Bower v. Board of Educ. of City of East Orange

• Decision Date: 10 June 1997
• Citation: 694 A.2d 543,149 N.J. 416
• Court: New Jersey Supreme Court
• Parties: , 119 Ed. Law Rep. 176 Paul Norman BOWER and Wills O'Neill & Mellk, Plaintiffs-Respondents, v. BOARD OF EDUCATION OF the CITY OF EAST ORANGE, Defendant-Appellant. Paul Norman BOWER, Petitioner-Respondent, v. BOARD OF EDUCATION OF the CITY OF EAST ORANGE, Respondent-Appellant.

Page 416

149 N.J. 416

694 A.2d 543, 119 Ed. Law Rep. 176

Paul Norman BOWER and Wills O'Neill & Mellk, Plaintiffs-Respondents, v. BOARD OF EDUCATION OF the CITY OF EAST ORANGE, Defendant-Appellant.

Paul Norman BOWER, Petitioner-Respondent, v. BOARD OF EDUCATION OF the CITY OF EAST ORANGE, Respondent-Appellant.

Supreme Court of New Jersey.

Argued Jan. 22, 1997.

Decided June 10, 1997.

Mary C. Jacobson, Assistant Attorney General, argued the cause for appellant New Jersey State Board of Education (Peter Verniero, Attorney General of New Jersey, attorney; Ms. Jacobson and Mary F. Rubinstein, Deputy Attorney General, on the briefs).

Ronald S. Sampson, Orange, argued the cause for appellant Board of Education of the City of East Orange (Love & Randall, attorneys).

Sanford Oxfeld, Newark, argued the cause for respondent Paul Norman Bower (Balk, Oxfeld, Mandell & Cohen, attorneys; Gail Oxfeld Kanef, on the brief).

Arnold M. Mellk, Princeton, argued the cause for respondents Paul Norman Bower and Wills, O'Neill & Mellk (Wills, O'Neill & Mellk, attorneys).

David W. Carroll, Lawrenceville, submitted a brief on behalf of amicus curiae, Montgomery Township Board of Education (Carroll & Weiss, attorneys).

The opinion of the Court was delivered by

STEIN, J.

This appeal concerns the right of Paul Bower ¹, a public school teacher indicted on various charges alleging that he sexually abused three of his pupils during the school day and on school premises, to indemnification from the East Orange Board of Education for his legal expenses after all charges against him were dismissed. The relevant statutes, N.J.S.A. 18A:16-6 and -6.1, provide that indemnification is mandatory if the charges are dismissed or result in a favorable final disposition and if the "act or omission" on which the criminal charges are predicated arises out of and in the course of the performance of the duties of employment.

The criminal charges having been dismissed before trial, no evidence was adduced in the criminal proceeding, or in the civil proceedings seeking indemnification, concerning whether any predicate acts or omissions (aside from Bower's daily presence in his classroom) had occurred that could serve as the basis for establishing the second prong of the statutory test for indemnification, that the act or omission arose out of and in the course of the duties of employment.

The parties to this appeal agree that the second prong of the statute should not be tested against the alleged acts of sexual abuse, because such an application of the statute would deny indemnification to any school employee forced to incur legal expenses in the successful defense of false charges of criminal conduct that, if true, could not possibly have occurred in the course of performance of the duties of employment. Bower contends that because no "act or omission" has been proved, the criminal charges must necessarily be understood to have arisen solely because of and in the course of his employment as a teacher. The East Orange Board of Education (East Orange) and the New Jersey State Board of Education (State Board) both contend that Bower bears an additional burden of refuting or explaining the charges against him to an extent sufficient to verify that he satisfies the statutory test.

Bower's administrative appeal from East Orange's denial of indemnification resulted in a State Board decision affirming that denial on the basis of Bower's failure to satisfy the statutory criteria. A separate proceeding instituted in the Law Division by Bower's attorneys resulted in a judgment granting indemnification to the extent of $30,000 in attorney fees and $2,500 in disbursements. (Although the question is not raised, the Law Division action should have been dismissed because the Commissioner of Education has primary jurisdiction to hear and determine all controversies arising under the school laws. N.J.S.A. 18A:6-9; see Dore v. Board of Educ., 185 N.J.Super. 447, 452, 449 A.2d 547 (App.Div.1982)). The Appellate Division consolidated the appeals, and in a published opinion, 287 N.J.Super. 15, 670 A.2d 106 (1996), a divided panel of that court reversed the judgment of the State Board and affirmed the judgment of the Law Division. Id. at 33, 670 A.2d 106. East Orange and the State Board appeal as of right. R. 2:2-1(a)(2).

I

The Appellate Division's majority opinion contains a thorough summary of the facts and procedural history underlying this appeal:

On February 10, 1987, Bower was indicted on four counts of aggravated sexual assault in violation of N.J.S.A. 2C:14-2 and three counts of endangering the welfare of children in violation of N.J.S.A. 2C:24-4. Testimony before the grand jury from two children and their parents and a statement from a third child described incidents of sexual abuse by Bower. The incidents allegedly took place during school hours in a bathroom connected to Bower's classroom in the Ashland School. Each child was a student of Bower. The Board suspended Bower without pay on March 3, 1987.

On October 11, 1988, Judge Falcone dismissed the indictment without prejudice. The State's unpreparedness for trial occasioned the dismissal. Bower returned to work in a non-teaching assignment on October 17, 1988. On March 15, 1989, an Essex County grand jury returned a second indictment against Bower on the same charges. On March 20, 1989, the Board of Education again suspended Bower. Judge Hazelwood dismissed the second indictment with prejudice on July 3, 1990.

On March 30, 1989, prior to dismissal of the second indictment, Bower filed a petition with the Commissioner of Education seeking indemnification from the Board of his legal fees and costs incurred in defending against prosecution of the first indictment, pursuant to N.J.S.A. 18A:16-6.1. The Commissioner referred the matter to the Office of Administrative Law.

Following a hearing, the Administrative Law Judge filed a written decision recommending that the Commissioner deny Bower's request for $20,340.95 in legal fees. On the record before him, the A.L.J. was unable to determine whether the children allegedly abused were Bower's students and whether the alleged abuse took place on school property during school hours. Consequently, the A.L.J. determined that Bower could not establish the nexus required by N.J.S.A. 18A:16-6.1, that the conduct alleged in the charges against him arose "out of and in the course of the performance of [his] duties" as a teacher. Furthermore, the A.L.J. found that dismissal of the first indictment without prejudice was not a "final disposition in favor" of Bower as required by N.J.S.A. 18A:16-6.1. The Commissioner of Education adopted the A.L.J.'s findings and dismissed the petition on August 10, 1990.

On August 14, 1990, Bower appealed the Commissioner's dismissal to the State Board of Education. As noted, the second indictment was dismissed on July 3, 1990. The State Board of Education remanded the matter to the A.L.J. for determination in light of the dismissal of the second indictment, instructing that [o]n remand, Petitioner has the burden of establishing 1) a nexus between the alleged conduct forming the basis of the charges and the performance of his duties in the district so as to support a finding that the criminal actions against him involved alleged acts or omissions arising out of and in the course of the performance of his duties, and 2) a favorable disposition of the criminal charges.

On September 27, 1991, after considering a supplemented record, the A.L.J. again recommended that Bower's request for indemnification be denied. Although the A.L.J. concluded that the second dismissal constituted a final favorable disposition, Bower was unable to satisfy the A.L.J. that the conduct alleged in the criminal charges arose "out of the performance of his duties as a teacher". The A.L.J. noted At most, the only thing that can be said is that Bower's accusers are his former students and that the locale of the alleged misconduct is on school property. None of the proofs supply the crucial element that the charges are connected with his teaching assignment or that Bower was engaged in carrying out his official duties.

The Commissioner adopted the A.L.J.'s recommendation on November 12, 1991, emphasizing that Bower failed to

explain[ ] why he was in the bathroom with any or all of the three boys in question. Neither is there any testimony or evidence proffered in this remand suggesting how his behavior in regard to any of these charges, or denial of same, is legitimately linked to his bona fide teaching responsibilities. (emphasis in original).

Bower again appealed to the State Board of Education. On August 4, 1994, the State Board affirmed the Commissioner's ruling. The State Board reemphasized that Bower failed to meet his "affirmative burden" of establishing the required nexus between the conduct out of which the charges arose and the performance of his duties as a teacher. The State Board stated:

The record, as supplemented on remand, indicates only that the alleged conduct occurred in a bathroom adjoining petitioner's kindergarten classroom. There is no indication in the record as to whether this facility was for the exclusive use of students or whether teachers also used the facility.... Nor is there anything to show that any of his teaching duties required that he accompany the students into the facility. Bower filed a notice of appeal to this court on August 23, 1994.

* * * * * *

On March 19, 1991, while Bower was pursuing his administrative remedy, Bower's attorneys filed suit on behalf of Bower and themselves in the Law Division, seeking a judgment of $41,024 in attorney fees and $2,500 for disbursements, representing the work done in defending Bower against both indictments. Judge Paley concluded that the criminal charges filed against Bower did, indeed, arise out of the performance of his duties because Bower's "involvement with those children...