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In the Matter of the Tenure


April 25, 2012


On appeal from the Acting Commissioner of Education, Agency Docket No. 613-10/10.

Per curiam.


Submitted February 29, 2012

Before Judges Graves, J. N. Harris and Koblitz.

Appellant Danny Castro appeals from the May 2, 2011 final decision of the Acting Commissioner of Education, adopting the Administrative Law Judge's (ALJ) determination upholding Castro's dismissal from his tenured position as an attendance officer for excessive absenteeism and unbecoming conduct consisting of insurance fraud.*fn1 After using the requisite deferential standard in reviewing the record in light of the contentions advanced on appeal, we affirm.

The record of the three-day hearing before the ALJ revealed the following facts regarding the charge of excessive absences. Castro was hired by the Union City Board of Education (the Board) as an attendance officer on October 1, 2001. On September 29, 2010, the Board charged Castro with excessive absenteeism, extending from the 2001-2002 school year through the 2009-2010 school year. He is a ten-month per year employee, entitled to ten sick days and two personal days each year.

During the 2001-2002 school year, Castro was absent a total of eighteen days: one sick day, one personal day, and sixteen days due to a suspension with pay for a New York City arrest.

The charges were ultimately dismissed. He achieved tenure in his position on October 1, 2002. See N.J.S.A. 18A:38-33.

On March 27, 2004, Castro was again suspended with pay for sixty-one days because of an arrest in Union City. These charges were also dismissed.

During the 2004-2005 school year, Castro was absent a total of twenty-two days: two personal days, five days for family illness, and fifteen sick days, which exceeded his sick day allowance by five days. Castro was docked one day's pay for excessive absences during the school year. Assistant Superintendent of Personnel Gerald Caputo sent a letter to Castro notifying him that he had exhausted his sick day allowance. It instructed Castro to sign the letter and return it to the superintendent's office. The letter also indicated that a failure to do so would constitute insubordination, which could expose Castro to further disciplinary action. Castro failed to comply.

Castro was absent a total of 16 days during the 2005-2006 school year: fourteen sick days and two personal days. Caputo sent three excessive absence letters to Castro during the school year. A February letter docked Castro one day's pay; an April letter docked him two days' pay; a May letter docked him an additional one day's pay. Each of these letters included similar instructions for Castro to sign and return the letter to Caputo. Castro failed to do so for each of these letters.

From September 22 to October 31, 2006, Castro was absent a total of eleven days; nine sick days and two personal days. On October 4, 2006, Castro requested and was granted an unpaid leave of absence from October 31, 2006 through the end of the school year to attend to family matters.

During the 2007-2008 school year, Castro was absent a total of fifteen days: eleven sick days, two personal days, and two days of unpaid leave. In March, Caputo again sent Castro a letter docking him a total of three days' pay for excessive absenteeism.*fn2 Castro again failed to sign and return the letter to Caputo.

During the 2008-2009 school year, Castro was absent a total of thirteen days: two personal days and eleven sick days. In June, Castro received another letter docking him one day's pay for excessive absenteeism. Castro again failed to sign and return the letter.

Castro's absences for the 2009-2010 school year totaled thirteen days: eleven sick days and two personal days.

Castro was never disciplined for failing to sign and return the six excessive absence letters to Caputo.

The Board's proofs revealed the following facts regarding the charge of insurance fraud. Through his employment with the Board, Castro and his wife, Leslie Ventura, received medical, dental, vision, and prescription health coverage. On March 2, 2010, at a time when he was living apart from his wife, Castro went to the office of Dr. Kirti Dave to obtain an eye examination.

A female companion accompanied Castro to his appointment and also obtained an eye examination. Both completed a patient intake sheet. The woman listed Ventura's birth date as her own. She then used Castro's insurance card to pay for her appointment, which included an eye examination and a prescription for contact lenses.

On July 22, 2010, Ventura went to see Dr. Dave. Because insurance covered only one eye appointment per year, the March 2, 2010 appointment precluded Ventura's eligibility to obtain an eye examination and material benefits on July 22. According to a letter from Dr. Dave, after he explained the situation to Ventura, she "virtually broke down." Dr. Dave examined Ventura, waiving her examination charges "for humanity[.]" Ventura subsequently contacted Castro's employer and indicated that she was in the Dominican Republic with the couple's daughter at the time of the March 2, 2010 eye examination.*fn3

The parties stipulated that Castro had an appointment with Dr. Dave on March 2, 2010. However, Castro testified under oath that he did not recall the appointment and could not offer any explanation for the allegation of insurance fraud.

In a thirty-two page opinion, the ALJ discredited Castro's testimony and sustained the charges against him. The Acting Commissioner deferred to the ALJ's credibility determinations and concurred with the ALJ's assessment of Castro's conduct, agreeing that it warranted Castro's dismissal from tenured employment.

On appeal, Castro argues that the Board was unable to establish that he committed an act of fraud, that his absentee record did not constitute grounds for termination and that the penalty of termination was an excessive punishment for the proven behavior.

Judicial review of administrative agency actions is limited. In re Hermann, 192 N.J. 19, 27 (2007). An administrative agency's final decision should "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. As such, administrative agency action is accorded a "strong presumption of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (internal quotations 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).

The appellate role is merely to determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (internal quotations omitted). The Court has noted there are "[t]hree channels of inquiry" that inform the function of appellate review. In re Hermann, supra, 192 N.J. at 28. These are:

(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. [Ibid. (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

When an agency decision satisfies this criteria, an appellate court should accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 300, 513 (1992)). Thus, "[a] reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" In re Anthony Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)).

The tenure of education personnel is authorized by the Education Tenure Act. N.J.S.A. 18A:28-1 to -18. Pursuant to N.J.S.A. 18A:6-10, no person under tenure of office, position, or employment shall be dismissed or reduced in compensation except for inefficiency, incapacity, unbecoming conduct, or other just cause. N.J.S.A. 18A:38-33 provides tenure for school attendance officers. It states that once an officer obtains tenure, either dismissal or a reduction in compensation requires a showing of "inefficiency, conduct unbecoming an officer, or other just cause." N.J.S.A. 18A:38-33.

While tenure was designed to protect education personnel "from dismissal for 'unfounded, flimsy or political reasons,'" Wright v. Bd. of Educ. of East Orange, 99 N.J. 112, 118 (1985) (quoting Zimmerman v. Newark Bd. of Educ., 38 N.J. 65, 72 (1962)), tenured employees must act in a professional manner and serve the welfare of the students in their care. Tenure charges may be sustained based on a pattern of unprofessional conduct, In re Riddick, 93 N.J.A.R.2d (EDU) 345 (1993), or on a single incident, if found to be "sufficiently flagrant." In re Fulcomer, 93 N.J. Super. 404, 421 (App. Div. 1967).

The Acting Commissioner adopted the ALJ's finding that the Board had proven by a preponderance of the evidence that Castro was at the doctor's office on March 2, 2010, and that he was accompanied by someone posing as his estranged wife to fraudulently obtain insurance benefits, which constituted "conduct unbecoming[.]"

"Unbecoming conduct" is an elastic phrase encompassing conduct that adversely affects the morale or efficiency of a governmental unit or that has a tendency to destroy public respect in the delivery of governmental services. Karins v. City of Atl. City, 152 N.J. 532, 554 (1998); see also In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960). "It is sufficient that the complained-of conduct and its attending circumstances be such as to offend publicly accepted standards of decency." Karins, supra, 152 N.J. at 555 (internal quotations omitted).

Such misconduct need not necessarily "be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct." Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992) (quoting Asbury Park v. Dep't of Civil Serv., 17 N.J. 419, 429 (1955)).

In the context of school tenure cases, "the touchstone is the 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).

Castro maintains that no direct evidence supports a finding that he accompanied an unknown woman to the doctor on March 2, 2010, and allowed her to use his estranged wife's identity to obtain coverage for the appointment. He acknowledges that hearsay evidence is admissible in these proceedings, subject to the residuum rule, which mandates that the agency's findings cannot be predicated solely on hearsay. See Weston v. State, 60 N.J. 36, 51 (1972).

The ALJ found Castro's testimony to be incredible. She noted that Castro's testimony as to key facts contradicted certain answers given in response to the Board's interrogatories and request for admissions. At the hearing, Castro testified that he did not recall visiting Dr. Dave on March 2, 2010, and that, because of his perfect vision, he had no reason to see an eye doctor. Yet the parties stipulated that Castro had an appointment with Dr. Dave on that date and Castro responded to the request for admissions indicating he went to the appointment. In response to an interrogatory question, Castro also indicated that he presented his insurance card to the doctor's staff and that his wife did not accompany him. The ALJ relied on these and other inconsistencies to determine not only that Castro's testimony lacked credibility, but that the opposite of what he said was true. She determined that he knew his wife was in the Dominican Republic with their daughter, who Castro claimed to see every school day. She also determined that he remembered going to the eye doctor's appointment with a woman who pretended to be his wife.

The doctor's records substantiate that Castro and a woman falsely purporting to be his wife attended the March 2, 2010, appointment and used Castro's insurance. Dr. Dave's records specify that two distinct women visited his office, the first on March 2, 2010, and the second on July 22, 2010. Both used the same name and birth date. The first woman used Castro's address. The second used Ventura's address. This discrepancy is notable in that Ventura was living separate and apart from Castro on March 2, 2010. Moreover, the first woman's vision was recorded as 20/400 in both eyes, while the second woman's vision was recorded as 20/200. Thus, the ALJ was presented with substantial evidence that two different individuals claiming to be Ventura visited Dr. Dave. Sufficient competent evidence supported the ALJ's finding that the woman who accompanied Castro on March 2 was the imposter.

Castro next contends that the ALJ's conclusion concerning the tenure charge for excessive absenteeism was arbitrary, capricious, and unreasonable because the ALJ focused only on the total number of absences, and did not consider the impact of Castro's absences on the school district or whether the Board notified Castro of the possible consequences of his absences.

Excessive absenteeism may constitute either incapacity, unbecoming conduct, or just cause sufficient to warrant dismissal. See State-Operated Sch. Dist. of Jersey City v. Pellechio, 92 N.J.A.R.2d (EDU) 267 (1992). This may be the case even when legitimate reasons, such as long-term health issues, caused the absences. Ibid.

The determination of what constitutes excessive absenteeism initially falls under the discretion of the local board of education. Ibid. Castro contends that he had only eleven unpaid absences over a nine-year period of unemployment and thus the Board's claim of excess is unsustainable. While there are no absolute standards under which to assess a charge of excessive absenteeism, In re the Tenure Hearing of Meade-Stephens, 92 N.J.A.R.2d (EDU) 550 (1992), termination of a tenured employee on these grounds requires a board of education to show (1) that it considered the number of days and the particular circumstances of the absences; (2) the impact the absences had on the district; and (3) that the appropriate warning was given. In re Tenure Hearing of White, 92 N.J.A.R.2d (EDU) 157 (1991).

With respect to the first prong, Castro asserts the ALJ and the Board erred by including his paid suspensions in the calculation of his total absences. It is important to note, however, that the circumstances surrounding the absences are also to be considered under this prong of the analysis. Ibid. Castro was suspended with pay for sixteen days in 2002 and sixty-three days in 2004 based on criminal charges. The fact that these charges were eventually dismissed does not negate the fact that his suspensions produced a total of seventy-nine absences.

Additionally, Castro exceeded his allowable absences for each school year, except 2006-2007. Between September 22, 2006 and October 31, 2006, Castro used all eleven of his allowable paid absences and then obtained unpaid leave for the rest of the school year. We agree with the ALJ that Castro's conduct throughout his tenure as an attendance officer showed a questionable commitment to his job.

As to the second prong, Castro claims the Board failed to prove his absences had any adverse impact on the district. Castro is not a teacher and, thus, his absences do not directly impact the students' experience once they enter the classroom. Castro's inability or unwillingness to perform his primary responsibility, however, does have an adverse affect on the district's ability to police truancy. As the ALJ indicated, "Castro is responsible for making sure that students attend class so that they can receive an education."

The third prong required the ALJ to assess whether the Board gave Castro appropriate warning of its dissatisfaction with his pattern of absences. Ibid. Castro deems it "laughable" to find that the numerous letters docking his pay "constitute[d] notice of the real possibility of punishment as severe as tenure charges . . . ."

Castro received six separate letters from the assistant superintendent's office, one in 2005, three in 2006, one in 2008, and one in 2009. Each letter notified Castro that he had exceeded his allowable absences for the school year and would be docked. The five letters from 2006, 2008, and 2009 also stated the following:

You must make every effort to report to work for continuity of education. Your continued absence will result in disciplinary action against you, including but not limited to withholding of increment, non-renewal, or tenure charges.

Please be aware that your failure to sign this letter and return it to me constitutes insubordination which can lead to disciplinary action against you including, but not limited to, withholding of increment, non-renewal of your unemployment, termination of your employment and/or tenure charges, if applicable.

Castro continued to exceed his allowable absences annually. These five letters adequately informed Castro of the potential consequences associated with his failure to amend such conduct. Furthermore, Castro failed to sign and return all six letters he received. These letters explain that each failure to comply with that request constitutes an act of insubordination that could provide independent grounds for either termination or tenure charges.

Finally, Castro maintains that termination of his tenure position based on the eleven absences in excess of those allowable over a nine-year period is the "definition of disproportionate." He further reiterates his position that the proofs associated with the allegation of insurance fraud are insufficient, and thus to uphold his termination would be "disproportionate to the offense, in light of all the circumstances."

Generally, "an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). "That deferential standard applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28 (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431 (1975)). Thus, "'[t]he 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, supra, 90 N.J. at 578).

The test for reviewing an administrative sanction 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 In re Polk, supra, 90 N.J. at 578).

The ALJ based her recommendation of termination on both the excessive absenteeism and unbecoming conduct charges. The evidence in the record supported the ALJ's findings with respect to both charges. The Acting Commissioner's decision to adopt the findings of the ALJ was not arbitrary or capricious. In light of all the circumstances, Castro's termination for excessive absenteeism and unbecoming conduct stemming from an act of insurance fraud, is not "shocking to one's sense of fairness." Ibid.


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