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In the Matter of the

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 2, 2011

IN THE MATTER OF THE TENURE CHARGES AGAINST WILLIAM TRACY, BOARD OF EDUCATION OF THE CITY OF TRENTON, MERCER COUNTY.

On appeal from the New Jersey Department of Education, Agency Docket No. 183-6/08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 disseminate written information about the attendance policy, "was an abrogation of the principal's duty as school leader and primary supervisor."

Thus, the ALJ concluded that the Board had proved the tenure charge because thirty-three of the ninety-one graduates in the 2005-2006 school year had more than the allowed fifteen absences; no centralized attendance record-keeping system existed for the school as a whole; the school had no waiver documentation system; and Tracy had "made no effort to create or monitor a proper attendance system."

In discussing the appropriate penalty, the ALJ noted:

There is something deeply unfair about the loss of tenure in a situation where the Board itself did not adequately document what it created, where multiple schools with different missions were collapsed into one entity, where a single vice principal was assigned to a school with 2,100 enrollees in seven buildings, and where the substantial enrollment reflected success in the core mission of bringing people back to studying toward a high school diploma.

Thus, a six-month suspension was warranted; however, termination and loss of tenure were not.

Both Tracy and the Board filed exceptions with the Commissioner.

The Board argued, in part, that the appropriate disciplinary action was termination. Tracy argued that all charges against him should be dismissed and that he should be immediately reinstated to his position.

The Commissioner adopted the ALJ's recommended decision and held that the Board had met its burden of proving that Tracy had failed to enforce the Board's attendance policy. As to the appropriate penalty, the Commissioner noted that, while the Board had sustained only one of its charges of unbecoming conduct against Tracy, she did "not view this as a de minimis infraction":

[Tracy]'s dereliction of his duty to create, widely publicize and monitor a proper attendance policy clearly had a detrimental effect on the Board, impermissibly usurping the Board's authority in the establishment of uniform standards in its schools and seriously compromising its ability to conform to its regulatory obligations with respect to the attendance component of graduation requirements at the Daylight/ Twilight High School.

However, Tracy's conduct did not warrant the "extreme penalty" of dismissal. Thus, the Commissioner accepted the ALJ's recommendation for a six-month suspension, and "stress[ed] that such suspension must be served prospectively." This appeal followed.

II.

Tracy contends on appeal that the record does not support the charge at issue because the school had a written attendance policy; he did what he could to create a centralized database for the school; teachers documented attendance much like teachers at the district's other schools; and there is no proof in the record that thirty-three students graduated in the 2005-06 school year with more than fifteen absences. He argues that the Commissioner did not have a basis to conclude that his six-month suspension should be served prospectively.

The Board urges that Tracy violated N.J.A.C. 6A:16-7.8 in implementing a policy of three absences per term; permitted students to graduate who did not satisfy the Board's attendance policy; failed to maintain attendance documentation in a centralized file as required by N.J.A.C. 6A:32-7.4(b); harmed students by failing to follow Board attendance policy; and, thus, engaged in conduct unbecoming an educator. Further, it asserts that the Commissioner properly adopted the ALJ's initial decision and properly imposed the six-month suspension prospectively. Finally, it contends that the Commissioner's action was not arbitrary, capricious, or unreasonable, nor unsupported by the record as a whole, and was based on credible evidence presented to the ALJ. The DOE relies on the arguments advanced by the Board.

Once the agency head has issued a final decision, the scope of judicial review is limited. In re Carter, 191 N.J. 474, 482 (2007). The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)); accord In re Herrmann, 192 N.J. 19, 27-28 (2007). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

III.

Tracy raises four contentions in his first point, arguing that the record did not warrant the finding of unbecoming conduct because: (1) the Daylight/Twilight High School did have an attendance policy that it utilized and that appeared in the documentation in the record; (2) Tracy did what he could to create a centralized database for the school but was never given adequate resources or staffing to address the problem; (3) the school's teachers documented attendance much like the teachers at the district's other schools; and (4) no evidence supports the conclusion that thirty-three graduates in the 2005-06 school year had more than the fifteen absences permitted by the Board's policy.

Tracy's argument that the Commissioner erred in concluding that the Daylight/Twilight High School had no written attendance policy because it only allowed three unexcused absences per ten-week cycle lacks merit. The finding that there was no written attendance policy specifically for the Daylight/Twilight High School was supported by the record, Herrmann, supra, 192 N.J. at 27-28, because the only written attendance policy was the district-wide policy approved by the Board. Tracy did not apply this district-wide policy to the Daylight/Twilight High School nor did he seek Board approval of a divergent policy.

N.J.A.C. 6A:16-7.8(a) provides:

Each district board of education shall develop, adopt and implement policies and procedures regarding the attendance of students, pursuant to [N.J.S.A.] 18A:38-25 through 31 and [N.J.A.C.] 6A:32-8 and 13.1, at the public schools of the district . . ., according to the requirements of [N.J.S.A.] 18A:38-25, that shall include, at a minimum:

1. The expectations and consequences regarding the timely arrival of students to school and classes;

2. The expectations and consequences regarding attendance at school and classes;

3. A definition of unexcused absence, for the purpose of this section, that, at a minimum, shall be based on the definition of a school day, pursuant to [N.J.A.C.] 6A:32-8.3, and the following considerations:

i. Family illness or death;

ii. Educational opportunities;

iii. Written parental permission; [and]

iv. Excused religious observances, pursuant to [N.J.S.A.] 18A:36-14 through 16[.] [N.J.A.C. 6A:16-7.8(a)(1) to (3)(i)-(iv).]

Tracy's attendance policy was in some ways more strict (allowing only three unexcused absences per quarter), and in some ways more lenient (giving credit for some terms even though the fifteen-absence limit was exceeded). Thus, Tracy applied an attendance policy that had the capacity to violate the district-wide attendance policy established by the Board. There is no dispute that Tracy never sought approval from the Board for that policy.

Tracy argues that, contrary to the Commissioner's finding, the policy he applied was a written policy. Furthermore, he urges, the Board should have had notice of it because it was written in the 2000-01 Trenton Central High School Course Selection Catalog. However, whatever was in that catalog is irrelevant because it did not apply to the Daylight/Twilight High School, which was not established until September 2001.*fn2 Notably, the applicable Daylight/Twilight School Course Handbook does not include the attendance policy, which in fact states that students must "[m]eet the attendance policy set forth by the Trenton Board of Education."

Pursuant to N.J.A.C. 6A:16-7.8(a), a district board of education, and not a principal, develops and adopts attendance policies and procedures. In applying a policy that did not satisfy the requirements of N.J.A.C. 6A:16-7.8(a) and that was different from the district-wide policy approved by the Board, Tracy's actions were sufficient to support the charge of unbecoming conduct. Thus, we find no ground for concluding that the Commissioner's decision was arbitrary, capricious, unreasonable, or lacking fair support in the record. Herrmann, supra, 192 N.J. at 27-28.

Tracy next argues that there was no basis to sustain the tenure charge under N.J.A.C. 6A:32-7.4(b) because he did not fail to maintain attendance records in a centralized file. He urges that the record shows that he "did what he could" to create a centralized database and teachers at the school documented attendance much like teachers at other district schools. Tracy points out that the Board made no comparison of his recordkeeping with that of other principals in the district and the Board offered no testimony as to what process Tracy should have followed.

Pursuant to school attendance regulations, daily attendance must be taken by a teacher or other authorized person. N.J.A.C. 6A:32-8.3(f). N.J.A.C. 6A:32-7.4(b) requires that "[r]ecords for each individual student shall be maintained in a central file at the school attended by the student. When records are maintained in different locations, a notation in the central file as to where such other records may be found is required." Mandatory student records include a record of daily attendance. N.J.A.C. 6A:32-7.3(a)(2). The regulations also provide that the principal is "responsible for administration and supervision of the school." N.J.A.C. 6A:32-4.1(f).

The record established that no attendance files were kept in a central file at the Daylight/Twilight High School. Instead, teachers would take class attendance, which would be collected and brought to the records office where Winters would enter the absences into the district's main computer database, not the school's own database. Attendance records were not kept in a file at the school. Beginning in the 2003-04 school year, the teachers themselves would enter attendance information into the district's centralized computer database, and the school itself did not keep any records. Also, no records of waivers given to students who exceeded the number of allowed unexcused absences were maintained in student files; the computer database created by Winters did not include any information on attendance.

Thus, there were no attendance records at the central office of the Daylight/Twilight High School and no record of the reasons for any waivers of the attendance policy given to allow students to graduate with more than the fifteen unexcused absences. Also, Tracy's argument that other principals in the district may have handled attendance in a similar way does not excuse his noncompliance with the regulations. The Board was not required to prove that Tracy's conduct differed from other principals in the district; instead, it only needed to show, as it did, that his conduct violated his responsibility under N.J.A.C. 6A:32-4.1(f) for the administration of the school. As a result, there was sufficient evidence in the record to support the Commissioner's finding that Tracy violated N.J.A.C. 6A:32-7.4(b). Herrmann, supra, 192 N.J. at 27-28.

Next, Tracy argues that there is nothing to support the conclusion that thirty-three of the ninety-one graduates during the 2005-06 school year at the Daylight/Twilight High School had more than the fifteen unexcused absences permitted by the Board. He argues that the central office database of the Trenton School District, from which this information was taken, was premised on a system of two semesters in a given year, and did not take into account that each cycle at the Daylight/Twilight High School was a stand-alone unit. We find no merit in this argument, premised as it is on his claim that the attendance policy he applied was appropriate.

Both the DOE and the Board's investigators found that there were a number of students who graduated from the Daylight/ Twilight High School with more than the fifteen allowed absences in one school year. Their testimony provided sufficient credible evidence to support the Commissioner's finding in this regard, which is affirmed. Herrmann, supra, 192 N.J. at 27-28. The structure of the school, with four stand-alone cycles, did not excuse Tracy from applying the Board's attendance policy.

IV.

Tracy next argues that the Commissioner did not articulate a reason for directing that his six-month suspension should be served prospectively, that is, in addition to his prior period of suspension. He urges that the Commissioner thus acted in an arbitrary, capricious, and unreasonable manner. We agree.

Our Supreme Court has twice recently discussed the proper scope of review of the penalty imposed in an administrative action. See In re Stallworth, ___ N.J. ___ (2011); Herrmann, supra, 192 N.J. 19. First, in Herrmann, the Court noted that an administrative agency's determination "will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. If an agency's decision meets these criteria, "then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Id. at 28.

This deferential standard of review "applies to the review of disciplinary sanctions as well." Ibid. "A reviewing court should alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency.'" Ibid. (quoting In re Polk, 90 N.J. 550, 578 (1982)). Thus, the test when reviewing administrative sanctions is "'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

In Herrmann, the Merit System Board (MSB) had terminated an employee of the Division of Youth and Family Services after it concluded that the employee had engaged in conduct unbecoming a public employee when she waved a lit cigarette lighter in front of a five-year-old child's face. Id. at 26-27. We affirmed the MSB's conclusion that the employee engaged in conduct unbecoming a public employee, but vacated the order removing her from her position. Id. at 27. The Supreme Court reversed, holding that we "impermissibly imposed [our] own judgment as to the proper penalty in this matter when the MSB's penalty could not be said to be either illegal or unreasonable, let alone 'shocking' any sense of fairness." Id. at 39.

More recently, the Court considered whether we exceeded the proper scope of review in reversing a penalty imposed by the Civil Service Commission (CSC). Stallworth, supra, slip op. at 1. At issue was the propriety of the "'progressive discipline'" imposed on the employee for an infraction, "taking into account the [CSC]'s expertise in promoting statewide uniformity in the discipline of civil servants." Id. at 2. The ALJ found the misconduct to be "'egregious enough to warrant removal.'" Id. at 7. The CSC accepted and adopted the ALJ's finding and conclusion that Stallworth had engaged in misconduct but "concluded that . . . the penalty imposed was too harsh." Id. at 8. It determined to modify the penalty to a four-month suspension and ordered Stallworth reinstated. Ibid.

The Court focused on the importance of "fairness and generally proportionate discipline imposed for similar offenses" and the CSC's responsibility to assure same. Id. at 11. Although the Court affirmed our determination that the CSC did not adequately explicate its reasons for imposing a four-month suspension in the context of Stallworth's entire disciplinary history, it reversed our determination to reinstate termination as the proper discipline because we should have remanded to the CSC for further findings. Id. at 19-23.

In Tracy's case, there is no issue as to whether the discipline imposed was within the Commissioner's authority--it clearly was. See N.J.S.A. 18A:6-10(a) ("No person shall be . . . reduced in compensation . . . if he is . . . under tenure . . . except for inefficiency, incapacity, unbecoming conduct, or other just cause . . . .").

Generally, in reviewing the penalty imposed by the Commissioner, we must determine whether the punishment is "'so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Herrmann, supra, 192 N.J. at 28-29. We recognize that the Commissioner, much like the MSB and CSC, has expertise in school employee disciplinary matters and considers parity of discipline over multiple public school districts in our State.

Tracy asserts that he had already received a four-month, unpaid suspension prior to the ALJ's decision, which "he had already done at the time in which the charges were initially certified." From the record before us, we have not been able to verify the exact length or timing of the prior suspension, but Tracy was apparently first suspended in December of 2007 for an indeterminate amount of time. The record does not reflect whether that suspension was with or without pay, but the Board acknowledges that Tracy was suspended for four months without pay sometime prior to the ALJ's initial decision.

Presuming that Tracy already served a four-month period of suspension prior to the Commissioner's imposition of the prospective six-month suspension, we cannot on the record before us say that a suspension of ten months would be shocking to our sense of fairness in light of the circumstances, although it seems harsh and we may well ourselves have concluded that a total of six months loss of salary was quite sufficient. Tracy has offered no comparison to discipline imposed on other principals in analogous situations to lead us to the conclusion that the suspension here was a sharp departure from prior practice.

However, we do have difficulty with the Commissioner's imposition of a six-month suspension "prospectively" because it is not clear that she really intended to Tracy to suffer a ten-month suspension. Nothing in the Commissioner's written opinion expressly acknowledges any awareness that Tracy had already been suspended for at least four months during some unspecified period, although she noted that Tracy sought reinstatement to his principal position with back pay. The ALJ noted that Tracy was suspended in December 2007 but, in her final decision, did not indicate whether her recommended penalty of suspension was prospective or retroactive.

In addition to these ambiguities, if the Commissioner intended that Tracy suffer a suspension in excess of six months, she provided no explanation for why his conduct justified a longer suspension than that imposed by the ALJ. Stallworth requires such an explanation. Stallworth, supra, slip op. at 31.

Affirmed in part, reversed in part, and remanded to the Board for further consideration. We do not retain jurisdiction.


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