February 21, 2012
IN THE MATTER OF THE REVOCATION OF THE CERTIFICATES OF WILLIAM CASTEL BY THE STATE BOARD OF EXAMINERS.
On appeal from the Commissioner of Education, Department of Education, Docket No. 4-6/10A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued January 25, 2012
Before Judges Fisher, Baxter and Nugent.
Appellant William Castel appeals from an October 12, 2010 final agency decision of the Department of Education (Department). The Department approved the recommendation of the State Board of Examiners (State Board) that appellant's teaching and supervisory teaching certificates be permanently revoked because Castel had engaged in a longstanding "inappropriate and reprehensible" personal relationship, albeit not sexual in nature, with two fourteen year-old female students. The Department found that appellant's misconduct was sufficiently intertwined with his teaching responsibilities as to require the revocation of his teaching certificates. We reject appellant's arguments that the agency decision was unsupported by substantial and credible evidence in the record; and that the penalty imposed was excessive and unwarranted. We affirm.
On February 21, 2008, the State Board received from the Department of Law and Public Safety, Division of Criminal Justice (DCJ), formal notification that Castel, a middle school teacher in the East Rutherford School District, had been arrested and charged with two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The criminal charges were based on appellant's improper personal relationship with two fourteen year-old female students, S.R. and V.V. DCJ also notified the State Board that Dr. Gayle Strauss, the Superintendent of schools in East Rutherford, had filed a petition to revoke Castel's tenure, asserting that he was "guilty of unbecoming conduct" because he "abused [the] public trust and took advantage of his position as a teacher by acting inappropriately" with the two students.
Castel resolved the pending criminal charges by entering, and successfully completing, the pretrial intervention program (PTI). See R. 3:28. As a condition of admission to the PTI program, Castel resigned his teaching position with the East Rutherford school district.
On March 27, 2008, after reviewing the information forwarded by DCJ, the State Board issued an order to show cause, directing appellant to show cause why his teaching certificates should not be permanently revoked. When appellant filed an answer demanding a hearing, the State Board transferred the matter to the Office of Administrative Law (OAL) as a contested case.
Administrative Law Judge (ALJ) JoAnn LaSala Candido conducted hearings on June 23 and October 27, 2009, during which she considered the testimony of Dr. Strauss, S.R., V.V. and both sets of parents. The testimony established that appellant was hired by the East Rutherford Board of Education in September 1987 and held teaching certificates as teacher of industrial arts, teacher of elementary education, as well as a Supervisor certificate, issued in 2006; and Principal certificate, also issued in 2006. During the 2005-06 school year, which was when his improper relationship with S.R. and V.V. began, appellant was a technology shop teacher in grades five through eight. He also assisted with lunchroom duty and in-school detention. During that school year, Castel was S.R. and V.V.'s eighth grade technology shop teacher. He testified that he "developed" a "father daughter" relationship with the two girls. Both testified that throughout the school year, appellant made unwelcome remarks about their physical appearance. According to V.V., on three occasions, he told her that "brunettes are pretty" and every two weeks, told her she "look[ed] nice." These comments made her "uncomfortable."
S.R. testified that "everyday" appellant told her "she was beautiful," and, in a reference to her Latino heritage, he commented that "Spanish girls are attractive." Even though S.R. was uncomfortable with appellant's comments, and thought "maybe he was being . . . perverted," she did not complain because she did not want to be "mean or rude."
On numerous occasions, appellant asked S.R. and V.V.'s science teacher to excuse them from science class so they could accompany him to the technology room to "help [him] on his computer." This occurred on five or six occasions. During those episodes, he took S.R. and V.V. to the technology shop room, where no one else was present. He never asked the girls for help with his computer, even though his computer was the ostensible reason that the girls were excused from their science class. While S.R. and V.V. were alone with appellant in the technology room, he proceeded to tell them "about . . . his life, [and] his girlfriend."
At some point during the 2005-06 school term, appellant asked the girls for their cell phone numbers. On one occasion, appellant and V.V. spoke for approximately 118 minutes on V.V.'s cell phone. Appellant always called V.V. after 9:30 p.m., and the majority of the calls were after 10:00 p.m. V.V. was uncomfortable talking to appellant on the phone because he was her "teacher, and you just don't do that"; she commented that "it felt weird." Additionally, appellant called V.V. to inquire about S.R., demanding to know why S.R. was not answering his calls, and wondering if S.R. was "mad at" him. On several occasions, S.R. was with V.V. when appellant called V.V.'s cell phone asking to speak to S.R. V.V. told appellant that S.R. was not there because "S.R. didn't want to talk to him." V.V.'s parents did not know that appellant, who was one of their daughter's teachers, was repeatedly calling their daughter.
At the end of the 2005-06 school year, when S.R. and V.V. graduated from the school where appellant was employed, he wrote a message in S.R.'s yearbook, which said "[t]here are not enough words to say how I feel about you - you are . . . [a] wonderful and beautiful young lady. Always believe in yourself - you can do and accomplish anything if you work at it. Best of luck in High School. You will be missed[.] Mr[.] "C." Appellant became tearful, gave S.R. a fish keychain as a gift, and told S.R. he was "going to miss [her] so much," and they had "to keep in touch." He then gave her a hug, which she described as so close that their bodies were touching. No one else was present when appellant gave S.R. the gift and hugged her.
During the summer of 2006, appellant called S.R. and V.V. and invited them to lunch, followed by swimming at his townhouse in Nanuet, New York. He told S.R. and V.V. that he wanted to take them swimming because they had been banned from participating in their middle school trip. Rather than knocking on the door of V.V.'s home and running the risk that V.V.'s parents would learn that their daughter was about to go swimming at her teacher's home, across the state line, appellant arranged to meet the girls at his car, which he parked a few hundred feet away from V.V.'s home. Once S.R. and V.V. entered his car, appellant proceeded to drive them to a diner in Rockland County, New York, where the three had lunch.
From there, he drove S.R. and V.V. to his townhouse in Nanuet, and, once inside, showed them where the bathroom was located. V.V. changed into her bikini bathing suit in the bathroom, but S.R. wore a tank top and skirt over her bathing suit and did not enter the community pool. Appellant encouraged S.R. to remove her tank top and skirt and join V.V. in the pool.
Afterward, appellant took the girls back to his townhouse. According to S.R. and V.V., while they were watching television, appellant offered them beer and said "let's party." Appellant testified that he could not recall offering them beer, adding that if he had done so, it was only meant as a joke.
At the end of that day, appellant asked V.V. to "keep quiet" about the trip because "he could get in trouble" if school authorities found out about it.
In November 2006, by which time S.R. and V.V. were in high school, appellant called S.R.'s cell phone and spoke to her on four occasions. According to S.R., appellant asked her "to meet up, and to go out some time." She explained that she never requested appellant to call her, and when she chose not to answer his calls, he would "keep calling and calling." She also explained that on the occasions when she ignored his calls, he typically called V.V. and asked her to encourage S.R. to answer his calls. At one point, V.V. told him to stop calling S.R.
But appellant ignored V.V.'s entreaty. From mid-November to early December 2006, appellant left six voicemail messages on S.R.'s cell phone.*fn1 On Sunday, November 12, 2006, he left a voicemail for S.R. in which he stated:
[T]he reason I'm calling you [is because I] wanted to see if you wanted to get together. . . . I'll even take you to dinner if you want. Hang out, . . . whatever you want to do. . . . Go to dinner. And ah maybe hang out and party a little bit. . . . I'd like to see you. So, give me a call back when you get a chance.
She did not return his call. Three days later, on Wednesday, November 15, 2006, appellant left another voicemail for S.R. telling her to call him back, which she also ignored. He left yet another message that same night in which he said:
I just want to let you know, I'm disappointed in you cause . . . twice ah when we spoke on the phone you said you were going to call me back in five minutes and you never did. I just want to let you know I'm disappointed in you. . . . I thought I was your friend.
Then, on Sunday, November 19, 2006, appellant left a lengthy voicemail, in which he said:
I know you probably think I'm a pain in the butt for calling you all the time. The only reason I'm calling you is because you're not returning my phone calls. Ah, you're confusing me. . . . I don't understand why you're not returning my phone call. . . . I really care about you a lot [S.R.]. I think you know that. Ah we've been pretty close . . . to each other for the last year and a half, two years. I've always . . . been honest with you. I always thought you were honest with me. . . . Maybe you're mad at me or something? If I said something that offended you or came across the wrong way whatever, I apologize. I always said . . . I would never want to hurt you. So call me back when you get the chance you know. . . . [T]hat's what's bothering me, that you're not calling me back. All I want to do is be your friend.
Nothing more. Ok? And I realize, you know, you're working, you're busy right now probably. And you got your boyfriend, I got my girlfriend. There's no reason why we can't be, talk on the phone occasionally. . . . If I'm calling you up too much, tell me that. . . . You're really confusing me and it's bothering me. . . . I really care about you. You're like a daughter to me.
On Thursday, November 20, 2006, appellant left a voicemail message, again expressing irritation about S.R. not returning his calls. On Sunday, December 3, 2006, he left his last voicemail message for S.R., in which he proposed to take her out for lunch on her birthday. He said:
I know your birthday's coming up next month.
I think it's January 10th. . . . I wanted to take you out for lunch . . . for your birthday. . . . How about uh, the week we're off from school, between . . . Christmas and New Years. . . . I want to meet you for lunch one day during that week. . . . You know, this way it's during the day, you know.
On December 1, 2006, S.R.'s father took her cell phone away because she had exceeded the allowed minutes per month. Before he did so, S.R. asked him to allow her to check her voicemails. Because she listened to her messages on speakerphone, her father heard the repeated messages from appellant. S.R.'s father took away her cell phone and immediately filed charges against appellant with the East Rutherford police.
At the conclusion of the hearing before the OAL, ALJ Candido rendered a decision. In her February 16, 2010 decision, she expressly found the testimony of both girls and their parents to be "credible and forthright," "compelling and straightforward." The ALJ noted that "S.R.'s credibility was enhanced by her candid admission that she had lied to her mother when she went to [appellant's] home in New York." In contrast, the ALJ found appellant's testimony "lacking in credibility."
The ALJ concluded that appellant "engaged in conduct unbecoming a teacher" and determined that "his conduct constitutes just cause for revocation of his teaching certificate[s]." She concluded that the "voice messages left by [appellant] on S.R.'s cell phone were reprehensible and totally inappropriate, particularly for someone who was [S.R.'s] teacher and who stood in a position of trust and respect." In addition, the ALJ noted "there was [a] pattern of pulling S.R., and V.V. out of eighth grade science class for no legitimate purpose but to have contact with them." And, "[t]o make matters worse, [appellant] then [took] S.R. and V.V. across state lines to his home." The ALJ rejected appellant's "claims that the time he spent with S.R. was motivated by his desire to help her when she was going through a difficult time." The ALJ found that appellant should have talked to S.R.'s parents or referred her to "counseling services offered by the school," if he believed she needed such guidance. The ALJ summarized her findings by stating:
In short, [appellant's] interactions with S.R. and V.V. were totally inappropriate and crossed the permissible line of his duties as a teacher. [Appellant] exhibited extremely poor judgment by becoming an active participant in a personal relationship with a student. The absence of evidence of sexual or romantic involvement does not mitigate the seriousness of [appellant's] actions. Such poor judgment by an experienced teacher such as [appellant] cannot be countenanced. As a teacher, [appellant] occupied a position demanding public trust and was held to a higher standard of conduct. He was required to exhibit exemplary behavior and mature self-control. He was to uphold an image of utmost trust. Instead, his actions were inappropriate, irresponsible and unprofessional. [Appellant's] reprehensible conduct represented a significant departure from what the public is to expect from those who teach their children. [Appellant's] behavior . . . evolved into a pattern which continued throughout S.R. and V.V.'s eighth grade school year. . . . I CONCLUDE that [appellant's] conduct was so unbecoming and flagrant to warrant the revocation of his certificates for principal and supervisor, as well as certificates for industrial/technology arts K-through-eight and elementary education.
On March 24, 2010, the State Board voted to adopt the ALJ's February 16, 2010 decision and to revoke appellant's teaching certificates. At its April 29, 2010 meeting, the State Board formally issued its decision to adopt the ALJ's decision in its entirety, without any modifications.
In its April 29, 2010 decision, the State Board noted that: members of its Legal Committee listened to the voicemails [appellant] left for S.R. that were admitted into evidence . . . .
The frequency and tone of the voicemails belies any claim [appellant] can make that his interest in S.R. was merely "concern."
Rather, his persistence in contacting her and his increasing petulance and anger at not hearing from her was disturbing and gave the adults listening to the tape pause. It is frightening to think of the effect those calls would have on a middle school student.
The State Board also found that appellant "engaged in inappropriate and, at times, reprehensible conduct with regard to his relationship with two students," adding that:
The record is replete with examples of [appellant's] behavior that fall so wide of the mark of a role model that there is no justification for any penalty other than revocation. In fact, his behavior was harmful to these students both for the inappropriate nature of the contact he maintained with them and because they lost valuable instructional time when he was pulling them out of their science class.
For these reasons, the State Board of Examiners "agree[d] with the ALJ's conclusion that the only appropriate response to [appellant's] breach [was] the revocation of his teaching certificates."
Appellant appealed the State Board's decision to the Commissioner of Education (Commissioner), who on October 12, 2010 affirmed the decision of the State Board without issuing a separate decision. On appeal, appellant presents the following claims: 1) the decision of the ALJ, which was adopted by the State Board and ultimately the Commissioner, is not entitled to our deference as the ALJ ignored numerous inconsistencies in the testimony of S.R. and V.V., and incorrectly ascribed an improper motive to appellant's conduct; and 2) the penalty imposed was excessive and unwarranted, and should be reversed to a period of suspension.*fn2
We start by acknowledging the longstanding and well-accepted principles of judicial review of administrative agency actions. "The scope of that review is limited." In re Herrmann, 192 N.J. 19, 27 (2007). As the Court observed in Herrmann, "[a]n administrative agency's final quasi-judicial decision 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. On appeal, our role is limited to the evaluation of three factors:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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. [Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
When the agency's decision satisfies those criteria, we are obliged to afford substantial deference to the agency's expertise and superior knowledge of a particular field. Ibid. We are obliged to afford such deference even if we would have reached a different result from that reached by the agency. In re Taylor, 158 N.J. 644, 657 (1999).
The same deferential standard applies to our review of the particular disciplinary sanction the agency chose to impose. In re Stallworth, 208 N.J. 182, 195 (2011). This is particularly true in light of the agency's "special 'expertise and superior knowledge of a particular field.'" Ibid. (quoting Herrmann, supra, 192 N.J. at 28). Our scope of review when reviewing administrative sanctions is to determine only whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)). Although progressive discipline, which involves the imposition of greater penalties for each successive infraction, is the general rule, West New York v. Bock, 38 N.J. 500, 523 (1962), the "touchstone" of the determination lies in the certificate holder's "fitness to discharge the duties and functions of one's office or position," In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 29 (App. Div.), certif. denied, 65 N.J. 292 (1974). Pursuant to N.J.S.A. 18A:6-38 and N.J.A.C. 6A:9-17.5, the State Board is granted the express authority to "revoke" teaching certificates on the basis of "inefficiency, incapacity, conduct unbecoming a teacher or other just cause."
As we have noted, appellant advances several arguments in support of his claim that the agency decision finds insufficient support in the record. He asserts that the critical factor in the decisions of the ALJ and the Commissioner was their conclusion that he called S.R. while she was in the eighth grade and during the summer of 2006. Yet, he points out that S.R. did not have a cell phone in October 2006, and he was not aware of her phone number until November 2006. Additionally, appellant asserts that the ALJ did not include exhibits nineteen and twenty, V.V.'s phone records and S.R.'s text message records, on the exhibit list. As a result, appellant contends that his due process rights were violated because the exhibits were excluded from the record, and the ALJ and State Board of Examiners ignored documentary evidence establishing that S.R. did not have a cell phone until October 2006.
Second, appellant argues that he raised substantial credibility issues in his exceptions, and these exceptions were not considered, discussed, or mentioned by the State Board. He asserts that the ALJ's finding that S.R. was credible was not based on a fair examination of the record. As an example, he points out that S.R. testified he took her out of class every other day, but the superintendent observed that he took S.R. out of class for ten minutes half a dozen times, and V.V. said they were taken out of class only a couple of times at the end of the year.
Moreover, appellant contends that the ALJ and the State Board of Examiners did not discuss the false and misleading information S.R. gave to the police. For example, appellant explains that S.R. falsely told the police that appellant called her frequently during the summer of 2006 on Friday and Saturday nights; yet, she did not have a cell phone that summer. In addition, S.R. did not tell the police that she initiated a few phone calls. Lastly, appellant points out that S.R. told police that appellant offered her beer, but this statement was misleading because she failed to tell the police that it was a joke.
Third, appellant argues that the decisions of the ALJ and State Board on which the Commissioner relied discuss the facts in a disjointed, inaccurate and prejudicial manner. For example, appellant asserts that the ALJ took events that occurred during the summer and fall of 2006, such as appellant calling S.R., and combined them with events occurring when S.R. and V.V. were in their eighth grade year.
Fourth, appellant argues that any admissions he supposedly made were refuted by the record. For example, appellant asserts that V.V. claimed he told her not to tell anyone about the swimming incident, but appellant denies making this statement. Furthermore, appellant contends that S.R.'s statement that he called her to tell her not to tell anyone about his phone calls was "fabricated in an effort to incriminate" him.
Fifth, he contends that the State Board misinterpreted the voicemails he left on S.R.'s cell phone because he never intended to harass her.
Sixth, he maintains that the ALJ discussed his guilt at the beginning of her decision when she commented that the "[State] Board found [appellant] guilty of unbecoming conduct." Appellant contends this statement renders the ALJ's factual findings and those of the State Board null and void.
The Commissioner urges us to affirm the agency decision, asserting that the agency's factual conclusions find ample support in the record and were not arbitrary, capricious or unreasonable. The Commissioner asserts that appellant engaged in unbecoming conduct that provided just cause for the revocation of his teaching certificates.
The Commissioner responds to appellant's factual arguments by explaining that "the critical factor" for revoking appellant's certificates was his unbecoming conduct, which included uncontroverted evidence that he repeatedly called both girls on their cell phones and engaged them in personal conversations entirely unrelated to their classroom activities; removed them from their science class for no purpose other than talking to them; provided their science teacher with a blatantly false reason for doing so as the girls never helped him with his computer; solicited their phone numbers to contact them outside of school; solicited S.R. and V.V. to accompany him out-of-state to his house, where he took them swimming and encouraged S.R. to remove her outer garments and enter the swimming pool; secretly concealed his car away from V.V.'s home so that her parents would not realize she was about to travel out-of-state to a teacher's home; and repeatedly berated S.R. by leaving angry cell phone messages in which he chastised and berated her for ignoring his phone calls.
The Commissioner asserts, and we agree, that whether S.R. had a cell phone of her own, and when she first possessed one, is of no moment because appellant did not dispute making the telephone calls that S.R. described and which the ALJ heard during the hearing. We are satisfied that appellant's arguments about the inconsistencies in the testimony offered by S.R. and V.V. pertain to trivial matters that have no bearing upon the overwhelming evidence presented against him at the hearing before the ALJ.
As for appellant's contention that some of the exhibits were not listed on the ALJ's exhibit list, the record supports the Commissioner's contention that all of the exhibits were discussed and admitted into evidence; and the failure to list all of them on the ALJ's exhibit list was nothing other than a clerical error having no bearing on the ALJ's ultimate conclusions.
We likewise reject appellant's argument that the ALJ and the State Board wrongly interpreted his voicemails to S.R. as harassing. The ALJ, who was in the best position to evaluate the tone and content of those voicemail messages, Taylor, supra, 158 N.J. at 656, concluded that a fourteen year-old girl such as S.R. would be frightened and alarmed by the tone of those messages, especially in light of the repeated, virtually relentless, frequency of those messages. We have been presented with no meritorious basis to disturb the ALJ's findings on that subject, or the Commissioner's acceptance of those findings.
Viewed as a whole, the record amply supports the Commissioner's determination that appellant engaged in unbecoming conduct that was entirely incompatible with the limits placed upon a teacher. The uncontroverted evidence in the record demonstrates that appellant failed to respect those boundaries and attempted to establish a dating relationship with S.R., as evidenced by the last voicemail messages he left for her. Moreover, as the Commissioner correctly concluded, a teacher should not take two female students to his home across the state line, should not conceal his activities from the girls' parents, and should not remove them from their academic classroom to satisfy his own personal needs. We reject appellant's contention that the Commissioner's findings of fact were unsupported by the record.
As for the penalty imposed, we agree with appellant's assertion that the ultimate sanction of revocation can be viewed a harsh penalty for a person, such as himself, who has had no prior disciplinary record during his two decades as a teacher. The question, however, is whether the penalty was unfairly harsh or "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. Appellant's claims regarding the sanction fails to persuade us that the punishment was "disproportionate" to his misconduct. A fourteen year-old student should be able to attend school without being pressured into a personal relationship with a teacher. Her parents, in turn, have the right to expect that when they send their daughter to school for the day, she will receive nothing other than academic instruction, and will not be subjected to the overbearing conduct of a teacher trying to establish a romantic relationship with their daughter. Appellant's inability, over a long period of time, to conform his behavior to the high standards expected of a teacher warranted the revocation of his teaching certificates. Moreover, the penalty of revocation was consistent with the Commissioner's prior decisions in similar cases.*fn3