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In re Tenure Hearing of Taylor

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 1, 2010

IN THE MATTER OF THE TENURE HEARING OF BRIAN TAYLOR, SCHOOL DISTRICT OF THE CITY OF EAST ORANGE, ESSEX COUNTY.

On appeal from the New Jersey Commissioner of Education, Docket No. 275-9/08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 14, 2010

Before Judges Fisher, Simonelli and Fasciale.

Appellant Brian Taylor appeals from a September 21, 2009 final decision of respondent Commissioner of Education (Commissioner), which adopted the initial decision of the Administrative Law Judge (ALJ) sustaining the tenure charges filed by respondent East Orange Board of Education (Board), and affirming his dismissal as a tenured teacher. We affirm.

The Board filed tenure charges against Taylor pursuant to the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10, "for inefficiency, incapacity, unbecoming conduct, or other just cause." The Board's filed thirteen charges alleging that Taylor had engaged in inappropriate behavior toward students, staff and parents. The Board alleged that Taylor demonstrated poor judgment, an inability to control his temper, and insubordination.

The ALJ conducted hearings on three separate days, considered post-hearing submissions, and concluded that Taylor acted in a manner not appropriate for a school teacher. She found Taylor guilty of twelve charges and concluded that his behavior constituted conduct unbecoming an employee, and that his removal was necessary to ensure the safety and well being of the students and the staff. In a lengthy written opinion, the Commissioner adopted the ALJ's initial decision and dismissed Taylor from his tenured position.

Taylor argues for the first time on appeal that the Board failed to accommodate his depression in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-4 to -49. We decline to consider this argument because it was not raised below and no exception applies. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Krause, 399 N.J. Super. 579, 583 (App. Div. 2008).

Taylor also argues that his removal constituted an excessive penalty and was unnecessary. We disagree.

The role of this court in reviewing an administrative agency's final determination is exceedingly limited. In re Taylor, 158 N.J. 644, 656 (1999).

The scope of review of an administrative decision is the same as that for an appeal in any non[-]jury case, i.e., 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. [Ibid. (internal quotations and citations omitted).]

An appellate court is not permitted to "engage in an independent assessment of the evidence as if it were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If, in reviewing the agency's decision, this court finds sufficient credible evidence in the record and the inferences to be drawn therefrom, it must uphold the agency's decision even if the court would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); In re Taylor, supra, 158 N.J. at 657. We afford substantial deference to an agency's choice of sanction. In re Zahl, 186 N.J. 341, 353-54 (2006). An appellate court must grant deference to an agency's expertise when such expertise is relevant to the case. Campbell, supra, 169 N.J. at 588.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Taylor's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). There is sufficient credible evidence in the record demonstrating that Taylor verbally abused and threatened students, left students unsupervised, threatened his supervisor, acted aggressively toward colleagues, engaged in a physical altercation with a colleague in the presence of students, made defamatory statements to others about students, and displayed insubordination.

We affirm substantially for the reasons expressed by the Commissioner in her thoughtful and detailed written opinion dated September 21, 2009.

20101101

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