Goldmann, Freund and Foley.
The Board of Education of Asbury Park appeals from a determination of the State Board of Education reversing a decision of the State Commissioner of Education which upheld respondent Hoek's dismissal as secretary-business manager of the Asbury Park school system, on charges heard and determined by the local board of education pursuant to R.S. 18:5-51, as amended by L. 1938, c. 247. (Hearings on charges preferred against any employee of a board of education who is under tenure in any office, position or employment covered by Title 18 of the Revised Statutes must now be conducted in accordance with the Tenure Employees Hearing Act, L. 1960, c. 136; N.J.S.A. 18:3-23 et seq. , which became effective October 5, 1960, after Hoek's dismissal on April 22, 1958.)
Following an investigation of the Asbury Park school system by a committee of the board of education, 14 charges were preferred against Hoek in August 1957. Board member Novogrod then preferred 17 additional charges on October 21, 1957, followed by 9 more on January 14, 1958
and 1 on January 29, 1958. These additional charges were accepted by the board for hearing. The board opened its hearings on February 25, 1958 and concluded them on April 21, 1958. At the very outset respondent, through his attorney, moved to disqualify Novogrod by reason of his malice, ill will and prejudice toward respondent, his personal interest in having him dismissed, his sitting in judgment upon charges which he personally had brought, and his prejudgment of the validity and seriousness of the charges. Novogrod participated in the hearings on the motion for disqualification, although he did not take part in the board conference preceding the vote on disqualification, nor did he vote on the question.
The board refused to disqualify Novogrod by a vote of 3-0, a fourth member abstaining. It then proceeded to hear the charges. Of the 41 (14 by the board and 27 by Novogrod), all but 17 were dropped at some time during the proceedings. The 17 comprised one charge that had been brought by the board and 16 by Novogrod. The board found appellant guilty of nine, all of them brought by Novogrod. Novogrod cast the deciding vote in seven.
There is no need to detail the nine charges on which Hoek was found guilty. They may generally be described as alleging conversion of foodstuffs and other property of the board of education to his own use or the use of others; failure to declare in his inventory certain surplus foods and their destruction without justification; falsification of the board minutes so that they did not properly reflect the action allegedly taken by the board at a meeting; employment of maintenance and cafeteria help without board approval; directing the use of school property for the benefit of one of the board members, without authority; and directing a board employee to obtain a motor vehicle license for a third party, on school time and without authority.
The State Commissioner of Education agreed with the local board's finding of guilt on eight of the nine charges.
He also determined that Novogrod was not disqualified from participating in the hearings.
Although respondent Hoek, on appeal to the State Board of Education, attacked his dismissal on several grounds, the Board determined that it need consider only one of them, deeming it dispositive of the appeal. That ground was Novogrod's disqualification to participate in the local board hearings because of possible prejudgment of the case.
The now generally accepted gauge of administrative factual finality is whether the factual findings of the administrative agency are supported by substantial evidence. The decision of the State Board of Education reflects a careful consideration of the disqualification hearings record. We have read that record and find ourselves in complete agreement with the conclusion reached by the State Board. We need not consider Novogrod's deep involvement in the Hoek matter, as exemplified by his personally conducting an investigation into the affairs of the secretary-business manager's office, interviewing witnesses, and his preparation and bringing of additional charges after the local board had acted. (We recognize that the bringing of charges by a board of education member does not in itself disqualify him from participation in hearing the charges, Mackler v. Camden Board of Education , 16 N.J. 362 (1954), although we question whether such a member can sit in judgment with a mind wholly unconditioned by charges personally brought. Cf. N.J.S.A. 18:5-51, permitting charges to be filed by any person, whether a member of the school board or not.) We conclude that the State Board's decision is well supported by substantial evidence; like the Board, we find uncontradicted evidence that Novogrod was disqualified from hearing the Hoek charges because, whether consciously or unconsciously, he prejudged the case.
The most damaging evidence against Novogrod came from two attorneys, Abraham Frankel and Harry Green, witnesses produced by Hoek on ...