August 6, 2012
IN THE MATTER OF THE TENURE HEARING OF ANTHONY COLUCCIO, JR.
On appeal from the Commissioner of Education, Docket No. 158-7/09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Graves and Yannotti.
Anthony Coluccio, Jr. (Coluccio) appeals from a final determination of the Commissioner of Education (Commissioner) removing him from his tenured position as a teacher with the New Jersey Department of Corrections (Department). We affirm.
Coluccio was employed as a cosmetology teacher at the Department's Edna Mahan Correctional Facility for Women (Edna Mahan or the facility). On June 24, 2009, the Department filed a preliminary notice of disciplinary action, alleging that Coluccio had an improper relationship with Heather Lindorff (Lindorff), an inmate at Edna Mahan, who was serving a six-year sentence. Coluccio was charged with conduct unbecoming an employee, improper and unauthorized contact with an inmate, and sexual harassment or discrimination.
On June 29, 2009, after a hearing, the Department suspended Coluccio without pay. On July 13, 2009, notice of the charges was forwarded to the Commissioner. Following Coluccio's July 25, 2009 request, the charges were held in abeyance pending disposition of a criminal investigation. In January 2010, after completion of that investigation, the Commissioner referred the matter to the Office of Administrative Law for a hearing before an administrative law judge (ALJ).
At the hearing, the Department presented testimony from Lindorff, who stated that she had been working as a paraprofessional in the office of Kathy Morgan (Morgan), the Director of Education at Edna Mahan. Lindorff said her relationship with Coluccio began in October 2008, around the time of a community awareness day at the facility, when she and Coluccio spoke. They later exchanged jokes.
According to Lindorff, the relationship became sexual in November 2008. Lindorff asserted that Coluccio touched her breast on one occasion, and touched her buttocks numerous times. She said Coluccio once grabbed her hand and placed it on his crotch.
By December 2008, Lindorff was writing letters to Coluccio by hand or on her computer. She kept copies of the letters. She also retained a "post-it" note Coluccio wrote to her, in which Coluccio said that when Lindorff gets home, he would engage in certain sexual acts with her.
Lindorff kept the "post-it" note, although the note said that she should discard it. She gave the note to her mother, Mildred Cullinan (Cullinan), for safekeeping. Lindorff also spoke to her mother on a regular basis, by phone or when her mother visited the facility. During these conversations, Lindorff discussed her relationship with Coluccio.
Lindorff further testified that Coluccio completed an "Application for a Relationship" questionnaire that she had given to him. The form was sexually explicit and Coluccio completed it, indicating his sexual preferences. Lindorff referenced the questionnaire in letters to Coluccio in December 2008.
Lindorff additionally testified that the relationship with Coluccio continued until around Valentine's Day in 2009, when he told her to "lay low." The relationship became less intense, although Lindorff remained in contact with Coluccio through their interactions in the facility.
In May 2009, another inmate at Edna Mahan learned about Lindorff's relationship with Coluccio. The inmate reported the matter to administrators of the facility. They found Lindorff's letters to Coluccio and transferred her to the facility's maximum security unit. Lindorff initially denied any improper relationship with Coluccio but later admitted the relationship.
At the hearing, the Department also presented testimony from Kathleen Zdonowski (Zdonowski), one of its principal investigators. Zdonowski said she reviewed tapes of Lindorff's telephone conversations with her mother, which had been recorded.
Zdonowski further testified that the Department contacted Cullinan and obtained a copy of the "post-it" note that Lindorff sent to her for safekeeping. Cullinan testified that her daughter had provided her with the note. She also confirmed the conversations she had with Lindorff regarding her relationship with Coluccio.
Coluccio denied he had an improper relationship with Lindorff. He denied touching Lindorff, receiving letters from her, or ever being alone with her. Coluccio said the alleged relationship was "all in [Lindorff's] head." Coluccio did, however, admit writing the "post-it" note but denied that he wrote it for Lindorff or gave it to her. Coluccio claimed that he wrote the note to another teacher, Linda Fleming (Fleming). He said he may have left the note on his desk, Lindorff took it, and she gave it to her mother.
Coluccio also conceded that he had completed the sexually-explicit questionnaire. He stated that he found the questionnaire in his mailbox and thought it was a joke from a co-worker. He completed the questionnaire and left it on his desk. He thought Lindorff may have taken it.
Fleming testified she was Coluccio's close friend. Fleming stated she had a "flirtatious" relationship with Coluccio and they "joked around a lot." Fleming said that in December 2008 or January 2009, Coluccio mentioned he had written her a letter. She was shown the "post-it" note but she was not certain it was the letter Coluccio mentioned. She acknowledged the note was more explicit than their usual sexual bantering.
Morgan also testified at the hearing. She stated that in the winter of 2008-2009, Coluccio told her he felt uncomfortable in Lindorff's presence and said she was stalking him. Morgan then told Lindorff to stay in her office area. Morgan denied seeing Coluccio engage in any inappropriate conduct. She believed Lindorff was lying about her relationship with Coluccio, but when asked to state the reason for this belief, Morgan said it was because Lindorff was an inmate.
In her initial decision, the ALJ made detailed credibility findings and concluded that Lindorff's testimony was credible and Coluccio's was not. The ALJ stated that Lindorff was "direct, candid and articulate in her testimony." The ALJ found that Lindorff's version of the events was corroborated by the letters she wrote and the conversations she had with her mother. The ALJ also found that Coluccio's "version of events, while delivered in an articulate manner, fail[ed] in comparison to the weight of the evidence presented by the Department."
The ALJ concluded that the Department had proven Coluccio "carried on an improper relationship with [Lindorff], [which] included sexually explicit communications" and actions. The ALJ stated that Coluccio's actions constituted conduct unbecoming a public employee, improper and unauthorized contact with an inmate and sexual harassment.
The ALJ then addressed the penalty to be imposed. She stated that Coluccio's conduct was improper and serious in nature. The ALJ found, however, that Coluccio's removal was not warranted because: his disciplinary history did not include this type of behavior or any prior serious infraction; the relationship with Lindorff was finite in time and he took steps to end it; he was not involved directly in security of the facility; and the relationship did not directly compromise the facility's safety. The ALJ concluded that Coluccio should be suspended without pay for one year.
The ALJ's initial decision was referred to the Commissioner for his review. On July 5, 2011, the Commissioner issued his decision in the matter. The Commissioner accepted the ALJ's factual findings and her credibility determinations. The Commissioner concluded, however, that Coluccio's improper and unauthorized relationship with an inmate warranted his removal from his position.
The Commissioner noted that Coluccio's conduct was not an isolated incident, but a pattern of conduct that occurred over several months and involved "multiple discussions with sexual overtones and inappropriate touching of the inmate . . . ." The Commissioner said that although the relationship may have been consensual, "as a teacher in a correctional facility [Coluccio] inherently had a degree of power over the inmate which further exacerbates the gravity of his conduct." The Commissioner also noted that Coluccio's responses to the charges ranged from "complete denial . . . to allegations that [the] behavior was inconsequential . . . and directed at a co-worker . . . ." The Commissioner stated that these responses were "completely inconsistent with the evidence" presented at the hearing.
The Commissioner additionally pointed out that Coluccio conceded he wrote the "post-it" note and completed the sexually-explicit questionnaire while working as a teacher in the facility. The Commissioner stated that Coluccio's assertions that he wrote these documents and carelessly left them on his desk, demonstrated a "severe lack of judgment and an astounding inability to appreciate the egregiousness of his behavior." The Commissioner said that he had considered Coluccio's extended employment with the Department, but concluded that the evidence showed that he was "unfit to remain in his position."
Coluccio filed his motion with the Commissioner seeking reconsideration of his decision. The Commissioner addressed the motion in a decision dated September 1, 2011. The Commissioner wrote that there was no basis to reject the ALJ's summary of the testimony or her credibility findings. He also stated that the ALJ's factual findings, conclusions regarding the charges, and her characterizations of Coluccio's behavior were "fully supported by the record and consistent with applicable law." This appeal followed.
"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co., Inc. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.
In determining whether the agency's action is arbitrary or unreasonable, we consider: "(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violate[d] express or implied legislative policies; (3) whether [there is] substantial evidence [in the record] to support the findings on which the agency based its action; and (4) whether . . . the agency clearly erred" in reaching a conclusion unsupported by relevant factors. Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)).
Coluccio argues that there is insufficient evidence to support the ALJ's credibility findings. He maintains that Lindorff reported him to the administrators at Edna Mahan in order to exact revenge because he rejected her "infatuation fantasy." He argues that Lindorff's allegations were not corroborated by "independent evidence" and it is not credible that he would engage in such "reckless" conduct with an inmate. We disagree.
Findings of fact by an ALJ "'are considered binding on appeal when supported by adequate, substantial and credible evidence[.]'" In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, an appellate court must give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . .'" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
We are satisfied that there is sufficient evidence in the record to support the ALJ's credibility findings. The ALJ's finding that Lindorff's testimony was more credible than Coluccio's testimony is supported by the documentary evidence, including Lindorff's letters, the recordings of Lindorff's conversations with her mother, the "post-it" note and the sexually-explicit questionnaire that Coluccio completed.
Coluccio also argues that the matter should be remanded for further proceedings because the ALJ and the Commissioner failed to address the fact that Lindorff made similar allegations about another corrections officer. Again, we disagree.
At the hearing before the ALJ, Coluccio was afforded the opportunity to explore Lindorff's relationship with the other officer, who apparently faced disciplinary charges as a result of the relationship and agreed to the termination of his employment. We are not convinced, however, that the ALJ and the Commissioner were required to specifically address this evidence in determining whether Lindorff's testimony was credible. The evidence regarding Lindorff's relationship with the other officer had little bearing upon whether she credibly testified as to her relationship with Coluccio.
We have considered Coluccio's other contentions and find that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
© 1992-2012 VersusLaw Inc.