July 12, 2013
IN THE MATTER OF THE TENURE HEARING OF CORY FORMAN, CLEARVIEW REGIONAL SCHOOL DISTRICT OF GLOUCESTER COUNTY.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2013
On appeal from the Commissioner of Education, Docket No. 250-8/11.
Cameron R. Morgan argued the cause for appellant Clearview Regional School District, Gloucester County (Parker McCay, P.A., attorneys; Frank P. Cavallo, Jr., of counsel; Stacy L. Moore, Jr., on the brief).
Michael C. Damm argued the cause for respondent Cory Forman (Selikoff & Cohen, P.A., attorneys; Mr. Damm, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
Appellant, the Clearview Regional School District of Gloucester County (District), employed respondent, Cory Forman, as one of its tenured teachers assigned to Clearview Regional High School. The District brought tenure charges against Forman for unbecoming conduct. Following a contested hearing before an Administrative Law Judge (ALJ), the charge was sustained and the ALJ recommended that Forman be removed from his tenured position. While adopting the factual findings of the ALJ and upholding the unbecoming conduct charge, the Deputy Commissioner of Education (Commissioner) modified the sanction to suspension. The District challenges this decision, arguing that Forman's conduct was sufficiently egregious to warrant dismissal. We disagree and affirm.
The salient facts disclosed during the hearing are not in dispute. Forman engaged in a trio of inappropriate contact incidents with one of his students, T.E., on May 11, 2011. In the first incident, T.E. fell into the trophy case after he and Forman were clowning around. The second incident occurred in Forman's math class where T.E. was a student. T.E. was apparently discussing the trophy incident and, whether jokingly, as alleged by Forman, or not jokingly, as alleged by T.E., Forman backhanded the youth, leaving a red mark on T.E.'s stomach, which was depicted in a photograph taken from a cell phone minutes later. As for the latter incident, T.E. claimed Forman offered to change a grade to 100 if he erased the picture. Forman, however, testified that T.E. told him he was going to make his stomach look like a bear claw and put it on Facebook, to which Forman responded that taking pictures in the classroom was against classroom policy, and he asked T.E. to delete it. Forman stated it was T.E. who suggested he would delete the picture if Forman changed a grade he had received on his last assignment from 70 to 100.
During the tenure hearing, Forman apologized for the inappropriate joking relationships he had developed with his students and for blurring the line between student and teacher. He expressed sadness in missing graduation for the students he had taught and promised that if permitted to return, nothing like that would happen in the future. He also offered to take a course in classroom management.
In addition to Forman, T.E., and a number of other fact witnesses, Brad Bendesky, M.D., a fellow of the American Academy of Emergency Medicine, provided expert testimony in the area of "trauma and injury to the torso." He testified that he had examined hundreds of patients who reportedly sustained acute or traumatic injuries to their torsos, and the injury depicted in the photograph could not have been caused by a slap alone.
In her findings, the ALJ concluded that based upon the video, which depicted the trophy incident, and the testimony, she did not find T.E.'s assertion credible that Forman actively shoved him into the trophy case. She concluded the two were engaged in horseplay that went too far and found that "T.E. was shoving and grabbing at Forman, who was leaning forward. When T.E. dropped his arms, their feet did touch, and the overall momentum sent T.E. backward into the trophy case."
Regarding the slapping incident, the ALJ noted:
[T]he other students did not testify to witnessing a slap of substantial magnitude. None of them heard a slapping sound, and . . . the marks were gone by the end of class. Additionally, there was expert testimony indicating that the marks are not consistent with being stuck by a hand, essentially because the pattern is akin to a negative. The red should be inside, where the force is said to have contacted the flesh, not outside outlining normal color.
The ALJ additionally determined that Dr. Bendesky's opinion was not a net opinion and therefore admissible because his opinion would assist her in understanding the evidence and he gave the why and wherefore of his opinion based on substantial personal experience. She concluded that she was not convinced Forman slapped T.E. hard enough to make a mark, since the students who reported the behavior characterized it as joking around. They had only limited memories of the incident and therefore found the contact was only a "light slap."
She was further "persuaded there was some discussion of grades in relation to Facebook, and that the students were chattering about T.E. complaining to the school principal." However, she found Forman's version of the event accurately reflected what happened but that it was inappropriate to even joke about the topic. Based upon these findings, the ALJ determined that Forman was guilty of conduct unbecoming as a teacher.
Next, in determining whether termination was warranted, the ALJ discussed the factors set forth in In re Fulcomer, 93 N.J.Super. 404 (App. Div. 1967) but noted that the case was from 1967, and conduct that would have been tolerated decades ago is no longer tolerable. She examined the mitigating factors, the effect upon the District and the precedents. She determined T.E.'s behavior was a form of provocation but Forman's response was inappropriate. She found Forman "testified compellingly as to his remorse" and understanding that his conduct was inappropriate. She noted Forman worked hard to build an "intellectually engaging program" for his students, about whom he cared deeply, and his conduct reflected no malicious intent. She then reasoned that "given the current precedents and the ongoing efforts through the anti-bullying laws to change how students conduct themselves in relation to each other . . . that the loss of tenure from [his] position is appropriate."
Upon review, the Commissioner concurred with the ALJ that the Board sustained the charge that Forman engaged in unbecoming conduct. However, he disagreed with the penalty:
The Commissioner finds that based on all of the circumstances and considerations existing in this matter, the removal of respondent from his tenured position is an unduly harsh penalty. The dismissal of the respondent from his teaching position is not justified in this case because the proven conduct does not establish his unfitness to discharge the duties and functions of his position as a teacher. Nor is there any indication that the respondent's behavior will have any long term effects on the maintenance of discipline among the students and staff in the Clearview Regional School District. Additional mitigating factors include the fact that T.E. and the respondent were joking around when the light slap occurred, T.E. initiated the contact and was grabbing the respondent during the trophy case incident and there was no evidence to suggest that the respondent seriously offered T.E. 100s if he deleted the cell phone photograph. Importantly, the respondent's behavior was not "premeditated, cruel or vicious, or done with the intent to punish [. . .]. See In re Fulcomer, supra, 93 N.J.Super. at 421. Finally, the respondent has acknowledged that he did not handle the situations properly and that it is inappropriate for him to maintain such relaxed relationships with his students. [footnote omitted].
Although dismissal in this case is not warranted for the reasons discussed above, the Commissioner recognizes that the charges in this matter are serious in nature. . . . Respondent himself admitted that he did not conduct himself properly by cultivating relationships with the students that did not convey proper boundaries. Moreover, respondent's unprofessional conduct led to two incidents where there was unnecessary physical conduct with a student, which is never condoned even if it is characterized as horseplay. Although there was no evidence that respondent bullied the students, his demeanor and approach resulted in an overall environment that is not appropriate to a school setting.
Therefore, the Commissioner finds and concludes that the loss of respondent's increment for one year, along with the 120 days salary withheld pursuant to N.J.S.A. 18A:6-14 following the certification of tenure charges, is a sufficient penalty to impress upon respondent [based upon] the seriousness of his errors in judgment displayed in this matter. Accordingly, the Initial Decision of the OAL [Office of Administrative Law], as modified with respect to the penalty, is adopted as [the] final decision in this matter.
On appeal, the District urges that Forman's conduct was sufficiently egregious to warrant the penalty of dismissal, the Commissioner was clearly mistaken in concluding that suspension and loss of an increment was sufficient in view of case law, current bullying legislation and the public policy of this State, and both the ALJ and Commissioner erred in relying upon Dr. Bendesky's testimony, which constituted a net opinion.
Based upon our review of the record and the applicable legal principles, we find no merit to any of these contentions and affirm substantially for the reasons expressed by the Commissioner in his August 9, 2012 decision. We add the following comments.
We begin with an overview of our standard of review of administrative agency determinations. Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We "may reverse only if we conclude that the decision of the administrative agency is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J.Super. 516, 521 (App. Div. 2000) (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J.Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). See also Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
Our limited standard of review of administrative agency decisions is informed by three inquiries:
(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.
When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]
This deferential standard means that even if we had been tasked with adjudging the matter and may have reached a different outcome, we will not do so as long as substantial credible evidence supports the decision reached. Ibid. (citing In re Polk, 90 N.J. 550, 578 (1982)). This deferential standard extends to our review of disciplinary sanctions as well. Ibid.
A reviewing court may "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)). "[W]hen reviewing administrative sanctions, 'the test . . . 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 (internal quotations and citation omitted)). 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.
Under Fulcomer, supra, certain factors should be taken into account to determine if termination is appropriate. 93 N.J.Super. at 421. These factors include whether "the teacher's acts were premeditated, cruel or vicious, or done with intent to punish or to inflict corporal punishment[, ]" "the nature and gravity of the offenses under all of the circumstances involved, any evidence as to provocation, extenuation or aggravation, " the teaching record and ability, the disciplinary record, and "any harm or injurious effect which the teacher's conduct may have had on the maintenance of discipline and the proper administration of the school system" should all be taken into account. Id. at 421-22. "[C]onsideration should [also] be given to the impact of the penalty on [the teacher's] teaching career, including the difficulty which would confront him, as a teacher dismissed for unbecoming conduct, in obtaining a teaching position in this State . . . ." Id. at 421.
Guided by the considerations articulated in Forman, we are satisfied that substantial credible evidence supports the Commissioner's decision and discern no basis to intervene and correct the agency action. The trophy incident was accidental and there was some evidence that the incident was provoked by T.E., who stuck out his foot as Forman was walking past him in the hall and also grabbed Forman's arm. Forman's prior record, although including an incident of using force against a student who jumped on his back and submitting a resume in connection with a coaching position that contained false information, did not reflect a pattern of unbecoming or inappropriate conduct or interaction with students. Rather, Forman had taught in the District since 2002.
In addition to teaching, Forman had coached girls' track and field and boys' soccer. He worked as a summer custodian and groundskeeper, and provided security for football games, wrestling matches and basketball games. He was also rated proficient or commendable in the most recent evaluation that preceded this incident. Moreover, Forman acknowledged that his actions were inappropriate, displayed remorse and expressed a willingness to do whatever was necessary, in terms of training, to reassure the District that this behavior would never reoccur. The Commissioner also found there was no "indication that [Forman's] behavior will have any long[-]term effects on the maintenance of discipline among the students and staff in the Clearview Regional School District."
Finally, we find no merit to the claim that the ALJ abused her discretion in permitting the expert testimony of Dr. Bendesky. The record revealed that Dr. Bendesky is an emergency room physician who completed an emergency medicine specialty residency at MCP Hahnemann University. He is employed by Mercy Health Systems at two facilities, holds an assistant professorship at Drexel University College of Medicine, supervises the emergency medicine residents that rotate through the emergency room, and grades clinical skills examinations for the National Board of Medicine.
He testified that he has examined hundreds of patients who reportedly sustained acute or traumatic injuries to their torsos. On approximately twenty to twenty-five occasions, he examined photographs of injuries and interpreted them for causation, but admittedly only once for a court case. In reaching his findings, Dr. Bendesky reviewed numerous documents, including the photograph of T.E.'s stomach, the investigation report, the report written by T.E., the report to the Board, and the witness interviews. "Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Rosenberg v. Tavorath, 352 N.J.Super. 385, 403 (App. Div. 2002).
Dr Bendesky's testimony also gave the "why and wherefore" of his opinion Riley v Keenan 406
N.J.Super. 281 295 (App Div 2009) He testified that the mark on TE's stomach depicted in the photograph "appear[ed] to be outlined sausage[-]shaped red marks" which was not consistent with similar injuries he had seen or what he would expect from a flat blunt force trauma to the abdomen based on the patho-physiologic properties of the body He concluded based on a reasonable degree of medical probability that the mark on the stomach could not have been caused by a slap alone His opinion is therefore not as the District urges merely a bare conclusion unsupported by factual evidence Vitrano by Vitrano v Shiffman 305
N.J.Super. 572 577 (1997).