Opinion
DOCKET NO. A-2306-12T4
04-10-2015
BOARD OF EDUCATION OF THE TOWNSHIP OF NORTH BERGEN, HUDSON COUNTY, Petitioner-Appellant, v. NEW JERSEY STATE INTERSCHOLASTIC ATHLETIC ASSOCIATION, Repondent-Respondent, and MONTCLAIR BOARD OF EDUCATION, Intervenor-Respondent.
Patrick J. Jennings argued the cause for appellant Board of Education of the Township of North Bergen, Hudson County. Steven P. Goodell argued the cause for respondent New Jersey State Interscholastic Athletic Association (Herbert, Van Ness, Cayci & Goodell, attorneys; Mr. Goodell, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief). Weiner Lesniak, LLP, attorneys for respondent Montclair Board of Education (Katherine A. Gilfillan, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Fasciale. On appeal from the State Board of Education, Docket No. 246-9/12. Patrick J. Jennings argued the cause for appellant Board of Education of the Township of North Bergen, Hudson County. Steven P. Goodell argued the cause for respondent New Jersey State Interscholastic Athletic Association (Herbert, Van Ness, Cayci & Goodell, attorneys; Mr. Goodell, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief). Weiner Lesniak, LLP, attorneys for respondent Montclair Board of Education (Katherine A. Gilfillan, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
The North Bergen Board of Education appeals from the decision of the State Commissioner of Education (Commissioner), which upheld the decision of the Executive Committee of the New Jersey State Interscholastic Athletic Association (NJSIAA) that found sufficient grounds to direct the North Bergen High School football team to forfeit the 2011 North Jersey, Section 1, Group IV, State Football Championship title. The NJSIAA Controversies Committee had originally placed the North Bergen High School football program on probation for a period of two years, but permitted the football team to retain the 2011 championship title.
The Executive Committee's decision to enhance the penalties imposed by the Controversies Committee by including the forfeiture of the 2011 championship title came in response to an appeal filed by the Montclair Board of Education, whose high school football team lost the championship game to North Bergen by a score of fourteen to thirteen. In appealing the penalties imposed on North Bergen High School by the Controversies Committee, the Montclair Board of Education did not request the NJSIAA Executive Committee to confer the state championship title to its football team, noting "the school cannot replay that game." Instead, Montclair argued that the values associated with interscholastic athletics - fair play, integrity, and good faith sportsmanship - demanded that North Bergen's football team forfeit the championship title tainted by egregious violations of the rules governing who is entitled to play the game. The NJSIAA Executive Committee agreed with Montclair's argument.
The center of this controversy concerns the improper recruitment of two athletically gifted out-of-district students by the then coach of North Bergen's football team during the 2010-2011 school year. The Controversies Committee found the recruiting practices employed by North Bergen's football coach to entice these two students to relocate to North Bergen violated NJSIAA's recruitment rules and resulted in giving North Bergen's football team an unfair competitive advantage.
North Bergen argues the Commissioner's approval of the NJSIAA Executive Committee's decision to modify the sanctions previously imposed by the Controversies Committee, based only on an appeal filed by the Montclair Board of Education, a school district that was not a party in the disciplinary hearing conducted by the Controversies Committee, was arbitrary and capricious. According to North Bergen, NJSIAA rules do not confer Montclair with the standing to petition the Executive Committee to impose harsher sanctions on North Bergen without first exhausting its right to appear as an aggrieved party before the Controversies Committee.
After carefully reviewing the record before us and mindful of our standard of review, we affirm substantially for the reasons expressed by the Commissioner in his December 14, 2012 decision. We derive the following facts from the record developed by the parties through their participation in the NJSIAA administrative process as well as the submissions and arguments made before the Commissioner.
I
As reflected in its Mission Statement, the NJSIAA is "a private, voluntary Association [that] serves its students/athletes, members schools and related professional organizations by the administration of education-based interscholastic athletics, which support academic achievement, good citizenship and fair and equitable opportunities." NJSIAA was established in 1918 by representatives from twenty-one secondary and private schools, and has since grown to include 437 members. The public school district or private school member pays the NJSIAA annual dues of $2150. The NJSIAA Executive Committee is comprised of "21 [members] representing the public high schools, 4 [members] representing the non-public schools, 12 serving as ex-officio members and 12 at-large representatives."
This court has described the NJSIAA as
an independent voluntary association of the boards of education of local school districts as well as private schools who have elected to join the association for the coordination and regulation of athletic programs in conjunction with other school districts. The rules and regulations are promulgated by the [NJSIAA] and the school district. The local school district becomes subject to its constitution, bylaws, rules and regulations by joining a voluntary association. It is a confederation by which local school boards agree to become bound by the rules and regulations of the voluntary [NJSIAA] for the orderly regulation of their athletic programs.
[B .C. ex rel. C.C. v. Bd. of Educ., 220 N.J. Super. 214, 234 (App. Div. 1987).]
The Legislature expressly permits local boards of education to join "voluntary associations" like the NJSIAA. N.J.S.A. 18A:11-3. The Legislature also requires the Commissioner to approve the NJSIAA's "charter, constitution, bylaws, and rules and regulations[.]" Ibid. The Commissioner has the power "to direct the [NJSIAA] to conduct an inquiry by hearing or otherwise on a particular matter or alternatively, direct that particular matter be heard directly by him." Ibid. However, because the NJSIAA "is a private organization, its rules and regulations are not the subject to the Administrative Procedure Act concerning rulemaking." B.C. ex rel. C.C., supra, 220 N.J. Super. at 234.
On December 3, 2011, the North Bergen High School football team won the 2011 North Jersey, Section 1, Group IV, State Football Championship, defeating the team from Montclair High School by a score of fourteen to thirteen. On January 22, 2012, the Star-Ledger published an article alleging that two of North Bergen's star players, identified here as D.L. and E.M., had been recruited by Coach Vincent Ascolese to play on North Bergen's football team in violation of the rules and bylaws promulgated by the NJSIAA.
The NJSIAA directed the North Bergen Board of Education to investigate the matter. After reviewing North Bergen's internal investigation report, the Executive Director of the NJSIAA referred the matter to the NJSIAA Controversies Committee "to determine whether North Bergen High School or Coach Ascolese had [violated] NJSIAA rules prohibiting recruiting."
Article XIII of the NJSIAA Bylaws describes the composition of the Controversies Committee. The President of the NJSIAA "nominates" the members of the Controversies Committee, who "shall be members of the Advisory Committee of the [NJSIAA]." Those nominated to serve by the President "shall be confirmed by the Executive Committee by a majority vote prior to beginning their service[.]" Members of the Controversies Committee "serve for one year, to expire on the last day of June, following their appointment." The Chair is permitted to vote only in the event of a tie.
In this case, the Chair of the Controversies Committee was the Principal of North Hunterdon High School; the four regular voting members were the Superintendent of Dunellen School District, the Assistant Principal and Athletic Director of Immaculata High School, the Principal of Union Catholic High School, and the Director of School Management for the Franklin Township School District.
Article XIII, Section 4 provides, in pertinent part:
The Controversies Committee shall hear controversies directly or on appeal from a Conference determination. This Committee shall conduct formal hearings, on notice to all involved parties, who shall be afforded the right of counsel, the presentation of testimony under oath, cross-examination and a written decision. The Committee shall conduct hearings against any party charged with a violation of [NJSIAA] Bylaws or Rules, notwithstanding the failure of the charged party to attend such hearings. All parties will be allowed to submit any relevant documents or written presentations
to the Controversies Committee for its consideration, provided ten copies of such submissions are provided to the NJSIAA, with a copy to each involved party[.]
[(Emphasis added).]
The Controversies Committee heard the testimony of seven witnesses. All of the witnesses who appeared before the Committee had some association with North Bergen High School or were either members of Coach Ascolese's family or members of the families of the two student-athletes in question. None of the high school districts whose football teams played against North Bergen High School during the 2011 football season appeared before the Controversies Committee or otherwise provided information for the Committee's consideration during the penalty phase of the disciplinary hearing. However, the Controversies Committee report does not indicate whether any of these school districts were notified of the existence of these hearings or were otherwise invited to participate at any phase of the Committee's adjudicatory proceedings.
In its final report dated May 1, 2012, the Controversies Committee made fifty-two specifically enumerated findings of fact. Based on these findings, the Committee concluded North Bergen High School was responsible for recruiting D.L. and E.M., two exceptionally talented football players, in violation of NJSIAA rules for the recruitment of student-athletes. The Committee specifically found these violations were not inadvertent or based on a misunderstanding of technical residency requirements by low level administrative staff performing ministerial functions.
The Controversies Committee found this was an elaborate plan to intentionally circumvent the clear rules governing the recruitment of out-of-district student athletes conceived and implemented by Vincent Ascolese, North Bergen School District's High School Football Coach and Assistant Superintendent of Business, whose duties included business purchasing, cafeterias, maintenance, and transportation. At the time he engaged in these recruitment violations, Ascolese had been a football coach in this State for fifty years and had coached the North Bergen football team for the past thirty-nine years. He retired after the 2011 football season, after his team won the State Championship game against Montclair High School in a hotly contested game.
The Controversies Committee gave the following summary of its findings:
In this case, the Controversies Committee found that North Bergen High School and Coach Ascolese violated the Athletic Recruitment Rule. Most obviously, Coach Ascolese enabled two star athletes to transfer to North Bergen High School by providing them with apartments in the district on special terms. He also turned a
blind eye to the fact that one of those athletes was living by himself, in apparent violation of the district's residency policy. In addition, the athlete also received monetary benefits and encouragement to transfer to the school from Coach Ascolese's family, including his daughter, his son and his grandson.
Notwithstanding these disturbing findings, the Controversies Committee concluded that North Bergen High School should not forfeit its state title. Instead, the Controversies Committee placed North Bergen High School on probation for a period of two years, and directed it to prepare a "Corrective Action Plan" which had to be "approved by the NJSIAA." Although the Controversies Committee placed the principal fault on Ascolese, it lamented being unable to impose any penalties on him because he had retired by the time the Committee issued this decision.
With respect to its decision not to order the forfeiture of North Bergen High School's Championship title, the Controversies Committee emphasized it "[did] not take this step lightly." The Committee specifically reserved "the NJSIAA's right to prohibit the North Bergen football program from championship competition in the future if the school violates NJSIAA rules during the period of probation." The Controversies Committee concluded its report by noting its belief "that under the unique circumstances of this case[,]" its decision to not order North Bergen High School to forfeit its 2011 football championship title was "warranted."
Less than a month after the Controversies Committee's May 1, 2012 decision, the Montclair Board of Education, acting through its general counsel, wrote to the NJSIAA Executive Committee announcing its decision to appeal the Controversies Committee's decision. Anticipating the question of standing, counsel argued Montclair "has standing to appeal this decision as an aggrieved party in this matter." Counsel also noted Montclair was not requesting that the Executive Committee confer "the state championship title" on the Montclair High School football team.
Instead, Montclair requests that North Bergen High School be stripped of its title as an appropriate penalty for the abuse of the NJSIAA rules prohibiting recruitment of athletes. Montclair submits that the current penalty imposed against North Bergen High School is a mere slap on the wrist, is meaningless, and does nothing to deter other schools, or even North Bergen High School, from repeating this violation of the rules. The appropriate penalty is to strip North Bergen High School of its title, and to strip Coach Ascolese of the honor of having coached a championship team in 2011.
North Bergen responded, arguing Montclair did not have standing to challenge any aspect of the Controversies Committee's decision because it was not a party to the disciplinary proceedings that formed the basis for the imposition of the penalties at issue. North Bergen emphasized the Controversies Committee had carefully considered all of the evidence and reached a decision that reflected the "unique" facts of this case. North Bergen urged the Executive Committee not to disturb the Controversies Committee's carefully balanced penalties.
The Executive Committee addressed Montclair's appeal in a public meeting held on June 6, 2012. The record before us includes a verbatim transcript of the Executive Committee's discussions, both in public session and in executive or private session, where the Committee's members and their counsel passionately expressed their views on the matter before them, including the question of Montclair's standing to appear before the Committee at that juncture.
Counsel for the Executive Committee read the parts of Article XIII, Section 5 of the NJSIAA Bylaws, which addresses the right to appeal from a decision of the Controversies Committee. It provides, in pertinent part:
In the event any party is aggrieved by any decision of the Controversies Committee, it may appeal to the Executive Committee of the [NJSIAA] which shall determine the matter in accordance with the provisions of the Bylaws and Constitution of the [NJSIAA]. In considering such appeals, the Executive Committee shall serve as an appellate body, and the appeal shall be confined to the record developed before the Controversies
Committee. It is recommended that at least one member of the Controversies Committee be present at all appeal hearings relating to any Controversies Committee decision.
[(Emphasis added).]
The Executive Committee's counsel noted that "[o]ne of the potential penalties that was before the Controversies Committee was whether or not [North Bergen High School] should forfeit the game[.]" Counsel candidly advised the members of the Executive Committee that "there's nothing in our bylaws which further describes the meaning of the words aggrieved party." After extensively discussing the various policy considerations implicated by their decision, the Executive Committee duly recognized the Montclair Board of Education as an "aggrieved party" with the meaning of Article XIII, Section 5 of the NJSIAA Bylaws, with standing to challenge the penalties imposed by the Controversies Committee.
After the standing question was settled, the members of the Executive Committee again engaged in a comprehensive discussion about the importance of upholding the rules designed to promote sportsmanship and fair play. The members were particularly concerned about sending a strong message of deterrence, individually to North Bergen High School, and generally to every student athletic program in the State. They were united in their concern over Coach Ascolese's misconduct, who was expected to oversee the athletic program with integrity and exemplify through his personal behavior the values traditionally associated with all athletic activities. Instead, Coach Ascolese showed the student athletes entrusted to his care that winning at any cost was more important than fair play and honest competition.
With these principles in mind, each member of the Executive Committee voted to modify the penalties imposed by the Controversies Committee by adding that North Bergen High School forfeited the 2011 North Jersey, Section 1, Group IV, State Football Championship title. North Bergen thereafter appealed the Executive Committee's decision to the Commissioner.
After thoroughly reviewing the procedural path that brought the parties to this point, the Assistant Commissioner, to whom the Commissioner delegated the authority to decide this appeal pursuant to N.J.S.A. 18A:4-34, found the Executive Committee correctly interpreted and applied its rules to find "Montclair had standing to appeal the penalty imposed on North Bergen by the Controversies Committee." The Assistant Commissioner found that the Executive Committee's application of a broad interpretation of "aggrieved party" under Article XIII, Section 5 of the NJSIAA Bylaws was reasonable under the circumstances. Finally, based on the Controversies Committee's findings that North Bergen committed "significant recruiting violations, the Executive Committee's decision to strip North Bergen of the State Football Championship was not arbitrary, capricious or unreasonable."
II
In its appeal before us, North Bergen argues the Assistant Commissioner's Decision is arbitrary and capricious because it permitted the Executive Committee to act outside its role of an appellate tribunal, and substitute its judgment for the considered judgment of the Controversies Committee whose members had the benefit of personally evaluating the evidence presented by the North Bergen School District. North Bergen also maintains that the Montclair Board of Education did not have standing as an "aggrieved party" under Article XIII, Section 5 of the NJSIAA Bylaws because it was not a party in the disciplinary hearing conducted by the Controversies Committee.
Before we address the merits of North Bergen's arguments, we must establish our standard of review. Our scope of review of an administrative agency's decision is limited and highly deferential. In re Y.L., 437 N.J. Super. 409, 412 (App. Div. 2014). We are bound to uphold the decision provided it is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
In making this determination, a reviewing court must examine: "(1) whether the agency's decision conforms [to] relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether, in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med. Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013) (citing In re Stallworth, 208 N.J. 182, 194 (2011)).
The core and dispositive issue in dispute here is whether the Assistant Commissioner's decision to defer to and embrace the Executive Committee's decision to confer Montclair standing to challenge the penalty imposed by the Controversies Committee, applying an admittedly broad definition of "aggrieved party" as that term appears in Article XIII, Section 5 of NJSIAA Bylaws, was arbitrary, capricious, or unreasonable.
Nearly six decades ago, Chief Justice Vanderbilt addressed the jurisprudential underpinning of the concept of "standing" in the context of judicial oversight of an administrative officer's decision:
We start with the basic principle that an administrative officer is a creature of
legislation who must act only within the bounds of the authority delegated to him, and that the courts in the exercise of their judicial power are permitted to review the ultimate application of the law which has been entrusted to the administrative officer when necessary for the protection of the rights of persons or property against an abuse of the power delegated. . . . Moreover, this right to seek judicial review of administrative decisions inheres not only in those who are direct parties to the initial proceedings before an administrative agency . . . but also belongs to all persons who are directly affected by and aggrieved as a result of the particular action sought to be brought before the courts for review.
[Elizabeth Fed. Sav. & Loan Ass'n. v. Howell, 24 N.J. 488, 499-500 (1957) (emphasis added) (citations omitted).]
Applying these principles to the salient facts of this case, we are satisfied that Montclair High School and its football team had standing to seek redress before the Executive Committee. The violations of the rules governing the recruitment of student-athletes gave North Bergen's football team an unfair competitive advantage in the championship game played against Montclair's football team. Although the student-athletes on both teams may have played the game within the rules governing the sport, the adult coach responsible for the management of North Bergen's team improperly and intentionally manipulated the makeup of his team to the detriment of Montclair's team. We all know this is cheating.
Montclair's football team was cheated of the opportunity to play a fair game to determine which team truly deserved to be crowned champions in 2011. Montclair correctly asked the NJSIAA Executive Committee not to confer the championship title to its team because the game cannot be replayed. However, the integrity of the sport demands that North Bergen's football team forfeit the title of champion. Ironically, Coach Ascolese cheated his team as well; due to his ill-conceived scheme, his players were cheated of the opportunity to learn the most valuable lesson of competitive sports: maximum effort in an even playing field.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION