Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Sullivan, S.j.a.d. Kolovsky, J.A.D. (dissenting).
This is an appeal by Dr. George I. Thomas, petitioner herein, under R.R. 4:88-8, from a final decision of the State Board of Education upholding the action of the respondent Board of Education of the Township of Morris (board) terminating petitioner's employment as superintendent of schools.
On December 14, 1960 the board, after the careful screening of some 40 applicants, by unanimous vote selected Dr. Thomas as its superintendent of schools and entered into a two-year contract of employment with him commencing February 1, 1961. The contract provided that either party could terminate it prior to expiration by giving 90 days' notice in writing. This contract did not give Dr. Thomas tenure, the two-year term thereof in effect being a probationary period.
On October 18, 1961, at a regular meeting of the board, the majority bloc of five members adopted a resolution under which the two-year contract was cancelled, and Dr. Thomas was given a three-year contract of employment from said date without any termination provision. The effect of the new contract was to clothe Dr. Thomas with tenure.
Said action was taken without prior notice to the four other board members or the public. It appears, however, that the matter had been privately discussed in advance by the members of the majority bloc and by Dr. Thomas. Indeed, a statement extolling Dr. Thomas' accomplishments as superintendent of schools, which statement was read at the meeting, the resolution cancelling the old two-year contract and providing for a new three-year contract, and the three-year contract itself, were all prepared in advance of the October 18 meeting.
At said meeting, after the statement praising Dr. Thomas' accomplishments had been read and the resolution introduced, the two minority bloc members of the board who were present (two others were absent) protested strongly against the proposed contract. One said:
"This action is premature. We are not well enough acquainted with Dr. Thomas, with his attitudes or abilities in relation to this community. We should not jump to conclusions. Every employee should have a full trial period."
"This is a high-handed way to tie us up. It is most premature. It should have been discussed prior to this with all Board members. I certainly have some unanswered questions regarding Dr. Thomas. This gives him automatic tenure."
Without further discussion the question was moved and adopted by a 5-2 vote.
During the course of the meeting another member of the board arrived, and when informed of what had transpired with regard to Dr. Thomas, said:
"It would have been a courtesy for the Board to have had an opportunity to discuss this matter in a conference session, as I was not aware it was coming. I believe it was wrong to do it at this time and I am absolutely opposed to it."
The three-year contract which, as heretofore noted, had been prepared in advance, was signed by Dr. Thomas and the president and secretary of the board during the meeting.
A few months later, in February 1962, the terms of office of three members of the majority bloc expired. They stood for reelection but were defeated, whereupon the two remaining members of the former majority bloc resigned from the board. At its regular meeting on March 21, 1962 the new board unanimously adopted a resolution which, after reviewing the circumstances surrounding the October 18, 1961 action cancelling Dr. Thomas' original two-year contract and entering into a three-year contract with him, declared said action to be against public policy, invalid and of no force and effect. The resolution further stated that the new board recognized the original two-year contract with Dr. Thomas, expiring February 1, 1963, as the only valid and subsisting contract. Dr. Thomas, who was present at the meeting, made a statement that he had accepted the three-year contract in good faith because of the protection it afforded him, and he expected the board to "live up to" the new contract.
On June 21, 1962, at a regular meeting of respondent board, a resolution was unanimously adopted exercising the 90-day clause contained in the original two-year contract and terminating Dr. Thomas' employment as superintendent of schools.
Dr. Thomas appealed from respondent board's action to the Commissioner of Education. The matter was presented on petition, answer and stipulation, no oral testimony being offered. The Commissioner upheld the board's position that Dr. Thomas' three-year contract was invalid and that the only legal contract between the parties was the original two-year contract. In so ruling, the Commissioner found in the action taken by the board at the October 18, 1961 meeting "clear indication of the kind of private, final action, without full and open consideration and discussion, with timely opportunity for all members of the board and the public to be heard, which the Court condemned in Cullum [ Cullum v. Board of Education of North Bergen Township, 15 N.J. 285 (1954)]."
A further appeal was taken by Dr. Thomas to the State Board of Education, which affirmed the Commissioner's decision,
holding that under the circumstances presented the October 18, 1961 action of the board was shown to be an abuse of discretion, arbitrary and contrary to public policy. The instant appeal followed.
The sole contention by Dr. Thomas on this appeal is that all of the evidence shows that the three-year contract of October 18, 1961 was a valid contract, validly entered into, so that the decision of the State Board of Education upholding respondent board's termination of petitioner's employment must be reversed.
We are here concerned with a determination made by an administrative agency duly created and empowered by legislative fiat. When such a body acts within its authority, its decision is entitled to a presumption of correctness and will not be upset unless there is an affirmative showing that such decision was arbitrary, capricious or unreasonable. The agency's factual determinations must be accepted if supported by substantial credible evidence. Quinlan v. Board of Ed. of North Bergen Tp., 73 N.J. Super. 40 (App. Div. 1962); Schinck v. Board of Ed. of Westwood Consol. School Dist., 60 N.J. Super. 448 (App. Div. 1960).
In the instant case our review of the entire record leads us to conclude that the State Board's determination as to the invalidity of the October 18, 1961 three-year contract is ...