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In re Tenure Hearing of Thomas

July 28, 2009


On appeal from a final decision of the New Jersey Department of Education, Agency Docket No. 133-5/07.

Per curiam.


Submitted June 30, 2009

Before Judges Cuff and Fuentes.

Appellant William Thomas challenges the final decision of the Commissioner of Education upholding the tenure charges filed against him and terminating him from his position as an elementary school Vice Principal in the school district of the City of Plainfield. In support of his decision, the Commissioner adopted in its entirety the factual findings and recommendations of the Administrative Law Judge (ALJ) who presided over the hearing conducted at the Office of Administrative Law (OAL).

We affirm. The following salient facts are not disputed. At all times relevant to this case, appellant was a tenured Vice Principal in the Plainfield School District. In November 2003, he was assigned to the Washington Community Elementary School as Acting Principal. On May 4, 2004, appellant was arrested by Union County Police Officer Corporal Dennis P. O'Connell on two charges: (1) possession of cocaine; and (2) possession of drug paraphernalia. The arrest took place in Greenbrook Park.

On December 9, 2004, appellant was indicted for possession of cocaine, a third-degree criminal offense. N.J.S.A. 2C:35-10a. Appellant applied for and was admitted into the Pre-trial Intervention (PTI) program, a diversionary program that does not require that appellant admit criminal culpability. R. 3:28, Guideline 4. As a condition of his admittance into PTI, appellant agreed to submit to court supervision for twenty-four months; perform sixty hours of community service; undergo random drug testing; complete a substance abuse treatment program; and pay mandatory fees. Appellant successfully completed the PTI program on March 16, 2007.*fn1

The first time this matter came before the OAL, the ALJ assigned to the case issued his recommendations to the Commissioner based on the parties' stipulating to the facts we have outlined supra. The Commissioner rejected this approach, finding that the record was unclear as to the basis for the underlying charges. The Commissioner noted that the focus of the inquiry should not be appellant's participation in PTI, "but rather, whether [appellant] exhibited behavior underlying those charges which amounts to unbecoming conduct."

On remand, the ALJ permitted the School District, over appellant's objections, to call Officer O'Connell as its key and only witness. O'Connell testified at length concerning his observations that led him to approach and subsequently arrest appellant. Based on O'Connell's testimony, the ALJ, and thereafter the Commissioner, found that appellant was in possession of cocaine on May 4, 2004. Specifically, O'Connell found one bag of cocaine*fn2 on the table where appellant had been sitting, and nine additional bags on the ground by appellant's feet. According to O'Connell, appellant admitted that he had a problem with cocaine.

In his testimony before the ALJ, appellant denied that the cocaine recovered by O'Connell from the picnic table and on the ground belonged to him, and denied ever telling O'Connell that he had a drug problem. According to appellant, right before he entered the park he met a parent of one his students with a friend. They proceeded to a picnic table to sit and talk. All three spoke while seated at the table, then the two friends left. O'Connell arrived about fifteen minutes later, as appellant was finishing his lunch.

The ALJ rejected appellant's account of events as a matter of credibility. The Commissioner adopted the factual findings without modification.

Against this record, appellant now argues that the Commissioner's decision should be reversed because appellant was never charged by the Plainfield School District with possession of cocaine. Appellant argues that the complaint supporting the tenure charges merely recites the various procedural events following his arrest, without identifying, with particularity, the actual possession of drugs as the basis.

This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As noted by the Commissioner, "the public good is [not] served by invalidating charges -- the factual bases of which were adequately articulated and subsequently proven -- solely because the charges were drafted in a way that appeared to put more emphasis on legal procedure than on the underlying factual circumstances and their ramifications."

We are bound to uphold the decision of a State administrative agency absent a showing that it is arbitrary or capricious, or its factual findings are not supported by the evidence. In re Carter, 191 N.J. 474, 482 (2007). Here, we discern no basis to reverse. The record shows that appellant was accorded the full panoply of due process rights; he was aware of the nature of the charges against him; and had a plenary hearing ...

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