IN THE MATTER OF THE TENURE HEARING OF LOUIS MELILLO, SCHOOL DISTRICT OF THE CITY OF ELIZABETH, UNION COUNTY.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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). 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." 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
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) 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.
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.
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 ...