarded to teachers based on years of service, level of educational attainment, and other similarly objectively verifiable criteria. The collective bargaining agreement authorizes the Board to withhold salary increments "for cause."