On appeal from the decision of the New Jersey State Board of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued via Telephone Conference -- February 1, 2007
Before Judges A. A. Rodríguez and Sabatino.
Stephen Fox (appellant), a tenured music teacher formerly employed by the New Providence Board of Education (New Providence Board), appeals from the May 5, 2006 final decision of the New Jersey State Board of Education (SBE) revoking his teaching certificate. Appellant admitted to kissing J.F., a male student. He does not dispute the allegation of an improper personal relationship with that student, but contends that he was entitled to a hearing before the Office of Administrative Law (OAL) in order to present mitigating evidence. We reverse and remand to the SBE.
The facts are not disputed. On September 1, 1993, appellant was hired by the New Providence Board. Since the 1995-96 school year, he also served as the chairman of the music department, and choir director for the middle and high schools. Appellant first met J.F. when the student joined the school choir. J.F. started confiding to appellant that he was struggling with his sexual orientation and had a difficult home life.
During the 2001-02 school year, J.F. was the victim of ongoing sexual abuse by P.B., a thirty-nine year old man, who is not connected with the school system. In the winter of 2002, Scott Brogan, the director of color guards at New Providence High School, learned from a student that J.F. thought that he was in "big trouble" and did not know what to do. Brogan met with J.F., but the youngster would not confide in him. Brogan suggested that J.F. speak with appellant.
In April 2002, while appellant was working at the school's music library, J.F. came to see him. The two began conversation. Appellant admits that during the conversation, he hugged and kissed J.F. on the mouth. According to appellant, he and J.F. had little to no contact since that one occurrence.
In August 2002, Brogan learned of the sexual abuse perpetrated by P.B. against J.F., and reported the incident to the police. J.F. was initially reluctant, but eventually did give a statement to the police. P.B. was arrested and charged. The other students at the school learned about the molestation and began taunting and teasing J.F.
In September 2002, appellant confessed to Brogan that he had kissed J.F. and was feeling very guilty about it. Brogan asked J.F. if he wanted him to report the incident. J.F. asked him not to do it because he did not want to go through the same thing as with the arrest of P.B. However, in August 2003, P.B. entered into a plea agreement that required him to reveal the names of any other adults that had inappropriate contact with J.F. P.B. named appellant. Because of this revelation, Brogan determined that he could not remain silent about what he knew. Brogan reported appellant's admission to Michael Niedziejko, acting head of the music department, at New Providence High School. Niedziejko disclosed this information to Deborah Feinberg, the principal of New Providence High School. As a result, Scott Pepper, Assistant Superintendent of Schools, investigated the matter for the BOE. Pepper interviewed appellant in the presence of a union representative. Appellant admitted to Pepper that he had kissed J.F. Pepper met with J.F., J.F.'s father, Feinberg, and J.F.'s therapist. During this interview, J.F. recounted the incident with appellant.
J.F. stated that he did not report the incident earlier because he believed that nothing would happen to appellant because appellant was considered an "icon" in the school.
In July 2004, the New Providence Board certified tenure charges against appellant, with the Commissioner of Education (Commissioner) pursuant to N.J.S.A. 18A:6-10(a). Appellant answered the charges. The Commissioner transmitted the matter to the OAL as a contested matter for a fact-finding hearing.
Administrative Law Judge (ALJ) Edith Klinger, presided at the evidentiary hearing on the tenure matter. Appellant testified and admitted kissing J.F. on the mouth at a time when he was acting as a teacher and counselor. Upon kissing J.F., he "suddenly realized that what happened was absolutely wrong and pulled away." Appellant provided documentary mitigating evidence consisting of: classroom observation reports, annual performance evaluations and numerous letters from students, families, and the community applauding his outstanding contributions and teaching abilities.
The ALJ issued an initial decision, finding that appellant had engaged in inappropriate physical contact with J.F., a student, and it was sufficiently egregious to warrant appellant's termination from employment by the New Providence Board. The ALJ concluded that, not only did appellant's conduct violate the school's sexual harassment policy, but also further exacerbated J.F.'s personal and psychological harm. She also concluded that ...