Halpern, Matthews and Bischoff.
This is an appeal from a decision of the Commissioner of Education, affirmed by the State Board of Education, dismissing appellant, a tenured teacher, from her employment with the Brick Township Board of Education, effective on the date of her suspension by the local board of education on September 8, 1971. Appellant also appealed from the determination of the State Board of Education which reversed the decision of the Commissioner granting her compensation at her regular salary retroactively to the date of her suspension, under the provisions of N.J.S.A. 18A:6-14, as amended by L. 1971, c. 435, § 2, effective February 10, 1972.
Appellant became a member of the faculty in the Brick Township School District as a business education teacher in the high school in 1966. Her career was uneventful until 1970, when she became a member of the grievance committee of the Brick Township Education Association. During that period she apparently had some difficulties in her relationships
with the superintendent of schools. Appellant became president of the Education Association in April of 1971. The record shows that as of that date the local board of education had been dilatory in obligations to bargain collectively with the association and had refused to meet with the association for a period of 83 days. Efforts were then ongoing to negotiate a new bargaining agreement since the current agreement expired on June 30, 1971. Negotiations subsequently resumed, however, and a new agreement was successfully negotiated prior to the opening of the new school term in September 1971.
During the latter part of August 1971 appellant was invited by the school district administration, as the president of the Brick Township Education Association, to be one of the speakers at an orientation meeting to be held on September 1, 1971. A speech was given, and that speech, as delivered, generated the principal charges made against appellant by the local board of education. The undisputed evidence discloses that appellant used the occasion of the orientation meeting to speak against the school administration in general and against the superintendent of schools in particular. Rather than insert excerpts from the speech throughout this opinion, we have attached hereto, as an appendix, the speech delivered in its entirety.
As a result of the speech appellant was charged in ten written charges with conduct unbecoming a teacher, insubordination and conduct subversive of the discipline and morale of the school system. Her references to the dismissal of two nontenured teachers (Charge 1), the suspension of a fellow teacher (Charge 2), the removal of three books from the English curriculum (Charge 4), the lack of black teachers, and the characterization of the superintendent of schools as a villain (Charge 5) were alleged by the local board as conduct unbecoming a teacher. Her reference to the dismissal of the two nontenured teachers (Charge 1) was alleged as an instance of insubordination to the office of superintendent of
schools. Her references to the suspension of the fellow teacher (Charge 2), the claimed involvement of the superintendent of schools in local politics (Charge 3), the removal of books and the dearth of black faculty (Charge 4), her description of the school system as a "snakepit for young teachers" (Charge 6), her suggestion to nontenured teachers to refrain from any criticism until they have tenure (Charge 7), and her description of the district's hiring practices as a "callous economic gesture" (Charge 8) were alleged as instances of conduct subversive of the discipline and morale of the school system.
As a result of these charges appellant was suspended from her teaching duties on September 7, 1971, effective September 8, 1971. On the same date she gave a public apology for her orientation meeting speech of September 1, distributing copies of the speech to all who were present to hear her apology. After her suspension ten additional charges were preferred. In these charges appellant's actions as a tenured teacher and president of the Brick Township Education Association were alleged to represent an attitude of insubordination which foments disrespect for the office of superintendent and usurpation of administrative functions. A directive claimed to have been issued by appellant to the faculty urging them to refuse to comply with an administrative request to file letters with respect to individual teacher's intentions for the succeeding year; her public expression of concern that administrative vacancies existed; her suggestion that the faculty file letters of intent in language suggested by her; her letter questioning the dismissal of a nontenured teacher, authorship of a bulletin regarding this teacher and a letter directed to parents of students on the subject; and an association directive dealing with teachers' duties, were all cited for bases for this charge. (Charge 9 was found by the hearing officer to constitute a legal summation rather than a charge, thus requiring no defense.) The release of a news bulletin calling for arbitration of the nonrenewal of the contracts of two nontenured teachers (Charge 11), the
purported misrepresentation of the presence of the president of the board of education at a meeting between the superintendent and association representatives (Charge 12), the purported misrepresentation of the cancellation of a meeting requested by the New Jersey Education Association with the administration (Charge 13), and the reference to the superintendent of schools as "Carmen" rather than "Stephen" (Charge 14), were alleged in support of claimed insubordinate and vindictive conduct subversive of the discipline and morale of the school system. A disagreement over the insufficiency of a lesson plan and a reply of "shove it" to an observation by the subject supervisor that she was late for class (Charge 15) were alleged as instances of insubordination, refusal to accept administrative authority and conduct unbecoming a teacher. The claimed insincere apology for the September 1 speech made on September 7, 1971 (Charge 16) and an alleged statement of purpose to rid the school system of the superintendent (Charge 17) were alleged as indicia of a philosophy incompatible with the school system. The uttering of various "unladylike and unfeminine" remarks in places of public accommodation, such as, "elementary teachers have elementary minds," "C. Serpent Raciti," (referring to the superintendent, C. Stephen Raciti), "This paper is so poor it is not good enough to wipe my ass," "You son-of-a bitch, you did that on purpose," "Ding Dong Bell," "bald headed mental midget" and "bald-headed bastard," the latter three statements referring to board president, William Bell, were alleged as subversive of the discipline and morale of the school district (Charge 18). A bulletin critical of another teacher which was claimed to have been "enforced and/or condoned" by appellant was alleged as subversive and unbecoming conduct (Charge 19). Finally, a remark to another teacher in the course of a reprimand was alleged as an instance of interference with supervisory duties. (Charge 20).
Hearings before a hearing officer designated by the Commissioner of Education began on January 17, 1972 and concluded
on April 12, 1972. There was no dispute in the testimony adduced over the fact that the language complained of in the first eight charges was uttered by appellant. The hearing officer determined the question of fact to be whether the statements uttered and complained of were true in fact, and whether the orientation meeting was the proper forum for these remarks.
The hearing officer filed a detailed report with the Commissioner. For the purposes of this opinion, we find it necessary to give a brief summary of his conclusions. As to Charge 1 he found that there was no basis for appellant's statement that the two teachers were "fired," although this may be the common understanding and the practical effect of the action of the board of education on persons who may not be versed in the technical ramifications of school law. As to Charge 2, he made no specific findings of fact with respect to the core of the charge per se, finding solely that the subject of the incident was inappropriately raised by appellant. In reaching this conclusion the hearing officer makes the suggestion that the local board of education may have been culpable itself in handling the subject matter which was referred to by appellant. Charge 3, which related to alleged local political activity by the superintendent, was left by the hearing officer to the Commissioner's judgment as to whether the minor instances of political encounter found to have been indulged in by the superintendent were such as to be deleterious to his role as educational leader. He also left for the determination of the Commissioner whether appellant's inclusion of such allegations represented conduct unbecoming to a teacher in the public schools.
The hearing officer saw fit to break Charge 4 down into three subcharges: the first, that appellant attempted to usurp the authority of the board when she charged that it arbitrarily yanked books from the English curriculum; the second, the innuendo raised by appellant that the administration had a racist hiring policy; and the third, that the superintendent violated confidences of the grievance procedure.
The first subcharge was found to be without merit, and the hearing officer found that no evidence was presented at the hearing which confirmed even an inferred premise of racial discrimination by the board. As to the third subcharge, the hearing officer left the determination as to whether the orientation day ceremony was a proper forum for its expression, suggesting also that the Commissioner determine whether the pertinent part of appellant's speech was factually based in truth or in her belief. The hearing officer concluded that the assumptions and inference drawn by the local board in Charge 5 were unwarranted and that it was unjustifiable to conclude that appellant's use of the word "villain" was to be given its full Shakespearian connotation. Charge 6 was sustained, leaving to the Commissioner the question of the propriety of the words used as a part of the speech. Charge 7, which dealt with advice to nontenured teachers, was found by the hearing officer not to require a finding of fact but a value judgment by the Commissioner. The hearing officer found little factual support for Charge 8, which charged the respondent with seriously interfering with the administration of the school system, pointing out that there was no concrete evidence of any kind that the orientation day speech ever served as an "interference" per se with the school administration, or that new teachers resigned their positions because of it.
The hearing officer also reviewed the additional charges served on appellant subsequent to her suspension. He found that the activities of appellant were in fact as alleged in Charge 10, but the effect on the school district was left to the judgment of the Commissioner. Charge 11 was withdrawn by the board. The hearing officer found that in fact the president of the local board was an intruder in a meeting between the superintendent and the association and, therefore, recommended a dismissal of Charge 12.
The claim that the superintendent of schools dozed in court during proceedings, and the reference to him in a letter as "Carmen" were found to be of such minor consequence
that they need not be considered by the Commissioner as substantial evidence against appellant. Charge 15, which related to her relations with her subject supervisor, were ordered dismissed by the award of an arbitrator after the hearings, and the hearing officer's report thereon. The fact of the arbitrator's award and its contents were forwarded to the State Board of Education before it reviewed the Commissioner's determination. Because of the award, the State Board eliminated Charge 15 from consideration of the charges against appellant. We have not considered this charge in our review.
Charge 16, which alleged that the apology for the orientation day speech was insincere, was recommended to be dismissed. The hearing officer found in Charge 17 that appellant probably did say words to the effect that the superintendent has "got to go" in private conversation with the assistant superintendent of schools. He recommended, however, that all other inferences and facets of this charge be dismissed. In Charge 18 the hearing officer properly made no finding that the words attributed to appellant were "unfeminine" or "unladylike." He did find that appellant used the expressions "son-of-a-bitch" and "bald headed mental midget." Charge 19, which related to criticism of a fellow teacher, was recommended as dismissed for want of real evidence. The final charge, which dealt with the interference with the performance of a teacher's duty, was found to be undisputed since the supervisor involved admitted he had no authority to direct the teacher involved to perform the task assigned. The hearing officer left any final conclusion with the Commissioner.
The Commissioner, for the greater part, accepted the hearing officer's report. He found that the evidence sustained several charges against appellant which were of a sufficiently serious nature so as to warrant her dismissal. With certain specific exceptions, which he noted in his decision, he sustained the charges of the local board relating to the orientation day speech. He also upheld, with certain exceptions, the
charge that the speech contained untruths and distortions, and found that it constituted a derogatory personal indictment of the superintendent of schools which had been presented in the wrong forum and was patently unfair to him.
Certain of the charges unrelated to the orientation day subject were also sustained by the Commissioner. In this group of charges he determined Charges 10A, 10C, and 18D to be the most serious. The first of these charged that appellant, as president of the Education Association, had directed tenured teachers not to sign letters of intent which sought information as to whether those teachers plan to return to the school district for the fall semester. Charge 10C was related to Charge 10A since it charged that the letter in question interfered with the administrative rights and duties of the superintendent of schools. In sustaining these two charges the Commissioner found that appellant was guilty of insubordination and that her action, if followed by a majority of the tenured teachers, could have crippled the effective operation of the school district. Charge 18D involved the incident in which appellant called another teacher a son-of-a-bitch in the presence of students. The Commissioner reviewed a claim of provocation and found this incident to be evidence of conduct unbecoming a teacher.
It was the Commissioner's conclusion that the orientation day speech, standing alone, warranted appellant's dismissal from the Brick Township School District. It was the Commissioner's opinion that the constitutional obligation of local boards of education to provide a thorough and sufficient system of public education could not be carried out in an atmosphere of turmoil and conflict between school officials and employees. He stated:
When such an atmosphere clearly exists, as herein, and when the atmosphere was created by a teacher acting in a premeditated and calculated manner (the speech, p-1) the Commissioner believes that the tenure rights of the teacher are forfeit to the needs of the district as a whole for a cooperative effort in the education of ...