On appeal from the State Board of Education, Docket No. 0405-276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Collester, Graves and Grall.
Joseph Mazzarella (Mazzarella) appeals from a final decision of the State Board of Education (Board), affirming a decision of the State Board of Examiners to revoke his administrative and teaching certificates.*fn1 On appeal, Mazzarella presents three arguments. First, the administrative hearing and review process violated his due process rights. Second, the credibility determinations by the Administrative Law Judge (ALJ) were arbitrary, capricious, and unreasonable, and therefore, the record fails to establish that his actions constituted unbecoming conduct. Third, the Board's decision to revoke his administrative and teaching certificates is excessive and disproportionate to the facts.
Based on our review of the administrative record, we conclude that Mazzarella's first two arguments are clearly without merit. R. 2:11-3(e)(1)(E). We also conclude, however, that there is insufficient evidence to sustain the revocation of his teaching certificates. Accordingly, we affirm the Board's decision to revoke Mazzarella's administrative certificates, but reverse the revocation of his teaching certificates.
On October 28, 2004, the Ridgefield Board of Education voted to file tenure charges with the Commissioner of Education (Commissioner) seeking to terminate Mazzarella's employment for "conduct unbecoming a teacher with respect to fellow teachers." At that time, Mazzarella was the Director of Curriculum and Instruction for the school district. The tenure charges alleged that Mazzarella made improper telephone calls to the homes of his subordinate teaching staff, requested social engagements that were improper, interfered with his teaching staff during school hours, and he implied that failure to comply with his requests could impact upon the tenure status of his staff. After the charges were referred to the Office of Administrative Law for a hearing, the parties entered into a written settlement agreement.
The settlement agreement noted that Mazzarella was employed by the Ridgefield Board of Education since 1999; he had "received only positive evaluations during his employment"; and the litigation was "unlikely to result in a finding of sexual harassment," which would have led to his dismissal. Nevertheless, Mazzarella agreed to resign "as an employee in good standing effective August 31, 2005." In return, the Ridgefield Board of Education agreed to withdraw the tenure charges. The settlement agreement was approved by the ALJ and the Commissioner, but the Commissioner referred the matter to the Board of Examiners for possible action regarding Mazzarella's administrative and teaching certificates.
On June 9, 2005, the Board of Examiners issued an order requiring Mazzarella to show cause why his administrative and teaching certificates should not be suspended or revoked. In his answer, Mazzarella denied any wrongdoing and stated that he resigned because the Ridgefield Board of Education eliminated the position of Director of Curriculum and Instruction. In addition, Mazzarella stated he agreed to the settlement because he wanted "to avoid the time, expense and disruption to his personal and professional life associated with ongoing litigation, as well as the aftermath of such litigation and the potential for future unfounded allegations to be levied against him." Accordingly, the matter was transmitted to the Office of Administrative Law as a contested case that was heard on August 28, 29, 30, and 31, 2006.
On October 17, 2006, the ALJ rendered a comprehensive fifty-seven page decision, which included detailed findings regarding the credibility of the witnesses for both parties. The ALJ found that the testimony of the three complaining teachers who were supervised by Mazzarella was convincing and credible. But the ALJ reached a contrary conclusion with respect to Mazzarella's testimony:
Mazzarella was not a credible witness. His testimony that, as Department chairperson or as director of Curriculum and Instruction, he had no supervisory authority over the Department teachers was not believable. This assertion was contradicted by his other testimony and the documentary evidence. As examples, he directed Fiordilino to change classes with Ferdinand so that Ferdinand would not receive full- time status; he conducted the observations of the Department teachers as part of their evaluations; he collected and reviewed the portfolios prepared by Arcuri's classes and by the new teachers participating in the monitoring programs; he did not approve the field trip scheduled by Arcuri; and, in an e-mail dated April 14, 2002, he confirmed two assignments that he had given to Arcuri, Abate and Fiordilino.
Furthermore, his testimony that he and Fiordilino were discussing fruit when he used the phrase "Lei e' una ficha" was simply unbelievable. His attempts to explain the content of the telephone calls and e-mails he could not deny making or sending were unsatisfactory.
In addition, the ALJ also found by a preponderance of the evidence that Mazzarella "improperly telephoned teaching staff members of the District at home"; "unreasonably interfered with their teaching during school hours," "for reasons that could have waited"; and "he implicitly and explicitly threatened the tenure of Ferdinand and Fiordilino on a regular basis in order to bully them into accepting his behavior." Consequently, the ALJ determined that Mazzarella should not be allowed to act in an administrative or supervisory capacity because he was unable "to distinguish the boundaries between his personal and professional relationships." However, the ALJ also determined that Mazzarella's "skills as an educator and innovator [were] valuable to the educational process," and there was no reason to remove him from the classroom, so long as he was "not in a position of authority." Accordingly, the ALJ revoked Mazzarella's administrative certificates but not his teaching certificates.
Although the Board of Examiners accepted the ALJ's factual findings, it concluded that "Mazzarella's conduct was equally inappropriate for a holder of a teaching certificate" and revoked all of Mazzarella's certifications. In an order of ...