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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...