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In the Matter of the Tenure Hearing of Edith Craft


July 5, 2012


On appeal from the Commissioner of Education, Docket No. 24-2/11.

Per curiam.


Submitted May 23, 2012 -

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 2011-2012 school 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 channels of inquiry" that inform the function of appellate review. Herrmann, 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 is in accord with these criteria, an appellate court should afford 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. 500, 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 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, and then only after the procedural requirements under the Tenure Employees Hearing Law have been met. See also N.J.S.A. 18A:28-5.

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, 71 (1962) cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d (1963)), 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) at 28-29, or on a single incident, if found to be "sufficiently flagrant." In re Fulcomer, 93 N.J. Super. 404, 421 (App. Div. 1967).

A teacher may use reasonable and necessary physical force against a student under only the following circumstances: "(1) to quell a disturbance, threatening physical injury to others;

(2) to obtain possession of weapons or other dangerous objects upon the person or within the control of a pupil; (3) for the purpose of self-defense; and (4) for the protection of persons or property[.]" N.J.S.A. 18A:6-1. Craft does not argue that her conduct fits within one of these statutory exceptions, but rather that she could not control her reflexive striking of the student.

She points to I/M/O Certificate of Sandra Kearney, OAL DKT. NO. EDE 03866-04 (August 22, 2005), in an apparent attempt to classify her actions as a "human response" not worthy of

unbecoming conduct charges.

In Kearney, supra, a fifth grade teacher, Sandra Kearney, suffered an injury to her breast as a result of unintentional contact with a student. Kearney wore a ring of keys around her neck. Id. at 5. Two students were horsing around in her classroom and one accidentally pushed the key ring into Kearney's breast, causing an injury for which she received medical treatment. Ibid. At the moment of contact, Kearney threw her arm up and made contact with the student's face. Ibid. The ALJ determined that her arm motion was not a "physical intervention," a "threat" against the student, or "physical abuse," but was instead a "normal body reaction to pain, when her nipple was cut 1/8 inch by the keys which [the student] had caused to be thrust into her breast." Id. at 13. The ALJ found that Kearney's action did not amount to unbecoming conduct, as she neither "knowingly [n]or intentionally slapped [the student.]" Id. at 17-18. After Kearney resigned, the Commissioner referred the matter to the State Board of Examiners, which adopted the ALJ's findings in its final agency decision not to revoke or suspend Kearney's teaching certificate. I/M/O Certificate of Sandra Kearney, AGENCY DOCKET NO. 0304-106 (November 15, 2005).

In Kearney, the teacher was unexpectedly hit and the child was not a special education student, had no violent tendencies, had never hit anyone in the class previously, and the act leading to Kearney's injury was unintentional. Kearney, supra, OAL DKT. NO. EDE 03866-04 at 5-6. In contrast, Craft testified that this student is "violent, unruly, [and] non[-]compliant from the time he comes in all throughout the day." She further revealed that he hit her many times prior to the November 1, 2010 incident. He also had a history of hitting other students. While Craft's reaction may not have been "premeditated, cruel or vicious, or done with [the] intent to punish," Fulcomer, supra, 93 N.J. Super. at 421, the Commissioner's determination that slapping an eight-year-old special education student across the face constitutes unbecoming conduct is not arbitrary or capricious. It is certainly reasonable to expect an experienced special education teacher with a self-contained classroom of seven third and fourth-grade students and a class aide to exercise sufficient control so as not to assault a student.

Craft also objects to the severity of the penalty. In increasing the penalty imposed by the ALJ, the Commissioner noted that, "Respondent's intolerable conduct and unprofessional behavior validated the very impulses and violence that the student has difficulty controlling." We find this logic unassailable.

Our "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, 431-32 (1975)). "A reviewing court should alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The 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, 90 N.J. 550, 578 (1982)).

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 Polk, supra, 90 N.J. at 578). That threshold is an objective standard and requires more than a reviewing court's determination that it "would have reached a different result." Id. at 29.

When fashioning a penalty for unjustified physical contact with a student, the Commissioner is to consider all of the relevant circumstances, including the nature and circumstances of the incidents or charges, evidence as to its provocation, the age of the pupil, the teacher's prior record and present attitude, and the prognosis for the teacher's continued effective performance in the school system. See In the Matter of the Tenure Hearing of Frederick L. Ostergren, 1966 S.L.D. 185, 188; Fulcomer, supra, 93 N.J. Super. at 421-22. The Commissioner addressed these factors in agreeing with the ALJ that outright dismissal was an unduly harsh penalty and was therefore unnecessary. Nevertheless, the Commissioner imposed an additional 120-days' suspension beyond that recommended by the ALJ.

"Appellate courts must defer to an agency's expertise and superior knowledge of a particular field." Greenwood, supra, 127 N.J. at 513 (citing Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988)). The sanction imposed, while undeniably harsh, is not "'shocking to one's sense of fairness.'" Herrmann, supra, 192 N.J. at 29 (quoting Polk, supra, 90 N.J. at 578).

The Board sought to have the Commissioner reconsider the penalty of a loss of increments for 2011-2012 in light of the salary freeze on teachers' pay during that school year. We agree that it was plainly the intent of the Commissioner to deprive Craft of one year's increments as a penalty. We therefore delay that sanction to require Craft to work without employment and adjustment increments for the first year following 2011-2012 in which the teachers receive such increments.

Affirmed as modified.

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