On appeal from New Jersey State Board of Education.
Fritz and Polow. The opinion of the court was delivered by Fritz, P.J.A.D.
This is an appeal by a local education association (association) from a determination by the Commissioner of Education, affirmed by the State Board of Education on the opinion of the Commissioner, that a local board of education did not err in failing to certify certain disciplinary charges against a principal under N.J.S.A. 18A:6-11.
At the outset we observe that on this appeal the Association asks us to declare that the local board of education should not engage in factfinding under N.J.S.A. 18A:6-11 proceedings. We will not address this question because we are satisfied that it was not isolated below by the appellant sufficiently to be considered as an issue having been there raised. In its appeal to the Commissioner the Association merely complained that the local board "misapplied the standard required under the Statute." The parties conferred in the office of the Assistant Commissioner of Education in charge of controversies and disputes prior to consideration of the appeal. Certain agreements and stipulations were reached. An order was entered which spoke of the anticipated determination simply as one of "whether or not the [local] Board will be compelled to certify the tenure charges." It is true that the local board argued before the Commissioner in support of its "quasi-judicial evaluative function," and in his opinion the Commissioner discussed the charging
function of the local board at some length. But this discussion failed to zero in on the precise issue respecting factfinding by the local board and, more importantly, failed to recognize or comment upon the role such factfinding, if any, should play in the Commissioner's statutorily imposed hearing obligation.
The closest the opinion of the Commissioner came in regard to the question of a factfinding privilege in the local board was his view that in the light of the statutory history and In re Fulcomer, 93 N.J. Super. 404 (App.Div.1967), L. 1975, c. 304 had added a "new dimension" to the N.J.S.A. 18A:6-11 responsibility of local boards which now have "been granted certain discretionary parameters with respect to certifying tenure charges to the Commissioner which did not exist at the time of [ McCabe v. Brick Tp. Bd. of Ed., 1974 S.L.D. 299, aff'd Docket A-3192-73, New Jersey Superior Court, App.Div., April 2, 1975 (1975 S.L.D. 1073)]." We do not believe we should take on such a fundamental and important question without its having been addressed at the outset in the local board and thereafter precisely considered. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Jackson v. Muhlenberg Hospital, 53 N.J. 138, 141-142 (1969).
We turn to the substantive issues raised on this appeal. While a review of the teachers' complaints produces an intuitive repulsion, considering such events as an alleged course of four-letter word profanities and an admitted physical ejection of a teacher by the principal from his office, that is not the concern here. Simply enough, the problem implicates only questions expressly projected by the statute, N.J.S.A. 18A:6-11: (1) Is there probable cause to credit the evidence in support of the charge and (2) is such a charge, if credited, sufficient to warrant the dismissal of a tenured principal or a reduction of his salary? These are the questions which the local board should have answered. Whether it did and, if so, whether it did so properly is the question which the Commissioner was called on to decide by the appeal of the Association to him. Irrespective of whether the local board had a factfinding function, it was certainly
not theirs to decide any issues at that point except (1) and (2) above. Nor was it for the Commissioner then to determine the merits of the complaints. He does not do that until after a certification. N.J.S.A. 18A:6-16.
Our review is of the action of the Commissioner to see if he performed that duty correctly, for the appeal to us is from the action of the State Board which summarily affirmed the Commissioner.
We are satisfied that the Commissioner recognized the task set for him. He stated his obligation in terms of a purported determination by the local board, "that there was not probable cause to credit the evidence in support of [the] charges," a statement repeated at least twice in his opinion. The difficulty is that the conclusion of the Commissioner thereby implied revolves around a discussion of the limits, if any, of the local board's factfinding prerogative and nowhere addresses that which the local board in fact did. The Commissioner has supplied us with no findings at all to aid us in a review of whether he reasonably reached his conclusion that the local board determined there was not probable cause to credit the evidence. His further bare conclusion that the local board "did not abuse its discretionary authority as alleged" is also otherwise unsupported. Without such findings an intelligent assessment of the conclusionary statements of the Commissioner is impossible. Van Realty, Inc. v. Passaic, 117 N.J. Super. 425, 429 (App.Div.1971).
Nor does a "finding" that "two such charges have been cured by courts of competent jurisdiction" or that "remaining charges lacked the specificity and did not rise to the level of tenure charges" respond to the inquiry. Such "findings" do not relate to the local board's responsibility which is, as noted above, to determine if there is probable cause to credit the evidence and if so to warrant ...