IN THE MATTER OF THE TENURE HEARING OF FRANCIS LAWRENCE, BROOKDALE COMMUNITY COLLEGE.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 11, 2013
On appeal from the Board of Trustees of Brookdale Community College.
Michael T. Barrett argued the cause for appellant Francis Lawrence (Bergman & Barrett, attorneys; Mr. Barrett, of counsel and on the brief).
Matthew J. Giacobbe argued the cause for respondent Brookdale Community College (Cleary, Giacobbe, Alfieri, Jacobs, LLC, attorneys; Mr. Giacobbe and Gina L. Anton, on the brief).
Before Judges Parrillo and Messano.
Appellant Francis Lawrence was employed by Brookdale Community College (BCC) as the tenured Director of Athletics and Recreation, a position he held since 2005. On June 9, 2011, BCC filed tenure charges against Lawrence, alleging "conduct unbecoming . . . and other just cause" and seeking his removal. In particular, the charges alleged six violations of BCC's Code of Ethics (the Code). The matter was forwarded to the Office of Administrative Law for a hearing, and Lawrence was suspended without pay.
Following the hearing, the administrative law judge (ALJ) issued a written decision on April 2, 2012. He concluded that BCC had proven Lawrence violated four provisions of the Code and engaged in unbecoming conduct. After considering mitigating and aggravating factors, the ALJ refused to remove Lawrence, and instead, he ordered a one-year suspension with credit for time already served under suspension.
On May 4, 2012, BCC's Board of Trustees (the Board) approved a resolution that adopted the ALJ's findings and conclusions but rejected the recommended discipline. In a written decision dated May 17, 2012, the Board stated that it no longer had confidence in Lawrence, and he was "unfit to perform the duties of his position" based upon violations of "his fiduciary obligations" and "[BCC's] policies and procedures." The Board concluded that "the facts require[d] removal . . . and the termination of [Lawrence's] employment with [BCC]." This appeal followed.
Before us, Lawrence posits two arguments. He contends the Board did not follow the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -30. He argues that because the Board failed to act within forty-five days of the ALJ's initial decision, it was "deemed adopted as the final decision of the" Board. N.J.S.A. 52:14B-10(c). Lawrence also argues that the Board failed to "review and consider all [the] evidence" adduced at the hearing before rendering its final decision. Although in his original brief, Lawrence urged us to vacate the Board's decision and reinstate him to his position, in his reply brief, Lawrence argues that the ALJ's decision "should be reinstated."
We have considered these arguments in light of the record and applicable legal standards. We conclude that there is no reason to disturb the Board's finding that Lawrence engaged in conduct unbecoming. To the extent Lawrence advances argument to the contrary, we find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). However, regarding the appropriate discipline to be imposed, we reverse and remand the matter to the Board for further proceedings consistent with this opinion.
We briefly recap the factual findings made by the ALJ, recognizing that the Board adopted them with one specific exception, and Lawrence takes no particular exception to them.
The gravamen of the charges centered on Lawrence's conduct during the 2011 Shore Conference Tournament (the Tournament), an annual three-day high school basketball event held each February at BCC's Collins Arena. One of Lawrence's duties as Athletic Director was to oversee the event, which in 2011 generated approximately $35, 000 in revenues. After the tournament, BCC's Vice President of Business and Finance, Maureen Lawrence, and her staff noticed inaccuracies in the accounting Lawrence supplied.
At a subsequent meeting held to discuss the matter, Lawrence admitted using "cash proceeds to pay employees" directly and to pay for hospitality expenses. Lawrence insisted that he had always paid the tournament workers that way. Lawrence also disclosed that he paid himself a small stipend and waived the $8, 800 activity fee that would have been charged for the use of the arena.
Further investigation revealed, and Lawrence admitted, that the Tournament actually lost a small amount of money. Due to shoddy bookkeeping, it was difficult to ascertain exactly how much. Weeks after the Tournament ended, $600 in cash was found in Lawrence's office safe, as well as two envelopes containing small amounts of ...