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In re Tenure Hearing of Dr. Richard E. Onorevole

Decided: July 21, 1986.

IN THE MATTER OF TENURE HEARING OF DR. RICHARD E. ONOREVOLE, SCHOOL DISTRICT OF THE TOWNSHIP OF WEEHAWKEN, HUDSON COUNTY


On appeal from the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.

Handler

[103 NJ Page 551] The question presented is whether an attorney who previously served as an administrative law judge in the Office of Administrative Law and had presided in a case involving particular parties should be disqualified from representing as a private attorney one of those parties in another but different contested case before the Office of Administrative Law. This question implicates a threshold issue whether an administrative law judge presiding over a contested case has the authority to

determine if an attorney should be disqualified on ethics grounds. The Appellate Division ruled that administrative law judges did not have authority to determine the ethics qualifications of attorneys appearing in contested cases in the Office of Administrative Law. It concluded, further, that the attorney in this case, by virtue of his involvement as an administrative law judge in a prior contested matter involving one of the parties, was disqualified from representing that party in the later contested matter in the Office of Administrative Law.

The procedural history discloses that the attorney who is the object of this litigation, Robert P. Glickman, was appointed an administrative law judge (ALJ) in the Office of Administrative Law (OAL) in July 1979. In August 1983, while serving in that position, he was assigned a budget appeal involving the Weehawken Board of Education in which the Board sought to have restored certain monies cut from its budget by the Weehawken Township Council.

The matter was referred to the OAL as a contested case. There were initial efforts to mediate the dispute. Glickman discussed the matter with representatives of each party, without the adversary party being present. Following negotiations, the budget appeal was settled and Glickman prepared an initial decision encompassing the settlement. The Commissioner of Education rejected the settlement, however, and remanded the controversy to Glickman. In February 1984, Glickman rendered a decision enforcing the settlement but the Commissioner again, in March 1984, remanded the matter to the OAL. However, the matter was placed on the inactive list; in September 1984, it was withdrawn, and in December 1984, dismissed.

On April 1, 1985, Glickman resigned as an administrative law judge and entered the private practice of law. He was retained by the Board to investigate and bring tenure charges against its Superintendent, Dr. Richard E. Onorevole, which charges were filed with the State Commissioner of Education in July 1985, pursuant to N.J.S.A. 18A:6-11. The matter was transferred

pursuant to N.J.S.A. 52:14F-1 to the OAL as a contested case. On October 2, 1985, Onorevole's attorneys moved to have Glickman disqualified from the case, claiming that Glickman's role as the presiding ALJ in the earlier budget appeal involving the Weehawken Board of Education created a conflict of interest and the appearance of impropriety.

Glickman asserts that Onorevole himself was not a party to the earlier proceeding, and further that he did not receive any information from Onorevole as a witness in that matter. Onorevole claims that he appeared before Glickman as a member of the Board of Education and as a witness on its behalf and that he testified "candidly and without reservation," although he acknowledges that his formal testimony was not taken. The record does not inform us further as to the specific issues in the prior budget contest or the nature and extent of Onorevole's participation.

On October 15, 1985, the administrative law judge denied the motion for disqualification, finding that no conflict of interest existed and that no appearance of impropriety was created. Onorevole then moved to file an interlocutory appeal to the Appellate Division pursuant to Rule 2:2-4. The Appellate Division granted leave to appeal, reversed the order of the administrative law judge, and issued a summary decision that disqualified Glickman from representing the school district as special attorney in the tenure proceedings. The OAL then moved before this Court, as did the Board of Education, for leave to appeal from the Appellate Division judgment. We granted the motions for leave to appeal, but declined to dispose of the matter summarily. During the pendency of the appeal Glickman has been removed as special counsel for the Board, which is being represented by its regular attorney. Further, the ALJ, pursuant to statute, N.J.S.A. 18A:6-14, has reinstated Onorevole's salary as of December 23, 1985, the disposition of the matter not having occurred within 120 days.

I.

The first issue we consider is whether there is authority in the Office of Administrative Law to determine the qualifications of attorneys to appear before it in contested cases. We look to general principles of administrative agency practice, to the statutory standards that govern the Office of Administrative Law, and to the constitutional and regulatory authority of the courts to control the practice of law.

As a general proposition, it is recognized that there is inherent authority in a judicial or adjudicative tribunal to prescribe procedures governing practice and to establish standards concerning the qualifications and conduct of persons appearing before it. E.g., State v. Kavanaugh, 52 N.J. 7, cert. den. sub nom. Matzner v. New Jersey, 393 U.S. 924, 89 S. Ct. 254, 21 L. Ed. 2d 259 (1968); Goodwin Motor Corp v. Mercedes-Benz of North America Inc., 172 N.J. Super. 263, 274 (App.Div.1980); see Cohen v. Hurley, 366 U.S. 117, 123-24, 81 S. Ct. 954, 958, 6 L. Ed. 2d 156, 162 (1961), overruled on other grounds, Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967); Elder v. Metropolitan Freight Carriers, 543 F.2d 513, 518 (3d Cir.1976). Standards governing professional eligibility to appear before a tribunal or court include those that prescribe the ethics qualifications of an attorney; and it is generally accepted that an issue as to an attorney's ethical status or qualifications in a particular case is best addressed in the first instance by the tribunal or court before which he or she seeks to appear. See Wicks v. Central Ry. Company of New Jersey, 61 N.J. 553 (1972); Gray v. Commercial Union Ins. Co., 191 N.J. Super. 590 (App.Div.1983).

Although an administrative agency, such as the OAL, is not a "court" in the true or literal sense of the term, many principles and rules that govern judicial proceedings and determinations can be applied to an agency's quasi-judicial or adjudicative functions. Judicial rules of procedure and practice are transferable to administrative agencies when these are conducive

to ensuring fairness, independence, integrity, and efficiency in administrative adjudications. Hackensack v. Winner, 82 N.J. 1, 28-29 (1980). It is therefore reasonable to conclude that an administrative agency that otherwise has the power to prescribe and enforce its own rules of practice and procedure can, within the limitations imposed by paramount judicial authority and its own enabling statute, formulate and enforce standards relating to the ethics qualifications of attorneys before it.

The standards governing the ethics disqualification of attorneys appearing before a tribunal clearly pertain to the rules that generally control agency procedure and practice. The resolution of particular questions as to an attorney's possible ethics disqualifications has an impact on the quality of the agency's performance and implicates the statutory responsibilities of the agency. Such questions, and their appropriate resolution, therefore, transcend the ...


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