On appeal from a Final Determination of the State Board of Education and the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication January 30, 1996.
Before Judges King, Landau and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D. Landau, J.A.D., Dissenting.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by KLEINER, J.A.D.
By our order dated January 31, 1995, we consolidated these two separate but related appeals to consider whether criminal conduct ascribed to Paul Norman Bower, a tenured kindergarten teacher employed by the East Orange Board of Education, arose "out of and in the course of the performance of his duties," thus qualifying Bower for indemnification for legal fees and costs incurred in his defense of those criminal charges. For the first time we construe N.J.S.A. 18A:16-6.1, "Indemnity of officers and employees in certain criminal actions," in the context of a dismissal of criminal charges prior to a criminal trial.
The first appeal, A-6827-93T1, is from a decision of the State Board of Education denying Bower's petition seeking indemnification by the East Orange Board of Education for legal fees and costs incurred in his defense of indictments returned by the Essex County Grand Jury.
The second appeal, A-4836-93T1, is from a decision in the Law Division which granted summary judgment to plaintiffs, Bower and his attorneys Wills, O'Neill & Mellk, against defendant Board of Education of the City of East Orange on a complaint seeking a judgment indemnifying Bower for attorney's fees and costs in his defense of the same indictments.
We conclude that the charges against Bower arose "out of and in the course of his duties" as a kindergarten teacher and that Bower is therefore entitled to indemnification for legal fees and costs in his defense of the indictments. We reverse the decision of the State Board of Education that denied Bower indemnification. We affirm the decision of the Law Division that granted summary judgment to plaintiffs on their complaint seeking indemnification of Bower and the payment of his legal fees and costs.
On February 10, 1987, Bower was indicted on four counts of aggravated sexual assault in violation of N.J.S.A. 2C:14-2 and three counts of endangering the welfare of children in violation of N.J.S.A. 2C:24-4. Testimony before the grand jury from two children and their parents and a statement from a third child described incidents of sexual abuse by Bower. The incidents allegedly took place during school hours in a bathroom connected to Bower's classroom in the Ashland School. Each child was a student of Bower. The Board suspended Bower without pay on March 3, 1987.
On October 11, 1988, Judge Falcone dismissed the indictment without prejudice. The State's unpreparedness for trial occasioned the dismissal. Bower returned to work in a nonteaching assignment on October 17, 1988. On March 15, 1989, an Essex County grand jury returned a second indictment against Bower on the same charges. On March 20, 1989, the Board of Education again suspended Bower. Judge Hazelwood dismissed the second indictment with prejudice on July 3, 1990. *fn1
On March 30, 1989, prior to dismissal of the second indictment, Bower filed a petition with the Commissioner of Education seeking indemnification from the Board of his legal fees and costs incurred in defending against prosecution of the first indictment, pursuant to N.J.S.A. 18A:16-6.1. The Commissioner referred the matter to the Office of Administrative Law.
Following a hearing, the Administrative Law Judge filed a written decision recommending that the Commissioner deny Bower's request for $20,340.95 in legal fees. On the record before him, the A.L.J. was unable to determine whether the children allegedly abused were Bower's students and whether the alleged abuse took place on school property during school hours. Consequently, the A.L.J. determined that Bower could not establish the nexus required by N.J.S.A. 18A:16-6.1, that the conduct alleged in the charges against him arose "out of and in the course of the performance of [his] duties" as a teacher. Furthermore, the A.L.J. found that dismissal of the first indictment without prejudice was not a "final Disposition in favor" of Bower as required by N.J.S.A. 18A:16-6.1. The Commissioner of Education adopted the A.L.J.'s findings and dismissed the petition on August 10, 1990.
On August 14, 1990, Bower appealed the Commissioner's dismissal to the State Board of Education. As noted, the second indictment was dismissed on July 3, 1990. The State Board of Education remanded the matter to the A.L.J. for determination in light of the dismissal of the second indictment, instructing that
on remand, Petitioner has the burden of establishing 1) a nexus between the alleged conduct forming the basis of the charges and the performance of his duties in the district so as to support a finding that the criminal actions against him involved alleged acts or omissions arising out of and in the course of the performance of his duties, and 2) a favorable Disposition of the criminal charges.
On September 27, 1991, after considering a supplemented record, the A.L.J. again recommended that Bower's request for indemnification be denied. Although the A.L.J. concluded that the second dismissal constituted a final favorable Disposition, Bower was unable to satisfy the A.L.J. that the conduct alleged in the criminal charges arose "out of the performance of his duties as a teacher". The A.L.J. noted:
At most, the only thing that can be said is that Bower's accusers are his former students and that the locale of the alleged misconduct is on school property. None of the proofs supply the crucial element that the charges are connected with his teaching assignment or that Bower was engaged in carrying out his official duties.
The Commissioner adopted the A.L.J.'s recommendation on November 12, 1991, emphasizing that Bower failed to
explain why he was in the bathroom with any or all of the three boys in question. Neither is there any testimony or evidence proffered in this remand suggesting how his behavior in regard to any of these charges, or denial of same, is legitimately linked to his bona fide teaching responsibilities.
Bower again appealed to the State Board of Education. On August 4, 1994, the State Board affirmed the Commissioner's ruling. The State Board reemphasized that Bower failed to meet his "affirmative burden" of establishing the required nexus between the conduct out of which the charges arose and the performance of his duties as a teacher. The State Board stated:
The record, as supplemented on remand, indicates only that the alleged conduct occurred in a bathroom adjoining petitioner's kindergarten classroom. There is no indication in the record as to whether this facility was for the exclusive use of students or whether teachers also used the facility. . . . Nor is there anything to show that any of his teaching duties required that he accompany the students into the facility.
Bower filed a notice of appeal to this court on August 23, 1994.
On March 19, 1991, while Bower was pursuing his administrative remedy, Bower's attorneys filed suit on behalf of Bower and themselves in the Law Division, seeking a judgment of $41,024 in attorney fees and $2,500 for disbursements, representing the work done in defending Bower against both indictments. Judge Paley concluded that the criminal charges filed against Bower did, indeed, arise out of the performance of his duties because Bower's "involvement with those children was produced by his contact with them . . . as a teacher." On March 31, 1994, Judge Paley awarded $2,500 for disbursements and $30,000 for attorney fees to plaintiffs. *fn2
Bower claims entitlement to indemnification pursuant to N.J.S.A. 18A:16-6.1, which states:
Should any criminal action be instituted against any such person for any such act or omission and should such proceeding be dismissed or result in a final Disposition in favor of such person, the board of education shall reimburse him for the cost of defending such proceeding, including reasonable counsel fees and expenses of the original hearing or trial and all appeals.
The language of this provision refers back to and incorporates the requirements of N.J.S.A. 18A:16-6, governing indemnification in civil actions. Scirrotto v. Warren Hills Bd. of Educ., 272 N.J. Super. 391, 396, 640 A.2d 302 (App. Div. 1994). N.J.S.A. 18A:16-6 states:
Whenever any civil action has been or shall be brought against any person holding any office, position or employment under the jurisdiction of any board of education, including any student teacher or person assigned to other professional pre-teaching field experience, for any act or omission arising out of and in the course of the performance of the duties of such office, position, employment or student teaching or other assignment to professional field experience, the board shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save harmless and protect such ...