On appeal from the Commissioner of Education, Docket No. 24-2/11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
Special education teacher Edith Craft appeals from the September 1,
2011 decision of the Acting Commissioner of Education, which sustained
the charges against her of conduct unbecoming and imposed a penalty of
suspension without pay for 240 days, as well as all increments for the
year. Craft does not dispute that she slapped one of her special
education students in the face after the eight-year-old slapped her.
She claimed it was a reflexive action, and it therefore should not
constitute unbecoming conduct. The Franklin Township Board of
Education seeks to delay the loss of increments penalty until the next
year in which the district's teachers receive increments.*fn1
After reviewing the record in light of the contentions
advanced on appeal, we affirm the decision of the Commissioner and
delay the loss of increments as requested by the Board.
Craft has been employed as a special education teacher since January 5, 2004, obtaining tenure in the Franklin Township School District in January 2007. Seeking her discharge, the Board filed a tenure charge alleging unbecoming conduct due to Craft's slapping a special education student across his face with an open hand on November 1, 2010.*fn2 N.J.S.A. 18A:6-10 and 6-11. The Board suspended Craft without pay effective January 26, 2011. N.J.S.A. 18A:6-14.
The matter was tried by an Administrative Law Judge (ALJ). The ALJ made the following findings. Two witnesses, a class aide and an occupational therapist saw Craft strike her student immediately after he struck her. The boy, who had been agitated and aggressive towards Craft and others earlier that day, appeared uninjured after being slapped. Craft, who was overcome with emotion during her testimony, did not deny slapping the boy, but said it was a reflexive, thoughtless action. She had been struck many times in the past by the child without retaliating.
The ALJ found that Craft's slap of the child was a reflexive action and that she immediately felt remorse. She had no prior disciplinary problems. The ALJ found this single isolated incident was insufficient to warrant Craft's dismissal. After reviewing prior administrative and Appellate Division decisions, the ALJ found that Craft "undoubtedly engaged in unbecoming conduct" by "fail[ing] to demonstrate the necessary restraint when she was hit in the face by [the student]." The ALJ recommended a 120-day suspension without pay and loss of increments for the 2011-2012 school year.
The Commissioner concurred with the ALJ's findings, but determined that the penalty must be increased to reflect the fact that the inexcusable use of physical force in the school environment will not be tolerated. Moreover, the Commissioner finds the respondent's behavior particularly troubling under the circumstances in this case because her actions essentially communicated to an eight-year-old special education student -with documented behavioral problems - that hitting is an appropriate response to frustration.
The Commissioner added four months to the unpaid suspension recommended by the ALJ, as well as the loss of 2011-2012 employment and adjustment increments.
On appeal, Craft argues that the Commissioner's decision that her behavior constituted unbecoming conduct is arbitrary, capricious and unreasonable. She further argues that, even if she did engage in unbecoming conduct, the penalty imposed by the Commissioner was excessive and unsupported by the record. Given the teacher's salary freeze in 2011-2012, the Board seeks to suspend the loss of increments to a year in which increments are given.
Judicial review of administrative agency actions is limited. In re Herrmann, 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) (quotations and citations 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) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The Court has noted there are "three ...