On appeal from a Final Administrative Decision of the State Board of Education, No. 33-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Graves.
Thomas Wachendorf appeals from a final decision of the State Board of Education, pursuant to N.J.S.A. 18A:6-10, to dismiss him as a tenured teacher at Mountainview Correctional Facility for conduct unbecoming a public employee following his arrest for eluding, N.J.S.A. 2C:29-2b, resisting arrest, N.J.S.A. 2C:29-2a, and obstructing the administration of law, N.J.S.A. 2C:29-1, and his diversion into a county pre-trial intervention (PTI) program, which was successfully completed.
On appeal, Wachendorf argues that his conduct, on May 2, 2004, in failing to stop when directed by the police did not constitute eluding, and that his subsequent conduct upon arriving at his home and during his arrest did not constitute resisting arrest or obstructing the administration of law. Wachendorf argues further that the factual findings of the ALJ, rendered after a hearing and a review of the police videotape of the pursuit, were not sufficient to support the conclusion that Wachendorf's conduct was "unbecoming" and that the conduct constituted just cause for the termination of his employment.
The record includes, among other evidence, the testimony of two police officers, an independent witness employed as a Mercer County assistant prosecutor who observed substantially all of the relevant events, and a videotape of the police's pursuit of Wachendorf from the time that police lights and air horn were activated to Wachendorf's arrest. That evidence, credited by the administrative law judge who conducted a contested hearing in the matter, disclosed that, upon determining that Wachendorf was driving a vehicle that had not been registered for nine months, police officer Christopher DeWire determined to make a motor vehicle stop. However, Wachendorf did not heed the signal to pull over, but instead, continued driving, albeit within the speed limit, for a distance of approximately two miles, only stopping after turning into his driveway, continuing its full length, and reaching its end. The pursuit lasted for approximately five minutes, from three minutes and twenty seconds after ten o'clock in the morning, when the videotape was activated as DeWire turned on the police car's light bar, until eight minutes and eight seconds after ten, when the pursuit finally ended. At four minutes and three seconds after ten, DeWire activated his air horn, and at four minutes and ten seconds, he activated his siren. The siren, punctuated by the air horn, sounded continuously thereafter. Throughout much of the pursuit, the vehicle driven by DeWire was followed by a back-up, unmarked, vehicle, with activated wig-wag lights, driven by Sergeant Scott Crater. Crater's vehicle was followed by that of the assistant prosecutor, an independent observer who happened upon the scene and, upon determining that an eluding appeared to be in progress, offered to serve as a witness to the pursuit and arrest.
The route traveled consisted of country roads, punctuated by two stop signs. Wachendorf stopped at the first only after clearing the center of the intersection. He appropriately stopped at the second. During the course of the pursuit, two cars, proceeding in the opposite direction, pulled off the road to permit the police cars to pass. Wachendorf apparently disregarded the significance of the motorists' actions. Although the roads upon which Wachendorf traveled, in part, had a high crown and no shoulder, frequent driveways and other spaces existed at which he could have stopped with safety. Moreover, after turning into his lengthy gravel driveway, Wachendorf did not immediately stop, but instead proceeded its full length, a process requiring approximately one-half of a minute.
Once stopped, Wachendorf did not exit his vehicle as DeWire commanded on four separate occasions. After sitting for a period of time, and then slightly opening the door without exiting -- a period of essential inactivity spanning seventeen seconds -- Wachendorf was finally forceably removed from his car by DeWire and Crater as he attempted to lean in the opposite direction toward the car's passenger seat. Even after removal, Wachendorf resisted arrest, curling on his side in a fetal position on the ground and then vociferously objecting to police commands that he lie on his stomach. Force was required to secure Wachendorf with handcuffs.
Thereafter, Wachendorf resisted the police's attempt to place him in DeWire's cruiser, attempting to walk in a different direction, refusing to be placed in the vehicle and, once forceably seated, refusing to place his feet in the car. Wachendorf also declined to provide pedigree information, demanding throughout the arrest process to see his lawyer, who was allegedly inside the house. Wachendorf's lack of cooperation continued at the police station, where, among other things, he refused to identify his employer.
At the hearing, Wachendorf gave a different version of the events, claiming that he was unaware of the presence of the police until shortly before he arrived at his driveway, because his stereo, air conditioning and loud muffler blocked the noise of the siren, and because his rear-view mirror had been knocked out of alignment. He stated additionally that he was afraid, as the result of his prior (apparently valid) arrest by DeWire as the result of an outstanding motor vehicle infraction, to pull over until he reached the safety of his home, that he did not hear the police's command that he exit his car, but that after being pulled from it, he acted in an entirely cooperative and non-confrontational manner. Wachendorf's testimony, along with that of his corroborating witness, his brother, was not credited by the administrative law judge, who found the testimony to be incredible and inconsistent with evidence provided by the video.
At the time of the events in issue, Wachendorf was a tenured teacher I at the Mountainview Youth Correctional Facility, where he prepared students ranging in age from eighteen to thirty to take the GED exam. His eight-year record at the school was hitherto unblemished, as was a prior five-year period as a public school teacher in Newark.
In the course of his employment, Wachendorf had been provided with Department of Corrections Human Resources Bulletin 84-19, dated April 3, 2000, receipt of which he acknowledged. The bulletin required that: "Employees who are summoned, arrested or incarcerated as a result of a crime or an offense as defined by N.J.S.A. 2C: Criminal Justice Code of New Jersey, must advise their superior as soon as possible, but not more than 48 hours from the date of the summons, arrest or incarceration."
The hearing record indicates that the first notification to Mountainview of Wachendorf's arrest was received as the result of a call from the Readington police on May 10, eight days after the arrest occurred, although on May 3, the facility had been notified by Wachendorf's brother that Wachendorf was ill and would not be reporting to work, and it received further such daily notifications throughout the week of May 3. Wachendorf claimed that he was incapacitated as the result of injuries inflicted by the police in the course of the arrest,*fn1 but had instructed ...