On appeal from State Board of Education.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Brody, J.A.D.
[194 NJSuper Page 494] This appeal requires us to consider the interplay between the doctrine of collateral estoppel and the evidence rule against hearsay. Appellant was dismissed from the position of tenured high school teacher in the Montclair school district. The State Board of Education (Board) determined that the dismissal was warranted under the Tenure Employees Hearing Law, N.J.S.A.
18A:6-10 et seq., because of "unbecoming conduct." The only evidence before the Board in support of the charges was appellant's conviction in the Superior Court*fn1 for being a disorderly person when he "repeatedly telephone[d] another for the purpose of annoying or molesting such person." N.J.S.A. 2A:170-29(4). The victim of the offense was appellant's principal.
N.J.S.A. 2C:51-2(a)(2) requires forfeiture of a public office or position if the holder "is convicted of an offense involving or touching such office, position or employment." The matter was referred to an Administrative Law Judge who summarily recommended dismissal under the forfeiture statute. The Board reversed because the offense occurred before the effective date of the forfeiture statute and remanded for a hearing. The Board said in its mandate:
[T]he sole purpose of the hearing will be to allow [appellant] to present mitigating facts and arguments as to whether under all the circumstances, [appellant] has been guilty of conduct unbecoming a teacher, and if so, what penalty should be imposed.
In its opinion the Board directed that appellant "should not be permitted to re-litigate the facts established by his trial and conviction in the Montclair Municipal Court; his guilt is res judicata."
Complying with the mandate of the Board, the Administrative Law Judge barred appellant from presenting evidence that he did not make the harassing telephone calls but received appellant's evidence in mitigation. Witnesses testified without contradiction to appellant's good character and teaching effectiveness both before and after*fn2 the conviction. The judge accepted
"the charge [of unbecoming conduct] as true" but found that it did not warrant dismissal. He assessed a penalty of eight months' salary. The Commissioner affirmed but the Board reversed and ordered dismissal. We affirm the Board in deference to its authority and judgment.
The Board found that "reinstatement of [appellant] to his teaching position would not be in the best interest of the students, who look to their teachers as role-models, would undermine the authority of the principal, who is the educational leader of the school, and would interfere with the harmonious operation of the educational process." Appellant argues that the Board erroneously gave preclusive effect to the conviction and that its action was not supported by substantial credible evidence.
Essentially appellant contends that the Board's action was inconsistent in that it first remanded for a hearing to determine in light of mitigating factors whether the charges were sustained and he should be dismissed, and then disregarded the mitigating factors and found that the conviction per se established the charges and warranted dismissal.
The Board was not inconsistent. In its first decision it determined that even though the conviction established appellant's guilt of the offense, the offense may or may not be "unbecoming conduct" warranting dismissal depending upon mitigating circumstances. In its second decision it concluded, in effect, that because appellant offered no evidence to mitigate the seriousness of the conduct underlying the offense, the offense alone warranted dismissal despite mitigating circumstances aliunde the offense. Appellant has consistently denied his guilt of the offense and therefore offered no explanation that would remove its ...