Dore v. Board of Educ. of Bedminster Tp., Somerset County

• Decision Date: 23 July 1982
• Citation: 185 N.J.Super. 447,449 A.2d 547
• Parties: , 6 Ed. Law Rep. 99 Stephen DORE, Petitioner-Appellant, v. BOARD OF EDUCATION OF the TOWNSHIP OF BEDMINSTER, SOMERSET COUNTY, Respondent- Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 447

185 N.J.Super. 447

449 A.2d 547, 6 Ed. Law Rep. 99

Stephen DORE, Petitioner-Appellant, v. BOARD OF EDUCATION OF the TOWNSHIP OF BEDMINSTER, SOMERSET COUNTY, Respondent- Respondent.

Superior Court of New Jersey Appellate Division.

Argued May 25, 1982.

Decided July 23, 1982.

Richard A. Friedman, Pennington, for petitioner-appellant (Ruhlman & Butrym, Pennington, attorneys).

William B. Rosenberg, Somerville, for respondent-respondent (Blumberg, Blumberg, Mullen & Blumberg, Somerville, attorneys).

Jaynee Lavecchia, Trenton, for the State Bd. of Educ. (Irwin I. Kimmelman, Atty. Gen., attorney, James R. Zazzali, former Atty. Gen., and Erminie L. Conley, former Asst. Atty. Gen., of counsel).

Before Judges MATTHEWS, PRESSLER and PETRELLA.

The opinion of the court was delivered by

MATTHEWS, P. J. A. D.

This is an appeal from a decision of the State Board of Education dismissing an action filed by petitioner with the Commissioner of Education. In his petition of appeal petitioner, a nontenured teacher, challenged the propriety of the action of the Board of Education of the Township of Bedminster in choosing not to reemploy him as a teacher for a third contract year. Specifically, petitioner contends that since three evaluations of him were not conducted during the 1975-76 school year, it was improper and unlawful for the board not to re-employ him. Petitioner also asserts that the board's action of not re-employing him was arbitrary and capricious and that he should be reinstated to his former position as a teaching staff member in the district. The board had voted not to renew the teaching contract of petitioner and, upon petitioner's request, informed him that his employment would not be continued:

... due to insufficient positive evidence of teaching effectiveness; particularly poor teaching methods as evidenced by poor grading procedures, lack of structured classroom and not providing student materials (textbooks, homework assignments), lack of continued assessment of student progress.

These criticisms were not contained in petitioner's formal evaluations. They were the reasons articulated by board members as the basis for their dissatisfaction with petitioner and were based on the personal observations of board members, knowledge acquired through having a child in petitioner's class or acquired from members of the public and parents of petitioner's pupils. Petitioner requested and received an informal appearance before the board to rebut the board's reasons for its determination. The board did not change its decision; this action ensued.

A plenary hearing was conducted before a representative of the Commissioner of Education. The hearing examiner's report ordered petitioner's reinstatement. The hearing examiner concluded that the reasons for nonre-employment provided to petitioner were "not at all related to the evaluations of his performance in the classroom." He found the true reason for petitioner's nonre-employment was petitioner's "perceived abrasiveness to the Board at public meetings."

The Commissioner adopted the remedy recommended but rejected the premise implied in the hearing examiner's report that "boards of education are bound to predicate renewal decisions affecting nontenured teaching staff members on evaluations conducted pursuant to N.J.S.A. 18A:27-3.1 and implementing regulations." The Commissioner ordered reinstatement nevertheless because the reasons for nonrenewal furnished petitioner were not supported by the evaluations and no other reasons were given to him to explain the board's decision. The Commissioner also commented that the unarticulated reason for the decision of the board, that is, the attitude petitioner allegedly displayed toward the board at public meetings of the board, might be constitutionally vulnerable.

The State Board reversed the Commissioner's decision and dismissed petitioner's petition of appeal. Noting that there were some favorable reports regarding petitioner before the local board when it made its decision, namely the evaluations, the State Board determined that the local board had sufficient information to support both its decision not to re-employ petitioner and its statement of reasons for doing so. The State Board emphasized the considerable discretion afforded to local boards in employing teaching staff members. The State Board concluded that the local board's action was not so arbitrary and capricious as to warrant the extraordinary remedy of overriding the managerial prerogative of a local board and requiring it to employ a teacher it does not want on its staff.

The ultimate administrative decision-maker for controversies arising under the school laws is the State Board of Education. N.J.S.A. 18A:6-27. Quinlan v. North Bergen Tp. Bd. of Ed., 73 N.J.Super. 40, 51, 179 A.2d 161 (App.Div.1962). Appeals may be taken to the State Board from any determination of the State Commissioner of Education. N.J.S.A. 18A:6-27, 28. In passing upon matters on appeal, the State Board is not restricted to review of issues of law. Winston v. South Plainfield Bd. of Ed., 125 N.J.Super. 131, 139-140, 309 A.2d 89 (App.Div.1973), aff'd 64 N.J. 582, 319 A.2d 226 (1974); Quinlan v. North Bergen Tp. Bd. of Ed., supra, 73 N.J.Super. at 51, 179 A.2d 161. It is well recognized that the State Board may make its own independent findings of fact. Id.

Petitioner suggests that the proper scope of review for the State Board to apply when reviewing a determination of the Commissioner is the standard articulated for the Commissioner of Labor and Industry in Delesky v. Tasty Baking Co., 175 N.J.Super. 513, 420 A.2d 1022 (App.Div.1980). That standard requires the Commissioner of Labor and Industry to adopt the findings of a judge of compensation if the judge's finding could reasonably have been reached based upon sufficient credible evidence in the record. 175 N.J.Super. at 517, 420 A.2d 1022. The standard enunciated in Delesky was overruled in Lewicki v. N. J. Art Foundry, 88 N.J. 75, 82, 438 A.2d 544 (1981).

It is well settled that the appropriate standard of review to be applied by an appellate court reviewing the final decision of an administrative agency is for the court to examine the record to determine whether sufficient or substantial credible evidence exists therein to support the agency decision. Atkinson v. Parsekian, 37 N.J. 143, 149, 179 A.2d 732 (1962); In re Silberman License Suspension, 169 N.J.Super. 243, 255-256, 404 A.2d 1164 (App.Div.1979), aff'd 84 N.J. 303, 418 A.2d 266 (1980); In re Grossman Tenure Hearing, 127 N.J.Super. 13, 22-23, 316 A.2d 39 (App.Div.1977). The agency determination is not to be vacated in the absence of a showing that the decision is arbitrary or capricious, that it lacks support in the record or that it violates legislative policies expressed or fairly to be implied in the statutory scheme administered by the agency. See Campbell v. Civil Service Dep't, 39 N.J. 556, 562, 189 A.2d 712 (1963). Furthermore, should there be substantial evidence in the record to support more than one result, it is the agency's choice which governs. See New Jersey Bell Tel. Co. v. State, 162 N.J.Super. 60, 77, 392 A.2d 216 (App.Div.1978). Here it is the State Board's decision which deserves deference.

We conclude that the State Board correctly rejected the decision of the Commissioner. The decision of the Commissioner recognized a local board's right to base its decision not to re-employ on matters outside of a teacher's evaluations due to a board's virtually unlimited discretion in hiring or renewing nontenured teachers. Nevertheless, the decision unduly penalized the board herein because its statement of reasons was not supported by the evaluations. See Donaldson v. North Wildwood Bd. of Ed., 65 N.J. 236, 241, 320 A.2d 857 (1974); Winston v. South Plainfield Bd. of Ed., 125 N.J.Super. 131, 143, 309 A.2d 89 (App.Div.1973), aff'd 64 N.J. 582, 319 A.2d 226 (1974). The State Board's decision properly recognized the board's right to reach its conclusion about a nontenured teacher on a broad base of input received from a variety of people, including members of the public, parents of students and a board member's own knowledge of a teacher even if that knowledge is acquired through having a child in the teacher's class.

Petitioner also raised before the State Board an additional reason for his reinstatement not contained in the pleadings or pretrial order: that his nonrenewal was for constitutionally impermissible reasons. The argument stems from a comment of the Commissioner in his decision that the unarticulated reason for the board's decision, the attitude the petitioner allegedly displayed toward the board, may be constitutionally vulnerable. This comment went beyond the parameters of the pleadings and the pretrial order in this matter and should not be considered on this appeal.

Nor is any constitutional vulnerability suggested by the record. Examination of the testimony of the board...