On appeal from the New Jersey Commissioner of Education, Agency Docket No. 5-7/08A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Stern, Graves, and J. N. Harris.
This is an appeal from the final determination of the Commissioner of Education (Commissioner) that revoked Kevin Jordan's teaching credentials, finding him presently unfit under N.J.A.C. 6A:9-17.5. We affirm the decision of the Commissioner because it is supported by substantial credible evidence in the record, notwithstanding a contrary conclusion by the Administrative Law Judge (ALJ) who initially heard the matter.
Beginning in September 2002, Jordan was employed as a public school teacher assigned to teach eighth grade mathematics. On two separate occasions, first in 2002 and then again on January 2, 2003, he publicly masturbated in the presence of an unwilling female employee of the Casual Male Big and Tall store in Cinnaminson. After the second incident, the employee complained to the local police. Subsequently, Jordan was convicted of the petty disorderly persons offense of improper behavior under N.J.S.A. 2C:33-2(a)(2):
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . .
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor. [N.J.S.A. 2C:33-2(a)(2).]
Jordan was sentenced on June 19, 2003, pursuant to a plea agreement, as follows: 1) ninety days in jail (suspended), 2) "must complete counseling with proof," 3) "do not go back to Big and Tall," and 4) fined $1,155 (including costs).
Jordan started teaching in a different school district in January 2005, where he was employed as a middle school math teacher assigned to the sixth, seventh, and eighth grades. In satisfaction of the plea agreement, Jordan attended siX counseling sessions with Dr. Fred Chase, Ph.D., starting on August 22, 2003. Jordan's last session with Dr. Chase was in the beginning of 2005. At the conclusion of this counseling, Dr. Chase opined that Jordan's prognosis "was excellent[.] I mean, it was - the prognosis for that problem was excellent in terms of his not repeating it."
On July 26, 2006, following its receipt of evidence of Jordan's conviction of the petty disorderly persons offense, the Board of Examiners in the Department of Education (Board) commenced a revocation/suspension proceeding against Jordan by an order to show cause. N.J.S.A. 18A:6-38; N.J.A.C. 6A:9-17.6. The sole gravamen of the Board's order to show cause was Jordan's conviction three years prior as constituting "conduct unbecoming a teacher or other just cause." N.J.A.C. 6A:9-17.5.
Four witnesses testified at the hearing conducted by the ALJ: Jordan, Dr. Chase, Sergeant William Covert of the Cinnaminson Police Department, and the female employee of the Casual Male Big and Tall store in Cinnaminson. The Board did not present any evidence concerning Jordan's current circumstances; its entire case relied upon the events of 2003 that resulted in the conviction of a petty disorderly persons offense. Jordan ...