April 7, 2008
IN THE MATTER OF THE REVOCATION OF THE TEACHING CERTIFICATES OF MICHAEL NIEVES BY THE STATE BOARD OF EXAMINERS.
On appeal from the State Board of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Sapp-Peterson and Messano.
Appellant, Michael Nieves, formerly a non-tenured elementary language arts teacher in Union City, appeals from the December 6, 2006 order of the New Jersey State Board of Education (Board) affirming the decision of the State Board of Examiners (Examiners) that he engaged in unbecoming conduct and ordering the revocation of his teaching certificates. We affirm.
The salient facts are not disputed. In the fall of 2002, appellant started to exchange notes with L.V., a student in one of his classes. The notes were written on Post-its during class periods. At the time, in addition to his teaching responsibilities, appellant also served as a basketball coach. The note-writing started because L.V. was interested in one of appellant's players. Appellant characterized the initial notes as "centered around that particular player and it was all very -- how could I say it -- it was -- it was in a friendly nature, jokingly, never anything serious." L.V. also agreed that initially the notes "were just fooling around."
The note-writing exchanges took place every other day for a short period of time. After the notes were exchanged, they were usually thrown away, either by appellant or L.V., after a short conversation because "[t]here was no need to keep them." Although L.V. claimed that in one note, appellant wrote, "I'll make your body tingle[,]" defendant denied writing such a note.
The note-writing exchanges between appellant and L.V. were brought to the attention of school officials by a parent of a student. The parent and student met with school officials on February 3, 2003 at 7:30 a.m. As the morning progressed, a number of students, including L.V., were questioned. School officials asked each of the students interviewed to attempt to get the notes if any were exchanged. L.V. and appellant did exchange a note later that day. L.V. gave the note to a classmate, M.A., who turned it over to the school principal. The content of the note was as follows:
[APPELLANT:] What are you doing during the week we are off from school?
[L.V.:] I don't know, why?
[APPELLANT:] It might be a good time to get together during the day without anyone knowing!
[L.V.:] I don't have plans, because my mom[']s getting operated.
[APPELLANT:] What[']s wrong?
[L.V.:] Something about her eyes.
[APPELLANT:] I hope everything works out. Do you want to get together over the break? or [sic] are you just talk?
[L.V.:] What do you mean?
[APPELLANT:] Hang out! Duh[.]
Appellant's explanation for the note was, "L.V. and myself had this ongoing back and forth where we would jokingly kid each other and this is a continuation of it. The only difference being the way she responded this particular day."
On February 23, 2003, the Union City Board of Education (District) terminated appellant's employment. The Union City Education Association (UCEA) filed a grievance on appellant's behalf, contending the District failed to establish just cause for appellant's removal. The grievance was submitted to arbitration and a hearing ensued. On July 12, 2003, the arbitrator issued an opinion and award, concluding that the District established just cause for appellant's removal. The District thereafter notified the Examiners of appellant's dismissal in accordance with the requirements of N.J.S.A. 18A:16-1.3. On March 5, 2004, the Examiners issued an Order To Show Cause why appellant's Teacher of English Certificate of Eligibility with Advanced Standing, Teacher of English Certificate, and Teacher of Elementary School Certificate (Certificates) should not be suspended or revoked.
The matter was transferred to the Office of Administrative Law as a contested proceeding for hearing before an Administrative Law Judge (ALJ). Following three days of testimony, the parties were afforded an opportunity to submit post-hearing submissions. On November 10, 2005, the ALJ issued an Initial Decision finding that appellant had engaged in unbecoming conduct and recommending that his teaching certificates be revoked. On January 19, 2006, the Examiners accepted the findings and recommendation of the ALJ and entered an order revoking appellant's teaching certificates effective March 30, 2006. Appellant appealed the Examiners' decision to the Board. The Board affirmed the Examiners' decision, and the present appeal followed.
On appeal, appellant raises the following points for our consideration:
THE STANDARD FOR JUDICIAL REVIEW OF THE DECISION OF THE STATE BOARD OF EDUCATION.
THE STATE BOARD OF EXAMINERS BASED ITS DECISION ON SPECULATION.
THE BURDEN OF PROOF AND THE STANDARD OF REVIEW.
THE BOARD'S MISPLACED RELIANCE ON THE CREDIBILITY OF ITS OWN WITNESSES.
PETITIONER FAILED TO MEET ITS BURDEN OF PROOF.
REVOCATION IS UNWARRANTED.
After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by appellant are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed in the January 19, 2006 decision of the Examiners and adopted by the Board in its December 6, 2006 decision. R. 2:11-3(e)(1)(D). We add, however, the following comments.
We agree that irrespective of the conflicting testimony as to whether other alleged inappropriate conduct on the part of appellant occurred, the Board properly found that the February 3, 2003 note that appellant admitted he authored "clearly is inappropriate and leaves no doubt that he has engaged in conduct unbecoming a teacher, one of the grounds for revocation or suspension of a teaching certificate. N.J.A.C. 6A:9-17.5." As such, the Board also properly concluded that the sole question before it was the appropriate penalty.
In concluding that appellant's teaching certificates should be revoked, the Board, citing Redcay v. State Bd. Of Educ., 130 N.J.L. 369, 371 (Sup. Ct. 1943), aff'd, 131 N.J.L. 326 (E & A 1944), noted that one incident, if sufficiently flagrant, may warrant revocation. This principle was most recently reiterated by the Supreme Court in In re Carter, 191 N.J. 474, 484-85 (2007). Although Carter involved the termination of a police officer whose disciplinary charges included an allegation of sleeping on duty, the Court stated that "we have recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Id. at 484.
The Board determined that revocation was the appropriate sanction because, "Teachers . . . are professional employees to whom the people have entrusted the care and custody of . . . school children. This heavy duty requires a degree of self-restraint and controlled behavior rarely requisite to other types of employment." Tenure of Sammons, 1972 S.L.D. 302, 321. The Board of Examiners agrees with the ALJ that if this note is indicative of others that Nieves sent to a student, he should not be teaching in New Jersey's classrooms.
The scope of our review in this matter is to determine whether the findings made by the Board could "reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility." In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 22-23 (App. Div.) (citing Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965)), certif. denied, 65 N.J. 292 (1974). We accord deference to a Board decision that is based upon an accurate view of the facts, legally correct, and bears no indicia of arbitrariness, caprice, or unreasonableness. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The Board's determination here was supported by the record and is not arbitrary, capricious nor unreasonable. As such, it is entitled to our deference. Ibid.
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