On appeal from the State Board of Education, Docket No. 29-1/07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Lisa, Baxter and Alvarez.
Appellant, John A. Blevis, a teacher in the Lyndhurst Public School System, appeals from the December 5, 2007 decision of the Commissioner of Education (Commissioner). That decision adopted the August 7, 2007 decision of an administrative law judge (ALJ), which upheld the decision of the Lyndhurst Board of Education (Board) directing him to submit to a psychiatric and physical examination pursuant to N.J.S.A. 18A:16-2a. Appellant argues that the Commissioner's decision should be reversed because (1) the burden of proof was improperly placed on appellant, (2) the Board failed to prove that appellant's behavior affects his ability to teach, discipline or associate with his students, and (3) the Commissioner relied on several factual errors by the ALJ. We reject these arguments and affirm.
Because the appeal issues implicate the provisions, interpretation, and application of N.J.S.A. 18A:16-2a, we set forth at the outset its relevant provisions:
Every board of education may require its employees and shall require any candidate for employment who has received a conditional offer of employment to undergo a physical examination. The board may require individual psychiatric or physical examinations of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal, physical or mental health. [N.J.S.A. 18A:16-2a (emphasis added).]
Appellant has been a teacher at Lyndhurst High School since 1986. During the ensuing years, he was a well regarded teacher. He had no disciplinary infractions. However, by the fall of 2006, appellant was exhibiting behaviors regarded by his teaching colleagues and supervisor as inappropriate. Appellant's behavior was viewed as hostile, belligerent, uncooperative, unstable, and threatening. Although appellant's behavior was directed at fellow staff members, some of the conduct occurred in the presence of students. Moreover, some of the conduct pertained to teaching methods and protocols and deviated from school policy. Staff members reported incidents in which appellant was totally out of control, ranting and raving, exhibiting redness in his face, shaking, talking to himself, flailing his arms, and otherwise acting in a disturbing manner. It was also reported that appellant unjustifiably expressed his view on various occasions that there were conspiracies against him. Appellant had begun secretly recording conversations with staff members.
In light of these reports, on October 16, 2006, the Superintendent of Schools wrote to appellant informing him that the Board would be discussing issues pertaining to his employment in a closed executive session, and that he had a right to have the session conducted in public. Appellant did not avail himself of that right, and the meeting was held in closed session. On October 20, 2006, the Superintendent wrote to appellant and advised that the Board determined that appellant had "shown evidence of a deviation from normal physical and mental health, and said condition is thought to be a possible danger to the health or welfare of the pupils and/or other employees." The Board therefore directed appellant to submit to a physical and psychiatric examination. The Superintendent attached various documents upon which the Board relied in reaching its decision, and set forth the following reasons for ordering the examination:
1. The incidents of erratic and unusual behavior are increasing in frequency and intensity; other staff members have confirmed incidents that evidence harmful, significant deviation from normal mental health including but not limited to, angry and unstable behavior exhibited by ripping up workshop documents and discarding them in the garbage, ranting and raving, pacing, and arms flailing which was described as adversarial, disruptive and alarming.
2. Staff members have complained of harassing and intimidating behavior by you which is distracting and disruptive including, but not limited to sabotaging experiments, making unnecessary derogatory and threatening comments, and staring staff members down at meetings and constant snide and derogatory statements.
3. Staff members have commented that they feel physically threatened and are uncomfortable in your presence as you are angry, hostile, and constantly grumbling under your breath.
4. Incidents of deliberate failure to conduct laboratory activities or following required protocol on clean up and supplies.
The letter also informed appellant of his right to a hearing before the Board. Appellant requested a hearing, which was held on November 15, 2006. Appellant was represented by counsel at the hearing. Five staff members, including teachers and appellant's supervisor, testified. Defendant's attorney cross-examined the witnesses. Defendant did not testify or address the Board and did not present any witnesses. Based upon the evidence presented, the Board upheld its earlier determination and directed appellant to submit to the physical and psychiatric examinations.
Appellant refused to submit to the examinations. He advised the Board of his intent to appeal its determination. Because appellant did not appear for the examinations and did not file an appeal, the Board suspended him with pay on January 22, 2007, pending his compliance with the required examinations and receipt of proof of recovery or a report that he was fit to teach. The Board then filed a petition with the Commissioner requesting ...