Judges Skillman, Wecker and Lesemann.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Somerset County.
This appeal involves the procedures for obtaining an order for forfeiture of public employment based upon a criminal offense, when the issue of forfeiture was not raised at the time of conviction.
Defendant Neal Ercolano, a teacher in the Branchburg Central School, was charged in the Branchburg Municipal Court with committing an assault upon one of the school's students. At defendant's trial, the student, a sixth grader, testified that as he was returning to his study hall on January 18, 1996, he walked up behind a female student and said, "boo." Defendant, who observed the incident, called the student over to him, picked him up and pushed him against a wall. The student testified that his back "hurt" when this occurred, and that he was "scared" defendant was "going to hurt [him]." An assistant principal testified that the day after this incident, he had a meeting with the student, his mother and defendant. Defendant admitted at the meeting that he had picked up the student, but said that he was "just kidding with him." The assistant principal also testified that defendant acknowledged he should not have touched the student and said he was sorry about the incident. However, at his trial, defendant denied picking up the student and pushing him against a wall. Defendant asserted that the student had run into him and that, in reaction, he had grabbed the student by the arm, and that the boy's own "momentum carried him [into a] door."
Based on this evidence, the municipal court judge found that defendant had "grabbed the child and . . . pushed [him] against the wall, and that the child was placed in fear of bodily harm." Accordingly, the judge found defendant guilty of simple assault, in violation of N.J.S.A. 2C:12-1(a). The judge imposed a $100 fine and the statutorily mandated penalties and fees. However, the judge did not order the forfeiture of defendant's public employment. Defendant appealed his conviction to the Law Division, but later withdrew the appeal.
Shortly after defendant's conviction, the Branchburg Board of Education (the Board) filed a motion in the municipal court for an order declaring that defendant's employment with the Board had been forfeited pursuant to N.J.S.A. 2C:51-2. Defendant opposed the motion on the ground that the municipal court did not have jurisdiction to order the forfeiture of his tenured teaching position, and that the matter should instead be heard by the Commissioner of Education.
At that point, the Board filed tenure charges against defendant with the Commissioner and suspended him without pay.(1) The tenure charges were based solely on defendant's municipal court conviction. The Board claimed that as a result of that conviction, the forfeiture of defendant's employment was mandated by N.J.S.A. 2C:51-2(a)(2) or, in the alternative, even if that provision did not apply, forfeiture was still required because defendant's "conduct reflects so poorly on his fitness to remain an employee of the School District that his employment must be terminated." When the municipal court judge was informed that the Board had brought tenure charges, he deferred consideration of the Board's motion to declare a forfeiture of defendant's employment pending action by the Commissioner.
An Administrative Law Judge (ALJ) determined that defendant's conviction had resulted in a forfeiture of his teaching position. However, the Commissioner of Education concluded that he did not have the authority to declare a forfeiture of employment under N.J.S.A. 2C:51-2(g). Accordingly, he remanded the matter to the ALJ to consider the tenure charges under N.J.S.A. 18A:6-10 to 17.
The Board then renewed its municipal court motion seeking a forfeiture of defendant's employment. After reviewing the parties' written submissions and hearing argument, the municipal court judge concluded that defendant's conviction had resulted in a forfeiture. Accordingly, the judge entered an order declaring a forfeiture of defendant's employment with the Board, effective as of the date of his conviction.
Defendant appealed to the Law Division. After hearing oral argument, the Law Division judge reversed the order of forfeiture. The judge concluded that a local board of education does not have the authority to seek an order declaring that the employment of one of its teachers has been forfeited as a result of a criminal conviction. The judge also concluded that if a trial court fails to order a mandatory forfeiture of public employment at the time of conviction, and the issue of forfeiture is brought before the court by a subsequent application, the court has discretion whether to order forfeiture. In addition, the judge concluded that the municipal court should have afforded defendant an opportunity for an evidentiary hearing on the issue of whether his conviction "involve[d]" or "touch[ed]" his employment.
The Board appeals from the reversal of the order of forfeiture of defendant's teaching position.(2) We conclude that a forfeiture of public employment under N.J.S.A. 2C:51-2(a) is mandatory even if the trial court fails to order forfeiture at the time of conviction. We also conclude that if a trial court fails to order forfeiture of the employment of a person employed by a local board of education immediately upon conviction, the board may move for an order of forfeiture. In addition, we conclude that defendant's conviction for an assault upon a student during the school day clearly "involve[d]" or "touch[ed]" his employment, and thus there is no need for an evidentiary hearing to determine whether N.J.S.A. 2C:51-2(a) mandates the forfeiture. Finally, we conclude that a forfeiture of employment is effective as of the date a defendant is found guilty, which in this case was April 23, 1997. Accordingly, we reverse the order of the Law Division and reinstate the order of the municipal court declaring a forfeiture of defendant's employment.
N.J.S.A. 2C:51-2(a) provides in relevant part:
a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an ...