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In re Tenure Hearing of David Fulcomer

Decided: January 17, 1967.


Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D. Sullivan, S.j.a.d. (concurring). Kolovsky, J.A.D. (dissenting).


The Board of Education of Holland Township dismissed David Fulcomer from his position as a tenure teacher in its school system for conduct unbecoming a teacher, arising out of certain incidents which occurred on December 20, 1961. He appeals from the decision of the State Board of Education sustaining the Commissioner of Education which affirmed the dismissal.


The parents of a pupil in the school system filed written charges against the teacher on January 29, 1961, charging acts of physical violence against their son. The alleged misconduct took place in a classroom presided over by the teacher.

In accordance with the provisions of the "Tenure Employees Hearing Act," the township board held a meeting at which it determined that such charges, and the evidence in support of such charges would be sufficient, if true in fact, to warrant dismissal of the teacher, and then forwarded these charges to the Commissioner of Education with a certification as mandated by that act. N.J.S.A. 18:3-25.

After a hearing on the charges the Commissioner filed an opinion in which, after reviewing the evidence, he found that the teacher "improperly and unnecessarily did physical violence"

to the person of the pupil in the classroom on the day in question. His opinion concluded that these acts constituted conduct unbecoming a teacher sufficient to warrant dismissal by the township board. The Commissioner made no finding or decision as to whether the penalty to be imposed should be dismissal of the teacher or a reduction in his salary, but referred the matter back to the township board for that determination.

When the township board regained the case, it held a meeting at which it adopted a resolution by a 6-2 vote to discharge the teacher. It does not appear that the members of the board reviewed, or even had available, a transcript of the hearing before the Commissioner. During the course of the extended meeting there was an acrimonious exchange of remarks between members of the board and the teacher, in which members of the audience, including another teacher, participated.

The teacher appealed the Commissioner's determination to the State Board of Education. The State Board affirmed the finding of the Commissioner that the conduct of the teacher constituted conduct "unbecoming a teacher." However, it concluded that there was not sufficient evidence in the record to determine whether outright dismissal from the system was warranted, or whether a lesser penalty would have sufficed. Consequently, the State Board remanded the matter to the Commissioner for a further hearing. The State Board said:

"* * * At said hearing evidence shall be produced by all parties concerned showing David Fulcomer's record as a teacher prior to the incidents of December 21, 1961 [ sic ], evidence bearing upon the question as to whether Mr. Fulcomer's conduct amounted to deliberate premeditated action, motivation or provocation for such acts, and any other evidence which the Commissioner may deem relevant to the question of the penalty to be imposed. Evidence shall likewise be introduced at said hearing bearing upon the employment of Mr. Fulcomer subsequent to the above incidents and down to the present date. It is further recommended that upon completion of said hearing the Commissioner shall report to this Board his findings and decision as to the proper penalty. * * *"

The Commissioner did conduct a further hearing. He found that the testimony failed to disclose any significant basis of provocation as to the incidents upon which his first determination was reached. However, he did not make a specific report to the State Board of his findings and decision as to the proper penalty, nor did he make an independent finding or decision as to the proper penalty. Instead, he merely concluded that the local board had made a full and fair determination of the penalty and that its judgment that the teacher should be dismissed from his tenure position was not unreasonable, arbitrary or capricious.

The Commissioner did not refer the matter a second time to the local board for reconsideration of the penalty to be imposed in the light of the additional evidence on the second hearing. He expressed the thesis that the proper exercise of his function restricted him "from substituting his judgment for that of the members of the local Board" in matters which are within the exercise of their discretionary authority unless their determination is clearly unreasonable, arbitrary or otherwise unlawful.

The State Board of Education affirmed this decision of the Commissioner for the reasons set forth in his opinion. Hence this appeal.

We have reviewed the voluminous records of the various proceedings before the local board of education, the Commissioner and the State Board and we are satisfied that the evidence fully supports the finding that the teacher was guilty of conduct unbecoming a teacher, warranting disciplinary action.

However, in our opinion the Commissioner erred in failing to render an independent decision as to the penalty to be imposed based on the evidence before him and in permitting the local board to exercise this function. The Commissioner also erred in restricting his function to an appellate review as to whether the local board's determination was clearly unreasonable, arbitrary or unlawful. This restricted interpretation of the duties imposed upon him by the Tenure

Employees Hearing Act, we believe, resulted in prejudice to the rights of the appellant and requires that the matter be remanded to the Commissioner for decision as provided herein.


The Commissioner's referral of the matter back to the local board to decide whether the teacher should be dismissed or his salary reduced was based upon the view of the Department of Education that the Tenure Employees Hearing Act neither directed nor authorized him to decide this issue. The Department's contention is that N.J.S.A. 18:3-29 and R.S. 18:6-20 contain provisions that no teacher shall be appointed, transferred or dismissed except by a majority vote of the board, and that N.J.S.A. 18:3-29 confers no specific authorization on the Commissioner to impose a penalty.

The Tenure Employees Hearing Act, viewed as a whole, does not bear this narrow interpretation of his function. The legislative intent that the Commissioner shall hear and decide the entire controversy clearly appears from a brief review of its provisions and an examination of its historical background.

At the outset, the statute broadly ordains that all hearings on charges preferred against any employee of the board of education holding tenure of office, position or employment covered by Title 18, "Education," of the Revised Statutes shall be conducted in accordance with this act. N.J.S.A. 18:3-24. The board of education is authorized to make a preliminary determination that a written charge made in accordance with any provisions of Title 18 and the evidence in support of it would be sufficient in fact to warrant dismissal or a reduction in salary. N.J.S.A. 18:3-25. In such event, the board is directed to forward the charge to the Commissioner of Education, together with its certificate of such determination, and to serve a copy upon the employee. N.J.S.A. 18:3-25. The board may suspend the employee

so charged, with or without pay, pending a determination. N.J.S.A. 18:3-28.

Upon receipt of the charge and the board's certification, the statute directs that the Commissioner, or a person appointed to act in his behalf, "shall conduct a hearing thereon within a 60-day period." Such hearing is required to be conducted in accordance with rules and regulations promulgated by him and approved by the State Board of Education. Authority is conferred upon him to dismiss the charges before such hearing "on the grounds that they are not sufficient to warrant dismissal or reduction in salary." N.J.S.A. 18:3-29. Upon conducting such hearing, the Legislature directs that:

"The commissioner shall render a decision within 60 days after the close of the hearing on the charge against the employee." N.J.S.A. 18:3-29.

The Tenure Employees Hearing Act thus establishes an entirely new and comprehensive procedure for the resolution of all controversies involving charges against all tenure employees not subject to Civil Service under Title 18. It is designed to replace the removal and disciplinary procedure relating to various classes of employees long in force under a variety of provisions of the New Jersey School Laws: R.S. 18:13-17 (teachers); R.S. 18:5-51 (secretary, district clerk, secretarial personnel); R.S. 18:5-67 (janitors); R.S. 18:6-27 (secretary, superintendent of schools, business manager, other officers, agents and employees); R.S. 18:7-58 (principals and teachers); R.S. 18:14-64.1 (nurses).

Formerly all phases of the hearing and decision making function were performed by the local boards. The Commissioner reviewed such determinations on appeal pursuant to the general power conferred upon him to "decide * * * all controversies and disputes arising under the school laws." R.S. 18:3-14.

Now the Commissioner conducts the initial hearing and makes the decision. Indicative of the intention to vest finality of decision on all aspects of the charges is the power

given him to dismiss the charges before such hearing if he determines them to be insufficient in law. He is directed to render a decision on the charge within 60 days after the close of the hearing. A strict and precise timetable for the disposition of each stage of the proceeding represents legislative recognition of the importance of a prompt resolution of such disputes.

There is nothing in the new act which suggests the local boards were intended to retain any part of the jurisdiction which they formerly exercised in such controversies other than a preliminary review of the charge and the required certification to the Commissioner. Their participation in such proceedings is specifically confined to that limited function. Thus, the Legislature has transferred, from the local boards to the Commissioner, the duty of conducting the hearing and rendering a decision on the charge in the first instance. His jurisdiction in all such cases is no longer appellate but primary.

The pivotal words of the statute are that the Commissioner shall "conduct a hearing" on the charge and "render a decision." The requirement of a hearing has been held to mean the hearing of evidence and argument and judgment thereon. See In re Masiello, 25 N.J. 590, 600 (1958).

The legislative mandate to "render a decision * * * on the charge" implies a duty on his part to review the evidence and to resolve all issues necessary to a final determination. It means that the Commissioner must settle or determine the controversy by giving judgment. The imperative of "render[ing] a decision * * * on the charge" is not satisfied by a simple finding whether the charge is true in fact coupled with a statement of the maximum penalty such misconduct may warrant. To confine the Commissioner's function to this limited sphere would not only deprive him of a part of the decision-making function, it would also make his role a sterile one. The power to impose the penalty is necessary to make his hearing and decision meaningful. Common sense dictates that he must have and exercise the power to impose

the penalty gauged by the evidence before him at the hearing.

On the other hand, nothing in the statute suggests that the local boards were intended to retain that power. It contains no express language to that effect, or language from which any such intention can fairly be implied. Indeed, the fact that the Legislature saw fit to confer upon the local boards the power to make a preliminary review of the sufficiency of the charge and to spell out the scope of that review negates any intention of conferring any additional power upon them in the process.

The following comment of Justice Francis in In re Masiello, supra, concerning the authority conferred by R.S. 18:3-14 upon the Commissioner to decide controversies and disputes ...

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