On appeal from the New Jersey Department of Education, Docket No. 139-7/10.
The opinion of the court was delivered by: Fuentes, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012 -
Before Judges Fuentes, J. N. Harris and Haas.
The opinion of the court was delivered by Petitioner Maureen Castriotta, an elected member of the Roxbury Board of Education, appeals from the final decision of the Acting Commissioner of Education denying her request for indemnification of legal fees and costs incurred in connection with defending herself against a censure resolution adopted by the Roxbury Board of Education.
The Board passed this resolution despite plaintiff's specific objections challenging the Board's: (1) jurisdiction to review her conduct as a fellow member and (2) authority to impose sanctions, including censure. On appeal, the Acting Commissioner agreed with petitioner and found the Board's actions to be ultra vires because, under the School Ethics Act, N.J.S.A. 18A:12-21 to -34, the Legislature vested the School Ethics Commission with exclusive responsibility to enforce the Code of Ethics for School Board Members codified in N.J.S.A. 18A:12-24.1. Despite finding in petitioner's favor, the Acting Commissioner denied her application for indemnification and counsel fees under N.J.S.A. 18A:12-20. In reaching this determination, the Acting Commissioner adopted, without elaboration, the preliminary decision of the Administrative Law Judge (ALJ) who found that the disciplinary proceeding initiated by the Board against petitioner was not a "legal proceeding" under N.J.S.A. 18A:12- 20. We disagree and reverse.
The disciplinary action taken by the Board against petitioner began with notice of the charges against her. In this notice, the Board also advised petitioner that she had the right to be represented by counsel, to present witnesses in her favor, and to address the Board directly in her own defense. Before voting to censure petitioner, the Board received the testimony of petitioner's accusers, heard from petitioner herself, and ruled on arguments raised by petitioner's counsel objecting to its authority to sanction petitioner. These are all core judicial functions. Thus, when the Board decided that petitioner had committed an ethical infraction warranting the sanction of censure, it was performing an adjudicatory act and functioning in a quasi-judicial capacity. This process conformed in all material respects to a due process hearing and constitutes a "legal proceeding" under N.J.S.A. 18A:12-20.
On April 26, 2010, petitioner learned from news reports that high school students throughout the state were planning to express their dissatisfaction with a proposed reduction in state aid to local school districts by walking out of their classes and gathering outside school buildings. The local demonstration was scheduled to take place on the morning of April 27, 2010. That morning, petitioner received a call from "a concerned community member" inquiring about whether students from Roxbury High School were participating in this statewide protest. In response, petitioner decided to go to the high school to see for herself if the students were going to participate because Roxbury School Board policy prohibits students from cutting classes, leaving school grounds without permission, or engaging in activities that infringe on the rights of others or interfere with the orderly operation of the educational program. Unbeknownst to petitioner, however, Roxbury Superintendent of Schools Michael Rossi and High School Principal Jeffrey Swanson had decided, in the interest of student safety, to allow the protest to take place as long as it was conducted in an orderly fashion.*fn1
On the day of the protest, petitioner arrived at the high school student parking lot at approximately 9:30 in the morning. She parked her car and walked over to where "several hundred students*fn2 [were] filing out of the high school's front entrance into the roadway in front of the school." Petitioner saw Principal Swanson watching the students as they exited the school building without making any effort to stop or redirect their movements.
What occurred next between petitioner and the school administrators remains hotly disputed. According to petitioner, she merely approached Principal Swanson and asked him "why the walkout was being allowed to take place." Swanson told her that he could not "accommodate the discipline for the number of students involved in the walkout." She then asked him if he knew about the walkout "ahead of time." Swanson answered "yes." From petitioner's perspective, her conversation with Swanson ended at this point without further incident. Petitioner emphasized that "[a]t no time during my conversation with Mr. Swanson did I raise my voice to him, criticize or berate him, give any directives or seek to involve students in my conversation with him. Moreover, at no time did Mr. Swanson tell me I have to leave the school grounds."
Principal Swanson has a different recollection of this encounter with petitioner:
Within moments of my arrival outside of the school to supervise the students, I was accosted by a Board of Education member Mrs. Castriotta. She was very accusatory and critical in her tone and in her language to me . . . She questioned me on a number of occasions, when did you find out about this? What are your decisions about this? Why aren't you making the students go back? Why aren't you stopping them from doing that and a number of other questions.
Petitioner's encounter with Superintendent Rossi occurred a few minutes after her interaction with Swanson ended. Petitioner had called Rossi at his office earlier that morning when she first discovered that the student protest was going forward. She wanted to know what strategy the Superintendent had developed to deal with the problem. As she watched the students continue to leave their classes and congregate in front of the high school, she noticed Rossi speaking to Swanson. She called to him, "Mike," to ask him how he planned to respond to the situation. According to petitioner, Rossi responded in a nasty tone: "This is not your business," and the following exchange ensued:
[H]e again turned his head towards me and said, "You are trespassing" again in a very nasty tone. I was upset and incredulous at Dr. Rossi being so antagonistic and confrontational and I told him that I was not trespassing, that I was a school board member, a long time taxpayer and a resident of Roxbury and my children went through the school system. I asked him who he was to tell me that this was not my business and that I was trespassing. Dr. Rossi replied, "I'm the superintendent of schools." I then walked away from Mr. Rossi and Mr. Swanson. I stepped back to the parking lot and then observed Dr. Rossi walk away towards the high school. I never gave Dr. Rossi any directives or sought to involve students in my exchange with him.
As was the case with Swanson, Rossi recalls the event entirely differently. Rossi maintains that petitioner confronted him about allowing the students to violate the Board's attendance policy. She directed him to instruct the students to return to their classes. Rossi claims petitioner was intransigent in her position, ignoring his student-safety concerns about attempting to persuade over six hundred teenagers to return to class under those circumstances. According to Rossi, petitioner "became very volatile" and irate when he told her she was trespassing on school property. Rossi and Swanson both indicated that they saw petitioner walking around the high school building and speaking with students.
The majority of the students returned to class by 10:46 a.m., effectively ending the demonstration. The news accounts of the event included quotes from petitioner expressing her views on the matter, including recommending that Rossi and Swanson be reprimanded for ...