IN THE MATTER OF THE REVOCATION OF THE CERTIFICATE OF CRAIG BELL BY THE NEW JERSEY STATE BOARD OF EXAMINERS

RECORD IMPOUNDED

                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4135-14T2

IN THE MATTER OF THE
REVOCATION OF THE CERTIFICATE
OF CRAIG BELL BY THE NEW
JERSEY STATE BOARD OF
EXAMINERS.
______________________________

           Argued October 3, 2017 – Decided December 19, 2017

           Before Judges Fisher, Sumners and Moynihan.

           On appeal from the Commissioner of Education,
           Docket No. 5-5/14A.

           Samuel J.         Halpern    argued    the    cause   for
           appellant.

           Kathryn E. Duran, Deputy Attorney General,
           argued the cause for respondent (Christopher
           S. Porrino, Attorney General, attorney;
           Melissa Dutton Schaffer, Assistant Attorney
           General, of counsel; Beth N. Shore, Deputy
           Attorney General, on the brief).


PER CURIAM

     The Commissioner of Education upheld the decision of the

State   Board     of     Examiners     revoking   the    substitute    teaching

certificate of Craig Bell due to his unbecoming conduct.                        The

Board   adopted    the     factual   findings     and   recommendation   by     an
Administrative   Law   Judge    (ALJ)    who   conducted   an   evidentiary

hearing.   The ALJ determined Bell engaged in unbecoming conduct

when he arranged to meet a middle school student on a Sunday,

drove her to a park, kissed her and sought to have sex with her.

Bell contends the Commissioner's decision was against the weight

of the evidence, the ALJ's off-the-record remarks demonstrated his

impartiality, and the penalty was excessive or inconsistent with

the theory of progressive discipline.          Having reviewed the record

and based upon our standard of review, we affirm.

     In October 2004, the Willingboro Board of Education hired

Bell as a long-term substitute physical education teacher assigned

to a middle school.      At some point, he became involved in an

inappropriate    relationship     with    P.P.,    a   fourteen-year-old,

seventh-grade student at the school.

     According to P.P., who was twenty-two years old at the time

of the hearing, Bell made flirtatious comments to her, which led

to them exchanging private notes and telephone numbers. On Sunday,

January 16, 2005, P.P. and Bell spoke on the telephone to arrange

to meet that late morning.      Bell drove to a location near P.P.'s

home.   After P.P. got into Bell's vehicle, he drove to a nearby

park.   Moments later, P.P. maintains they kissed each other on the

lips and with open mouths.      She was not sure if Bell grabbed her,

but believed he may have touched her when they were kissing.            When

                                    2                               A-4135-15T2
she noticed that Bell had unzipped the fly to his pants, she became

scared   because     he   was   going   further     than   she   desired.    She

immediately exited the vehicle and walked home.                   P.P. admitted

that she could not recall every detail about the incident because

it occurred eight years before her testimony.

       It was not until the next school day, two days later,1 when

P.P. spoke with school guidance counselor, Cheryl Alston-Jones,

that   P.P.   told   anyone     what    occurred.     Through     Alston-Jones'

encouragement, P.P. then told her foster mother, R.C., what had

happened.     P.P. subsequently reported the incident to the local

police, the Burlington County Prosecutor's Office, and the dean

of her school.

       Three days after the incident, school district officials

confronted Bell at the middle school with P.P.'s allegations. Bell

denied meeting P.P. and kissing her.          In fact, he could not recall

where he had been the day and time of the incident.               Bell revealed

for the first time, however, that he previously received private

notes from P.P.2     The officials were unpersuaded by Bell's denial,

and were dismayed by his calm demeanor and his claim that "he was

a favorite of the girls at the school."               They told Bell he was


1
  School was closed Monday, the day after the incident, due to
Martin Luther King, Jr. Day.
2
  One note written by P.P. to Bell detailed that one of her
classmates admired Bell and wanted to get together with him.

                                         3                              A-4135-15T2
terminated and he immediately left the school.   Bell returned five

minutes later claiming that he now recalled he was at a campground

in Pomona the past weekend, and could not have met with P.P. at

the time she claimed.   Unmoved by Bell's delayed recollection, the

school officials did not change the decision to terminate Bell.

     At the hearing, Bell reiterated his claim that he was not in

Willingboro the day of the alleged incident because he was in

Pomona from Saturday, January 15, until the evening of Sunday,

January 16.   His alibi was supported by the testimony of William

Malave, the brother of his live-in fiancée.      Yet, a mere eight

months earlier, Bell had certified in his interrogatory answers

that he could not remember where he was that weekend.     Moreover,

Bell's bank statement showed that he made cash withdrawals in

Hammonton at 7:20 p.m. on January 15, when he and Malave were

supposedly in Pomona, and in Willingboro at 11:05 a.m. on January

16, around the time P.P. claims she was with Bell in Willingboro.

Pomona and Willingboro are more than sixty miles apart.   Bell also

contended that he never had any telephone contact with P.P.

However, R.C. testified that, several days prior to the incident,

an older man had telephoned her house asking for P.P., and the

police told her that a telephone call was placed to her home from

Bell's cell phone number.



                                 4                          A-4135-15T2
     Following the four-day hearing, the ALJ issued a thirty-page

initial decision on November 18, 2013, finding that Bell committed

unbecoming    conduct.3     The    ALJ   determined      that   despite    some

inconsistencies in statements authored by those investigating the

incident but not reviewed by P.P., and the eight-year gap between

the incident and P.P.'s testimony, P.P.'s overall testimony was

credible     and   corroborated    by    R.C.,     Alston-Jones     and     the

Prosecutor's Office investigation.          The ALJ also determined that

Bell's bank records undermined his alibi, and in turn, his and

Malave's credibility regarding Bell's whereabouts on the morning

of the incident.     Finding that "Bell went well above and beyond

innocent     interaction   [with    P.P.]   and,    in    the   process,     he

overstepped his authority, position as a teacher to a very large

and totally unsavory degree[,]" the ALJ concluded revocation of

Bell's substitute teaching certificate was warranted.

     The Board adopted the ALJ's findings and recommendation in

its entirety and issued an order revoking Bell's certificate. Bell

filed exceptions with the Commissioner.          The Commissioner, noting

there was "nothing in the record that would suggest that the ALJ's


3
 Although the school district promptly reported Bell's termination
to the Board, for reasons that are not clear in the record, the
district did not respond to the Board's several requests for
additional information, and the Board did not seek to revoke Bell's
substitute teaching certificate until December 2011.


                                     5                                A-4135-15T2
credibility findings were inappropriate and, in fact, agree[ing]

with same[,]" affirmed the Board's decision.               We agree.

    Our review of the decision of the Commissioner is limited to

determining:

           (1) whether the agency's action violated the
           legislative policies expressed or implied in
           the act governing the agency; (2) whether the
           evidence in the record substantially supports
           the findings on which the agency's actions
           were premised; 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."

           [Barrick v. State, Dep't of Treasury, 
218 N.J.
           247, 260 (2014) (quoting In re Carter, 191
           N.J. 474, 482 (2007)).]


    Bell's     argument   that    the    Commissioner's         decision   is   not

supported by credible competent evidence is without merit.                      The

ALJ's   factual   findings,      which       the   Commissioner    adopted,     are

supported by substantial credible evidence as set forth in his

final agency decision.      See In re Stallworth, 
208 N.J. 182, 194

(2011).

    Bell further contends that, even if the record supports the

finding   of   unbecoming   conduct,          revocation   of    his   substitute

teaching certificate is unwarranted. We disagree. The infractions

of telephone contact with P.P., meeting with P.P. outside of

regular school hours, kissing P.P., and unzipping the fly to his

                                         6                                 A-4135-15T2
pants, are sufficiently severe to revoke his certificate, without

following progressive discipline.      See id. at 196-97; see also In

re Herrmann, 
192 N.J. 19, 33-34 (2007).     Moreover, the penalty is

not so harsh as to shock our sense of fairness.     In re Carter, 
191 N.J. 474, 484 (2007).

     Finally, Bell's contention that the ALJ engaged in conduct

suggesting the ALJ was biased in favor of the Burlington County

Prosecutor's Office was not preserved for appeal.       Bell contends

that the ALJ made off-the-record remarks that he previously worked

in the Prosecutor's Office and that he would not discount the

credibility assessment of the Prosecutor's Office detective who

testified concerning the investigation of P.P.'s complaint.          He

also questions the ALJ's fairness and impartiality due to the

ALJ's   comments   on   the   record   characterizing   Alston-Jones'

testimony as dubious despite ultimately finding her credible, as

well as the ALJ's solicitous treatment of P.P. even though she

failed to obey subpoenas.

     Since these arguments were not raised before the ALJ nor the

Board, they will not be considered on appeal because they do not

involve jurisdictional issues or matters of great public interest.

See Zaman v. Felton, 
219 N.J. 199, 226-27 (2014).       Moreover, as

to the ALJ's alleged off-the-record comments, there is no record

upon which we can consider for appellate review.

                                  7                           A-4135-15T2
Affirmed.




            8   A-4135-15T2