S.G v. BOARD OF EDUCATION OF THE HUNTERDON CENTRAL REGIONAL SCHOOL DISTRICT, HUNTERDON COUNTY -
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5199-15T3
S.G.,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE
HUNTERDON CENTRAL REGIONAL
SCHOOL DISTRICT, HUNTERDON
COUNTY,
Respondent-Respondent.
___________________________________
Argued January 23, 2018 – Decided March 1, 2018
Before Judges Reisner, Gilson, and Mayer.
On appeal from the New Jersey Department of
Education, Docket No. 20-2/15.
Steven D. Farsiou argued the cause for
appellant (Trinity & Farsiou, LLC, attorneys;
Steven D. Farsiou, on the briefs).
Brandon R. Croker argued the cause for
respondent Board of Education of the Hunterdon
Central Regional School District (Comegno Law
Group, PC, attorneys; John B. Comegno, II, and
Brandon R. Croker, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Commissioner of
Education (Jennifer L. Cavin, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Petitioner is a teacher and former wrestling coach employed
by the Board of Education of the Hunterdon Central Regional School
District (Board). He appeals from a July 13, 2016 final agency
decision of the Commissioner of Education (Commissioner), which
remanded charges of bullying for a hearing before the Board. We
affirm because the Commissioner's decision is consistent with the
governing statute and is not arbitrary, capricious, or
unreasonable.
I.
For over twenty years petitioner held a stipend position as
the head coach of the high school wrestling team. In the summer
of 2014, petitioner, together with approximately fifteen current
or prospective members of the wrestling team, attended a camp run
by the head coach of the Rutgers University wrestling team. R.F.,
who was an incoming high school freshman and prospective member
of the wrestling team, attended the camp.
On two occasions during the camp, petitioner stated to R.F.,
in the presence of others, that he hoped R.F. did not have access
to any weapons or keys to the gun closet. R.F., who is a classified
special education student, was embarrassed and felt that
2 A-5199-15T3
petitioner thought he was crazy. As a result, R.F. called his
parents and left the wrestling camp early.
R.F.'s parents complained to the principal of the high school,
and the school conducted an investigation to determine whether
petitioner's comments constituted acts of harassment,
intimidation, or bullying (HIB) in violation of the Anti-Bullying
Bill of Rights Act (the Anti-Bullying Act),
N.J.S.A. 18A:37-13 to
-32. The school's investigation concluded that petitioner's
comments were acts of HIB. That finding was reported to the Board
and, consistent with the superintendent's recommendation, the
Board voted to suspend petitioner from all coaching activities.
Notice of the HIB finding and the Board's actions were
provided to the parents of R.F. and to petitioner. Petitioner
requested a hearing before the Board, but the Board denied his
request. The Board did inform petitioner and his attorney that
they could appear at the next Board meeting and make a statement.
Petitioner objected to the lack of a hearing and did not attend
the Board's meeting. At its next meeting, the Board voted to
affirm the finding that petitioner committed acts of HIB, and it
adopted the recommendation to terminate petitioner from all
coaching activities.
Petitioner administratively appealed the Board's decision to
the Commissioner, and the matter was referred to the Office of
3 A-5199-15T3
Administrative Law. After exchanging discovery, the Board and
petitioner cross-moved for a summary decision. The administrative
law judge (ALJ) found that the issue was appropriate for summary
decision and that the material facts were not in dispute. Based
on stipulated facts, the ALJ found that on two occasions during
the wrestling camp, petitioner stated to R.F. that he hoped he did
not have access to any weapons or keys to the gun closet. Those
statements were made in front of other members of the wrestling
team, and R.F. was embarrassed and felt petitioner thought he was
crazy and did not like him.
The ALJ also found that the Board had not given petitioner a
hearing as required by the Anti-Bullying Act. The ALJ then
concluded that because petitioner was not afforded due process,
the appropriate remedy was to expunge any reference to a finding
of HIB from his personnel file maintained by the Board.
Accordingly, on April 12, 2016, the ALJ issued an initial decision
granting petitioner's motion for summary decision, denying the
Board's cross-motion, and dismissing the matter.
The Board filed exceptions with the Commissioner. On July
13, 2016, the Commissioner issued a final decision modifying the
ALJ's initial decision. The Commissioner agreed with and adopted
the ALJ's determination that staff members, such as petitioner,
accused of committing acts of HIB are entitled to due process,
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which includes a hearing before the Board. The Commissioner,
however, disagreed with the ALJ's determination that petitioner
was entitled to summary decision. Instead, the Commissioner found
that the Board had given petitioner notice of the allegations and
it had conducted an HIB investigation. In making those findings,
the Commissioner distinguished petitioner's case from a decision
he had made in E.S. v. Bd. of Educ., Twp. of Cedar Grove, EDU
0216-15, final decision, (June 23, 2015). Thus, the Commissioner
reasoned that the appropriate remedy was to remand the matter for
a hearing before the Board.
Petitioner appealed from the Commissioner's July 13, 2016
final agency decision and also filed a motion for leave to appeal
in case the Commissioner's decision was deemed interlocutory. We
held that the Commissioner's decision was a final agency decision
and allowed the appeal.
II.
On this appeal, petitioner makes four arguments: (1) the
Commissioner's decision to remand the matter to the Board was
arbitrary, capricious, and unreasonable; (2) petitioner will not
receive due process because the Board is hostile to his position
and the hearing would be conducted years after the incident;
(3) the Commissioner's determination contradicts previous
determinations made by the Commissioner; and (4) the Commissioner
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had established due process rights for staff members, such as
petitioner, well before his situation arose and, therefore, he
should have been afforded a hearing before the Board when he first
requested that hearing. We are not persuaded by any of
petitioner's arguments and we affirm the Commissioner's final
decision.
Our role in reviewing an administrative agency's final
decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011).
To reverse an agency's decision, we must find that the agency's
decision was "arbitrary, capricious, or unreasonable, or [] not
supported by substantial credible evidence in the record as a
whole." Ibid. (quoting Henry v. Rahway State Prison,
81 N.J. 571,
579-80 (1980)). Accordingly, "our scope of review is guided by
three major inquiries: (1) whether the agency's decision conforms
with relevant law; (2) whether the decision is supported by
substantial credible evidence in the record; and (3) whether, in
applying the law to the facts, the administrative agency clearly
erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med.
Assistance & Health Servs.,
432 N.J. Super. 273, 283-84 (App. Div.
2013) (citing In re Stallworth,
208 N.J. at 194).
We "defer to an agency's interpretation of . . . [a]
regulation, within the sphere of [its] authority, unless the
interpretation is 'plainly unreasonable.'" U.S. Bank, N.A. v.
6 A-5199-15T3
Hough,
210 N.J. 187, 200 (2012) (alterations in original) (quoting
In re Election Law Enf't Comm'n Advisory Op. No. 01-2008,
201 N.J.
254, 262 (2010)). An appellate court, however, is "in no way
bound by the agency's interpretation of a statute or its
determination of a strictly legal issue." In re Taylor,
158 N.J.
644, 658 (1999) (quoting Mayflower Sec. Co. v. Bureau of Sec.,
64 N.J. 85, 93 (1973)). Applying these well-established standards,
we discern no basis for disturbing the Commissioner's final
decision in this matter.
The principal issue on this appeal is whether the Commissioner
properly remanded petitioner's matter for a hearing before the
Board on the HIB allegations. The Anti-Bullying Act was enacted
"to strengthen the standards and procedures for preventing,
reporting, investigating, and responding to incidents of [HIB] of
students that occur in school and off school premises[.]"
N.J.S.A.
18A:37-13.1(f). All school districts are required to adopt
policies that outline procedures for reporting and investigating
complaints of HIB.
N.J.S.A. 18A:37-15. The Act goes on to state
that the procedures shall, "at a minimum[,]" provide that the
investigation will be initiated within one school day of the report
of an HIB incident and the investigation will be "completed as
soon as possible, but not later than 10 school days from the date
of the written report of the incident of [HIB]."
N.J.S.A. 18A:37-
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15(b)(6)(a). The results of an investigation then are reported
to the superintendent and the Board of Education.
N.J.S.A. 18A:37-
15(b)(6)(b) and (c). Parents or guardians are entitled to receive
information about the investigation and can request a hearing
before the Board, which must be held within ten days of the
request.
N.J.S.A. 18A:37-15(b)(6)(d). After the Board determines
whether to affirm, reject, or modify the superintendent's
decision, "[t]he [B]oard's decision may be appealed to the
Commissioner of Education, in accordance with the procedures set
forth in law and regulation, no later than 90 days after issuance
of the [B]oard's decision[.]"
N.J.S.A. 18A:37-15(b)(6)(e).
The Commissioner had previously determined that staff members
are subject to the Anti-Bullying Act and are entitled to its
procedural protections. See K.T. ex rel. K.H. & T.D. v. Bd. of
Educ., Twp. of Deerfield, EDU 0278-13, final decision, (July 30,
2013). Accordingly, a staff member should be afforded the same
procedural rights as students. The Act expressly states that a
student or a student's guardian can request a hearing before the
Board. Consequently, the Commissioner has construed the Act to
mean that a staff member accused of committing acts of HIB is also
entitled to a hearing before the Board. We discern no error in
the Commissioner's construction of the Anti-Bullying Act to apply
8 A-5199-15T3
to staff members and to require certain due process, including a
hearing before the Board.
Here, petitioner argues that the Commissioner's determination
to remand the matter for a hearing before the Board was arbitrary,
capricious, and unreasonable. He also argues that it was
inconsistent with prior decisions by the Commissioner.
The Commissioner agreed with the ALJ's determination that
petitioner was entitled to due process, which included a hearing
before the Board. The Commissioner, however, disagreed with the
ALJ's determination that petitioner was entitled to a summary
decision. The ALJ concluded "that because the Board failed to
comply with the investigatory process contained in [the Anti-
Bullying Act]," the appropriate remedy was to expunge any reference
to HIB from petitioner's personnel files maintained by the Board.
Significantly, the ALJ did not find that the passage of time would
undermine the ability of the Board to afford petitioner a hearing
on a remand.
In rejecting the ALJ's decision to grant petitioner a summary
decision, the Commissioner reasoned that petitioner should be
afforded a hearing before the Board. In that regard, the
Commissioner distinguished this case from the facts in E.S. The
Commissioner explained that E.S. was based on "a unique set of
circumstances, and the facts and the state of the record in that
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case made it impossible for a determination to ever be reached."
In contrast, the Commissioner pointed out that here the Board gave
petitioner notice of the HIB allegations, conducted an
investigation, and completed an investigation report. We discern
nothing arbitrary, capricious, or unreasonable with the
Commissioner's determination to remand the matter for a hearing
before the Board. Moreover, we find nothing unreasonable in the
Commissioner's determination that the facts of this case are
distinguishable from the facts in E.S.
We also reject defendant's arguments that he cannot receive
due process because the Board is hostile to his position and that
the hearing would take place years after the incident. On the
current record, petitioner has made no showing that the passage
of time would undermine his due process rights nor has he
demonstrated that the Board cannot be an impartial decision maker.
Indeed, petitioner's arguments in that regard are based on
speculation.
Finally, we reject petitioner's arguments that the Board
should have recognized his established due process rights to a
hearing. In essence, petitioner is arguing that the Board ignored
existing decisions by the Commissioner at the time the Board
refused to grant him a hearing. The relevant issue is whether
defendant should get that hearing, and the Commissioner has already
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determined that the matter will be remanded for a hearing before
the Board.
We note that the Board has made certain arguments concerning
the scope of a hearing. That issue is not before us. Nevertheless,
we point out that the hearing should be meaningful and should be
consistent with the procedures for hearings involving students.
See
N.J.S.A. 18A:37-15(b)(6)(d).
Affirmed.
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