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In re Tenure Hearing of Melillo

Superior Court of New Jersey, Appellate Division

July 25, 2013



Telephonically Argued November 9, 2012

On appeal from the Commissioner of Education, Agency Docket No. 363-10/04.

Karen A. Murray, Labor Counsel, argued the cause for appellant/cross-respondent Elizabeth Board of Education (Kirk C. Nelson, General Counsel, attorney; Ms. Murray, on the brief).

Sheldon H. Pincus argued the cause for respondent/cross-appellant Louis Melillo (Bucceri & Pincus, attorneys; Mr. Pincus, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Diane C. Sierotowicz, Deputy Attorney General, on the statement in lieu of brief).

Before Judges Messano and Lihotz.


The Elizabeth Board of Education (the Board) appeals from the final decision of the Acting Commissioner of Education (the Commissioner) that dismissed the Board's tenure charges of conduct unbecoming against Louis Melillo, an elementary school custodian. In doing so, the Commissioner adopted the credibility findings and much of the administrative law judge's (ALJ's) legal reasoning.

Before us, the Board argues that the Commissioner's decision was arbitrary, capricious and unreasonable because, among other things, she relied upon: 1) inapplicable legal standards; and 2) credibility findings by the ALJ that were not supported by the record. The Board urges us to conclude that the evidence supported a finding of conduct unbecoming against Louis Melillo, and we should order Louis Melillo's dismissal or, alternatively, remand the matter for a new hearing.

Louis Melillo argues the Commissioner's decision was supported by the credible evidence in the record and properly adhered to the ALJ's credibility determinations. He also cross-appeals, arguing that, because the Commissioner "abdicated the responsibility to resolve the Board's motion for ameliorative intervention, " he was denied sick days and salary increments he otherwise should have received when the charges were dismissed.

We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter to the Commissioner for further proceedings consistent with this opinion. Because the remand may not result in Louis Melillo's continued employment with the Board, the Commissioner's consideration of the issues raised by Louis Melillo's cross-appeal are preserved and shall abide the results of the proceedings on remand. We therefore dismiss the cross-appeal.


On September 15, 2004, the Board filed tenure charges seeking Louis Melillo's dismissal alleging "conduct unbecoming . . . due to his sexual advances, inappropriate physical contact and sexual remarks made to minors employed by the Board . . . in the Summer Program and [his] co-worker." On October 14, the Board certified the charges and suspended Louis Melillo indefinitely without pay. On November 1, Louis Melillo filed an answer denying the charges, and the Commissioner referred the matter to the Office of Administrative Law (OAL) as a contested case.

The matter was stayed while Louis Melillo answered criminal charges that had resulted in his indictment on two counts each of aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a).[1] Louis Melillo was acquitted following a bench trial on September 27, 2005.

On February 13, 2007, the Department of Children and Families, Institutional Abuse Investigation Unit (DCF), moved before the ALJ to consolidate its administrative action, arising from the same allegations, with the tenure action. The ALJ granted the motion and subsequently ordered DCF to proceed first.

Although DCF's investigation had resulted in substantiated charges of abuse against Louis Melillo, on June 7, DCF announced it modified its previous finding and now deemed the complaint "not substantiated."[2] DCF "drop[ped] out of the case, " leaving the tenure charges as the sole contested case before the ALJ. On June 21, 2007, the ALJ began hearings that continued sporadically for nearly three years, concluding on March 11, 2010.

Louis Melillo had been employed by the Board as a custodian since 1994, and, in 2004, he was head custodian at Roosevelt School (Roosevelt). He reported to Dennis Kelly, who coordinated the work of the Board's custodians and young people employed in the Board's summer work program. In summer 2004, S.R. (Sara), her brother, T.M. (Tony), E.W. (Edie), her brother, G.W. (George), and M.D. (Mike) were employed in the summer work program and assigned to Louis Melillo[3]

Sara had just graduated from eighth grade at Roosevelt, while seventeen-year old Tony had completed his junior year of high school. Edie graduated from Roosevelt in 2003, was fifteen years old and had just completed ninth grade. George was two years older than Edie. The tenure charges involved Louis Melillo's alleged conduct with these children and Mike.


We summarize at some length the testimony adduced before the ALJ.

The students' first day of work was Tuesday, July 6. Kelly testified that on July 15, Edie and Sara came to his office with their mothers. He described the conversation that followed:

Two young ladies and their parents came into my office and they said that they had a problem with [Louis Melillo], that he rubbed up against one of them and he was grabbing his crotch. He offered them to come to a --go go bar with his cousins and, you know, he'll bring condoms. They brought up a Playboy book that he was showing them. One of the -- I believe it was [Sara], she was in a slop sink getting water for . . . one of her buckets and [Louis Melillo] came upon her and from the back and rubbed up against her . . . . [T]he allegations were pretty much that [Louis Melillo] . . . . sexually abused them verbally . . . and the one girl, [Sara], I believe it is, rubbing up against her and grinding up against her.

Kelly told the students to put their allegations in writing and notified the Division of Youth and Family Services (DYFS)[4] the same day. DYFS told Kelly to notify the police, which he did. The responding officers documented in their report that Kelly told them, "[Louis Melillo] grabbed [Sara] from behind and grinded his crotch into [Sara's] buttocks." Kelly repeated that allegation in a statement made to Elizabeth police detective Ismael Olivero the next day.[5]

Kelly told Louis Melillo of the allegations and re-assigned him to the "warehouse, " where there would be no contact with students. However, Louis Melillo called in sick and, to Kelly's knowledge, never reported to work thereafter. The students were assigned to another school.

On July 16, Kelly retrieved a pornographic Hustler magazine from the bottom drawer of Louis Melillo's desk. Kelly testified it was "totally against the rules" for any custodian to have pornographic materials in the school. Kelly also asked two Roosevelt custodians, Sandra Llerena and Maria Esteves, to provide statements because the students said they had told Llerena "what was going on." Kelly also met again with the parents and students, who returned with their written statements as requested.[6]

Llerena testified that she first worked with the students on July 13, 2004. That day, Sara told Llerena that she "didn't like the way [Louis Melillo] looked at her, " "that she did not want to be alone with . . . [Louis Melillo] in his office" and "that she didn't feel comfortable with him." Any time that she had to go to Louis Melillo's office, Sara would ask Llerena to accompany her.

Llerena could not recall which girl it was, but one of them said she was uncomfortable going to Louis Melillo's office because "he would be touching his private parts." Llerena testified that, "[e]very time we would walk in [his office], Louis Melillo would always be either touching his private part or his shirt would lift up . . . ."

Llerena testified that on July 14, Edie told her that Louis Melillo had "rubbed himself against her" at a slop sink in the school. Tony told Llerena "that . . . [Louis Melillo] had offered them condoms and . . . would have showed them a porn magazine. And, that . . . [Louis Melillo] . . . . said . . . he would take them to see a stripper or something like that." Llerena told the three students, "Don't tell me, tell your parents."

Llerena saw the pornographic magazine after Louis Melillo had been "taken away from the school, " and while the students were still in the building. Llerena, Esteves and another custodian, "Eddie, " went to look for it in Louis Melillo's desk, but it was not there. Eddie, who had spoken to Louis Melillo before he left the building, knew the magazine was in a nearby garbage dumpster. Llarena saw Eddie retrieve the magazine and put it back in the drawer in Louis Melillo's desk, where Kelly found it. Llerena acknowledged that she and Louis Melillo did not get along, and he regularly complained about her work.

The other female custodian at the school, Esteves, also testified that Louis Melillo regularly "used to adjust himself, sitting in a chair." Esteves saw that Louis Melillo made these gestures "in front of everybody" including "the guys that worked there, " and she realized they were not directed at her. Although she never saw Louis Melillo rubbing or stroking his penis, the conduct made her "uncomfortable" so she "tried to . . . not stay too long in his office." But, Esteves testified that Louis Melillo was "very polite" and "always respectful" towards her.

Esteves tried to stay away from the students as much as she could. But, one day, Esteves asked Edie why she was wearing a heavy sweater in July. Edie "said something about feeling uncomfortable around . . . [Louis Melillo]." Esteves told Kelly about Louis Melillo's "inappropriate gestures" and Edie's response regarding the sweater in a statement made on July 20. Esteves remembered Tony and Mike from their time as students at Roosevelt and described them as "troubled."

Smith testified regarding his investigation of the students' complaints. He interviewed Kelly, all of the students, Llerena, Esteves, and a security guard, Jay Mills.

Smith asked "predetermined questions, " but did not record answers to all the questions because he already had the students' statements to Kelly. The written statements Smith created from the notes he "jotted down" during the interviews lacked responses to some of the questions.

When Sara testified at the hearing in 2008, she was a high school senior. She described an incident at the slop sink on the second floor of Roosevelt.

I was . . . inside the slop sink, I was getting water for my bucket, I was about to go clean, and [Louis Melillo] was calling my name down the hall, I was like, "Coming, " I was right here but as I was coming out he was coming towards, I guess, he bumped into me like against my butt as I was backing out the slop sink.
[A]s I was backing out he was coming towards me, he rubbed like up against me, bumped against me . . .
. . . I looked at him and I asked him what he was doing and I told him to chill.

Louis Melillo "smiled." Sara testified that she told her brother and the others what had happened.

Sara was in Louis Melillo's office when he told the boys about staying up all night with his two nieces who were strippers, "and that he would give the boys a hundred dollars to go to the strip club and let the nieces strip for them . . . . [H]e was saying that, 'And I'd be out of condoms because you all are virgins.'" Sara claimed Edie also was present.

Another time, when Sara and Tony were in the room, Edie was looking over Louis Melillo's back at a calendar. When Edie told Louis Melillo his "back [was] big, " he said, "I got something else that's big." George confronted Louis Melillo, telling him, "Yo, don't be playing with my sister like that."

Sara's friends had written graduation comments on her jeans, including the area of her buttocks. When she noticed Louis Melillo looking there, she put on a sweater to cover herself and told Louis Melillo she was doing that "so he won't see my butt."

Sara "made it [her] business not to go in [Louis Melillo's] office" because he made her "uncomfortable." She testified that Louis Melillo would cross his feet on the desk, lean back and "grab[] himself" in his crotch area. When asked how many times she saw Louis Melillo engage in this conduct, S.R. testified: "[H]e made it his business every time me and [Edie] were in the room to touch himself and [sic] that type of manner." When it happened repeatedly, they told their brothers. On one occasion, when Louis Melillo yawned and stretched, his hand raised his shirt up to his nipple.

Sarah testified they all were sent home early one day when Louis Melillo "got mad" because "the boys was fooling around" and he "couldn't find them." When Llerena returned from vacation, they spoke to her about Louis Melillo's conduct, and she told them "that someone needed to know what was going on." Llerena accompanied Sara, Edie and their brothers as they called their mothers, who they later met at Kelly's office. On cross-examination, Sara acknowledged some inconsistencies between her testimony and her written statements to Kelly and to the DYFS investigator.

When Edie testified at the administrative hearing, she was a nineteen-year-old college freshman. She recalled Louis Melillo touching his private parts during the first or second week of work while she cleaned the area under his desk. She did not remember Louis Melillo touching his groin area any other time.

One day, Edie asked Louis Melillo to return a calendar to the wall and remarked that he had a big back. Louis Melillo responded: "I have something else that's big." She told her brother what Louis Melillo had said, and "he told [Louis Melillo], 'Stop playing with my sister like that' . . . ." Edie also heard Louis Melillo's comments to the boys that he would bring in condoms for them and that he had had strippers, including his niece, at his house. Edie corroborated Sara's testimony that the girls told Llerena, who told them to tell their mothers.

With respect to the pornographic magazine, Edie testified: "[Tony] was going through the desk and . . . found the porno magazine and said, 'Oh, he is . . . a pervert. Look what I found in his desk.' So we asked [Louis Melillo] and he said it's not his material." Later, they went to look for the magazine "to bring it to the office" to corroborate their concerns about Louis Melillo, but the magazine was no longer in the desk.

Edie testified that after she and Sara called their mothers, they met with the others before going home. Edie testified:

[Tony] said to us, "Oh, I'm going to put a tape recorder in the McDonald's bag . . . like it's lunch. Sit it on the desk and record [Louis Melillo] to see . . . if he say something to anybody" -- it was just like -- like a setup, like to catch him or whatever and his acts and things like that.

Tony brought the tape recorder to school but claimed he never turned it on because "he was scared." Edie denied they were trying to "set [Louis Melillo] up."

Tony testified before the ALJ in 2009. At the time, he was incarcerated having been convicted of robbery. When asked to describe Louis Melillo, Tony responded: "The last I saw, a big guy, built, bald head, muscular." When asked if Louis Melillo was African-American or Caucasian, Tony responded, "I don't know."[7]

Tony recounted that one day during summer 2004, when he told Louis Melillo he was late because he was tired, Louis Melillo responded by saying he also was tired because he had been up all night with his stripper niece and her girlfriend "and they was arguing who was going to strip for him first." Louis Melillo asked Tony if he used condoms. Louis Melillo said he had a supply of condoms and would give him some, but he never did.

Tony also recounted an exchange between Edie and Louis Melillo: "She asked him why is he so big, why is he so muscular, and he said to her, 'That's not the only thing that's muscular.'" After his sister complained about Louis Melillo's conduct, Tony told him "to stop talking to my sister the way he was talking to her." Tony also testified: "We used to be in the office, and he used to be talking to us [about] what the assignment going to be for the day, and as he was doing that, he would be grabbing his crotch area, put his feet on the desk, handling his manhood, touching himself . . . ."

Tony further testified that Louis Melillo looked at a pornographic magazine, holding it behind a newspaper at his desk. Tony saw the magazine along with the newspaper that was in Louis Melillo's desk drawer. Consistent with his statement to the Elizabeth Police Department, Tony testified that Louis Melillo never showed the magazine to him or any other student.

The day after the students and their mothers met with Kelly, Tony took a tape recorder to the school inside a McDonald's bag to record Louis Melillo, but he never used it. When he looked for the pornographic magazine in Louis Melillo's desk, it was gone. Eddie told him it was in the trash dumpster.


At the close of the Board's case, the ALJ granted Louis Melillo's motion and dismissed charges four, five, and six in their entirety. Charge four alleged that Louis Melillo made "sexually explicit remarks" to George, specifically telling George "he would bring him condoms since he was a virgin, " and stating in George's presence "that he 'had something else that was big.'" The ALJ stated, incorrectly, that Edie testified the second comment "was allegedly said to her . . . when she was cleaning [Louis Melillo's] office, and that . . . was the only time that she was alone with [Louis Melillo]." The ALJ concluded that based on Edie's testimony, George was not present and the statement was "not corroborated." With respect to the comment regarding condoms, the ALJ said that Edie and Sarah "did not testify" about the incident, and George was not produced as a witness. Here, too, the ALJ erred in recounting the evidence, since both Edie and Sarah did testify about LOUIS MELILLO's comments regarding condoms.

The ALJ also dismissed charge five, which alleged that Louis Melillo made "sexually explicit remarks to" Mike, specifically stating in Mike's presence "that he 'had something else that was big.'" The ALJ found there was no direct testimony that Mike was in the office when the comments were made because Sara testified "that the boys were never in the office when she was there with [Louis Melillo]." In fact, Sara testified that Mike was present, something the ALJ noted when she contradicted herself and stated that Sara "placed [Mike] in the room at times in her testimony."

Charge three alleged that Louis Melillo made "sexually explicit remarks" to Tony, specifically: "informed [Tony] that [Louis Melillo's] niece was a go-go dancer and that [Tony] should come to [Louis Melillo's] house to see her dance"; viewed pornography in Tony's presence; "told [Tony] he would bring him condoms"; and stated in Tony's presence "that he 'had something else that was big.'" The ALJ dismissed one of the specifications -- regarding the pornographic magazine -- finding that "[Tony] never testified that he . . . viewed pornography with [Louis Melillo] or [Louis Melillo] viewed pornography in his presence. He said that he saw a porn magazine at the bottom of [Louis Melillo's] drawer or cabinet."

However, as noted above, Tony testified that Louis Melillo was looking at a magazine behind a newspaper, and, at some later point, Tony saw both the Hustler magazine and the newspaper in Louis Melillo's desk drawer. We further note that the specification did not allege that Louis Melillo "viewed pornography" with Tony, but only that Louis Melillo viewed pornography in Tony's presence.

After initially reserving decision, the ALJ also dismissed some specifications contained in charges one and two. Charge one alleged that Louis Melillo made "sexually explicit remarks and engag[ed] in inappropriate contact" with Edie, specifically, that he: informed Edie "he 'had something else that was big'"; "wrapped his arms around [her] from behind"; "grasped his genitals" in her presence; told her "stories about strippers"; "walked closely" behind her; "inquired as to why there was writing on [her] buttocks"; and "lifted up his shirt" in her presence. The ALJ dismissed the specification that Louis Melillo had wrapped his arms around Edie or had walked "closely behind" her based upon a lack of evidence.

The second charge alleged that Louis Melillo made "sexually explicit remarks and engag[ed] in inappropriate contact" with Sara, specifically, that he: "inquired . . . why there was writing on her buttocks"; "bumped into [her] from behind"; "grasped his genitals in [her] presence"; "lifted his shirt in front of [her]"; "grabbed [her] around the waist and pressed against her buttocks with his pelvis"; "requested . . . [she] take off her jacket to 'show it'"; "discussed strip clubs" in her presence; stated in her presence "that he 'had something else that was big'"; and "would stare at [her] buttocks." The ALJ dismissed the specifications that Louis Melillo had grabbed Sara "around the waist" and requested she "take off her jacket to 'show it'" because of a lack of evidence.


Louis Melillo testified that he had never met the students before July 2004. Within the first week of their employment, Nadine Yanger, Roosevelt's principal, called Louis Melillo and said "the kids were plotting [against him] because . . . [he] was rough with them and telling them that they had to do this and that and they didn't want to do it." Yanger "told [him] to be careful." Yanger did not testify at the hearing.

By the second week, Louis Melillo complained to Kelly that he "was having problems with the students, they weren't cooperating . . . ." Louis Melillo sent the students home early on July 13 because "they were not doing what [he] told them to do and they were running around the building."

Louis Melillo denied all the allegations made by Sara, Edie and Tony. He also denied grasping or touching his penis in the presence of the students, explaining, "Every summer I break out with rashes under my arms and in my groin, sometimes my chest area." Louis Melillo explained what happened with Sara at the slop sink:

[S]he was coming out. I was going in. We were changing our water buckets . . . and she was coming out and her back was faced to me and I was going in carrying a bucket . . . . [B]ecause there's only one slop sink and we happened to bump and I said, "Excuse me, " and that was the end of it.

Louis Melillo said he may have lifted his shirt in the girls' presence while "inadvertently" wiping his face on a hot day. Louis Melillo acknowledged that he had been transferred involuntarily to five different schools within the four or five years before he came to Roosevelt, but he was unable to explain why.

Louis Melillo also presented the testimony of his treating physician, Dr. Jose Chua. Chua initially testified that he saw Louis Melillo on October 14, 2004. At that visit, Louis Melillo explained he had visited another doctor, Dr. Margolin, in June 2004 because of heat rashes in the groin area and armpits. Chua had treated Louis Melillo for heat rashes three years earlier, in August and October 2001. Margolin never testified and his records were never submitted.

Chua subsequently acknowledged that he also saw Louis Melillo on July 19, 26, and August 2, 2004, and that his notes for those visits made no mention of heat rashes. On October 25, 2004, Louis Melillo visited Chua with complaints of "neck pains, depression, [and an inability] to sleep." Chua's notes from that visit reflect treating Louis Melillo for heat rashes in the groin area.

Jay Mills, the security guard at Roosevelt, also testified. Five years earlier, on October 27, 2004, Mills spoke to a private investigator employed by Louis Melillo's criminal defense attorney. In a statement prepared by the investigator, Mills claimed to have overheard the students say they "were going to get Lou" because they "weren't happy working for [him] and were planning to wax him." During the hearing, however, Mills denied writing or signing the statement, although it bore his signature.

Mills claimed he overheard the students make these statements at the Dunkin' Donuts near Roosevelt, but his memory of the events was unclear. Louis Melillo's attorney asked:

Q. . . . [Mike], was he there?
A. [Mike] I think was there.
Q. [Edie]?
A. [Edie] was I believe there. It's a while back. I really don't remember that --
Q. I understand.
A. I don't want to speculate, you know.
Q. As best as you can recall. [Sara], was she present?
A. May have been.
Q. Okay. [Tony]?
A. [Tony]. He may have been there.
Q. Okay. [George]?
A. [George] may have been there as well. I don't really fully remember.

Mills was unable to recall exactly what the students said, except it was "along the means of 'Let's get even with him for what he did.' You know, 'Make like he touched you.'" Mills testified that he told Yanger but not Louis Melillo because he "figured it was gossip, " and he "didn't want to concern people."


In her initial decision, the ALJ reached a general conclusion regarding the credibility of the student witnesses:

Based on my common sense, intuition and experience, and overall assessment of the minor victim witnesses, it is my opinion that these minors were less-than truthful and were motivated by their own self-interest and immaturity. The clearest example of this is the minors' admission that they wanted to set Louis Melillo up because they did not like the way he treated them. [Tony, Sara and Edie] admitted that they wanted to tape [Louis Melillo]; set out to do so by hiding a tape recorder in a McDonald's bag; and then placed it in Louis Melillo's office. [Tony] also admit[ed] that Louis Melillo never showed him any pornographic magazines but that he went into [Louis Melillo's] drawer to get such magazines. Why else would the kids do this but to set [Louis Melillo] up and get him into trouble.
On the other hand, there is one statement that all of the witnesses say and they appear to be in agreement on, and that is that Louis Melillo either touched or rubbed himself quite often in the presence of others. This testimony is further buttressed by [Louis Melillo's] doctor, Dr. Chua.

The ALJ then considered the remaining charges and specifications.

As to charge one, she found Louis Melillo not guilty of telling Edie he "'had something else that was big[, ]'" because Edie's statement and testimony at the criminal trial were "inconsistent" with her testimony at the hearing, and Sara provided a different description of the incident. With respect to the allegation that Louis Melillo had "grasped his genitals" in Edie's presence, citing Webster's Dictionary the ALJ wrote: "Grasping is defined as 'to make the motion of seizing or to seize eagerly, to clasp or embrace as with fingers or arms.'[]The hearing produced no evidence that Louis Melillo was grasping his genitals as the word 'grasping' is defined." The ALJ found Louis Melillo "not guilty of telling [Edie] stories about strippers, " because Edie's prior written statements, testimony at the criminal trial and statements at the hearing were "inconsistent" and "not corroborated by any of the other students as what was said, when and where." The ALJ found there was no evidence supporting the other two specifications in charge one.

With respect to charge two, the ALJ found Louis Melillo did ask Sara about the writing on her buttocks, but she concluded he "should not be penalized for such an inquiry because [Sara] acknowledged that . . . she was wearing jeans with writing on the buttocks." The ALJ found Louis Melillo "guilty of bumping into [Sara] from behind[, ]" but because of inconsistencies in Sara's account and her description of the "incident as an accident, " the ALJ concluded it was not "unbecoming conduct." The ALJ found Louis Melillo "guilty" of raising his shirt, but because that occurred when he was stretching, it "was perhaps ill-mannered but not sufficient as to require his dismissal." Louis Melillo was "not guilty" of grasping his genitals in Sara's presence for the same reasons as set forth in charge one. As to the remaining specifications in charge two, the ALJ concluded Sara's testimony was "too inconsistent to be credible" or there was insufficient evidence.

The ALJ found Louis Melillo "not guilty" of any of the specifications in charge three because she found Tony's testimony to be "incredible" and "unreliable." She focused on Tony's inability to recall whether Louis Melillo was Caucasian or African-American. The ALJ found Tony's testimony did not "hang together with that of his sister [Sara], nor with that of [Edie]."

The ALJ generally found the students' testimony unpersuasive, inconsistent and incredible because their written statements to the Board, DYFS and Elizabeth Police "varied from each other" and from their testimony at the hearing. The ALJ concluded her initial decision by stating:

Louis Melillo is accused of conduct unbecoming a custodian by making sexually explicit remarks and engaging in inappropriate contact with minor female and male employees. . . . Sexually explicit conduct is defined in 18 U.S.C.A. § 2256 as actual or simulated:
a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral whether between persons of the same or opposite sex;
d) sadistic or masochistic abuse (for the purpose of sexual stimulation),
e) or lascivious exhibition of the genitals or pubic area of any person.
None of the witnesses testified to any of the above acts.

She decided that the Board failed to sustain its "burden of proving by a preponderance of the credible evidence, that Louis Melillo behaved in [sic] conduct unbecoming a custodian . . . ." The ALJ did not make any factual findings regarding the testimony of Louis Melillo, Mills or Chua.

In her November 4, 2010 decision, the Commissioner observed that all of the facts were disputed and that credibility was "the only means" by which to determine the veracity of the charges. She found "no basis in the record to reject either the ALJ's recitations of testimony or her determinations of witness credibility."

The Commissioner's decision adopted the ALJ's finding that the Board failed to prove Louis Melillo "engaged in conduct unbecoming a custodian" and dismissed the charges. Because the ALJ had not addressed "the parties' disputes concerning back pay and emoluments, " the Commissioner remanded the matter for further proceedings.


The Board argues that the Commissioner's decision must be reversed because: the ALJ "incorrectly applied the criminal standard of beyond a reasonable doubt"; the ALJ erred in dismissing the specification in charge three regarding the pornographic magazine because "the credible evidence sustain[ed] tenure charges based on 'possession' of pornography"; the credibility determinations of the ALJ and the Commissioner were "neither reasonable nor supported by the record"; the ALJ "erroneously applied the criminal standard for 'sexually explicit conduct' under 18 U.S.C.A. 2256 instead of the standard for 'conduct unbecoming' . . . applicable under the tenure laws"; and, lastly, Louis Melillo's conduct, as found by the ALJ, was sufficient to sustain the charges of conduct unbecoming.


Our review of decisions by administrative agencies is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In our review, we only determine:

(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.
[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (citation omitted)).]

"[I]f substantial evidence supports the agency's decision, a court may not substitute its own judgment for the agency's even though the court might have reached a different result . . . ." Id . at 483 (citation omitted).

In considering that evidence, "[a]s a general rule, the reviewing court should 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) (citation omitted). Pursuant to N.J.S.A. 52:14B-10(c),

[t]he agency head may not reject or modify any findings of fact [by the ALJ] as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.

As the Court more recently said, "it is not for us or the agency head to disturb that credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). However, "we are 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

As a tenured employee of a public school district, Louis Melillo could not be dismissed or have his compensation reduced "except for inefficiency, incapacity, unbecoming conduct, or other just cause." N.J.S.A. 18A:6-10. "Unbecoming conduct . . . has been defined as conduct 'which has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services.'" In re Young, 202 N.J. 50, 66 (2010) (quoting Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (alterations in original)). "Unbecoming conduct may include 'any conduct which adversely affects the morale or efficiency of the [department.]'" Ibid. (quoting Karins, supra, 152 N.J. at 554) (alteration in original). "The touchstone of the determination lies in the certificate holder's 'fitness to discharge the duties and functions of one's office or position.'" Ibid. (quoting In re Grossman, 127 N.J.Super. 13, 29 (App. Div. 1974)). The Board was required to prove by a preponderance of the evidence that Louis Melillo's conduct was unbecoming. SSI Med. Servs. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614, 622 (1996).

With these standards in mind, we review the Board's arguments.


Before turning to the Board's overarching claim that the ALJ's credibility determinations were not supported by the record evidence, we consider the more discrete arguments made by the Board.

Initially, we reject the claim that the ALJ "incorrectly applied the criminal standard of beyond a reasonable doubt." Testimony from the criminal trial was appropriately considered by the ALJ because it contained prior statements made by Sara and Edie relevant for impeachment purposes. The ALJ expressly stated the Board's burden of proof was by a preponderance of the evidence.

However, we agree with the Board that the ALJ erred in dismissing the specification in charge three regarding the pornographic magazine. As we already noted, the ALJ misread the language of the specification and concluded the specification must be dismissed because no one testified that Louis Melillo showed the pornographic magazine to Tony. This was legal error, which, standing alone might not require our reversal, given the ALJ's general credibility findings. However, for reasons explained below, we conclude otherwise.

We also agree with the Board that the ALJ "erroneously applied the criminal standard for 'sexually explicit conduct' under 18 U.S.C.A. 2256 instead of the standard for 'conduct unbecoming' . . . applicable under tenure laws." We see no rational explanation for the ALJ's use of the federal statutory definition. After setting forth the various sexual acts contained in 18 U.S.C.A. 2256, the ALJ stated: "None of the witnesses testified to any of the above acts."

But, the tenure charges did not allege Louis Melillo engaged in "sexual explicit conduct"; rather, the charges alleged he made "sexually explicit remarks." To the extent the ALJ and the Commissioner utilized federal criminal statutory definitions in deciding whether Louis Melillo committed conduct unbecoming, they erred.

The ALJ's reliance on the federal statutory definition of sexually explicit conduct also infected her fair consideration of the Board's proofs regarding Louis Melillo's "grasp[ing] [of] his genitals" in the presence of the students. The Board never contended that Louis Melillo was masturbating. See 18 U.S.C.A. 2256(c). Nevertheless, the ALJ concluded that, although this conduct occurred, Louis Melillo was not "grasping" his genitals, as defined by the dictionary. However, the only relevant issue was whether the Board had proven by a preponderance of the evidence that Louis Melillo's conduct was unbecoming.


In addition to the errors noted above, we are compelled to reverse because we agree with the Board that the credibility determinations of the ALJ and the Commissioner were "neither reasonable nor supported by the record." We address first the reasons given by the ALJ in reaching her general credibility determination, as well as specific findings she made as to each of the substantive charges.

First, the ALJ found "these minors were less-than truthful and were motivated by their own self-interest and immaturity." She determined "[t]he clearest example of this" was their "admission that they wanted to set Louis Melillo up because they did not like the way he treated them." Citing Tony's ill-fated plan to tape record Louis Melillo, and his admission "that [Louis Melillo] never showed him any pornographic magazines but that he went into [Louis Melillo's] drawer to get such magazines, " the ALJ asked rhetorically, "Why else would the kids do this but to set [Louis Melillo] up and get him into trouble[?]"

In short, we see another rational explanation to which the students consistently testified, i.e., a desire to gather proof of Louis Melillo's comments and conduct. We fail to understand the ALJ's conclusion that the plan was a "set up." No recording could have prejudiced Louis Melillo unless it actually captured inappropriate remarks that tended to support the students' claims of his unsuitable conduct on other occasions. It appears the students' conduct would have demonstrated a "set up" if they recorded their own contrived comments rather than what was occurring.

Nor did the ALJ's other reason for finding the students generally lacked credibility -- Tony's testimony about the pornographic magazine -- rest upon an accurate recall of the record. Tony's testimony at the 2009 hearing before the ALJ was consistent with his 2004 statements to Kelly and Smith. Tony told Kelly that Louis Melillo had "a nasty book" in his office "that he looks at every day." Smith's notes said Tony "found [a] porno book in [Louis Melillo's] desk." Because she misapprehended the actual specification (which she had already dismissed), the ALJ viewed Tony's admission that Louis Melillo never showed him the pornographic magazine as negatively impacting his overall credibility.

Turning to the charges involving Edie and Sara, the ALJ stated that Edie's testimony regarding the "something else that was big" comment was inconsistent with her testimony at the criminal trial and her statements to Kelly and Rey. The ALJ also found that Sara provided "a different description of the incident and who said what." But the record contradicts those findings.

Edie's statement to Kelly was quite consistent with her hearing testimony, as was her July 24, 2004, statement to Rey and her testimony at the criminal trial. The ALJ also found Edie's statements regarding the strippers to be inconsistent, and further stated Edie's statements were "not corroborated by any of the other students as what was said, when and where." But, here too, Edie's testimony was consistent with statements given to Kelly and Detective Rey. And, as we noted above, both Sara and Tony basically corroborated Edie's version of Louis Melillo's statements.

As to charge two, involving Sara, the ALJ again found inconsistencies in her statements over the years that made her unworthy of belief. However, we note that the ALJ also specifically found as true certain facts to which Sara testified. For example, the ALJ found that Louis Melillo "did inquire . . . as to why there was writing on [Sara's] buttocks, " but nevertheless decided this was not improper because "[Sara] acknowledged . . . she was wearing jeans with writing on the buttocks." The ALJ found Louis Melillo "guilty of bumping into [Sara] from behind." Yet, because Sara's testimony was "inconsistent as to whether or not [Louis Melillo's] body came into contact with her[, ]" and because she described "the incident as an accident, " the ALJ found it was not unbecoming conduct. The ALJ also found Sara's testimony about the "shirt-lifting incident" to be true, but determined only that it was "ill-mannered" and not conduct unbecoming.

The ALJ's conclusion that Sara's prior statements regarding whether Louis Melillo came into contact with her and her testimony at the criminal trial were inconsistent with her testimony at the hearing is simply not supported by the record. In her July 16, 2004, written statement to Kelly, Sara said that, as Louis Melillo came into the slop sink area, he "had his hand around my waist and moved forward." Her July 21, 2004, statement to Rey said that as she was backing out of the slop sink, "[Louis Melillo] grabbed me around the waist, pulled me closer to him, pushed me into his private part." In her September 27, 2005, testimony at the criminal trial, Sara said that Louis Melillo had "rubbed up against me, " that Louis Melillo's "groin area touched my butt, " and that his hands were on her waist.[8] Finally, during her testimony at the administrative hearing, Sara said: "[H]e bumped into me like against my butt . . . . [H]e rubbed like up against me."

As to two specifications in charge two, the ALJ specifically concluded that Sara's testimony was "too inconsistent to be credible." The first was the allegation that Louis Melillo had "stat[ed] in [Sara]'s presence that he had something else that was big, " and the second was that Louis Melillo had discussed strip clubs in front of Sara. In each instance, the ALJ offered no specific examples to support her finding of inconsistency, and our review of the record indicates that in fact Sara did provide this information in the past. She told Kelly about the first incident and the DYFS investigator about the second. She was not asked about either at the criminal trial.

As to the specifications in the third charge involving Tony, the ALJ stated: "How can I believe any of [Tony's] recollections . . . if he cannot remember if [Louis Melillo], his boss, is Caucasian or African-American?" However, in other respects, Tony's description of Louis Melillo was, apparently, quite accurate.[9] Moreover, the conduct charged in the remaining specifications was specifically testified to by Sara and Edie, not just Tony, so we fail to understand the ALJ's statement that Tony's "testimony d[id] not hang together with that of his sister [Sara], nor with that of [Edie]."

Lastly, in rendering her decision, the ALJ made virtually no findings regarding the credibility of the testimony of Louis Melillo, Chua or Mills.

"In reviewing administrative adjudications, an appellate court must undertake a 'careful and principled consideration of the agency record and findings.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Riverside Gen. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)). We fully understand that "the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." Id . at 588 (citation omitted) (emphasis added). In this case, however, the ALJ's stated reasons for rejecting the testimony of the students as unworthy of belief are simply "not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). In short, these credibility determinations by the ALJ, combined with her improper application of federal criminal law to this administrative hearing, provides us

with the feeling that the [Commissioner]'s
"finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . . While this feeling of 'wrongness' is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of 'wrongness' can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust result, and many others."
[Clowes, supra, 109 N.J. at 588-89 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).]

Although this might provide us with an opportunity to "make our own findings and conclusions, " ibid., we believe that would be unwise in these particular circumstances given the length of the record, the number of witnesses who testified and the improvident dismissal of some of the charges at the end of the Board's case. For the same reasons, we reject the Board's contention that the factual findings of the ALJ as to Louis Melillo's guilt regarding certain specifications albeit concluding such actions were not conduct unbecoming -- are sufficient for us to enter our own determination on the charges. We therefore reluctantly remand the matter to the Commissioner for a new hearing before a different ALJ on the following specifications:

Charge One: Louis Melillo "informed" Edie "he 'had something else that was big'"; "grasped his genitals" in her presence; told her "stories about strippers"; "inquired as to why there was writing on [her] buttocks"; and "lifted up his shirt" in her presence.

Charge Two: Louis Melillo "inquired . . . why there was writing on [Sara's] buttocks"; "bumped into [her] from behind"; "grasped his genitals in her presence"; "lifted his shirt in front of [her]"; "discussed strip clubs" in her presence; stated in her presence "that he 'had something else that was big'"; and "would stare at [her] buttocks."

Charge Three: Louis Melillo "informed [Tony] that [Louis Melillo's] niece was a go-go dancer and [Tony] should come to [Louis Melillo's] house to see her dance"; viewed pornography in Tony's presence; "told [Tony] he would bring him condoms"; and stated in Tony's presence "that he 'had something else that was big.'"[10]


In his cross-appeal, Louis Melillo argues that the Commissioner erred in denying him additional sick or incremental pay and pre-judgment interest because she never determined the Board's motion "for ameliorative intervention." We need not recount the procedural and substantive issues raised by the cross-appeal. Because of our remand, we accord Louis Melillo the opportunity to raise the issue before the ALJ and Commissioner anew, pending the outcome of the hearing.

Reversed and remanded. We do not retain jurisdiction.

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