Wolf, Matter of

• Decision Date: 14 March 1989
• Citation: 555 A.2d 722,231 N.J.Super. 365
• Parties: , 52 Ed. Law Rep. 627 In the Matter of the Tenure Hearing of Richard WOLF, School District of the Borough of National Park, Gloucester County.
• Court: New Jersey Superior Court — Appellate Division

Page 365

231 N.J.Super. 365

555 A.2d 722, 52 Ed. Law Rep. 627

In the Matter of the Tenure Hearing of Richard WOLF, School District of the Borough of National Park, Gloucester County.

Superior Court of New Jersey Appellate Division.

Argued Feb. 7, 1989.

Decided March 14, 1989.

Steven R. Cohen argued the cause for petitioner (Selikoff & Cohen, attorneys; Steven R. Cohen, Cherry Hill, of counsel and on the brief).

Joseph F. Betley argued the cause for the National Park Bd. of Educ. (Capehart & Scatchard, attorneys; Alan R. Schmoll, of counsel; Joseph F. Betley, Mount Laurel, on the brief).

Diane M. Verlangieri, Deputy Atty. Gen., argued the cause for the State Bd. of Educ. (Donald R. Belsole, Acting Atty. Gen., attorney; Diane M. Verlangieri, on the statement).

Before Judges ANTELL, DREIER and BROCHIN.

The opinion of the court was delivered by

DREIER, J.A.D.

Petitioner, Richard Wolf, appeals from a decision of the State Board of Education dismissing him from his position as a tenured fifth grade teacher in the National Park Elementary School. Wolf had been charged by the Board with "unbecoming conduct," a violation of N.J.S.A. 18A:6-11, in response to complaints by some of his male and female fifth grade students that he had been "feeling the backs of girls to see if they were wearing bras" and "at times touching the buttocks of girls." He denied the charges. After a hearing in the Office of Administrative Law, the Administrative Law Judge (ALJ) issued her initial decision, and recommended that Wolf be "removed from his position." The Commissioner of Education affirmed that decision, ¹ and the State Board adopted the Commissioner's decision without further opinion.

Prior to the hearing of the student witnesses before the ALJ, petitioner was summarily excluded from the courtroom, but was provided with a closed-circuit television hookup by which he could view and hear the proceedings. He did not, however, have any method of conferring with his attorney, who remained in the courtroom. If the attorney wished to speak to petitioner, the proceedings had to be halted and counsel had to leave the room for such a conference. As we have found this exclusion of petitioner to have been unwarranted upon the findings of the ALJ, and the procedural safeguards to petitioner's rights inadequate, we are reversing and remanding the matter for a new hearing. We have, however, reviewed the facts in detail to show the prejudicial effect of this procedural determination.

Petitioner had been a teacher with the National Park Board of Education since September 1, 1969. His record prior to the events alleged in these proceedings was unblemished.

On May 28, 1986, National Park Elementary School Principal Raymond Bider received two letters, one anonymous and another signed "by a few girls," complaining of "some name-calling" that Wolf did in class. Bider discussed the matter with the Superintendent of Schools and then with Wolf. The next day Wolf and Bider agreed that Wolf could "handle the matter" by speaking to the children at the end of the day. That night at a school concert Bider talked with one of the girls, A.E., who told him that Wolf had "yelled" at the students. This complaint developed into a third charge against Wolf, which the ALJ dismissed.

On June 3rd, A.E. told another teacher, Susan Slawter, that Wolf "is touching me and I don't like it. I want him to stop he touches my back. He feels to see if I'm wearing a bra." On June 4th, several more children spoke to another teacher, Cathleen Allison, about "some things in Wolf's classes." Those "things" included complaints from the children that Wolf brought in subscription-order forms from Playboy (this claim was determined to be unfounded); looked up the girls' dresses; ² allowed the classes to watch too much television and too many videos (this claim was not pursued); called students "dumbo ears," "big mouth," and "fat slob;" unfastened one girl's bra; snapped the bra straps of several girls; and spanked another. ³

Allison spoke to Bider, and at Bider's request the children wrote down their complaints. Bider notified the Superintendent of Schools, who requested that Allison and Slawter write down what they knew of the children's complaints. The children, through Allison, requested a meeting with Bider, which was held June 6th. All 45 of the fifth-grade students at school on June 6th attended the meeting, as did Susan Slawter, the school nurse, two other teachers, and Allison and Bider.

The Superintendent met with Allison, Slawter and the principal, and then called the Division of Youth and Family Services (DYFS). Despite his protests that the allegations were untrue, Wolf was suspended with pay, effective June 10th, while DYFS investigated the matter. After receiving DYFS's report in August, the local Board charged Wolf with improperly touching the buttocks and backs of female students, exhibiting a pattern of ridiculing his students, and threatening students for reporting his conduct. After nine days of testimony, the ALJ found that the last charge was unproven, but that the other two had been proven, and they were enough to constitute "conduct unbecoming a teaching staff member." She wrote that "[i]n light of the Commissioner's strong position against improper touching as expressed in [the] McClelland case [discussed infra ], I believe I have no alternative" but to recommend dismissal.

This Court's scope of review in such a case is to determine whether the findings made by the ALJ, Commissioner and State Board could "reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Tenure Hearing of Grossman, 127 N.J.Super. 13, 22-23, 316 A.2d 39 (App.Div.1974), certif. den. 65 N.J. 292, 321 A.2d 253 (1974), citing Close v. Kordulak Bros., 44 N.J. 589, 598-599, 210 A.2d 753 (1965). The record in this case consists of the findings by the Administrative Law Judge and the Commissioner of Education. ⁴

As the ALJ noted in her initial decision, "[c]redibility is the central issue in this case." Only one adult saw any of the acts complained of (snapping a girl's bra strap), and she did not report it until these charges were pending, two years after seeing the incident. That of necessity makes children the primary witnesses to the acts now in question. Children's testimony, in the circumstances where it is in conflict with their prior statements "must be used with great caution ... particularly where, as here, such use requires a final adjudication grounded primarily on the basis of the testimony." In re Tenure Hearing of Anthony Polito, 1974 S.L.D. 666, 676. Such credibility considerations are especially necessary in this case, as Wolf's primary defense is that some of the children lied in retaliation for poor grades or because they had personality conflicts with Wolf (A.E., E.D. and T.O. testified that they did not like Wolf for these reasons). Wolf also claimed that his colleagues, Allison and her close friend Slawter, encouraged the children because Slawter had, in her words, "negative feelings" for Wolf, and Allison admittedly "intensely disliked" and "hated" Wolf.

The ALJ wrote that not only were there inconsistencies "between prior statements and [the] testimony" of the children, those inconsistencies "had several sources." The prior statements, wrote the ALJ, were not made under "controlled conditions," and resulted in "hearsay" and "a little embellishment." The ALJ noted specifically that one student, L.T., "admitted that she had invented some prior statements regarding the incidents complained of." ⁵ However, the ALJ concluded the subject by stating "I do not feel that use of the prior statements is helpful in testing credibility," because "[i]nconsistencies are common to all people...." By disregarding the prior statements of the children, whose testimony under the circumstances should have been treated with "great caution," the ALJ disregarded one of the most valued tools of litigation available to petitioner, the use of prior inconsistent statements to discredit witnesses. ⁶

The ALJ added that she did "not believe any of these children deliberately lied, but some of the facts they related were not true." The ALJ then attempted to explain the children's inconsistent and sometimes admittedly false statements. ⁷ Such attenuated attempts to explain discrepancies in the children's testimony cause us at least to question the final conclusions reached, ⁸ especially under the procedural circumstances of the children's examination, namely petitioner's inability to guide his attorney in the examination of these creative witnesses.

The ALJ concluded that "all of Wolf's touching of the girls was without prurient or lascivious intent." The Commissioner, after reviewing the entire record, including the transcripts and the video tapes of the hearings before the ALJ, questioned this finding without, however, making a contrary determination. The Commissioner's conclusions, however, were based upon his review of a record which we find procedurally deficient to an extent requiring reversal and retrial.

In challenging the ALJ's determination, petitioner argued in his brief that the ALJ's mind-set was "outcome-determinative," as shown by her exclusion of Wolf from the hearing room. Petitioner challenged as "shocking" and "tragic" the factors considered by the ALJ in making her determination to exclude petitioner. Petitioner notes that the ALJ made no preliminary findings that he had engaged in any conduct threatening to the children; instead, she excluded him on "her own biases and prejudices regarding Wolf's appearance." She stated:

He is physically--he has a beard; he has a rather reddish-colored skin; he has dark eyes, very dark eyes, and dark hair. And I found in observing him, I consider his...