On appeal from the New Jersey Department of Education, Agency Docket No. 183-6/08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2010
Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.
Appellant William Tracy (Tracy) appeals from the final agency action by the Commissioner of the Department of Education (Commissioner) finding that Tracy had engaged in unbecoming conduct by failing to properly administer the attendance policy of the Board of Education of the City of Trenton (the Board) and imposing a six-month suspension effective on the date of the final agency action. We now affirm the Commissioner's finding that Tracy engaged in unbecoming conduct but reverse and remand for further consideration of the discipline imposed.
Tracy was hired by the Board on July 27, 1999, as a vice principal at Trenton Central High School. He worked with Superintendent Dr. James Lytle to create an alternative education program, known as the "Daylight/Twilight Program," for the Trenton School District. Lytle recruited Tracy for such a program, in part because they had worked together in Philadelphia, where Tracy was in charge of a "Twilight Program."
The school was meant as a "retrieval program," targeted at students who had been out of school for at least a year, in order to re-engage them with schooling and allow them to earn a high school diploma. To accomplish this, students were allowed to retake courses as many times as needed until they passed and earned credit. Students could retake courses because they either had not met the attendance policy or had not passed the course. This program became a separate school when the Board adopted a resolution on September 24, 2001, establishing the Daylight/Twilight High School as "a distinct and separate high school." Tracy was named its principal.
The Daylight/Twilight High School has students as young as sixteen, but there is no maximum age limit. The school's curriculum is limited to core content in mathematics, science, English, social studies, health, technology, and ESL/bilingual education. It has different hours of operation from Trenton Central High School, offering three, four-hour sessions per day beginning at 7:30 a.m., 11:30 a.m., and 3:30 p.m. This schedule is offered to accommodate the schedules of working students and to encourage them to complete their educations.
In addition, the school does not operate on a semester basis like other Trenton schools. Instead, it operates on quarterly cycles with each cycle as a freestanding unit. The school also operates in up to nine different locations, with the central location at a campus on Bellevue Avenue. By 2008, the school's student enrollment had risen to about 2200 students.
The Board's attendance policy mandates attendance for 165 out of 180 school days, thus prohibiting more than fifteen unexcused absences per school year. However, at the Daylight/Twilight High School, Tracy implemented an attendance policy allowing students no more than three unexcused absences per ten-week term. Daylight/Twilight students who had more than three unexcused absences in any one term were not given credit for the courses taken during that term. Unlike the absences at other schools in the district, absences at the Daylight/Twilight High School did not accumulate from one term to the next. Thus, a student could have more than fifteen unexcused absences in one quarter and still receive credit for the courses taken during the other three quarters, whereas a regular high school student would be required to repeat the entire year. The Board never approved a separate attendance policy for the Daylight/Twilight High School; however, Lytle knew about the school's attendance policy of allowing no more than three unexcused absences per cycle, with each cycle on a stand-alone basis.
Despite prohibiting more than three unexcused absences per quarter, some students were permitted to pass a class after exceeding this limit, but the school kept no documentation regarding those waivers of the attendance requirement. According to Bart LaGrassa, the school's vice principal, the process for waiving the attendance requirement was informal, and the school maintained no records of waivers.
Early in the school's history, teachers would take class attendance, which would then be collected and brought to the records office. William Winters, who worked in that office, would enter the absences for each class into the district's, but not the school's, computer. The school's computer tracked only courses passed, grades earned, and number of credits for each student. In 2003, the district installed a new database for tracking attendance during the 2003-04 school year. After teachers were trained to use this database, they entered their own attendance into the computer system. Thus, starting with the 2003-04 school year, teachers kept all attendance records at the school, entering them only in the district's database.
Beginning in September 2007, the New Jersey Department of Education (DOE) conducted an investigation regarding the academic standing of students graduating from the Daylight/Twilight High School. This investigation was made in response to an anonymous complaint to State Senator Shirley K. Turner, alleging in part that "[a]pproximately 10% of the graduating students had unexcused excessive absences." The investigation was conducted by Daryl Minus-Vincent, who worked as a liaison between the Trenton Public Schools and the DOE. The DOE found that of the ninety-one graduating students aged seventeen to nineteen at the Daylight/Twilight School in the 2005-06 school year, thirty-three had absences in excess of fifteen days.
The Board then conducted its own investigation of the school. This investigation was conducted by Kathleen Smallwood Johnson, an assistant to the Superintendent. After looking at the attendance records, she found that students who had been absent for more than fifteen days during the school year were allowed to graduate. Prior to the completion of this investigation, Tracy was suspended in December 2007 for an indeterminate period of time.
On May 16, 2008, the Board prepared a Statement of Tenure Charges, alleging that Tracy engaged in unbecoming conduct by failing to adhere to the Board's attendance policy.*fn1 Specifically, the Board alleged that Tracy made a conscious decision not to enforce the Board's attendance policy without its approval. The Board further alleged that this deviation had permitted scores of students to earn credit and graduate without adhering to Board policy. The Board asserted that Tracy's actions constituted unbecoming conduct and sought to suspend him without pay for 120 days and terminate his employment and tenure. The charges were certified on June 23, 2008, and Tracy filed his answer thereafter, disputing most of the Board's allegations.
The Commissioner referred the tenure charges to the Office of Administrative Law (OAL), and the matter was filed on July 18, 2008. The Administrative Law Judge (ALJ) conducted hearings on various dates commencing November 20, 2008, and concluding January 30, 2009.
Tracy testified that he was told from the outset that the school was to have greater flexibility in how it was to be managed and how students could earn credit. As principal, he was responsible for maintaining attendance records. However, he instructed the teachers to keep track of attendance as they were the ones seeing the students daily and recording their grades.
The ALJ found that the only publicly available documentation about the school's attendance policy was the Trenton Central High School Course Selection Catalog for 2000-01 (the year before the school was established as an independent school) and the school's online handbook, both of which referred to three absences per term. Beyond that, the school had no written policies or procedures on attendance. Lacking any further description, the ALJ found that "a Board member could have inferred that the total number of possible absences was twelve, which would have been stricter than the Board's written policy."
The ALJ noted that Tracy produced no documentary evidence of attendance waivers. The attendance roll showed a number of students with absences consistent with Minus-Vincent's testimony. Thus, the ALJ found that the school graduated students with more than the fifteen absences allowed by the Board's attendance policy. Finally, the ALJ relied on Tracy's testimony in finding that "he delegated the operation of the student attendance system entirely to the teachers," and there was no evidence that waivers for students who had exceeded the number of allowed unexcused absences were properly granted.
The ALJ noted that N.J.A.C. 6A:16-7.8(a)(2) and (3) "require boards of education to implement policies and procedures on attendance." Further, N.J.A.C. 6A:8-5.2(b) bars school districts from granting diplomas to students who do not meet core curriculum and attendance requirements. Therefore, the ALJ concluded that Tracy, as a school principal, had no authority to act separately with regard to the attendance policy.
Also, N.J.A.C. 6A:32-7.3(a)(2) requires that student records include a record of daily attendance, and N.J.A.C. 6A:32-7.4(b) requires that records for each student be maintained in a central file at the school attended by the student. "Tracy did not see to it that the school had an adequate centralized file, and he did nothing to ensure that teachers were moving the documentation into that file." There was also "no evidence that he made any effort to ensure that waivers were properly granted." That, along with the failure to ...