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In re Revocation of the Teaching Certificate of Stephen Fox By The State Board of Examiners

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 29, 2007

IN THE MATTER OF THE REVOCATION OF THE TEACHING CERTIFICATE OF STEPHEN FOX BY THE STATE BOARD OF EXAMINERS

On appeal from the decision of the New Jersey State Board of Education.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 the severity of the one occurrence outweighed appellant's otherwise perfect reputation and teaching abilities.

The Commissioner adopted the ALJ's findings and recommendations and ordered appellant dismissed from his tenured teaching position at New Providence. The Commissioner also referred the matter to the New Jersey Board of Examiners (Examiners) for action with regard to appellant's state-issued teaching certificate.

The Examiners issued an order to show cause as to why appellant's Teacher of Music Certificate should be revoked or suspended. Appellant answered the order to show cause. The Examiners informed appellant that the matter would be decided on the papers and that no hearing would be provided, for the following reasons:

After a review of the Answer, it appears that no material facts are in dispute.

Therefore, the [Examiners] intend[] to hear the matter directly based on written arguments and any documents, certifications, or affidavits you submit.

Appellant filed a brief, objecting to the Examiners' denial of a hearing and argued that he had a right to be heard, pursuant to N.J.S.A. 52:14B-11, before his teaching certification could be permanently revoked.

Without granting a hearing, the Examiners issued an order permanently revoking appellant's teaching certificate. Appellant challenged the order of revocation to the SBE. The SBE requested that appellant submit evidence that would warrant mitigation of the penalty imposed by the Examiners. Appellant submitted specific mitigating evidence. The Examiners submitted a statement in response.

The SBE upheld the decision of the Examiners, acknowledging that appellant had an outstanding teaching record and that it was undisputed that he was held in high esteem within the community. However, the SBE held that even taking into consideration appellant's mitigating evidence, revocation of his teaching certificate was the only appropriate remedy due to the fact that his conduct "as established in the tenure proceedings was of such character and seriousness as to unequivocally demonstrate his unfitness to teach." The SBE reasoned further that, "the record clearly shows that appellant's conduct further damaged a student who, as he knew, already had serious emotional problems."

This appeal follows. Appellant challenges the Examiners' decision contending that pursuant to N.J.S.A. 52:14B-11, "and well-established case law [he] is entitled to a hearing at the [OAL] before his teaching certificate is suspended or revoked." Specifically, he argues that the revocation of his license was excessive and that he should have been able to present mitigating evidence to an independent factfinder to show that a suspension, rather than a permanent revocation is the appropriate sanction. Appellant also contends that the SBE "has violated N.J.S.A. 52:14B-11 by affirming the revocation of [his] teaching certificate without a hearing." We agree that Fox is entitled to a hearing at the OAL, even if the only issue being contested is the sanction.

Pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, a holder of a professional license is entitled to present evidence to show that his license should not be revoked. N.J.S.A. 52:14B-11 provides in pertinent part:

No agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for hearing in conformity with the provisions of this act applicable to contested cases.

[Ibid.; In re Fanelli, 174 N.J. 165, 172 (2002).]

In addition, N.J.S.A. 52:14B-9c provides that, "[o]pportunity shall be afforded all parties to respond, appear and present evidence and argument on all issues involved." Fanelli, supra, 174 N.J. at 173. Here, because appellant's conduct was admitted, the only issue left for determination is whether such conduct warrants suspension or revocation of a license, N.J.A.C. 6A:9-17.5. For the reasons expressed herein, we conclude that the sanction is an "issue involved" within the meaning of N.J.S.A. 52:14B-9c, and therefore, appellant is entitled to present evidence in mitigation of the revocation sanction.

In Fanelli, the New Jersey State Board of Medical Examiners revoked the appellant's license without a hearing, reasoning that the appellant did not show that the adjudicative facts were contested. Fanelli, supra, 174 N.J. at 174. The Supreme Court reversed our affirmance of the Board's decision, concluding that there were, in fact, contested adjudicated facts. Id. at 174. The Court also ordered that on remand the appellant "may present evidence on mitigation and argue that a sanction less than a full revocation of his license is justified under the circumstances." Id. at 180.

Here, all of the adjudicative facts are undisputed.*fn1

However, because of the prohibition in N.J.S.A. 52:14B-9c and N.J.S.A. 52:14B-11, against revocation of a license without a hearing, we consider the sanction to be an equally significant issue.

We are mindful that N.J.A.C. 6A:9-17.7(e) provides:

If the certificate holder files an answer and no material facts appear to be in dispute, the Secretary shall send the certificate holder a hearing notice informing him or her of the opportunity to submit written briefs, affidavits and other supporting documentation for the Board of Examiners' consideration. [Ibid.]

In order to harmonize this regulation with the above statute, which controls, we hold that if requested by the licensed professional after receipt of such hearing notice, the regulation does not preclude a "live" hearing (i.e., one that goes beyond mere documentary submissions and includes some form of oral presentations) on the sanction issue. Although such a "live" hearing may not necessarily be warranted in every sanctions case, we conclude that the circumstances here justify such a proceeding.

We recognize in this regard that appellant previously chose to present his character proofs in the tenure hearing in documentary form rather than through oral testimony. However, we do not consider that earlier tactical decision by appellant as a reason to foreclose his chance to amplify his mitigation proofs in the revocation case, a matter that involves substantially greater stakes.

In reaching this result, we do not curtail the discretion of the ALJ to impose reasonable constraints on the manner in which appellant's revocation hearing will be conducted. As long as some reasonable avenues of oral presentation are permitted (e.g., oral arguments by counsel with an allocation or testimony, if desired, by appellant himself), we will not preordain or interfere with the mechanics of the proceeding.*fn2 We simply hold that appellant is entitled to more than a hearing "on the papers."

Accordingly, the May 5, 2006 order by the SBE is reversed and the matter is remanded. The SBE shall refer the matter to the OAL for a hearing, limited to the issue of the appropriate sanction. We do not retain jurisdiction.


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