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In re Tenure Hearing of M. William Cowan

Decided: May 17, 1988.

IN THE MATTER OF THE TENURE HEARING OF M. WILLIAM COWAN, SCHOOL DISTRICT OF THE BOROUGH OF BERNARDSVILLE


On appeal from New Jersey State Board of Education.

Brody and Long. The opinion of the court was delivered by Brody, J.A.D.

Brody

Affirming the decision of the Commissioner of Education, the State Board of Education dismissed appellant, a tenured public high school music teacher employed by the Borough of Bernardsville School District, for "unbecoming conduct." N.J.S.A. 18A:6-10. Affirming the initial decision of an Administrative Law Judge, the Commissioner found that over the past ten years appellant had committed various acts of verbal and physical abuse of his students. The local board certified eleven charges of misconduct alleged to have occurred during the years 1974, 1975, 1980, 1982 and 1984; the Commissioner found that five of the charges were proved with a residuum of legal and competent evidence.

In this opinion we affirm the dismissal and approve the procedures used by the local board in processing the charges before sending them to the Commissioner for a hearing. We

also discuss the application of the residuum rule in disciplinary proceedings where the employee is charged with several acts of misconduct, and comment upon the substantial deficiencies in appellant's brief and appendix.

It appears from this voluminous record that appellant is an experienced, capable and generally well-liked teacher. Unfortunately, he has an uncontrollable temper that over the past ten years has led him to abuse his students verbally and physically. The local board was patient and supportive before becoming punitive. The school administration dealt with each incident by promptly confronting appellant with the allegations of misconduct, giving him an opportunity to explain, reprimanding him, denying him salary increments, affording him psychological counseling and finally, when all else had failed, forwarding to the Commissioner the charges that resulted in his dismissal.

I.

The local board withdrew one of four charges of misconduct alleged to have occurred in 1974. The Commissioner found that there was insufficient evidence to sustain two of the remaining charges but sustained the fourth, the charge that is the subject of our later discussion of the residuum rule. We note that three of the 1974 incidents had prompted the local board to withhold appellant's salary and adjustment increment for the 1975-76 school year. He did not appeal that sanction. The Commissioner dismissed charges of misconduct occurring in 1975 and 1982 for lack of a residuum of competent evidence. He sustained charges of misconduct occurring in 1975 and 1980, and sustained two separate charges of misconduct occurring in 1982. The final charge alleged that appellant had committed a fraud in 1984 that was unrelated to the misconduct alleged in the other charges. The Commissioner dismissed that charge for lack of evidence.

We reject appellant's contention that the earlier charges are too stale to be the basis for a finding of unbecoming

conduct. Appellant was informed contemporaneously of each instance of alleged misconduct. The local board's responses were measured, supportive, continuing and patient, until it finally realized that appellant's temper is uncontrollable. He could not have been surprised by the charges, nor could he have mistaken the local board's forbearance as acquiescence. Cf. West New York v. Bock, 38 N.J. 500, 522-523 (1962).

We are satisfied from a careful review of this extensive record that credible evidence supports the dismissal and that, except for those issues hereafter discussed, the issues raised are clearly without merit. R. 2:11-3(e)(1)(D) and (E).

II.

Appellant contends that in several respects the local board failed to follow the procedures prescribed by N.J.S.A. 18A:6-11 and N.J.S.A. 18A:6-13 for processing disciplinary charges against tenured public school employees. N.J.S.A. 18A:6-11 provides in relevant part:

Any charges made against any employee of a board of education under tenure during good behavior and efficiency shall be filed with the secretary of the board in writing, and a written statement of evidence under oath to support such charge shall be presented to the board. The board of education shall forthwith provide such employee with a copy of the charge, a copy of the statement of the evidence and an opportunity to submit a written statement of position and a written statement of evidence under oath with respect thereto. After consideration of the charge, statement of position and statements of evidence presented to it, the board shall determine by majority vote of its full membership whether there is probable cause to credit the evidence in support of the charge and whether such charge, if credited, is sufficient to warrant a dismissal or reduction of salary. . . . In the event the board finds that such probable cause exists and that the charge, if credited, is sufficient to warrant a dismissal or reduction of salary, then it shall forward such written charge to the commissioner for a hearing pursuant to N.J.S. 18A:6-16, together with a certificate of such determination. . . .

N.J.S.A. 18A:6-13 provides in relevant part:

If the board does not make such a determination within 45 days after receipt of the written charge . . . the charge shall be deemed to be dismissed and no further proceeding or action shall be taken thereon.

The secretary of the local board received the written charges on July 17, 1984, and served a copy of them upon appellant the next day, together with a letter advising him that he had "the right to file a responding written statement of position and a written statement of evidence under oath with the Board within fifteen (15) days of receipt of this letter." The board did not determine probable cause to dismiss until September 14, 1984. Read literally, N.J.S.A. 18A:6-13 had already deemed the charges dismissed on August 31, 1984, 45 days after the board secretary had received them.

The Commissioner and the State Board do not read the statute literally, however, in view of the Legislature's failure to adjust the 45-day limitation period to accommodate a 1975 amendment to N.J.S.A. 18A:6-11 that for the first time required the board to give an employee against whom charges have been filed an opportunity to respond before it considers whether there is probable cause to dismiss him or reduce his salary. L. 1975, c. 304, ยง 1.

Soon after adoption of the amendment, the Commissioner held that a local board secretary must serve a copy of the filed charges upon the employee within three days, and give him 15 days to file his statement of position and his statement of evidence in opposition. In the Matter of the Tenure Hearing of Marilyn Feitel, 1977 S.L.D. 451, aff'd by State Board of Education, 1977 S.L.D. 458. He ...


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