In the Matter of the appeal of NJ Department of Education Board Decision to Revoke the Substitute Teaching License of Craig Bell. December 19, 2017.
What is the standard of review when a licensee appeals an ALJ decision to the Appellate Division (which is a direct appeal?
Our review of the decision of the Commissioner is limited to determining:
(1) whether the agency’s action violated the legislative policies expressed or implied in the act governing the agency; (2) whether the evidence in the record substantially supports the findings on which the agency’s actions were premised; 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.” [Barrick v. State, Dep’t of Treasury, 218 N.J. 247, 260 (2014) (quoting In re Carter, 191 N.J. 474, 482 (2007)).]
Submitted by professional license defense lawyer, Jeffrey Hark.
In this case the facts are very clear and straight forward. The are as follows:
Substitute teacher Craig Bell was alleged to have a relationship with a 14 year old student when he met her off of school property, kissed her, and attempted to touch her in other inappropriate places before the student exited his car and walked home from a local park. The twist here is that the child testified to these allegations in front of the ALJ 8 years after the event took place. The judge rendered a decision that the board was correct in moving directly to suspension, as opposed to a progressive discipline process based on the egregious conduct of Mr. Bell.
Mr. Bell lost! But, the key for our discussion in this case is the full and complete record and set of facts established by Mr. Bell and the Board level and then at the ALJ hearing level. It is my position that, in order to be able to argue any error on appeal (factual or legal) to the appellate division, or at the ALJ level, one must first introduce to the board as many facts into the record as possible by fact witnesses statement, physical proofs such as cell phone and bank records, credit card receipts, and what ever else is necessary to prove your case. For those cases when there are disputes of fact, you may be in the best position to win at the Board level. This will protect your due process rights and keep the door open when you get the Administrative Law Judge level and any hearing that takes place there.
In this case, the Board’s finding that “Bell went well above and beyond innocent interaction [with P.P.] and, in the process, he overstepped his authority, position as a teacher to a very large and totally unsavory degree[,]” the ALJ concluded revocation of Bell’s substitute teaching certificate was warranted. The Board then adopted the ALJ’s findings and recommendation in its entirety and issued an order revoking Bell’s certificate. Bell filed exceptions with the Commissioner. The Commissioner, noting there was “nothing in the record that would suggest that the ALJ’s Although the school district promptly reported Bell’s termination to the Board, for reasons that are not clear in the record, the district did not respond to the Board’s several requests for additional information, and the Board did not seek to revoke Bell’s substitute teaching certificate until December 2011. credibility findings were inappropriate and, in fact, agree[ing] with same[,]” affirmed the Board’s decision. We agree.
Bell’s argument that the Commissioner’s decision is not supported by credible competent evidence is without merit. The ALJ’s factual findings, which the Commissioner adopted, are supported by substantial credible evidence as set forth in his final agency decision. See In re Stallworth, 208 N.J. 182, 194 (2011). Bell further contends that, even if the record supports the finding of unbecoming conduct, revocation of his substitute teaching certificate is unwarranted. We disagree. The infractions of telephone contact with P.P., meeting with P.P. outside of regular school hours, kissing P.P., and unzipping the fly to his pants, are sufficiently severe to revoke his certificate, without following progressive discipline. See id. at 196-97; see also In re Herrmann, 192 N.J. 19, 33-34 (2007). Moreover, the penalty is not so harsh as to shock our sense of fairness. In re Carter, 191 N.J. 474, 484 (2007).