On appeal from the Commissioner of Education, Agency Docket No. 5-6/10A and from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9122-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Hoffman.
On our own motion, we consolidate two appeals filed by Anthony Paraskevopoulos. Both involve the Acting Commissioner of Education and the Board of Examiners and arise from the same operative facts.
Paraskevopoulos was formerly a teacher of music in the State-Operated School District of the City of Newark. On May 7, 2007, he and a younger colleague had an argument spurred by his colleague's criticism of Paraskevopoulos' piano playing. Later that day, they argued again when Paraskevopoulos insisted on an apology. Paraskevopoulos reported the incident to the principal and also complained about his colleague's excessive touching of his students. The principal reported his complaint about the colleague's conduct to the Division of Youth and Family Services (DYFS), but on May 10 and 11 Paraskevopoulos wrote letters retracting his accusations of inappropriate touching and stating that he may have exaggerated his concerns about his colleague's conduct with students. DYFS investigators subsequently concluded that the allegations were unfounded.
The district then filed tenure charges against Paraskevopoulos, but the district and Paraskevopoulos settled that matter; the district agreed to withdraw the charges, and Paraskevopoulos agreed to resign. The Commissioner approved that settlement.
Thereafter, the Commissioner referred the matter to the Board of Examiners. Upon considering the charges leading to Paraskevopoulos' resignation, the Board found just cause to consider revocation of his certificates in accordance with N.J.A.C. 6A:9-17.5, which permits the Board to revoke or suspend a certificate on specified grounds including "conduct unbecoming." Because Paraskevopoulos filed an answer and affirmative defenses asserting that he acted in good faith and in conformity with the law, the Board transmitted the matter to the Office of Administrative Law (OAL) for a hearing as a contested case pursuant to N.J.S.A. 52:14B-2(b).
An Administrative Law Judge (ALJ) took testimony during a two-day hearing and found these facts. The music teachers had a "heated argument," and "Paraskevopoulos earnestly believed he had been affronted." No children were present during either incident. He "believed that the intervention of his principal was immediately needed" and may have "exaggerated" when he spoke with the principal that day because of his "anger and upset." Paraskevopoulos did not fabricate his concern about the younger teacher's behavior; prior to the argument, he had shared that concern with another teacher. Based on the principal's filing of a report with DYFS, however, the ALJ found that Paraskevopoulos "somewhat hysterically overstated" his concerns to the principal. Additionally, the ALJ found that Paraskevopoulos retracted his "unfair" statements when he was "calmer and able to reflect" but not before he had "disrupted school operations."
On those findings, the ALJ concluded that the Board failed to establish conduct unbecoming. The ALJ also rejected Paraskevopoulos' claim that the Board could not take action against him for reporting his concerns about his colleague's behavior with the students because N.J.S.A. 9:6-8.13 grants immunity to those who report child abuse as required by N.J.S.A. 9:6-8.10. The ALJ determined that N.J.S.A. 9:6-8.13, by its terms, applies to reports of "abuse" that are filed "immediately," and Paraskevopoulos' concerns were not about conduct amounting to sexual or harmful contact and were not voiced "immediately."
The parties filed exceptions to the ALJ's decision. Although the Board accepted the ALJ's findings on credibility and adopted all of the ALJ's factual findings, it disagreed with the ALJ's legal conclusion and determined that Paraskevopoulos' conduct was unbecoming and sufficient to warrant suspension of his certificates for six months but not revocation. The Board explained:
Regardless of Paraskevopoulos' motivation or the fact that all of these interactions occurred solely among adults, his conduct was inappropriate and merits consequences beyond the loss of his tenured position, [pursuant to his settlement with the district]. . . . The damage he inflicted on [his colleague's] reputation and the potential harm he could have caused . . . should not be minimized simply because he acted in a fit of pique and later attempted to retract his allegations. Moreover, as [the ALJ] noted, Paraskevopoulos' actions resulted in a DYFS investigation that disrupted school operations. . . . The Board believes that Paraskevopoulos' conduct is unbecoming a teaching staff member and reflects negatively on his ability to act as a role model to both students and colleagues.
After receiving the Board's written decision, Paraskevopoulos filed an administrative appeal with the Commissioner. The Commissioner, however, affirmed the decision substantially for the reasons stated by the Board. Accordingly, Paraskevopoulos filed a notice of appeal with this court.
In addition, Paraskevopoulos filed the civil action against the Commissioner and the Board that is the subject of his second appeal. He filed that action pursuant to N.J.S.A. 9:6-8.13, which in addition to immunity from all civil and criminal liability, provides a cause of action for equitable relief that is available to a person who is subject to adverse employment ...