On appeal from Superior Court, Law Division, Mercer County.
Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.
Plaintiff Joseph C. Ott is employed as a tenured teacher in a local high school by the Board of Education of Hamilton Township (board). On October 6, 1977 he was arrested and charged with unlawful possession of over 25 grams of marijuana and under 5 grams of hashish in violation of N.J.S.A. 24:21-20(a) (4). Based upon this arrest he was on October 7, 1977 temporarily suspended with pay by the superintendent of schools pursuant to N.J.S.A. 18A:25-6 pending proceedings under N.J.S.A. 18A:6-10.
Accordingly, on October 19 the board filed and served a written charge of unbecoming conduct based upon the facts underlying the criminal complaint and arrest, together with a notice advising plaintiff of his right to file a sworn statement in opposition to the charge within 15 days. This notice also stated that upon the expiration of 15 days the board would determine within 45 days whether to certify the charges to the Commissioner of Education for a plenary disciplinary hearing to be held in accordance with the provisions of N.J.S.A. 18A:6-10 et seq. See In re Fulcomer , 93 N.J. Super. 404 (App. Div. 1967).
This notice evoked a response from plaintiff's attorney in which he posited a constitutional dilemma in that plaintiff had to choose between filing a sworn statement which might be used to incriminate him in connection with the pending criminal charges, and jeopardizing his tenured position by failing to file such a statement. He therefore requested that the proceeding preliminary to the filing of charges with the Commissioner of Education be suspended until the disposition of the criminal case, and that plaintiff's salary be paid during that period.
The board advised counsel that it would not suspend the disciplinary charge proceeding during the pendency of the criminal prosecution.
Thereupon plaintiff filed a complaint in lieu of prerogative writs in which he sought a judgment restraining the board
from certifying the charges to the Commissioner pending disposition of the criminal proceeding because of the alleged constitutional dilemma. On the return date of an order to show cause the matter was argued and the trial judge entered a judgment enjoining the board from certifying the charges to the Commissioner of Education until the criminal charge is disposed of. The judgment further provided that the board pay to plaintiff the established salary and benefits, subject to credit for any moneys earned by him in other employment in the interim. The board appeals from the whole of the judgment.
Preliminarily, we reject the argument of the board that the complaint in lieu of prerogative writs was improvidently filed because of plaintiff's failure to exhaust administrative remedies by appeal to the Commissioner of Education. Since the prime issue is purely a matter of law relating to asserted constitutional deprivation, there is no question requiring administrative expertise or discretion, and the doctrine of exhaustion of administrative remedies is not imperative. See Brunetti v. Borough of New Milford , 68 N.J. 576, 588-591 (1975); Matawan v. Monmouth Cty. Tax Bd. , 51 N.J. 291, 296-297 (1968).
The trial judge properly assumed jurisdiction. He then proceeded to equate the position of the accused teacher with that of the accused prisoner in Avant v. Clifford , 67 N.J. 496 (1975), and suggested that if plaintiff submitted a statement in conjunction with the disciplinary suspension proceeding he would be entitled to "use" immunity in a subsequent criminal prosecution. However, he recognized his lack of power to grant such immunity prior to the criminal trial. Nevertheless, in order to resolve the dilemma faced by plaintiff, he entered the order which is the subject of this appeal.
We reject plaintiff's contention that he is entitled to "use" immunity on federal constitutional grounds. His argument that the Fifth Amendment privilege against self-incrimination ...