IN THE MATTER OF THE TENURE HEARING OF DAVID L HAWK

NOT FOR PUBLICATION WITHOUT THE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 DAVID L. HAWK.

_______________________________

September 11, 2015

Submitted March 25, 2015 Decided

Before Judges Alvarez, Maven and Carroll.

On appeal from Board of Trustees of the New Jersey Institute of Technology.

Andrew S. Bondarowicz, attorney for appellant.

Connell Foley LLP, attorneys for respondent New Jersey Institute of Technology (Tricia B. O'Reilly, of counsel and on the brief).

Wolff & Samson PC, attorneys for respondent Board of Trustees, New Jersey Institute of Technology (Catherine P. Wells, of counsel and on the brief; Margaret Wood and Barry Sobel, on the brief).

PER CURIAM

Appellant, David L. Hawk, appeals from a final decision of the New Jersey Institute of Technology (NJIT) Board of Trustees (Board) terminating him from his tenured professorship for violating the New JerseyConflicts of Interest Law (Conflicts Law), N.J.S.A. 52:13D-12 to -28 and the regulations promulgated by the State Ethics Commission (Ethics Code), N.J.A.C., 19:61-5.7(b), -7.4(c), -7.4(d). We affirm.

The following facts are summarized from the supporting records and our earlier opinion involving the same parties. Hawk v. N.J. Inst. of Tech., 428 N.J. Super. 562 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013). Hawk was first appointed to the NJIT faculty in September 1981 as an associate professor, and in 2005 he became Dean of the School of Management (SOM). In early 2008, NJIT President Robert Altenkirch authorized the Director of University Audits to "conduct an internal audit of the adequacy of internal controls over the SOM's financial transactions and operational activities." Id. at 566. The audit report found that the "overall management and internal controls over SOM transactions were failing, and raised concerns that [Hawk] may have committed ethics violations." Id. at 567. That report led to "a focused audit of [Hawk's] activities as SOM Dean by [the Director of University Audit], an ethics investigation by NJIT's Ethics Liaison Officer [], and an investigation by an ad hoc faculty committee." Ibid. All of the investigations concluded that Hawk "committed ethical violations related to [the hiring of a professor], grade changes of a student, [and the unauthorized] purchase and unknown whereabouts of university property."1 Id. at 568.

On April 7, 2011, the Board by resolution, as required by N.J.S.A. 18A:3-B-6, initiated "the hearing phase of the detenuring proceeding." Id. at 569. A hearing was conducted by the Honorable William A. Dreier, P.J.A.D. (Ret.) (hearing officer) over thirty-six non-consecutive days, beginning January 16, 2012, and concluding June 21, 2013. During the hearing, forty-three witnesses testified and numerous exhibits were entered into evidence.

On August 16, 2013, the hearing officer issued his recommended findings of fact and conclusions of law to the Board. With respect to the charge regarding the hiring of A.P. as an associate professor, the hearing officer found that Hawk and A.P. met in 1998 while he was a visiting professor in Finland at the Helsinki University of Technology (HUT) and she was completing her doctoral studies. By 2001, they had collaborated to publish three or four papers. During that time, A.P. began to develop a romantic interest in Hawk. They often used terms of endearment while exchanging emails.

In January 2006, Hawk suggested to NJIT's Provost that A.P. serve on a committee, one that ultimately appointed him as Dean of the SOM. During the same time, Hawk, as a member of the Faculty Search Committee, suggested to the Provost that A.P. be hired. He did not disclose that he had a close personal relationship with her.

The hearing officer found Hawk's testimony on this charge was "blatant[ly] untruthful[]," and that Hawk manufactured evidence to make it appear that consideration of A.P. over other candidates for the professorship "was a reasoned process rather than the shepherding of a single candidate into the position." The hearing officer concluded that the shared authoring of publications coupled with the expressions of personal affection established sufficient proof of a close personal relationship. The hearing officer thus determined that Hawk violated the Conflicts Law by orchestrating A.P.'s appointment as an associate professor with tenure.

The hearing officer addressed the second charge that alleged Hawk changed two grades for independent study courses in which M.K. had enrolled. M.K. worked for IBM where she trained high-ranking business executives both within and outside of IBM. Hawk met M.K. in 2002, after which they developed a personal and professional relationship. She and Hawk co-authored a book, which was later used in IBM training, and collaborated on other articles and a research project. M.K. and other NJIT faculty and students attended informal lectures at Hawk's home. In 2003, M.K. submitted Hawk's name for a $40,000 IBM faculty award, which he received.

The hearing officer found that Hawk and other NJIT administrators viewed M.K. as an influential individual with key connections at IBM, who could benefit NJIT. She was the speaker at NJIT's Research Day, where she made presentations on behalf of SOM to the Board of Visitors. In addition, she served on NJIT's External Review Committee and helped secure an IBM Vice President of Corporate Affairs to chair the committee.

M.K. enrolled in two independent study courses at NJIT. Following completion of the work for the first course, M.K. received an "incomplete" grade that "administratively and automatically reverted to an 'F'." When M.K. saw the grade months later, Hawk interceded to change the grade to an 'A' because the supervising professor was on a leave of absence. The hearing officer accepted Hawk's view that he was "correcting a violation of the [supervising] professor's duty to grade a student's work" and, therefore, found no violation.

In the second incident, M.K. received another incomplete grade that had reverted to an 'F' but, in that instance, M.K. could not recall enrolling in or completing any work for the course, or having contact with the assigned professor. The SOM Associate Dean, who had arranged this independent study for M.K. acknowledged changing the grade from an 'F' to an 'A' but claimed she did so at Hawk's direction. Hawk denied any recollection of approving a grade change for the second course.

The hearing officer did not credit the Associate Dean's testimony with respect to the second grade change, finding that her timeline of events conflicted with Hawk's more credible evidence that he was not at the school at that time. Therefore, the hearing officer found insufficient evidence to support the claim that Hawk changed a second grade for M.K.

Ultimately,the hearing officer did not consider the business relationship between Hawk and M.K. as violating any specific University regulation. Instead, he recommended that in the future, "Deans or others with supervisory authority" should be admonished to "exercise care that students with whom they deal are devoid of contact prohibited by the statutory and administrative rules governing professional relationships."

On the remaining charge, the hearing officer found insufficient proof that Hawk misused his position as Dean to acquire computers and other equipment. Lastly, the hearing officer found the overall charge of unbecoming conduct to be repetitious of the Conflicts Law claims.

The hearing officer concluded that Hawk's conduct in hiring A.P. "warranted the step already taken of removing Hawk as Dean[,]" and recommended that the Board "impose a significant additional penalty up to and possibly (but not necessarily) including detenuring."

On September 27, 2013, the Board adopted, in part, the findings and recommendations of the hearing officer. It found by a preponderance of evidence that Hawk violated the Conflicts Law and the Ethics Code when hiring A.P. With respect to the grade changes, the Board rejected the hearing officer's finding that Hawk's admitted participation in changing M.K.'s grade for the first course did not result in a Conflicts Law violation. Instead, the Board found that the hearing officer ignored substantial credible evidence demonstrating that M.K. and Hawk had a longstanding mutually beneficial business relationship and friendship that required Hawk's recusal rather than his participation in changing her grades.

Lastly, the Board rejected the hearing officer's finding that the charges of unbecoming conduct were repetitive of other charges and found instead that a "detailed review of the record in this case leads [] to the inescapable conclusion that Professor Hawk engaged in conduct unbecoming a tenured professor of NJIT thereby necessitating his loss of tenure and dismissal from NJIT." The Board concluded that, as a result of Hawk's violation of the Conflicts Law, "Hawk should be stripped of tenure and terminated from NJIT because his conduct was 'unethical.'"

Hawk appealed, filing a brief that fails to comply with the rules of appellate practice, in particular Rule 2:6-2. Suffice it to say that the brief makes our review of this matter difficult. For example, the brief does not actually set forth any legal points of error or a formal legal argument as required by Rule 2:6-2(a)(5). See also Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.) (noting that the presentation of a separate argument in any other manner than that set forth in Rule 2:6-2(a)(5) is "improper" and such argument will be overlooked unless it presents a matter of general public importance), certif. denied, 207 N.J. 190 (2011). Our review is further hampered by the omission of specific references to the transcript or appendix, in accordance with Rule 2:6-2(a)(5).

Notwithstanding these shortcomings, we discern that Hawk contends that the Board's decision was not supported by sufficient evidence. Hawk also challenges the hearing officer's credibility and factual findings. While we may not specifically mention each of the contentions Hawk appears to make in his brief, we have carefully considered each one and have concluded that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

The law governing this case is embodied in the Conflicts Law and the Ethics Code. The applicable law is also summarized and explained in the Plain Language Guide to the New Jersey's Executive Branch Ethics Standards (revised 2009)(Guide). The Conflicts Law provides that "no State officer or employee . . . should use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others." N.J.S.A. 52:13D-23(e)(3). Further, the Conflicts Law provides that "no State officer or employee should knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of his acts that he may be engaged in conduct violative of his trust as a State officer or employee." N.J.S.A. 52:13D-23(e)(7). The Guide directs that State employees "may not use [their] position to secure a job, contract, governmental approval or special benefit for [themselves], a friend or family member."

Our scope of review of an administrative agency's final determination is limited and we do not overturn such a decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482 (2007) (internal citations and quotation marks omitted). Our role is limited to determining

(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.

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

Moreover, "'[a]ppellate courts must defer to an agency's expertise and superior knowledge of a particular field.'" In re Carter, supra, 191 N.J. at 483 (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). If substantial evidence supports the agency's decision, we may not substitute our judgment for the agency's even though we might have reached a different result. Greenwood, supra, 127 N.J. at 513.

The record in this case clearly establishes that, while in a professional and personal relationship with A.P., Hawk, as SOM's Dean actively promoted her achievements and resume for consideration as the associate professor of international business as well as for an endowed chair. Similarly, Hawk interceded to change M.K.'s grade when he was not her instructor. A clear conflict existed due to his business relationship with M.K. Hawk's conduct in each of these incidents reasonably creates in the eyes of the public an impression or suspicion that he was violating his trust as a State officer or employee, as proscribed by N.J.S.A. 52:13D-23(e)(7). State officials are obligated to avoid such conduct with respect to a close family member or an individual with whom the public official has an "intimate personal involvement." Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 232 (App. Div. 2009).

We are satisfied from our review of the record that the Board's determination to terminate Hawk from his tenured position for violating the Conflicts Law is well-supported by the evidence. R. 2:11-3(e)(1)(D). Accordingly, the Board's action is not arbitrary, capricious or unreasonable. Hawk's remaining arguments do not warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We previously affirmed the dismissal of Hawk's motion to enjoin the administrative process, holding that he failed to exhaust his administrative remedies. Id. at 570-71.