L.A. AND THE HORACE MANN INSURANCE COMPANY, Petitioner-Respondent,
BOARD OF EDUCATION OF THE CITY OF TRENTON, MERCER COUNTY, Respondent-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 6, 2013
On appeal from the Commissioner of the Department of Education, Docket No. 225-8/11.
Michael A. Pattanite, Jr., argued the cause for appellant (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Mr. Pattanite, on the briefs).
Edward A. Cridge argued the cause for respondent (Mellk O'Neill, attorneys; Arnold M. Mellk, of counsel; Mr. Cridge, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Lihotz and Guadagno.
Appellant the Trenton Public School Board of Education (the Board) appeals a final agency decision, issued by the Commissioner of Education, granting summary decision to L.A. and requiring the Board to reimburse defense costs incurred in civil litigation involving respondent L.A., a former school employee. We reverse.
The facts are not in dispute. L.A. was employed by the Board as a security guard in an elementary school. As a result of his inappropriate sexual contact with students, L.A.'s employment was terminated. Thereafter, on August 16, 2007 he was indicted under Indictment No. 07-08-0897, for third-degree aggravated criminal sexual assault, N.J.S.A. 2C:14-3a, and second-degree endangering the welfare of a minor, student N.F., N.J.S.A. 2C:24-4. In a second indictment, No. 07-08-0898, L.A. was charged with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and one count of second-degree endangering the welfare of a minor, student K.O., N.J.S.A. 2C:24-4.
The Institutional Abuse Investigation Unit of the Department of Children and Families (DCF) investigated the allegations contained in the indictments, along with allegations of conduct involving two other student-victims. DCF issued its findings in a June 21, 2007 report. DCF concluded "[s]exual [a]buse/[s]exual [m]olestation was substantiated[, ]" that is, "sexual/genital contact occurred" between L.A. and the children. DCF's role was to investigate and report, not to recommend action.
L.A. entered into one plea agreement addressing both indictments. Specifically, defendant pleaded guilty to one count of second-degree endangering the welfare of a child under Indictment 07-08-0897, and all remaining charges were dismissed.
K.O. initiated a civil complaint against L.A. alleging assault and the Board alleging negligent hiring. The parties settled this matter on May 16, 2011. The judgment separately awarded damages against the Board and L.A.
L.A. and the Horace Mann Insurance Agency (Horace Mann), the Board's liability carrier underwriter, filed a petition against the Board seeking reimbursement of defense costs and attorney's fees incurred in K.O.'s civil litigation. The parties filed cross-motions for summary decision, N.J.A.C. 1:1-12.5. The Administrative Law Judge (ALJ) granted L.A. and Horace Mann's motion and denied the Board's motion. The Commissioner adopted the ALJ's Initial Decision as his own and ...