On appeal from the Institutional Abuse Investigate Unit, New Jersey Department of Human Services, Docket No. 05-1675.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Messano.
L.K., a teacher in the Wayne Public Schools ("the District"), appeals from the issuance of letters embodying findings by the Institutional Abuse Investigation Unit of the Department of Human Services ("IAIU"). IAIU found that the charges against appellant were "unfounded," but nevertheless issued a report to her employing school district that included findings that she made physical contact with a student and that her conduct was "unjustified and inappropriate[,]" "plac[ing] the child at some risk of harm." Appellant also challenges the IAIU's inclusion of recommendations for "Corrective/Disciplinary Action" in its letter to the District and IAIU's failure to send appellant a copy of that September 7, 2005 letter report. The corresponding letter sent to appellant on the same date failed to include any mention of those findings or recommendations. Appellant argues that "the practices and procedures utilized by the IAIU in this matter constitute a violation of due process and the principles of fundamental fairness which have previously been mandated by this court[,]" "the findings of the IAIU improperly include remedial requirements[,]" and "the conclusions reached by IAIU must be stricken as ultra vires[,]  because they are not supported by substantial evidence in the record."
Appellant complains that merely stating that a report is "investigative" and not "adjudicatory[,]" is a "subterfuge  belied by the fact that the actual factual conclusions declare appellant guilty of 'unjustified and inappropriate conduct.'" She further contends that because investigative findings were reported and recommendations made, IAIU must be compelled by us to (1) provide appellant with copies of all reports and letters it authored concerning the matter, (2) cease the practice of issuing interim reports in the absence of findings of abuse or neglect that warrant those letters, pursuant to N.J.A.C. 10:129-5.3(a), (3) cease the practice of including findings of the truth of allegations when the there was a conclusion that the charges of abuse or neglect were "unfounded," (4) "cease the practice of specifying remedial actions to be taken by an employer child care agency in the context of an unfounded finding and include an express statement that the child care agency is not required to comply with any of IAIU's remedial recommendations in such a case," (5) "[e]xclude all recommendations of discipline in the context of an unfounded finding as to the allegations against a school employee[,]" and (6) "[r]ecall and destroy" the September 7, 2002 letters sent to the District, County, and State and "re-issue" the report, and (7) destroy the August 22, 2005 interim report.
The State contends that, as the purpose of IAIU is to protect students and not to punish teachers, there was no due process violation, because no consequences flow from the letters. Any action taken in response to IAIU's letter by the local board of education would be subject to the due process and contract rights incident to that action. The State further suggests that what is recommended need not be told to the teacher, because it is "confidential," only a recommendation, and constitutional rights are not implicated because no adverse consequences can flow from the letter itself.*fn1
The first IAIU letter in question is the "interim status report" of August 22, 2005 to the District, which stated the investigation was ongoing but added that, while the student did not "sustain any injuries[,]" appellant's actions "were unjustified and inappropriate." The report "raised concerns about [appellant's] judgment and ability to successfully de-escalate situations involving students." A recommendation for administrative counseling and training, along with monitoring of appellant, was included.
The final report was embodied in three separate letters marked "confidential," dated September 7, 2005. Each had the same "Investigative Finding[,]" but contained a different "Evaluation of Facts" section and added additional statements to certain addressees.
The letter to the student's father included the "Investigative Finding" that the charge of "[p]hysical abuse was unfounded," that "no adjudicative findings have been made," and that "IAIU's review herein is solely investigative." However, following the "Investigative Finding," in the "[e]valuation of [f]acts[,]" it also stated that "concerns regarding the actions of the teacher" were noted to the District and County authorities. A copy of that letter was sent to the Chief Administrator of the Wayne School District but not to appellant.
The "confidential" letter to appellant contained an identical "Investigative Finding," and an "Evaluation of Facts" which stated that "[t]he results of the investigation do not support that physical abuse occurred; however, some information obtained during the investigation raised concerns regarding your actions." It advised that "[t]he district administration has been notified of this finding." The letter thereafter noted that, in the absence of certain developments, the findings and records associated with the matter "shall be expunged" in three years. The Chief Administrator of the Wayne Public Schools was also copied on the letter.
A third "confidential" letter of September 7, 2005 was sent directly to the Chief School Administrator of the Wayne Public Schools with copies to County school officials and the State's Office of the Child Advocate. It contained the identical "Investigative Finding" but included a significantly more developed "evaluation of facts." It noted the student was the aggressor, but that appellant "escalate[d]" the matter until "the student became assaultive." It stated that appellant "grabbed" the student's "ponytail quickly at the same time as [the student] was trying to move away and as a result, the student fell to the floor." It also noted that "[t]he actions of [appellant] were unjustified and inappropriate. Her actions placed the child at some risk of harm; however, those actions did not meet the statutory requirement to find abuse." Nevertheless, the IAIU made "Recommendations for Corrective/ Disciplinary action," including "administrative counseling," "mandatory training/re-training in behavior management and identification techniques" and "close monitor[ing] . . . to assess progress."
Upon receipt of an allegation of child abuse or neglect, the Division of Youth and Family Services ("DYFS") is charged with "tak[ing] such action as shall be necessary to insure the safety of the child[.]" N.J.S.A. 9:6-8.11. See also N.J.S.A. 18A:6-7a. In the investigation process, "[t]he primary concern of all public agencies involved with child abuse and ...