August 10, 2009
IN THE MATTER OF THE CENSURE OF RAYMOND A. DELBURY PURSUANT TO N.J.S.A. 18A:12-21 ET SEQ., BOARD OF EDUCATION OF THE SUSSEX-WANTAGE REGIONAL SCHOOL DISTRICT, SUSSEX COUNTY.
On appeal from the State Board of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2009
Before Judges Reisner and Sapp-Peterson.
Appellant, Raymond A. Delbury (Delbury), is a member of the Sussex-Wantage Board of Education (Board). He appeals from the final administrative agency decision of the State Board of Education (State Board) censuring him for violations of the Code of Ethics for School Board Members (code). We affirm.
Delbury was elected to the Board in April 2006. On December 11, Arthur Jacobs, President of the Board, filed a complaint against Delbury with the School Ethics Commission (Commission) claiming that Delbury had violated the code, N.J.S.A. 18A:12-24.1, which provides:
a. I will uphold and enforce all laws, rules and regulations of the State Board of Education and court orders pertaining to the schools. Desired changes shall be brought about only through legal and ethical procedures.
b. I will make decisions in terms of the educational welfare of children and will seek to develop and maintain public schools that meet the individual needs of all children regardless of their ability, race, creed, sex, or social standing.
c. I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them.
d. I will carry out my responsibility, not to administer the schools, but, together with my fellow board members, to see that they are well run.
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.
f. I will refuse to surrender my independent judgment to special interest or partisan political groups or to use the schools for personal gain or for the gain of friends.
g. I will hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools. In all other matters, I will provide accurate information and, in concert with my fellow board members, interpret to the staff the aspirations of the community for its school.
h. I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief administrative officer.
i. I will support and protect school personnel in proper performance of their duties.
j. I will refer all complaints to the chief administrative officer and will act on the complaints at public meetings only after failure of an administrative solution.
The complaint alleged that Delbury had violated every provision of the code with the exception of section (h). The factual allegations underlying the complaint alleged that Delbury: (1) took out a classified advertisement in a local newspaper that invited readers to contact him, as a board member, "for answers to [their] questions;" (2) wrote a letter to the editor of a local newspaper in his official capacity without a disclaimer; (3) attempted to micro-manage the school district rather than establish policies for the district; (4) refused to follow appropriate protocol in attempting to address his concerns but instead "shows up at the Board Office and takes copies of documents he wants without asking or telling anyone what he takes"; (5) made every decision as a board member not on the basis of the educational welfare of the children but, instead, to stop or reduce spending; and (6) treated teachers and other education professionals in a "demeaning and harassing manner."
Delbury filed an affidavit with the Commission in response to the complaint, admitting that he placed an advertisement in the local newspaper and that he wrote a letter to the newspaper editor. He denied that he did so in his official capacity. He denied the remaining allegations in the complaint.
On April 5, 2007, the Commission notified Delbury's attorney of the date, time, and location of the hearing the Commission scheduled in the matter. The Commission also advised counsel of what action it could consider taking in the matter, which included tabling the matter, requesting additional information, dismissing the matter or "determin[ing] that the [code] has been violated."
The April 24 hearing date was adjourned on April 20 because of the death of Jacobs' brother. The hearing was rescheduled for Tuesday, May 22. A copy of the correspondence to Jacobs rescheduling the matter to May 22*fn1 was forwarded to Delbury's attorney.
The complainant and five witnesses appeared at the May 22 meeting and testified under oath before the Commission. At the conclusion of the testimony, the Commission issued an initial decision finding that Delbury had violated the code. The Commission issued its final decision on October 30, 2007, which it adopted in a resolution passed during its meeting of the same date. The Commission found that based upon the evidence it considered, Delbury had violated four provisions of the code: N.J.S.A. 18A:12-24.1(d), (e), (i) and (j). The Commission recommended that the Commissioner of the Department of Education (Commissioner), impose the penalty of censure.
On December 7, 2007, the Commissioner issued her decision. The Commissioner noted that pursuant to N.J.S.A. 18A:12-29(c) and N.J.A.C. 6A:3-9.1, the Commission's finding that Delbury had violated the code was not reviewable and that her jurisdiction was limited to a review of the recommended sanction. The Commissioner concluded that based upon the reasoning of the Commission, the recommended sanction of censure was appropriate.
The Board issued a Resolution of Censure on December 18, 2007. The present appeal followed.
On appeal, Delbury contends the Commission's violation of his statutory rights warrants dismissal of the complaint, its failure to timely act in addressing the complaint also requires dismissal of the complaint, and the evidence presented to the Commission in support of the allegations was insufficient to establish that he violated the code. We reject these contentions.
N.J.S.A. 18A:12-29(b) details the procedural requirements that pertain to the filing and processing of school ethics complaints. Those procedures include serving a copy of the complaint upon the school official named in the complaint and providing the named official with an opportunity to submit a written response under oath. Ibid. There is no dispute that the Commission complied with these requirements.
The procedures also outline what action the Commission must take where it determines that "probable cause exists to credit the allegations in the complaint." The Commission is directed to "refer the matter to the Office of Administrative Law for a hearing to be conducted in accordance with the 'Administrative Procedure Act,' [N.J.S.A. 52:14B-1 to -24], and shall so notify the complainant and each school official named in the complaint." Ibid. Plaintiff claims the Commission failed to adhere to this statutory obligation. This contention, however, ignores the additional provision in N.J.S.A. 8A:12-29(b), which the Legislature adopted in the 2001 amendments to this statute. As amended the statute addresses those circumstances where the Commission has before it a complaint alleging only a violation of the code:
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. A decision regarding a complaint alleging violations of the code shall be rendered by the commission within 90 days of the receipt of the complaint by the commission.
It is clear from this provision that the Commission has jurisdiction to consider complaints alleging solely a violation of the code. In 2002, the State Board adopted N.J.A.C. 6A:28-1.13,*fn2 which explained the procedures for reviewing complaints before the Commission alleging a violation of the code only:
(a) Upon receipt of respondent's statement or the expiration of the time for filing such response, the Commission shall place the complaint alleging a violation of the Code of Ethics on the agenda of the next regularly scheduled meeting to determine whether the board member has violated the Code of Ethics.
(b) The complainant has the burden to prove factually a violation under the Code of Ethics.
(c) All hearings shall be conducted in accordance with the rules of the OAL, N.J.A.C. 1:1.
(d) The Commission shall render a determination on whether a board member has violated the Code of Ethics within 90 days from its receipt of the complaint barring any exigent circumstances that would result in unfairness to either party.
(e) A finding of no violation by the Commission shall constitute final agency action.
(f) If a violation is found, the Commission shall recommend to the Commissioner the reprimand, censure, suspension, or removal of the school official. The imposition of any of the foregoing sanctions shall require a vote of the majority of the full membership of the Commission.
We are therefore satisfied the Commission was authorized by statute and by regulation to consider the merits of the complaint lodged against Delbury.
Additionally, there is nothing in the record to suggest that the Commission otherwise failed to accord to Delbury the procedural safeguards attendant to the allegations. He received notice of the proceedings through his attorney and had the right to appear at the proceeding and to produce witnesses. Although the letter did not specifically advise Delbury of his right to confront witnesses, his attorney was provided with a copy of the correspondence sent to the complainant that similarly advised him of his right to present witnesses. Delbury's attorney was also copied on correspondence sent to Jacobs, advising that the proceedings would be subject to "N.J.A.C. 6A:28-1 et seq." We are not persuaded that the omission of a specific statement that Delbury also had the right to confront witnesses deprived him of any rights, particularly in view of the fact that he was represented by counsel throughout the proceedings.
There is no dispute that the Commission's decision issued on October 30, 2007 was well beyond the ninety-day period from the receipt of the complaint as mandated by the statute. Additionally, we discern no facts in the record establishing "exigent circumstances" for the delay in rendering its decision, nor does the State Board, in its brief, argue "exigent circumstances." Rather, the State Board contends that Delbury raised the issue of the timeliness of the decision only after the Commissioner issued her final decision and also that Delbury was not prejudiced by the delay.
The Commission received the complaint against Delbury on December 11, 2006, and Delbury submitted an affidavit in response to the complaint on January 22, 2007. In accordance with N.J.S.A. 18A:12-29(b), the Commission should have issued its decision, barring exceptional circumstances, in early March 2007. The Commission first notified the parties that the matter would be placed on its April 24 agenda on April 5. Thereafter, the matter was adjourned and ultimately considered at the Commission's meeting in late May. Delbury, however, voiced no objection to the proceedings based upon the expiration of the ninety-day period at any time prior to the May hearing nor thereafter until after the Commissioner issued her decision.
There is nothing in the record to suggest that Delbury experienced any prejudice occasioned by the delay. Further, there is nothing in the record that reflects gross indifference, inexcusable neglect or bad faith on the part of the Commission. Klusaritz v. Cape May County, 387 N.J. Super. 305, 314 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007). Under these circumstances, we do not believe the delay in issuing its decision should vitiate the Commissioner's decision. In re Garber, 141 N.J. Super. 87, 91 (App. Div.), certif. denied, 71 N.J. 494 (1976).
Defendant's remaining challenge that there was insufficient evidence before the Commission to establish that Delbury violated Code is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Our review of an administrative agency's final decision is limited. Close v. Kordulak Bros., 44 N.J. 589, 599, (1965); see also Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (stating that "The judicial capacity to review administrative agency decisions is limited."); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981) (holding that "appellate review of an administrative agency's factual determinations is circumscribed"). In our review, we employ the standard that we apply in the review of an appeal in any non-jury case, namely, "'whether the findings made 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 of their credibility." Close, supra, 44 N.J. at 599 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). There is substantial credible evidence in the record to support the Commission's factual findings, which the Commissioner adopted in her decision. Those findings are therefore entitled to our deference.