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Department of Children and Families/Institutional v. R.A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 9, 2011

DEPARTMENT OF CHILDREN AND FAMILIES/INSTITUTIONAL ABUSE INVESTIGATION UNIT, PETITIONER-RESPONDENT,
v.
R.A., RESPONDENT-APPELLANT.
IN THE MATTER OF THE TENURE HEARING OF R.A., STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY.

On appeal from Department of Children and Families, Docket No. AHU#08-0479, and Department of Education, Docket No. 248-8/08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 27, 2010

Before Judges A.A. Rodriguez and C.L. Miniman.

Respondent R.A. appeals from final agency action of the Department of Children and Families (DCF) sustaining a finding by its Institutional Abuse Investigation Unit (IAIU) of child abuse based on R.A. inflicting excessive corporal punishment on Dwayne*fn1 and ordering that R.A.'s name be placed in the DCF's child abuse registry ("the Central Registry") pursuant to N.J.S.A. 9:6-8.11 and N.J.A.C. 10:129-5.4(c)(2).

R.A. also appeals from final agency action of the Department of Education (DOE) dismissing him from his tenured position because he engaged in conduct unbecoming a school administrator by inflicting corporal punishment on Dwayne and Howard.

The two matters were consolidated at the agency level on September 17, 2008, pursuant to N.J.A.C. 1:10A-17.1. Because the findings by both agencies are based on sufficient credible evidence in the record and are neither arbitrary, capricious, nor unreasonable, we affirm.

I.

We begin with the largely undisputed facts. On December 4, 2007, Dwayne, a classified freshman student at a high school in Newark who has ADHD,*fn2 and two other students attended an informal tutoring session with Dwayne's English teacher, Devoia Stewart. At that time, R.A. was a tenured vice principal at the school, which is part of the State-Operated School District of the City of Newark. The other students in the classroom were beating on the table. Stewart was grading papers and told them to stop the noise. Then, R.A., whose office adjoined the classroom, sent his student intern, Donald, to tell the students to quiet down. Donald did so, and Dwayne responded verbally to his instruction to be quiet.

R.A. went to the classroom to talk to Dwayne. Thereafter, Dwayne, Donald, and R.A. left the classroom. This was followed by a commotion in the hallway, during which Donald restrained Dwayne at R.A.'s instruction. Donald grabbed Dwayne from behind, their feet became entangled, and they fell to the floor. R.A. had a stick in his hand, variously described as a yardstick or a three-foot-long pointer, and touched Dwayne with the stick while he was being restrained.

The more specific descriptions of what occurred diverge. After hearing Donald's instruction to be quiet, Dwayne claimed that he told the students making noise that they did not have to stop because R.A. was not going to do anything. R.A. went to the classroom and confronted Dwayne after Donald reported Dwayne's statement to R.A. Donald denies making any such report, testifying that he heard Dwayne say, "Tell [R.A.] I said--." Stewart confirmed that Dwayne said this. Donald related that R.A. was behind him and that R.A. heard Dwayne's remark and confronted Dwayne.

Both Dwayne and Stewart agreed that Donald left, R.A. then entered the classroom carrying the stick, and he approached Dwayne at the computer. According to Dwayne, R.A. told him, "'I know it was you, your smart mouth,'" and then struck him several times on the left arm with the stick. Stewart did not hear or observe this but saw Dwayne leap out of his chair and grab and rub his hip.

According to Donald, however, he and R.A. left the classroom together and returned to R.A.'s office. Dwayne noisily ran into the hallway, and R.A. sent Donald to get him. This is contradicted by Dwayne and Stewart, who agreed that, when Dwayne ran out of the classroom, he was followed by R.A. and Donald, and the commotion ensued thereafter.

According to Dwayne, after Donald grabbed him from behind, R.A. repeatedly struck him again, this time on the left arm, but Donald testified that R.A. merely poked Dwayne in the torso and hip. Dwayne then eluded Donald's grasp and escaped into R.A.'s office.

Donald claimed that he let Dwayne go and that Dwayne ran into R.A.'s office, slamming R.A.'s fingers and foot in the door. When he and R.A. pushed the door open, Dwayne ran around the table in the office, knocking papers and a glass figurine onto the floor. Stewart heard a commotion and scuffling in R.A.'s office and heard a glass object breaking. She thought that they were engaged in horseplay. Dwayne said he then ran back to his classroom. Donald also claimed that Dwayne later slipped a note under R.A.'s office door in which Dwayne made some uncomplimentary remarks about R.A. and threatened to damage his car. He said that R.A. threatened to suspend Dwayne for writing the note, but another student pleaded with him not to do so because Dwayne helped him with his homework. As a result, R.A. told Dwayne to clean up his office and kept him in detention until the end of the day. Stewart, however, testified that Dwayne returned to the classroom several minutes after he left.

Returning to the undisputed facts, when Dwayne returned to the classroom, he showed Stewart a new black-and-blue bruise mark and a welt on his arm, which was hot to the touch. Dwayne seemed bothered, uneasy, nervous, and unsure what to do, but he did not tell Stewart specifically what happened.

Dwayne called his mother after leaving school and told her he had something to tell her but did not mention the incident. At home, he showed Theresa his left arm, told her that R.A. hit him with a yardstick, and said he had to call a Dr. West, the Assistant Superintendent of Special Programs, and tell him what R.A. did. He did so immediately.

Thereafter, Dr. West said that he would write up the incident and instructed Theresa to take Dwayne to the nearest hospital. Dwayne then told his mother that some of the other boys were making noise in the classroom when Donald entered and ordered them to stop banging. Dwayne admitted that he told them they could continue banging because Donald was not going to tell R.A. about it. R.A. then entered the room a few minutes later and hit Dwayne with the yardstick. Dwayne said he ran out of the classroom, but Donald caught him at R.A.'s instruction. R.A. resumed hitting Dwayne on the arm. Dwayne said he fled into the closest open room, which was R.A.'s office, and ran around the conference table and out the door, retreating back into the classroom.

Theresa saw red, bluish-purple bruises on Dwayne's arm, from which one could "tell . . . [Dwayne] was struck with an object." Dwayne complained of pain and a burning feeling from the bruises, and both he and Theresa were upset. These bruises were not present before he went to school. Before taking him to the emergency room, Theresa took photographs of Dwayne's arm, which depicted dark, narrow, linear marks on his arm.

Once at the hospital, Dwayne complained that the assistant principal had hit him with a yardstick. X-rays were taken, the bruises were bandaged, and Dwayne was given Ibuprofen. The treating physician, Dr. Catherine Scarfi, noted "[m]ild swelling, tenderness, and ecchymosis of [Dwayne's] left lateral upper arm, with abrasions to both upper and lower arm [and] pain on palpitation to left forearm." The hospital staff reported the incident to the police, and a police officer took a report from Theresa and Dwayne at the hospital. Theresa told the officer that the incident occurred during the after-school tutoring session, and she later filed an incident report.

On December 5 or 6, 2007, Theresa spoke with the DCF about the incident. Tracy Oliver, a DCF caseworker, was assigned to the matter. Theresa first spoke with Oliver on or about December 7 and then again at least twice more that month. Oliver also spoke with Dwayne approximately three times.

Oliver documented her investigation, including her conversations with Dwayne, Theresa, Donald, R.A., Stewart, Dr. Scarfi, school administrators, and some students. Certain disparities began to emerge in the information she garnered.

When Oliver met with Dwayne on December 15, she observed a purplish mark on his left arm. Dwayne's recitation of the events was consistent with his earlier reports. He reported that R.A. hit him "harder and harder each time" and that he had "scars on [his] arms that were bleeding." He showed them to his mother, and she took him to the hospital.

Theresa also related her consistent understanding of the events. She believed that R.A. hit Dwayne because, in November 2007, R.A. had asked if Theresa wanted him to use the yardstick to "get through to [Dwayne]" and said that Dwayne "knows that he will get at him with that stick." Theresa reported that she declined and thought at the time that R.A. was joking.

Stewart told Oliver that she had seen R.A. "be aggressive with some kids before" and "ha[d] seen him pushing or grabbing students inappropriately several times." Her statements to Oliver were consistent with her testimony.

R.A. reported to Oliver that he heard noise from the classroom next to his office on December 4, 2007, and sent Donald to tell the students to be quiet. Through the wall, he heard Dwayne instruct Donald to tell R.A. to "sit down and be quiet," which Donald then confirmed to him. R.A. then went to the classroom, told Dwayne "to get to work," and went back to his office. After hearing the noise again, R.A. went back to the classroom and told Dwayne to be quiet. He walked back to his office but heard students engaged in horseplay in the hall. He told them to stop playing; Donald then grabbed Dwayne and brought him to R.A. Dwayne continued the horseplay, and they "were all clowning."

R.A. then "poked [Dwayne] very lightly in the abdomen with the [yard]stick," which he had confiscated earlier in the day from a student. R.A. said they were "playing," and Dwayne was "laughing." Dwayne next went into R.A.'s office, ran around, and accidentally broke a glass statue. They then sat down, looked at a yearbook, and "everybody was laughing and joking." R.A. denied poking Dwayne with the yardstick as a punishment and denied telling Donald to grab Dwayne, although he acknowledged he "poked [Dwayne] twice like you do the Pillsbury Dough Boy." He thought any injury must have come during the horseplay, probably "from [Donald] holding him." He realized that poking Dwayne was inappropriate, "but [he] thought that it was [okay] because [they] have a good rapport."

Oliver also discussed with R.A. his other instances of physical contact with students. He reported that, several years earlier, a teacher made a student say that he smacked the student, but the charge was unfounded. However, Oliver's records indicated that the report was that R.A. "had struck a student on the back with a broken piece of wood from a flagpole in 2005" and that the charge was not substantiated with consent. This inconsistency caused Oliver to believe that R.A. was not telling the truth. Based on her interviews, she "believed that there [were] some holes in [R.A.'s] story," and she did not believe him after interviewing other people. Oliver did not find R.A.'s attribution of the bruises to horseplay to be credible. R.A. never testified under oath to his version of the incident.

Donald told Oliver that he went to the classroom to tell Dwayne to be quiet at R.A.'s direction. After R.A. entered the room, Dwayne ran out, and Donald caught and held Dwayne at R.A.'s instruction. R.A. then poked Dwayne in the chest with the yardstick. Donald released Dwayne, who "ran into [R.A.'s] office and started throwing stuff." Donald said they were all playing, and Dwayne was laughing. He never saw R.A. hit Dwayne, and if Dwayne was hurt, "he probably got hurt when he was in [R.A.'s] office alone."

Oliver thought Donald's verbal and written statements did not match. In his written statement, Donald said that there was no contact, just pointing of the yardstick. Verbally, Donald reported that he caught Dwayne while R.A. poked him in the chest with the yardstick. Oliver's report details a second conversation with Donald on February 28, 2008, during which she confronted him about his inconsistencies. Donald changed his verbal account and stated that R.A. only pointed the yardstick at Dwayne. This inconsistency caused Oliver to rely more upon Dwayne's and Stewart's statements, as she found them to be credible, and less on R.A.'s statements, as she found him to be not credible.

The final interview of note was with Dr. Scarfi. She reported that Dwayne presented with "red linear raised marks on his left [forearm]. The injury was consistent with the explanation given by [Dwayne] . . . that he was hit with a yardstick by the Vice Principal at school." An x-ray revealed no fractures. Dr. Scarfi "would say that excessive amount of force had to be used to cause those welts but not enough to fracture the arm."

Roger Leon, an assistant superintendent, first became aware of the incident on December 20, 2007, when he received a phone call from Principal Lelia Dinkins. Leon agreed with Oliver's recommendation that R.A. be removed from the school. He subsequently conversed with Dinkins regarding the procedures to follow in the case of child-abuse allegations. Leon also spoke with Theresa, who gave him copies of incident reports, hospital records, and pictures. The DCF's report, the documents he received from Theresa, and R.A.'s previous incidents caused Leon to recommend bringing tenure charges against R.A. The December 4 incident was "of great concern" to the District, regardless of the DCF's findings. Leon did not review R.A.'s personnel file before filing tenure charges because he thought the December 4 incident was sufficient to move forward. To Leon's knowledge, R.A. had never been suspended or otherwise disciplined. R.A. contested the tenure charges, triggering hearings before the Office of Administrative Law (OAL).

II.

In two letters dated April 2, 2008, the IAIU notified the District, R.A., and others that it had substantiated physical abuse by R.A., concluding that he beat Dwayne with a yardstick. The substantiation was based on the medical records and Oliver's interviews, particularly the interview with the doctor. Oliver found especially significant Dr. Scarfi's statement that Dwayne's injuries could be consistent with Dwayne's explanation. The IAIU then sought to remove R.A. from working directly with students. On or about April 23, 2008, R.A. requested an OAL hearing regarding the IAIU's allegations of physical abuse.

In a letter dated June 12, 2008, the District notified R.A. that tenure charges had been filed against him. The Statement of Charges alleged that R.A. was guilty of corporal punishment and conduct unbecoming a vice principal, which constituted Unbecoming Conduct and Other Just Cause under N.J.S.A. 18A:6-10 and were sufficient to warrant dismissal from employment. Charge One alleged that R.A. struck Dwayne several times with a wooden yardstick on or about December 4, 2007, and recounted subsequent investigatory events during the period of December 2007 to April 2008. This incident plus a 2005 incident involving another student, Howard, "constitute[d] a pattern of using illegal [c]orporal [p]unishment methods and, as such[,] constitute[d] Conduct Unbecoming a Vice Principal sufficient to warrant dismissal of employment."*fn3

Both OAL hearings were consolidated by the Administrative Law Judge (ALJ), who determined that the DCF had the predominant interest. The matters were heard on six dates in October, November, and December 2008, with summations being heard on January 6, 2009. Among others, Dwayne, Donald, Stewart, Howard, and Oliver testified.

Dwayne was the first and last witness to testify and was confronted with testimony that he gave during a trial in a case against R.A. in Newark Municipal Court on June 12, 2008. At that time, Dwayne was asked if he ever threatened R.A.'s car in a note, and he responded, "Yes." Also during that trial, Dwayne testified that he called his mother after the incident but did not say, "I have something to tell you," and that R.A. hit him over eight times. This testimony was elicited in an attempt to discredit Dwayne, as it was not congruent with earlier testimony that he was struck "several times," he told his mother he had something to tell her, and he did not write the note threatening R.A.'s car.

Howard, then a student at the high school, testified that, in December 2005, R.A. slapped him on the left side of his face with an open hand after he informed R.A. that he did not get straight As on his report card. Howard informed his parents when he got home, and R.A. came to his house looking for him. The next time he was in school, R.A. asked Howard if his teacher told him to press charges. He replied, "No, no." His mother later pressed charges; R.A. was found not guilty after a municipal court trial.

III.

The ALJ issued his decision on April 6, 2009. He first recounted the testimony of all the witnesses. Then, he found that "[Dwayne's] testimony was less than credible" because Dwayne's assertion that R.A. struck him with a yardstick "was not corroborated by either . . . Stewart or [Donald]." He found Stewart's and Donald's testimonies credible "because their accounts were forthright and straightforward." He concluded that "it would be inconsistent to find that the stick caused the mark on [Dwayne's] arm, as [Dwayne] alleges, when [Donald] credibly testified that the stick only came into contact with [Dwayne's] upper chest, upper torso and side areas."

The ALJ then set forth the following factual findings. In December 2005, R.A. slapped Howard with an open hand. On December 4, 2007, R.A. entered a classroom after school hours where Stewart and Dwayne were present. Dwayne ran out of the classroom and into a hallway where Donald grabbed him from behind at R.A.'s request. The two fell to the ground; R.A. then approached them and "poked [Dwayne] with a long stick in the upper chest, upper torso and side area in a playful manner." The medical records "lack any conclusion that [Dwayne's] injury was consistent with being hit with a yardstick." He noted that the District did not independently investigate any incidents reported to the DCF involving R.A., but the District's review of the reported incidents prompted the filing of tenure charges.

After discussing applicable law, the ALJ concluded that the District proved unbecoming conduct and improper use of corporal punishment involving Howard but that it did not prove that the "playful poking" of Dwayne amounted to corporal punishment. However, he did conclude that R.A.'s conduct on December 4, 2007, constituted unprofessional conduct, warranting pay reduction but not the loss of tenure. He reversed the DCF's finding of substantiated child abuse and ordered that R.A.'s name be removed from the Central Registry. On the tenure charges, he ordered R.A. to forfeit certain amounts of salary and benefits and lose any salary increment to which he was entitled for the 2008-2009 school year. On April 27, 2009, counsel for the District submitted exceptions to the ALJ's tenure decision.

After receipt and review of the ALJ's decision on the child-abuse charges, DCF Executive Director Arburta Jones (the Director) issued a final decision on June 23, 2009, rejecting the decision and affirming the IAIU's finding of abuse. In reviewing the ALJ's decision, the Director noted that his findings "contrast sharply with [Dwayne's] testimony and his statements to the IAIU investigator." The Director stated that she gave "[c]areful consideration . . . to the ALJ's findings and conclusions with respect to the credibility of the witnesses, the evidence presented at the hearing, as well as the transcripts of the proceedings." The Director then detailed Dwayne's statements and testimony. The Director found, a review of the record[] demonstrates that [Dwayne's] testimony is not significantly inconsistent with Ms. Stewart's and that significant aspects of his testimony are in fact corroborated by Ms. Stewart. To the contrary [Donald's] testimony is inconsistent with his own contemporaneous statements during the investigation and is contradictory to Ms. Stewart's testimony.

In support of this finding, she quoted and cited extensively to Stewart's testimony and concluded that "Stewart's testimony does not contradict [Dwayne's] account and provides no basis to declare [Dwayne's] testimony not credible. To the contrary, it is largely consistent with [Dwayne's] version of events."

Next, the Director found that the ALJ's credibility determination regarding Donald was arbitrary, capricious, and not supported by the evidence. She based her finding on Donald's differing accounts given in his December 7, 2007, written statement; his December 20, 2007, statement to Oliver; his statement to Oliver on February 28, 2008; and his testimony at the hearing. Contrary to the ALJ's fact-finding, the Director found that Donald was not a credible witness.

The Director then addressed Dwayne's "problematic" testimony. Noting that Dwayne's account "was consistent through the investigation, during the medical examination, . . . and through the examination of three different attorneys on the date of the hearing," the Director acknowledged that Dwayne contradicted himself upon cross-examination by R.A.'s counsel in the tenure matter, noting that he was the fourth attorney to question Dwayne after more than two hours without a break. After quoting Dwayne's testimony on cross-examination, the Director did not "afford much weight" to Dwayne's contradictions, taking into account Dwayne's age, his ADHD, and the "considerable pressure and . . . confusing line of questioning" by R.A.'s counsel.

Next, the Director concluded that "[Dwayne's] injury was consistent with being struck by a yardstick." She based this on Dr. Scarfi's statements to Oliver, Stewart's testimonial description of the injuries, and the photographs. The Director credited Dwayne's testimony and discredited Donald's, finding that Dwayne's version of the incident was demonstrated by a preponderance of the evidence. The Director concluded that R.A. "engage[d] in excessive corporal punishment" by striking Dwayne on his left arm repeatedly with sufficient force to leave bruises and welts. The Director thus rejected the ALJ's decision and affirmed the IAIU's finding of child abuse.

The DOE Commissioner then reviewed the ALJ's decision on the tenure charges and the DCF final decision. In her decision dated August 13, 2009, the Commissioner first articulated her agreement with the ALJ's finding that R.A. slapped Howard in December 2005. She then noted that the December 2005 and December 2007 incidents comprised the first count of the District's charges against R.A. The Commissioner found that R.A.'s abuse of Howard and Dwayne "went well beyond professional boundaries and further demonstrate[d] a lack of self-restraint and self[-]control absolutely requisite in an effective and successful teaching staff member. Additionally, such actions serve to give a clear signal to students that physical aggression is an appropriate and acceptable response." Finally, the Commissioner adopted the ALJ's decision regarding the tenure charges but rejected the ALJ's proposed penalty. She instead dismissed R.A. from his position because his physical abuse against students whom he is charged as an educator with protecting [was] professionally unacceptable conduct which cannot be tolerated in a school setting. A monetary penalty such as that recommended by the ALJ does not serve to protect school children against the actions of a teaching staff member who by propensity and/or temperament is likely to repeat unbecoming conduct which adversely affects the learning environment.

Thus, the Commissioner sustained the tenure charges and dismissed R.A. from his position. This appeal followed.

IV.

R.A. raises three issues for our consideration: (1) the DCF's final decision was arbitrary and capricious because it impermissibly rejected and modified the ALJ's fact-findings as to issues of credibility of lay witnesses, contrary to N.J.S.A. 52:14B-10(c); (2) the DCF's final decision failed to consider the entire OAL transcript; and (3) the DOE should be estopped from imposing a harsher penalty than the ALJ because, pursuant to N.J.S.A. 18A:6-7a, tenure charges may not be based on an IAIU finding and Count One of the tenure charges did not charge R.A. with corporal punishment against Howard. The same standard of review governs all three arguments.

It is well-settled that the scope of appellate review of a decision of an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007). It is not our function to substitute our independent judgment on the facts for that of an administrative agency. In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974). Instead, our role in reviewing decisions of administrative agencies is restricted to 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, an administrative agency's final decision will only be reversed if "there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Herrmann, supra, 192 N.J. at 27-28. The key inquiry is whether the agency's findings could have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole.'" In re Taylor, 158 N.J. 644, 656 (1999). However, we need not defer to the agency head on the issue of credibility "where the agency head, based upon a review of the transcript and documentary evidence, rejects the judge's recommended findings of facts, since it was the administrative law judge, and not the agency head, who heard the live testimony, and who was in a position to judge the witnesses' credibility." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 483-84 (App. Div. 2002) (internal quotation marks omitted).

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). Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001). Despite this deference, we are not bound by the administrative agency's legal opinions. Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001).

V.

R.A. challenges the Director's decision as arbitrary and capricious on two grounds. First, he claims that the Director reversed the ALJ's findings "absent sufficient, competent, and credible evidence in the record," contrary to the precepts of N.J.S.A. 52:14B-10(c). He urges that the Director's decision "was rendered absent consideration of all the evidence presented to the ALJ." This is so, he argues, because the "record is bereft of any substantial evidence to support the findings on which the agency based its decision." He contends that the testimonies of Dwayne, Donald, Stewart, and Oliver are each, to varying degrees, insufficient to support the Director's determination in light of their alleged inconsistencies. Those inconsistencies require reversal of the decision because they rendered the Director's decision arbitrary and capricious.

Second, R.A. argues that the Director impermissibly "relied solely on the [s]chool district's submissions" on the exceptions to the tenure charges in ruling on the abuse charges. He urges that, notwithstanding the Director's statement to the contrary, she could not have read the December 10, 2008, transcript because she found that Dwayne's story was consistent with what defense counsel elicited on cross-examination. He points out that Stewart and Donald provided "consistent and accurate testimony regarding the incident," and it was the ALJ, not the Director, who made the correct factual and credibility findings.

To properly evaluate the issues raised by R.A., we must consider the statutory and regulatory scheme. The DCF is responsible for protecting children from abuse and neglect. N.J.S.A. 9:6-8.8 to -8.106. It must investigate reports of abuse and neglect that it receives. N.J.S.A. 9:6-8.11. For each allegation, it must "evaluate the available information and . . . determine whether abuse or neglect has occurred, and shall make a finding of either substantiated or unfounded." N.J.A.C. 10:129-5.3(a). "Substantiated" is defined as a finding when the available information, as evaluated by the child protective investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined in [N.J.A.C.] 10:133-1.3 because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian. [N.J.A.C. 10:129-1.3.]

"'Unfounded' means a finding when: [i.] There is not a preponderance of evidence that the alleged child victim was harmed or placed at substantial risk of harm; or [ii.] There is not a preponderance of evidence indicating that a parent or guardian and child were involved." Ibid. In the context of corporal punishment, an "abused or neglected child" is a child less than 18 years of age whose . . physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment;*fn4 or by any other acts of a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4)(b).]

Accord N.J.A.C. 10:129-1.3; N.J.A.C. 10:133-1.3.

A "[p]arent or guardian includes a teacher, employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare and any other staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child." N.J.S.A. 9:6-8.21(a). When the DCF determines that an allegation of child abuse or neglect is substantiated, the perpetrator's name must be entered into the DCF's Central Registry. N.J.S.A. 9:6-8.11; N.J.A.C. 10:129-5.4(c)(2).

R.A. in part challenges the Director's decision under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15 (APA). He relies on one specific provision that guides agency review of ALJ decisions. It provides in pertinent part:

In reviewing the decision of an [ALJ], the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record. [N.J.S.A. 52:14B-10(c) (emphasis added).]

Where the agency head follows these requirements in reversing an ALJ's credibility findings, setting forth his or her reasons for doing so, we will uphold the agency head's findings so long as the record supports the contrary credibility findings. S.D., supra, 349 N.J. Super. at 483-85; In re Suspension of License of Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1979), aff'd o.b., 84 N.J. 303 (1980).

The first inquiry in deciding if the Director's decision was arbitrary and capricious is whether the Director followed the procedural requirements of N.J.S.A. 52:14B-10(c). If the Director violated her statutory obligations, the decision was in error. S.D., supra, 349 N.J. Super. at 483-85; Silberman, supra, 169 N.J. Super. at 255-56. It is readily apparent that the Director clearly stated her reasons for rejecting the ALJ's findings of fact and conclusions of law. She compared and contrasted the testimonies of Stewart and Donald, noted that Donald's various statements were contradictory, and pointed to the specific dates and accounts he gave. She concluded from these contradictions that the ALJ's finding respecting Donald's credibility was arbitrary and capricious and that Donald was not credible. Next, with repeated citations to the record, the Director explained that the ALJ erred in discrediting Dwayne because he did not consider Dwayne's age, ADHD diagnosis, and consistent testimony and statements, other than the one line of questioning during cross-examination on which the ALJ focused. The Director then set forth her specific findings of fact, including her credibility determinations. In short, the Director met her obligations under N.J.S.A. 52:14B-10(c).

The second inquiry is whether there is substantial, credible evidence in the record to support the Director's determination that the ALJ's rejection of Dwayne's testimony was arbitrary, capricious, or unreasonable. N.J.S.A. 52:14B-10(c). This must necessarily be grounded on the conclusions of the ALJ and the Director that Stewart's testimony was credible.

As the Director pointed out, Dwayne's testimony at trial was consistent with his statements to Theresa and Stewart, to the persons investigating the charges, and to the medical staff at the hospital. Although Dwayne contradicted himself upon cross-examination, the Director did not afford this much weight based on a variety of factors, including the confusing line of questioning, Dwayne's age, and his ADHD condition.

The Director also noted that Donald gave several different accounts of what transpired, a fact the ALJ failed to recognize.

Indeed, in his written statement, Donald reported there was no contact between R.A. and Dwayne; however, he verbally reported to Oliver that R.A. poked him in the chest. Donald again changed his story in February 2008, saying that R.A. only pointed the yardstick at Dwayne. Finally, at trial, Donald testified that R.A. poked Dwayne in the upper torso and hip while he held Dwayne. Furthermore, Donald's versions of events were completely at odds with Stewart's reports and testimony. He claimed that Dwayne left the classroom twice and the second time Dwayne was held in detention until the end of the day. Stewart, on the other hand, testified that Dwayne left once and returned several minutes later. Also, Donald claimed that Dwayne was laughing, but Stewart testified that Dwayne returned to the classroom upset with bruises and welts on his arm.

The medical evidence, too, cannot be ignored. It revealed that the injuries were consistent with being hit by a yardstick. Although Stewart did not see R.A. hit Dwayne, the facts to which she did testify and the facts she recounted to Oliver during her investigation were consistent with Dwayne's testimony and inconsistent with Donald's testimony.

Similar to other administrative agencies, but unlike the OAL and its judges, the Director possesses "'expertise and superior knowledge'" in her field. In re License Issued to Zahl, 186 N.J. 341, 353 (2006). This expertise and superior knowledge make the Director particularly skilled in evaluating the testimony of abused children, their abusers, and those supporting the abusers' denials. Thus, it was not arbitrary and capricious for the Director to afford little weight to Dwayne's contradiction based on the mitigating factors she cited. Furthermore, there can be no doubt that R.A.'s striking of Dwayne with a yardstick resulting in visible injury constitutes an unreasonable infliction of harm contrary to N.J.S.A. 9:6-8.21(c)(4)(b). Clearly, Dwayne's testimony and that of Stewart, Theresa, Oliver, and the medical records, support a finding of child abuse. The Director clearly complied with the APA; her determination was supported by substantial credible evidence in the record; and the finding of abuse was not arbitrary, capricious, or unreasonable. Herrmann, supra, 192 N.J. at 27-28; S.D., supra, 349 N.J. Super. at 483-85.

VI.

R.A. argues that the Commissioner "should be estopped from imposing a harsher penalty than the [ALJ] where both unreasonably relied on the misapplication of N.J.S.A. 18A:6-7a." Relying on In re Tenure Hearing of Young, 202 N.J. 50 (2010), R.A. contends that N.J.S.A. 18A:6-7a precludes tenure charges "on the basis" of an IAIU finding. R.A. urges that the ALJ and the Commissioner erred in utilizing Leon's representations as a basis for their decisions because such use falls outside the scope of the statutory intent of N.J.S.A. 18A:6-7a. Instead, he contends that the school district should have conducted its own investigation and its alleged failure to do so precludes it from pursuing charges.

R.A. also argues that the adjudication of the matter concerning Howard was not properly before the ALJ because the District's tenure charges did not charge that R.A. committed corporal punishment against Howard. Rather, the tenure charges cited the allegation involving Howard merely as an example in support of the charges involving Dwayne. According to R.A., the Commissioner improperly relied on this "example" because it was not an affirmative charge.

The District responds that we should defer to the Commissioner's decision and uphold it because the finding of corporal punishment is "fully supported by the hearing record and [R.A.'s] dismissal serves to protect students from an administrator who . . . is likely to repeat unbecoming conduct." The District also urges that N.J.S.A. 18A:6-7a allows the testimony of the students at the ALJ hearing to support the tenure charges. According to the District, this testimony and the accompanying record support the finding that R.A. committed multiple acts of corporal punishment. The District further posits that nothing in N.J.S.A. 18A:6-7a "suggests in any way that direct evidence of conduct which may have led to a DCF complaint and an unfounded finding cannot, in appropriate circumstances, form an independent basis for disciplinary action." The District asserts that the ALJ properly allowed it to present evidence of earlier incidents to prove R.A.'s use of corporal punishment and the ALJ and Commissioner properly relied on the students' testimony to support their findings.

The Commissioner also believes that her decision should be affirmed. This is because an examination of the record demonstrates that the decision "was warranted, was not arbitrary or capricious and is consistent with applicable statutes, administrative regulations and case law."

R.A. made the same arguments in a motion before the ALJ as he does here. In ruling on that motion, the ALJ concluded that the District was not barred under N.J.S.A. 18A:6-7a from presenting eyewitness testimony regarding the underlying events that formed the basis of the tenure charges. The ALJ determined that the District was entitled to prove its case irrespective of the results of the DCF's investigation and the District's alleged failure to conduct its own investigation.

N.J.S.A. 18A:6-7a governs the removal from personnel files of references to unfounded complaints of child abuse or neglect. The statute reads:

When a complaint made against a school employee alleging child abuse or neglect is investigated by the [DCF], the [DCF] shall notify the school district and the employee of its findings. Upon receipt of a finding by the [DCF] that such a complaint is unfounded, the school district shall remove any references to the complaint and investigation by the [DCF] from the employee's personnel records. A complaint made against a school employee that has been classified as unfounded by the [DCF] shall not be used against the employee for any purpose relating to employment, including but not limited to, discipline, salary, promotion, transfer, demotion, retention or continuance of employment, termination of employment or any right or privilege relating to employment.

[Ibid.]

The issue before the Young Court was whether N.J.S.A. 18A:6-7a "precludes a school district from taking disciplinary action against a teacher after DCF has found that a complaint of child abuse or neglect against that teacher is unfounded." Young, supra, 202 N.J. at 54. A sexual incident allegedly occurred between a teacher in the Roselle School District and his former student. Ibid. After investigating the allegations, the DCF issued a written report finding the student's allegations to be unfounded. Id. at 55. Nonetheless, charges were filed against the teacher seeking to remove him from his employment as a tenured teacher for unbecoming conduct. Ibid. During an ALJ hearing, the teacher argued that the District was precluded from bringing tenure charges against him predicated on the unfounded investigation and its accompanying allegations. Id. at 56. The ALJ found that N.J.S.A. 18A:6-7a did not inhibit the school district from bringing tenure charges against the teacher because "'nothing in the statute preclude[d] charges separate and apart from "child abuse or neglect" as the basis for tenure charges.'" Id. at 61. The ALJ also noted that the school district relied, not on the DCF investigation, but on its own investigation. Ibid. The ALJ then concluded that the school district met its burden on the charges and recommended removal of the teacher from his position. Id. at 62.

The Commissioner adopted the ALJ's findings, sustained the tenure charges, and terminated the teacher's employment. Ibid. The Commissioner also rejected the statutory challenge, noting that no action was taken against the teacher based on the DCF investigation and that the case was "based on an independent police investigation that was more thorough than the DCF investigation and on information collected by the Roselle Board of Education . . . in anticipation of tenure charges." Ibid. According to the Commissioner, N.J.S.A. 18A:6-7a requires that no action be taken against a school employee on the basis of a complaint or abuse made to the DCF if that agency determines that the complaint is unfounded.

It also mandates that in the case of a DCF finding of unfounded, all reference to the DCF complaint and investigation be removed from the employee's file. In the present case, no action was taken against [the teacher] as a result of the DCF investigation and apparently no reference to it remains in [the teacher's] file. Thus, N.J.S.A. 18A:6-7a has been satisfied. [Id. at 68 (internal quotation marks omitted).]

The Court specifically concluded that the Commissioner's construction of N.J.S.A. 18A:6-7a was "permissible." Ibid. It further concluded that the result of the DCF investigation did not bar the school district from conducting an independent investigation supporting the filing of tenure charges. Id. at

69. Consistent with this, the Court rejected the teacher's argument that N.J.S.A. 18A:6-7a barred the school district "from initiating any disciplinary action after the DCF issued an investigative determination of 'unfounded'" because such a bar "would effectively prohibit school districts from disciplining a teacher for unbecoming conduct merely because it did not rise to the level of abuse or neglect under N.J.S.A. 9:6-8.21." Ibid.

Here, as in Young, the district did not rely exclusively on the DCF's unfounded charge of abuse of Howard. Instead, the district "'produced its own witness[] . . . in support of its charges, focusing on the conduct of [R.A.], which had a tendency to destroy public respect and confidence.'" Id. at 61. Howard took the stand and testified to R.A.'s conduct. Although R.A. knew from Charge One that his conduct vis-a-vis Howard was an issue, he elected to remain silent, leaving the charge of unbecoming conduct with Howard undisputed. Clearly, N.J.S.A. 18A:6-7a does not bar a school district from bringing tenure charges respecting unbecoming conduct that did not rise to the level of a substantiated finding of child abuse or neglect, regardless of whether or not it has conducted an independent investigation so long as it calls a witness to testify to the facts at the hearing. Moreover, Leon's testimony shows that the District considered more than just the DCF investigation results in bringing tenure charges against R.A.

In his second argument regarding the tenure charges, R.A. contends that the allegations concerning Howard were not properly before the ALJ and Commissioner because they were contained as an example in the charge. Thus, any adjudication based on incidents involving Howard was in error. The specific paragraphs in the charge R.A. challenges, read:

i. [R.A.] has been repeatedly put on notice of the consequences of his actions and threats to use corporal punishment against students. For example, on or about May 26, 2006, the [DCF, IAIU], were notified of an alleged physical abuse incident that occurred on or about December 22, 2005. The Department conducted an investigation.

j. On or about December 22, 2005, [Howard], a student at Malcolm X. Shabazz High School, was allegedly slapped by [R.A.], Vice Principal at the High School. The student claimed the Vice Principal slapped him for no apparent reason. [Howard] stated he reported the incident to this teacher, Ms. Robinson, who advised his parent to file a complaint against [R.A.]. The matter was reviewed and handled in the Newark Municipal Court, where the case was dismissed.

k. On or about August 28, 2006, Marilen Rodriguez and Charles Baker, [IAIU], sent a letter to Ms. Susan Kendall, Director of Students Information Services, notifying the District of their determination of the investigation. Physical abuse was unfounded but served to put [R.A.] on notice that these actions could result in criminal charges and disciplinary actions. . . . [R.A.] ignored previous complaints and actions and continued to engage in behaviors which led to the December 4, 2007[,] incident.

It is clear from the record that the allegations regarding Howard were a substantive part of Charge One and not merely an example. To the extent the adjudication was based on the incident involving Howard, it was not improper, and the Commissioner's decision will not be disturbed.

Affirmed.


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