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In re Suspension of Atallo


March 20, 2009


On appeal from the State Board of Education. Joel M. Miklacki, attorney for appellant Dr. Joseph Atallo.

Per curiam.


Submitted January 7, 2009

Before Judges Rodriguez and Payne.

Joseph Atallo appeals from the final agency decision of the State Board of Education (State Board), suspending him for one year from his position as a member of the Paterson Board of Education (BOE) for allegedly threatening Frederick Mutooni, a person attending a public meeting of the BOE. We reverse.

Atallo had been an elected member of the Paterson BOE since 2000. On April 27, 2005, Atallo allegedly threatened Mutooni.

A complaint was filed with the School Ethics Commission (SEC) alleging Atallo had violated the Code of Ethics. The Code of Ethics statute provides: "A school board member shall abide by the following Code of Ethics for School Board Members: (e) I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the Board." N.J.S.A. 18A:12-24.1(e).

The SEC issued a finding of probable cause. The matter was transferred to the Office of Administrative Law as a contested case and heard by Administrative Law Judge Margaret M. Monaco.

The following facts are undisputed. The April 27, 2005 meeting was a reorganization meeting held in the auditorium of JFK High School. The BOE members sat on stage during the public portion of the meeting, which was videotaped. During the public meeting, Mutooni called for Atallo's resignation. The videotape recording does not show Atallo responding in words or gestures to Mutooni's call for his resignation. Towards the end of the public portion of the meeting, Atallo left the stage. The videotape does not show Atallo's departure from the stage. It does record voices stating "something is going on over there" and "he's going after the guy who asked him to resign."

What happened next was sharply disputed by the witnesses before ALJ Monaco. Mutooni testified that Atallo left the stage approximately forty minutes after Mutooni made his comments, when Mutooni was leaving the auditorium. According to Mutooni, Atallo rushed up the center aisle, caught up to him near the back of the auditorium, put his finger in Mutooni's face and said, "if you ever mention my name again I will f- you up." Mutooni felt threatened. He denied shouting anything at Atallo. The Security Chief, James Smith, then walked Mutooni out the door, while Atallo was escorted back to the stage.

Superintendent Dennis Clancy testified that Atallo left the stage approximately one-and-one-half to two hours after Mutooni's comments. Atallo walked out the right aisle, while Mutooni walked up the center aisle. There were ten to twenty chairs between them. Atallo shouted words to the effect that he would get Mutooni. Mutooni responded with words to the effect that he was not afraid and would see Atallo outside. Clancy signaled for security, which responded by stopping Atallo from walking away and asking Mutooni to leave the auditorium. Atallo returned to the stage.

Anthony V. Vancheri, an attendee at the meeting, testified that Atallo looked aggravated by Mutooni's call for his resignation and proceeded to the back of the auditorium "a couple of minutes" after Mutooni said it. Atallo had a "look" and appeared to be heading for Mutooni at the back of the auditorium. Atallo used the middle aisle, which was the same aisle in which Mutooni was walking. However, Atallo ended up along the right wall in the middle of the auditorium. Vancheri heard Atallo say, "kick your A-" but could not identify to whom this comment was made. Atallo told Vancheri he was heading for the bathroom. Vancheri stated he would accompany Atallo. Security guards approached them and Atallo returned to the stage with the Security Chief. According to Vancheri, Atallo was never in close proximity to Mutooni. He did not observe Atallo threatening or pointing a finger at Mutooni.

Atallo testified he was not offended by Mutooni's call for his resignation. He did not respond physically or verbally while on stage. Ninety minutes later, he left the stage to go to the bathroom. He was unaware of Mutooni's location in the auditorium at that time. Vancheri ran up to Atallo and asked him where he was going, to which Atallo responded he was walking to the bathroom. He told Vancheri to get out of his way. Security approached and told Atallo to remain where he was. Atallo then heard a commotion at the back of the room and saw Mutooni shouting and waving his arms. Then Mutooni was escorted out by security. Security Officer Lillian Sanchez escorted Atallo to the bathroom. Afterwards, Atallo returned to the stage and the meeting resumed. Atallo denied ever being face- to-face with Mutooni, pointing his finger at him, or threatening him.

Security Officer Sanchez testified that, as the public was leaving the auditorium, Mutooni began shouting at Atallo, who was leaving. According to Sanchez, Mutooni was coaxing Atallo to fight. Atallo was walking up the left aisle with his head down. Atallo appeared embarrassed and made no comments to Mutooni. Sanchez approached Atallo out of concern for his well being. Atallo told her that he was fine and was heading for the bathroom. Sanchez escorted Atallo to the bathroom and back to the stage. Another security guard escorted Mutooni out of the auditorium. According to Sanchez, Atallo and Mutooni were never in close proximity or face-to-face. Atallo never pointed his finger or made a threatening comment to Mutooni. The two were separated by a row of fifteen seats.

Lawrence George Spagnola, a BOE member, testified that he did not remember hearing Atallo making any comment from the stage to Mutooni. He remembered Atallo leaving the stage an hour to an hour and fifteen minutes after Mutooni called for his resignation. Atallo walked up the right aisle. Spagnola saw Vancheri run up to Atallo as he walked to the back of the auditorium. Spagnola saw Mutooni at the rear of the auditorium jumping up and down, pointing his finger at Atallo, and shadow boxing. Security officers approached Mutooni. Atallo remained where he was with Vancheri until Mutooni was escorted from the building. Spagnola saw Atallo make no aggressive gestures and did not hear him make any comments to Mutooni. The two were never in proximity. Spagnola denied that Atallo pointed his finger and threatened Mutooni.

Theodore Kyles, an attendee, testified that he did not see Atallo make any gestures or comments on stage to Mutooni. He heard a commotion around Mutooni, who was making comments. Mutooni was surrounded by security personnel. Shortly thereafter, Mutooni was escorted from the auditorium. Atallo was approached by several people including security personnel. Kyles testified that Atallo and Mutooni were never in close proximity and that he did not hear Atallo use profanity to Mutooni.

Anna N. Taliaferro, another attendee, testified that several other attendees told Mutooni that his call for Atallo's resignation was unwarranted. According to Taliaferro, Atallo did not react while on stage. He maintained his decorum at all times and acted like a gentleman. He did not appear upset by Mutooni's comments. Atallo left the stage and greeted her as he walked by, stating that he was headed for the bathroom. She was concerned for Atallo's safety. Security officers accompanied both Atallo and Mutooni. She never saw Atallo make any gestures or comments after he left the stage.

Security Chief James Smith testified that Atallo did not make any gestures or comments in response to Mutooni while still on stage. Several hours later, shortly before the meeting concluded, Vancheri's wife called to Security Chief Smith saying she needed assistance. Atallo, walking up the right aisle toward Mutooni, looked angry. Mutooni was walking from the rear of the auditorium towards the front. Smith went to Atallo, who said Mutooni had threatened him. Smith went to talk to Mutooni, who appeared angry and stated that he wanted to file a police report. Mutooni then left. Mutooni and Atallo were never face-to-face, were not closer than ten to fifteen feet from each other, and Atallo never pointed his finger at Mutooni. According to Smith, nothing physical happened between them, and he never heard Atallo curse at Mutooni or threaten him.

From this widely divergent testimony, ALJ Monaco found that:

On April 27, 2005, Dr. Atallo left the stage after a motion had been made to close the public session and during a board member's closing arguments. Dr. Atallo left the stage a significant time period after Mr. Mutooni's comments. Dr. Atallo walked down the right aisle closest to his seat and toward the back of the auditorium. This route was in the direction of Mr. Mutooni who, it appears, was toward the back of the auditorium. Mr. Vancheri, and apparently others at the meeting, perceived that Dr. Atallo was going toward Mr. Mutooni. Mr. Vancheri stopped Dr. Atallo to avert any encounter and before Dr. Atallo was in close proximity to Mr. Mutooni. At no time were Dr. Atallo and Mr. Mutooni in close proximity to each other. Dr. Atallo did not point his finger at Mr. Mutooni and there was no physical contact between them. A preponderance of the credible evidence falls short of establishing any specific statements that may have been made by either Dr. Atallo or Mr. Mutooni. There is also insufficient evidence establishing, by a preponderance of credible evidence, that Dr. Atallo threatened Mr. Mutooni by words or actions on April 27, 2005.

In evaluating the testimony, the ALJ found the witnesses described several irreconcilable accounts as to what happened. Specifically, witnesses could not agree on where Mutooni and Atallo were situated, their proximity to one another, what statements, if any, were made, the route Atallo took when he left the stage, or the timeframe or sequence of events.

Significantly, the ALJ found Mutooni's account was thoroughly discredited by the testimony of all other witnesses. This included the fact that several witnesses testified Mutooni was more aggressive and belligerent than Atallo, and that they feared for Atallo's safety. The ALJ found:

Mr. Mutooni's testimony that Dr. Atallo threatened him when they were directly face to face and pointed his finger at Mr. Mutooni is contrary to, and overborne by, the testimony of all of the other witnesses.

Except for Mr. Mutooni, all witnesses agreed that Mr. Mutooni and Dr. Atallo were never in close proximity to each other and that Dr. Atallo did not point his finger in Mr. Mutooni's face. Additionally, apart from Mr. Mutooni, no other witness situated Dr. Atallo near the back of the auditorium.

Similarly, the path taken by Dr. Atallo after he left the stage, as described by Mr. Mutooni, cannot be reconciled with that presented by the other witnesses, who generally consistently testified that Dr. Atallo walked down the right side aisle where he was stopped by Mr. Vancheri and security prior to reaching near the back of the auditorium.

The ALJ issued her initial decision dismissing the allegations against Atallo. The matter returned to the SEC. Exceptions were filed by both sides.

Following the issuance of two extensions, the SEC issued a final decision. Although it asserted it was deferring to the ALJ's credibility determinations, the SEC rejected the ALJ's conclusions. From its review of the record, the SEC found that the testimony supported the conclusion that Atallo threatened Mutooni. The SEC specifically found the ALJ improperly discounted Mutooni's version of the events based on the variable testimony of other witnesses. It found the disparities as to the time when Atallo left the stage did not go to a material fact of the case. The SEC also concluded the ALJ erred in giving greater weight to Atallo's witnesses because they had no vested interest in the outcome of the proceedings. The SEC found as a fact that members of the community often have some vested interest in school board proceedings such as concerns over rising property taxes, interest in special education programs, or a desire to support certain school board members or influence certain school board decisions. The SEC noted that there was no evidence that the community members who testified did not have a vested interest, and concluded that Security Chief Smith, because he was employed in a district overseen by Atallo, also had a vested interest. Thus, the SEC decided by a preponderance of the evidence that the charge against Atallo was sustained and recommended Atallo be suspended for one year.

Atallo filed exceptions on the grounds that: (1) the SEC had no jurisdiction because it failed to act timely pursuant to N.J.S.A. 52:14B-10(c); and (2) even if he had violated the School Ethics Act, N.J.S.A. 18A:12-21 to -34; the recommended penalty was "without precedent, excessive, prejudicial, arbitrary, capricious and inappropriate."

The Commissioner of Education initially emphasized that the SEC's fact-finding and determination were not reviewable by him because "by law, only the [SEC] may determine whether a violation of the Act has occurred, and appellate review of this determination is expressly in the [State Board] rather than the Commissioner, whose jurisdiction is expressly limited to reviewing the [SEC's] recommended sanction once a violation has been found. N.J.S.A. 18A:12-29(c), N.J.A.C. 6A:3-9.1, and N.J.A.C. 1:6C-2.1." The Commissioner then reduced the one-year suspension to three months.

Atallo appealed to the State Board, arguing the SEC's decision was out of time because the SEC had been improperly granted two extensions to its time to file a final decision. Atallo also argued that the SEC abused its discretion in rejecting the ALJ's credibility determinations. The State Board found the time extensions had been properly filed for and granted, and the SEC had not abused its discretion in reassigning the weight it accorded the witness' testimony. The State Board also rejected the Commissioner's sanction and reinstated the one-year suspension.

In the present appeal, Atallo contends that the SEC had no jurisdiction to overturn the decision of the ALJ. Specifically, he argues that: (a) the SEC is statutorily barred from rejecting the decision of the ALJ based solely on credibility determinations; and (b) the SEC failed to timely adopt, reject or modify the decision of the ALJ and, as such, had no jurisdiction to overturn the decision of the ALJ, which should be deemed final.

We agree with regard to the first argument, and disagree with the second.

With regard to Atallo's first point on appeal, as discussed below, the reviewing agency is free to reject an ALJ's findings of fact, conclusions of law and interpretations of agency policy. In re Tyler, 236 N.J. Super. 478, 485 (App. Div. 1989), certif. denied, 121 N.J. 615 (1990). However, an ALJ's determinations as to credibility may not be overturned unless they are found to be arbitrary, capricious, unreasonable, or unsupported by sufficient, competent and credible evidence in the record. Ibid. Any such rejection must include a statement detailing the particular reasons why the ALJ's findings were rejected and must make new findings supported by sufficient, competent and credible evidence in the record. N.J.S.A. 52:14B-10(c). "[T]he Board's decision must demonstrate that the agency gave attentive consideration to the ALJ's recommendation as part of the record and address itself to key items of evidence which were crucial to its decision." New Jersey Dep't of Pub. Advocate v. New Jersey Bd. of Pub. Utilities, 189 N.J. Super. 491, 506 (App. Div. 1983).

Atallo argues the State Board was "duty bound to determine whether the lower administrative decision was based on a preponderance of the credible evidence." In re Tyler, supra, 236 N.J. Super. at 485. Atallo argues that the State Board rubber-stamped the SEC's decision, as established by its erroneous acceptance of the SEC's misrepresentations of the facts in the record.

As noted in the Tyler case, "The State Board's primary responsibility in its role as final arbiter . . . is to assure that its decision is supported by a preponderance of the credible evidence and is consistent with public policy and the pertinent principles of law." In re Tyler, supra, 236 N.J. Super. at 485.

Atallo also contends that the credibility determinations upon which the SEC relied in overturning the decision of the ALJ were incorrect based on the record. Put another way, Atallo argues the ALJ's findings were supported by competent, credible evidence, and thus their rejection by the SEC was not warranted. Therefore, the State Board should have upheld the ALJ's decision.

We conclude that the State Board erred in upholding the SEC's rejection of the ALJ's credibility determinations. Although the SEC was entitled to reject the ALJ's factual determinations, it was required to defer to her credibility determinations. This is because the ALJ had the opportunity to view the witness' demeanor during the course of live testimony.

Mayflower Sec. Co. v. Bureau of Securities; 64 N.J. 85, 92-93 (1973); Quinlan v. Bd. Of Educ., 73 N.J. Super. 40, 50-51 (App. Div. 1962).

The SEC's assessment of the "vested interests" of Security Chief Smith and the attendee witnesses was erroneous. There is no duty to affirmatively establish a witness' lack of bias or interest. N.J.R.E. 607; 1 McCormick on Evidence, pp. 146-49 (6th ed. 2006). In fact, Evidence Rule 607 expressly limits the ability of a witness' proponent to bolster the witness' credibility before it has been attacked. N.J.R.E. 607. Although any party may impeach a witness using evidence of a witness' bias or interest, such bias or interest must be proven, not assumed. Ibid.

The SEC discounted the testimony of several witnesses based on the general assumption that attendees at a BOE meeting have an interest in the outcome of a disciplinary action against a BOE member. Even if that were so, the SEC cannot assume, in the absence of proof, that the attendee's interest is in favor of the member. Therefore, Vancheri, Spagnola and Taliaferro's testimony could not properly be discounted on these grounds. The ALJ made no credibility findings except as to Mutooni, whose account she found not to be credible. The SEC did not defer to this express credibility determination.

The State Board contends the time extension was not untimely where it was granted because of OAL error in processing a timely request for an extension. Additionally, the second extension was granted for good cause, given that the SEC only met once a month and needed the additional time to draft a decision. The State Board also argues the "deemed adopted" language of the APA, N.J.S.A. 52:14B-10(c), is only applicable where an agency's failure to act constitutes bad faith, gross indifference, or inexcusable neglect. Ibid.

The APA provides:

The head of the agency, upon a review of the record submitted by the administrative law judge, shall adopt, reject or modify the recommended report and decision no later than 45 days after receipt of such recommendations. . . . For good cause shown, upon certification by the director and the agency head, the time limits established herein may be subject to extension. [N.J.S.A. 52:14B-10(c).]

Similarly, at the time the extensions were granted, N.J.A.C. 1:1-18.8(f) provided:

Any order granting an extension must set forth the factual basis constituting good cause for the extension, set forth the dates of any previous extensions, and establish a new time for filing the decision or exceptions and replies. Extension for filing initial or final decisions may not exceed 45 days from the original decision due date. Additional extensions of not more than 45 days each may be granted only in the case of extraordinary circumstances. [N.J.A.C. 1:1-18.8(f).]

The Supreme Court has found that, despite the fact that an agency filed a decision two-and-one-half weeks after the expiration of the deadline, the nature of the agency, which was composed entirely of high-ranking officials who met only once every three calendar months, indicated no lack of diligence or prompt action in the matter. Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 380-81 (2002). The agency there acted promptly on the initial decision as soon as it learned of that decision. Ibid. The Supreme Court additionally noted that the purpose in setting a 45-day deadline and establishing procedures for obtaining extensions is to ensure an agency does not process adjudicative matters in a negligent or lackadaisical manner. Id. at 379.

Absent a showing of bad faith, inexcusable negligence, or gross indifference on the part of an agency head, a technical flaw in applying for an extension may not be used to invalidate the agency head's ability and responsibility to issue a final decision in a contested matter. Newman v. Ramapo College, 349 N.J. Super. 196, 201-02 (App. Div. 2002); Rollins Envtl. Servs. (NJ) Inc. v. Weiner, 269 N.J. Super. 161, 171-72 (App. Div. 1993); Mastro v. Bd. of Trustees, Pub. Employees' Ret. Sys., 266 N.J. Super. 445, 451 (App. Div. 1993). In Rollins, several extensions were necessary in order for the agency head to review a voluminous record. Rollins Envtl. Servs. (NJ) Inc. v. Weiner, supra, 269 N.J. Super. at 171. The agency head filed a signed request for an additional extension, but this request was mistakenly not forwarded to the OAL until after the deadline. Ibid. Such circumstances did not constitute bad faith, inexcusable neglect or gross indifference. Id. at 172.

Here, there appears to have been nothing improper in granting the first extension nunc pro tunc, as the OAL apparently misplaced the properly and timely-filed application for an extension. Similarly, there appears to be no reversible error with regard to the second 45-day time extension. There is nothing in the record to suggest any bad faith, inexcusable neglect, or gross indifference on the part of the SEC.

Atallo also argues the School Board lacked the authority to reject the Commissioner's determination as to his sanction. He suggests that, if the State Board had such authority, it would render the Commissioner's decisions a nullity and deter appeals out of fear of receiving a more severe penalty.

Pursuant to the statute in effect at the time, the SEC reviewed the ALJ's initial decision and made both a final determination as to whether a violation occurred and a recommendation as to the appropriate sanction. N.J.S.A. 18A:12-29(c). The Commissioner then reviewed the matter and made a final determination as to the appropriate sanction. Ibid. These determinations could both be appealed to the State Board. See, former N.J.S.A. 18A:12-29(d).

In summary, there is nothing in the statute to suggest that the State Board lacks the authority to modify a sanction, nor does Atallo cite to any authority in support of this proposition.



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