On appeal from the State Board of Education. Joel M. Miklacki, attorney for appellant Dr. Joseph Atallo.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...