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Bower v. Board of Educ. of City of East Orange

June 10, 1997

PAUL NORMAN BOWER AND WILLS O'NEILL & MELLK, PLAINTIFFS-RESPONDENTS,
v.
BOARD OF EDUCATION OF THE CITY OF EAST ORANGE, DEFENDANT-APPELLANT. PAUL NORMAN BOWER, PETITIONER-RESPONDENT, V. BOARD OF EDUCATION OF THE CITY OF EAST ORANGE, RESPONDENT-APPELLANT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at: 287 N.J. Super. 15 (1996).

The opinion of the Court was delivered by Stein, J. Justices Handler, Pollock and O'hern join in Justice STEIN's opinion. Justice Garibaldi filed a separate Dissenting opinion in which Chief Justice Poritz and Justice Coleman join. Garibaldi, J., Dissenting.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Paul Norman Bower and Wills O'Neill & Mellk v. Board of Education of the City of East Orange

(A-88/89-96)

Argued January 22, 1997 -- Decided June 10, 1997

STEIN, J., writing for a majority of the Court.

This appeal concerns the right of Paul Bower, a public school kindergarten teacher indicted on various charges alleging that he sexually abused three of his pupils during the school day and on school premises, to indemnification from the East Orange Board of Education for his legal expenses after all charges against him were dismissed.

On February 10, 1987, Bower, now deceased, was indicted on four counts of aggravated sexual assault and three counts of endangering the welfare of children. Testimony from the children and their parents before the grand jury indicated that the incidents took place in a bathroom connected to Bower's kindergarten classroom in the Ashland School. Each child involved in the incidents was a student of Bower. Bower was suspended without pay on March 3, 1987.

On October 11, 1988, Judge Falcone dismissed the indictment without prejudice due to the State's unpreparedness for trial. Thereafter, on March 15, 1989, an Essex County grand jury returned a second indictment against Bower on the same charges. Judge Hazelwood dismissed the second indictment with prejudice on July 3, 1990. Both dismissals occurred prior to trial and, therefore, prior to the presentation of any evidence or testimony concerning the relationship of the alleged acts to the duties of Bower's employment.

Prior to the 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 statute"), which the Commissioner referred to the Office of Administrative Law. Following a hearing, the Administrative Law Judge (ALJ) filed a written decision recommending that the Commissioner deny Bower's request for legal fees because Bower could not establish, on the record before him, that the conduct alleged in the charges arose "out of and in the course of the performance of [his] duties"as a teacher, as required by the statute and, further, because the dismissal of the first indictment without prejudice did not constitute a "final Disposition in favor" of Bower, as also required by the statute. The Commissioner adopted the ALJ's findings and dismissed the petition.

By the time Bower appealed the Commissioner's dismissal to the State Board of Education, the second indictment had been dismissed with prejudice. Therefore, the State Board of Education remanded the matter to the ALJ for determination in light of that second dismissal, instructing that, on remand, Bower had the burden of establishing both a nexus between the alleged conduct and the performance of his duties and a favorable Disposition of the criminal charges. After considering a supplemental record, the ALJ again recommended the denial of Bower's request for indemnification because Bower was unable to establish that the conduct alleged in the criminal charges arose "out of the performance of his duties as a teacher." The Commissioner adopted the ALJ's recommendation, emphasizing that Bower had failed to explain why he was in the bathroom with any or all of the three boys in question and further noting the absence of any proof suggesting how his behavior was legitimately linked to his bona fide teaching responsibilities.

Bower again appealed to the State Board of Education, which affirmed the Commissioner's ruling. The State Board reemphasized that Bower had filed to meet his "affirmative burden" of establishing a relationship between the conduct alleged and the performance of his duties as a teacher. Thereafter, while Bower was pursuing his administrative remedies, Bower's attorneys filed suit in behalf of Bower and themselves in the Law Division, seeking a judgment for attorney fees and disbursements, representing the work done in defending Bower against both indictments. The Law Division Judge concluded that the criminal charges indeed had arisen out of the performance of Bower's duties because his involvement with the children was produced by his contact with them as a teacher. The Judge, therefore, awarded both the attorney fees and disbursements.

By a divided panel, the Appellate Division reversed the judgment of the State Board and affirmed the judgment of the Law Division. East Orange and the State Board appealed to the Supreme Court as of right.

HELD: The criminal indemnification statute for board-of-education employees requires mere proof by a preponderance of the evidence that the acts on which the criminal charges are predicated arose out of and in the course of performance of the duties of employment and the imposition of proof requirements specific to Bower's claim in the adjudicatory proceeding instituted by Bower was impermissible.

1.N.J.S.A. 18A:16-6.1 prescribes a two-part standard for determining whether board-of-education employees are entitled to indemnification of counsel fees and expenses incurred in the defense of criminal charges. (pp. 8-9)

2. The handful of published opinions that have implicated the criminal indemnification statute applicable to board-of-education employees shed little light on the issue of whether the conduct alleged arose out of and in the course of the performance of Bower's duties as a teacher. (pp. 9-14)

3. Although the Legislature has amended the indemnification statute applicable to police officers in response to Supreme Court decisions finding coverage in certain police actions, it has not seen fit to do so in the criminal indemnification statute applicable to board-of-education employees. (pp.14-19)

4. In the absence of any contradictory evidence in the administrative proceeding, dismissal of the indictment requires the assumption that Bower committed no acts other than to perform his duties as a kindergarten teacher, and the inference is compelling that Bower's indictment was premised on acts arising out of and directly related to the lawful exercise of his official duties. (pp. 19-20)

5. The Board's supplementary requirement that specific testimony be presented by the claimant that rebuts the charges or explains their specific relationship to the claimant's performance of his assigned duties is absent from the statute and has not been imposed by an administrative regulation adopted to supplement or clarify the statutory requirements for indemnification. (pp.20-22)

6. The State Board may adopt regulations consistent with the statute to more effectively implement the requisite burden of proof required to carry out the legislative will. (p. 24)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE GARIBALDI filed a separate Dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join. Essentially, Justice Garibaldi disagreed with the majority's Conclusion that Bower and his attorneys had met their burden of proving that the alleged conduct underlying the criminal charges arose out of and in the course of the performance of Bower's duties as a teacher, rather than merely in the course of employment. Justice Garibaldi further viewed the majority's opinion as having created a new standard whereby it will be presumed that a dismissed indictment of a teacher seeking indemnification was premised on acts arising out of and directly related to the performance of his or her duties as a teacher.

JUSTICES HANDLER, POLLOCK and O'HERN join in JUSTICE STEIN's opinion. JUSTICE GARIBALDI filed a separate Dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join.

The opinion of the Court was delivered by

STEIN, J.

This appeal concerns the right of Paul Bower *fn1, a public school teacher indicted on various charges alleging that he sexually abused three of his pupils during the school day and on school premises, to indemnification from the East Orange Board of Education for his legal expenses after all charges against him were dismissed. The relevant statutes, N.J.S.A. 18A:16-6 and

-6.1, provide that indemnification is mandatory if the charges are dismissed or result in a favorable final Disposition and if the "act or omission" on which the criminal charges are predicated arises out of and in the course of the performance of the duties of employment.

The criminal charges having been dismissed before trial, no evidence was adduced in the criminal proceeding, or in the civil proceedings seeking indemnification, concerning whether any predicate acts or omissions (aside from Bower's daily presence in his classroom) had occurred that could serve as the basis for establishing the second prong of the statutory test for indemnification, that the act or omission arose out of and in the course of the duties of employment.

The parties to this appeal agree that the second prong of the statute should not be tested against the alleged acts of sexual abuse, because such an application of the statute would deny indemnification to any school employee forced to incur legal expenses in the successful defense of false charges of criminal conduct that, if true, could not possibly have occurred in the course of performance of the duties of employment. Bower contends that because no "act or omission" has been proved, the criminal charges must necessarily be understood to have arisen solely because of and in the course of his employment as a teacher. The East Orange Board of Education (East Orange) and the New Jersey State Board of Education (State Board) both contend that Bower bears an additional burden of refuting or explaining the charges against him to an extent sufficient to verify that he satisfies the statutory test.

Bower's administrative appeal from East Orange's denial of indemnification resulted in a State Board decision affirming that denial on the basis of Bower's failure to satisfy the statutory criteria. A separate proceeding instituted in the Law Division by Bower's attorneys resulted in a judgment granting indemnification to the extent of $30,000 in attorney fees and $2,500 in disbursements. (Although the question is not raised, the Law Division action should have been dismissed because the Commissioner of Education has primary jurisdiction to hear and determine all controversies arising under the school laws. N.J.S.A. 18A:6-9; see Dore v. Board of Educ., 185 N.J. Super. 447, 452, 449 A.2d 547 (App. Div. 1982)). The Appellate Division consolidated the appeals, and in a published opinion, 287 N.J. Super. 15, 670 A.2d 106(1996), a divided panel of that court reversed the judgment of the State Board and affirmed the judgment of the Law Division. Id. at 33. East Orange and the State Board appeal as of right. R. 2:2-1(a)(2).

I

The Appellate Division's majority opinion contains a thorough summary of the facts and procedural history underlying this appeal:

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 non-teaching 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.

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 ...


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