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Board of Education of the Township of Middletown v. Witmer

August 17, 2009

BOARD OF EDUCATION OF THE TOWNSHIP OF MIDDLETOWN, PETITIONER-RESPONDENT,
v.
DR. DAVID L. WITMER, RESPONDENT-APPELLANT.



On appeal from the State Board of Education, Docket No. 62-2/06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.

Appellant David L. Witmer appeals from a final decision of the State Board of Education (State Board) finding appellant guilty of four charges of conduct unbecoming a Superintendent of Schools and imposing a six-month suspension without pay.

The State Board adopted the Commissioner of Education's acceptance of the findings of the administrative law judge (ALJ) on three tenure charges, that Witmer, the Superintendent of Schools of the Township of Middletown, had attempted to confer unauthorized benefits upon himself in violation of various provisions of his employment contract by misdirecting vacation and personal time to himself and had failed to respond truthfully to an inquiry by the Board of Education of the Township of Middletown (the School Board).

As to tenure charge four, the ALJ had found no abuse of authority by appellant. The Commissioner rejected the finding and concluded that appellant had abused his position by directing subordinates to take action to effectuate the misdirection of his vacation and personal leave time. The State Board adopted the Commissioner's findings.

Appellant raises a threshold issue and asserts that the findings of violation of all charges must be reversed because the Commissioner lacks jurisdiction over issues of contract interpretation and jurisdiction should properly be in the Superior Court. In addition to this primary and dispositive argument, appellant also contends that the ALJ ignored the doctrines of estoppel, laches and waiver; the findings of the ALJ as to tenure charges two, three and five were unsupported by the evidence; and appellant's due process rights were violated when he was denied specific discovery.

Specifically as to tenure charge four, appellant argues that the Commissioner's overturning of the decision of the ALJ was arbitrary, capricious and unreasonable because (contrary to the Commissioner's finding) a disparate balance of power alone does not create a nonrebuttable presumption of intimidation, undue influence or coercion. Appellant also raises another critical point as to the six month suspension imposed as a penalty, claiming that no basis in fact or in law existed for the imposition of such a penalty.

We conclude that Commissioner and State Board properly exercised jurisdiction in this matter and we reject appellant's additional arguments as to tenure charges two, three and five.

As to tenure charge four, we reverse the Commissioner's finding, as adopted by the State Board. We conclude that the credibility findings of the ALJ were supported by sufficient, competent and credible evidence in the record, and that the Commissioner did not have the authority to reject them.

As to the penalty, for the reasons set forth infra, we reverse and remand for further consideration of the quantum of the penalty imposed.

I.

These are the relevant facts. Appellant became the superintendent for the Middletown Township School District in 2003. He negotiated his own contract with the School Board attorney for an initial term of three years, but subsequently extended it to June 30, 2008.

We first review the details of the various tenure charges. In tenure charge two,*fn1 the School Board alleged that appellant had directed the school district's personnel office to carry over vacation time in excess of that authorized by his employment contract.

Under the original employment contract, appellant was entitled to carry over ten unused vacation days from year to year:

The Superintendent shall be provided with benefits specified below:

a) Twenty (20) annual vacation days with pay, exclusive of the holidays set out on [sic] the twelve-month employee calendar. The Superintendent is encouraged to take all vacation days during the year in which they are earned. The Board, in its discretion, shall determine whether the Superintendent will be reimbursed annually at his daily rate of pay for any unused vacation days, not to exceed ten (10) per year. In the event the foregoing discretion is not exercised by the Board, the Superintendent may carry over from year to year unused vacation days, not to exceed a total of ten (10) accumulated days being carried at any given time; however, he is not permitted to utilize more than thirty (30) vacation days in any school year.

Upon his separation from employment, the Superintendent shall be entitled to payment for all accumulated vacation time at his then-current per diem rate. [(Emphasis added).]

The contract was subsequently amended to allow Appellant to "carry over unused vacation days from year to year, not to exceed a total of twenty (20) days being carried forward."

Appellant felt that his contract was ambiguous concerning how many vacation days he could have in the bank. He believed that under the contract addendum, he was permitted to carry over forty vacation days in his bank in addition to twenty current vacation days, for a total of sixty days.

On July 1, 2004, appellant wrote an e-mail to Laurie Allocco, personnel director of the school district, stating: "Please see that my 20 days are carried over," bringing his vacation day total to forty vacation days. The ALJ agreed that his contract, with the amendment, permitted this. The next year, on June 29, 2005, appellant wrote a memorandum to Allocco stating: "carry over all unused vacation days into my 2005/06 allotment." According to a report prepared by Rosemarie Shopp, a secretary in the school district personnel office, appellant accrued a total of sixty vacation days. Appellant did not receive payment for any unauthorized vacation days.

Any unused vacation time is paid at a per diem rate when the contract expires. An employee receives payment for unused days only after a review by the personnel office and the School Board's finance committee, and final School Board approval.

In tenure charge three, the School Board alleged that appellant had misdirected his personal leave time by directing the personnel office to transfer his unused personal days to his sick leave bank.

Appellant's employment contract provided for the following sick and personal leave:

11. Sick Leave and Other Leaves: In addition to the aforementioned vacation entitlement, the Superintendent shall be provided with annual sick leave of twelve (12) days; four (4) personal days per year; up to five (5) days annually in the event of the death or serious illness of the Superintendent's spouse, child, parent, grandchild, sibling, son- or daughter-inlaw, grandparent, or any other member of the immediate household; and such other leave as may be granted by the Board of Education for good reason.

Upon his retirement consistent with the regulations of the TPAF, the Superintendent shall be entitled to payment for all accumulated sick time at his then-current per diem rate. However, in the event that the Superintendent voluntarily terminates his employment with the Board prior to the expiration of this Agreement, he shall not be entitled to any such payment for sick leave.

The contract did not contain language addressing the conversion of unused personal days into sick days. Yet, the contract did state that "[t]he parties agree that this Agreement contains the entire understanding between the parties and that there are no representations, promises or considerations of any nature whosoever, except as herein expressed."

Appellant acknowledged that his employment contract contained no provision regarding what would happen to unused personal leave. He initially understood that he would lose any unused days. But after learning that he might be able to change some personal days into sick days, he sent an e-mail to Shopp in the personnel office on June 14, 2004, at 2:20 pm, stating "[a]s I review my absences, I have 3 unused personal days and I have 14 sick days not used this year. I know all my sick days can accrue, how many of the personal days can become sick days and carried [sic] over?"

Appellant testified that after receiving his e-mail, Shopp came to his office and told him that he could carry over three unused personal days. Shopp requested that appellant send her an e-mail to that effect, and therefore at 2:38 p.m. he sent an e-mail to Shopp and Alloco stating: "Please transfer my 3 earned and unused personal days from this school year to my accrued number of sick days effective July 1, 2004." No one in the personnel office questioned his request to change personal days to sick days, and appellant had no knowledge that his request was contrary to his contract. He thought that the School Board condoned this change because a benefits comparison chart prepared by the school district business administrator was handed out to the School Board, stating that appellant could change four personal days to sick days.

(Shopp, however, denied telling appellant that he may convert personal days into sick days.) Shopp indicated that she transferred three unused personal days into appellant's sick leave account in 2004 pursuant to his June 14, 2004, e-mail. In 2005, she again transferred unused personal days into his sick leave account after appellant sent her a memo on June 29, 2005, stating "please transfer all my unused personal days to my accumulated sick days."

William J. Doering, the school district business administrator and the School Board secretary, indicated that at one time he believed appellant could transfer unused personal days into his sick leave bank. He presumed this without reviewing appellant's contract, because other union and non-affiliated positions within the school district allowed rollover of unused personal days into sick days. In late June 2004, Doering prepared a study comparing the terms and conditions of appellant's employment with other administrators in preparation for appellant's contract addendum. In this study, he included the transfer of personal days into sick days as a benefit received by appellant. However, he included this carryover erroneously, as appellant's contract did not address the rollover of personal days into sick days, and no School Board policy addressed this.

In tenure charge four, the School Board argued that appellant had misused the personnel office staff and abused his authority by directing them to carry over unauthorized vacation and personal leave days.

Alloco and Shopp both noted that appellant directed the personnel office to carry over forty vacation days on his account and that they complied with his directions because of his position as superintendent. They carried over the days despite their understanding that, under the amended contract, carryover was limited to twenty vacation days, for a total of forty days, which included the current year's allotment of vacation days.

As to the carryover of personal days, Shopp complied with appellant's e-mail of June 14, 2004, and his memorandum of June 29, 2005, directing her to transfer his remaining personal leave days for each year into his sick leave account. According to Allocco, even though no provision in appellant's contract allowed him to transfer his personal days, the personnel office did as appellant directed them to.

Appellant denied intimidating anyone about these transfers and denied knowing that his requests were contrary to his contract. He denied that he was able to intimidate Shopp or Allocco, explaining that there were instances in which they disagreed with him and did not do as he requested. For example, he disagreed that family leave should be deducted from sick leave, and he disagreed with having his benefit days prorated when he first started in his position. Despite his objections, the personnel office did not change its position.

In tenure charge five, the School Board claimed that appellant intentionally deceived the School Board by disclaiming knowledge on issues about which he was familiar and by failing to inform School Board members that he had provided edited versions of certain documents when responding to the School Board's request for information.

The witnesses regarding this charge offered contradictory testimony. School Board President Joan Minnuies indicated that at a Board meeting on December 19, 2005, she asked appellant two questions regarding litigation matters that involved the removal of a teacher and depositions that had taken place that day in litigation by a former guidance counselor. Appellant denied knowing the details of either situation and that he would have to call Assistant Superintendent Christopher Halpin to find out.

Christopher Parton, the School Board Attorney, attended the December 19, 2005 meeting. He recalled that Minnuies raised the deposition issue and another School Board member inquired into the removal of a teaching staff member. Appellant said that he would check with Halpin and report back to the School Board. Parton's own recollection was that appellant, Halpin ...


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