June 23, 2008
SOL PINEIRO-GONZALEZ, PETITIONER-APPELLANT,
FRANCISCO GONZALEZ (ELIZABETH BOARD OF EDUCATION, UNION COUNTY), RESPONDENTS-RESPONDENTS.
On appeal from the New Jersey School Ethics Commission, Docket No. C02-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2008
Before Judges Lisa and Lihotz.
Appellant Sol Pineiro-Gonzalez appeals from the dismissal, without prejudice, of the complaint she filed with the New Jersey School Ethics Commission (SEC). Appellant's verified complaint alleged her estranged husband, respondent Francisco Gonzalez, improperly used his position as a member of the Elizabeth Board of Education (BOE) to secure her demotion within the school district and to cause her adult daughter, Paola A. Moreno, to be laid off. In light of our standard of review, our review of the record satisfies us that the dismissal of appellant's complaint was properly premised upon the failure to establish facts to support an actionable claim. Accordingly, we affirm.
Appellant was hired by the BOE on January 23, 1989. She held various positions including teaching English as a second language (ESL) and special education; substance abuse counselor; school social worker; and health and social services coordinator.
During the 2005-2006 school year, appellant was assigned as a school social worker at Elizabeth High School, pursuant to an emergency certificate. At that time, appellant was enrolled in the requisite college classes to obtain certification as a social worker. She has not obtained formal certification. Although lay-offs due to budget constraints were imminent, appellant asserts she was assured that neither she nor her daughter would be affected.
Marital problems arose between appellant and respondent; respondent filed a complaint for divorce on June 12, 2006. Additional criminal complaints were initiated including: a complaint for criminal mischief against appellant and complaints for simple assault and harassment against respondent. Respondent informed the BOE he initiated the criminal action against appellant.
Appellant was placed on administrative leave on June 20, 2006. In the next school year, appellant was not rehired as a school social worker under her emergency certification, but as an ESL instructor. This resulted in a salary reduction. On June 22, 2006, Moreno, who was employed by the BOE as a "substitute school secretary," received notice that her position was eliminated.
Appellant's complaint alleged respondent violated N.J.S.A. 18A:12-24(b), when he notified administrative personnel in the district that he filed a complaint for criminal mischief against appellant. She asserts respondent used his influence as a BOE member to "take retaliatory personnel actions" against appellant and Moreno. Respondent did not file an answer to the ethics complaint, but requested the matter "be held in abeyance" pending disposition of federal lawsuits filed by appellant and Moreno against respondent, the BOE and others alleging retaliation, hostile work environment, and wrongful termination. See N.J.S.A. 18A:12-32 (SEC "shall not process any complaint, issue a final ruling or issue any advisory opinion on a matter actually pending in any court of law or administrative agency"). Appellant objected to that application.
The SEC requested and reviewed additional information supplied regarding other pending legal actions. During its public session held on April 24, 2007, the SEC voted to dismiss appellant's complaint without prejudice because "the complaint on its face does not rise to a violation of the Act." A written decision and resolution were submitted. The SEC adopted the resolution at its May 22, 2007 meeting. This appeal followed, challenging that action.
On appeal, appellant argues the SEC failed to comply with the School Ethics Act (Act), N.J.S.A. 18A:12-21 to -34 and the administrative regulations promulgated thereunder. She states the SEC failed to fulfill its obligation to determine whether "probable cause exists to credit the allegations in a pending complaint," N.J.S.A. 18A:12-29(b), and instead, wrongfully dismissed her action. Appellant seeks to rescind the SEC dismissal because it ignored the regulatory procedures established by N.J.A.C. 6A:28-6.6, asserting:
It is inexplicable how the Commission could request multiple submissions from the parties regarding the effect of N.J.S.A. 18A:12-32 in considering whether Commission action was temporarily preempted because of the pendency of collateral judicial and administrative matters, only to have the Commission dismiss the Complaint in its entirety without even permitting the [appellant] to brief the issue of the applicability of the prescriptions of N.J.S.A. 18A:12-24(b) . . . .
The scope of our review of a discretionary decision by an administrative agency is limited. Bd. of Educ. of Sea Isle v. Kennedy, 393 N.J. Super. 93, 101 (App. Div. 2007), certif. granted, 192 N.J. 478 (2007). "[O]rdinarily, we will not upset a determination by the [agency] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the act [governing the agency]." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Additionally, "[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997). "An agency's interpretation of the operative law is entitled to prevail, so long as it is not plainly unreasonable." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984).
The Act is designed to require board of education members and school administrators to "avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated" and to provide specific uniform standards to guide their conduct. N.J.S.A. 18A:12-22. Appellant cites a breach of N.J.S.A. 18A:12-24(b), which states: "No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others." The objective of the latter statute is to guard against the potential corruption of school officials by preventing their receipt of some private benefit due to their public employment. See Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474, cert. denied, 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952) (public officials "are under an inescapable obligation to serve the public with the highest fidelity").
In making a determination regarding an alleged violation of the Code of Ethics for school board members, the burden of proof shall be on the accusing party to establish factually a violation of the code. N.J.S.A. 18A:12-28(b). We concur with the SEC's conclusion that appellant's allegations fail to demonstrate that by reporting the criminal complaints, respondent "attempt[ed] to use his official position to secure unwarranted privileges, [or] advantages . . . for himself." N.J.S.A. 18A:12-24(b). We find appellant's arguments unpersuasive and cannot conceive how respondent's reporting would benefit him in a substantial and material way as prohibited by the statute. Bd. of Educ. of Sea Isle, supra, 393 N.J. Super. at 102. Other than the coincidence of time, appellant demonstrates no nexus between respondent's reporting of the criminal complaints and the change in appellant's employment. We affirm substantially for the reasons expressed in the SEC's decision adopted on May 22, 2007.
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