Opinion
DOCKET NO. A-3696-12T4
07-11-2014
EAST WINDSOR REGIONAL SCHOOL DISTRICT BOARD OF EDUCATION, MERCER COUNTY, Petitioner-Respondent, v. KIMBERLY GEURDS, Respondent-Appellant.
Edward A. Cridge argued the cause for appellant Kimberly Geurds (Mellk O'Neill, attorneys; Arnold M. Mellk, of counsel and on the brief; Gidian R. Mellk, on the brief). David B. Rubin argued the cause for respondent East Windsor Regional School District Board of Education, Mercer County. John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Lauren A. Jensen, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Commissioner of Education, Agency Docket No. 189-7/12.
Edward A. Cridge argued the cause for appellant Kimberly Geurds (Mellk O'Neill, attorneys; Arnold M. Mellk, of counsel and on the brief; Gidian R. Mellk, on the brief).
David B. Rubin argued the cause for respondent East Windsor Regional School District Board of Education, Mercer County.
John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Lauren A. Jensen, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Kimberly Geurds appeals from the final agency decision of the Commissioner of Education (Commissioner), which rejected the initial decision of the administrative law judge (ALJ) and terminated her tenured employment with the East Windsor Regional School District Board of Education (Board). We affirm.
Geurds was employed as a tenured teacher by the Board. During the 2007-2008 school year, Geurds was assigned to teach fifth grade students at the Perry Drew School. According to the Board, the Perry Drew School received numerous parent complaints regarding the structure of Geurds' assigned classwork and her conduct while teaching her fifth grade class.
On August 28, 2008, the Board certified tenure charges against Geurds, containing two counts, alleging that Geurds engaged in numerous acts "of misconduct and conduct unbecoming [of] a teacher . . . ." The first count asserted that Darlene Nemeth, the Principal of the Perry Drew School, received numerous complaints from parents that Geurds' class "lack[ed] structure, control and discipline." This count further alleged multiple instances of Geurds using outrageous profanity and engaging in sexually charged banter in the presence of her highly impressionable fifth grade students. The second count accused Geurds of sending several anonymous correspondences during the 2008 school year to administrators containing "vile, obscene and vulgar" language.
The Board subsequently dismissed this count by letter of October 14, 2009 to the ALJ and Geurds' counsel.
On August 27, 2010, the Commissioner, deferring to the ALJ's credibility findings, adopted the ALJ's Initial Decision, concluding that Geurds engaged in unbecoming conduct and ordered her to "forfeit 120 days of salary and one year's increment." In addition, the Commissioner directed Geurds, before the end of 2011, to "complete coursework in pedagogy that addresses: 1) the differences in the social and psychological needs of children of different age and grade levels, 2) the boundaries between a teacher's instructional jurisdiction and issues properly in the province of parental guidance and control, and 3) professional classroom demeanor." The Commissioner asserted that the coursework would "be subject to reasonable review and approval by [the Board,]" and permitted the Board to apply for relief if Geurds failed to comply with this directive.
According to the Board, by the end of 2011, Geurds failed to pursue any coursework whatsoever to comply with the Commissioner's order. On January 12, 2012, Dr. Edward Forsthoffer III, the Superintendent of Schools for the East Windsor Regional School District, met with Geurds and afforded her an extension through the end of the 2011-2012 school year to complete the required coursework. While Geurds eventually did sign up for an approved course, Dr. Forsthoffer received her transcript on April 30, 2012 from the course indicating that she received an "F." According to Dr. Forsthoffer, when he contacted Geurds regarding this failing grade she responded via email as follows:
The transcript was sent to me. The grade was an F. I paid for a transcript to be sent to you/the district.After this correspondence, Geurds asserted that she had no further contact with the Board regarding her coursework.
My concerns regarding the course were expressed a few weeks back. An F is very upsetting. Putting out close to $2000.00 is upsetting.
I do not think there is anything else that you are unaware of that I need to make you aware.
At this point, the Board filed its verified petition, dated July 9, 2012, with the Commissioner to seek appropriate relief for Geurds' failure to successfully complete her required coursework. Thereafter, the Board filed a motion for summary decision. On February 8, 2013, the ALJ issued an Initial Decision granting the Board's motion. The ALJ reasoned:
Based upon the undisputed material facts, I CONCLUDE that the Board is entitled to summary decision as to [Geurds'] failure toAccordingly, the ALJ ordered Geurds to submit a proposed course "to the Superintendent for approval no later than twenty days following the issuance of the Final Decision of the Commissioner of Education." Once approved by the Superintendent, Geurds must receive a passing grade for the course or face the termination of her tenure.
complete the required course. In its brief in support of summary decision, the Board suggests that the remedy be removal of tenure, but adds that if this is not deemed appropriate at this time, that Geurds be given "a firm deadline for completion that which the Commissioner has ordered, with termination looming as a consequence should she fail to do so." While it may be tempting to simply treat Geurds' failure to pass the course as a sufficient reason to remove her tenure, it seems that she should be given one last opportunity to save her status as a tenured employee. Since she did take the course, and since her grade at least seems to preclude the possibility that the school deemed her not to have finished the coursework, albeit she failed the course, she should be permitted to take and to successfully pass a course in pedagogy approved by the Board.
The Commissioner, however, rejected the ALJ's determination that Geurds should be given another opportunity to complete the required coursework and ordered the termination of her tenure. The Commissioner determined that Geurds' "astoundingly casual approach to the coursework requirements, coupled with her prior inappropriate behavior, indicates that she is unfit to discharge the duties and functions of her position as a teacher." Further, the Commissioner was
particularly troubled by [Geurds'] disregard for the directives contained within the August 2010 decision in light of her prior disciplinary action. [Geurds] was afforded the opportunity to continue teaching in the East Windsor School District despite the poor judgment she displayed in the classroom, but instead of embracing that opportunity, she — at a minimum — severely neglected the coursework requirements. Not only was [Geurds] given additional time beyond the 2011 time frame outlined in the August 2010 decision to complete the course work, she subsequently admitted that she received an "F" in the course when she eventually took it. As the ALJ correctly pointed out, it is a fact that ". . . the Commissioner's order does not include the word 'successfully' or any variant thereof with the direction to 'complete' the required and approved course in pedagogy. But it seems inconceivable that the Commissioner of Education would have meant anything otherwise than that Geurds both complete the course and obtain at least a passing grade." [] [Geurds'] prior record and present attitude demonstrate that she is simply unable to appreciate the seriousness of her conduct and, as a result, there is no evidence to suggest that she will not continue to evade her obligations and engage in a pattern of unprofessional behavior.
On appeal, Geurds contends that she "did not neglect her course work" and that "the Commissioner had no basis for remarking upon [Geurds'] 'present attitude.'" We disagree.
As a threshold matter, our review of a final administrative agency decision is limited. In re Carter, 191 N.J. 474, 482 (2007). Our review of the agency's decision is restricted by the following four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) 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.
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
"Ordinarily, we will not reverse the determination of an administrative agency unless it is arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record as a whole." Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993). "[S]hould there be substantial evidence in the record to support more than one result, it is the agency's choice which governs." Dore v. Bd. of Educ, 185 N.J. Super. 447, 453 (App. Div. 1982). As such, an administrative agency's determination is accorded "a strong presumption of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (internal quotation marks omitted). This "deferential standard applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007). "The burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
"After conducting a hearing, the Administrative Law Judge will make a recommendation, which the Commissioner may, in his discretion, accept or reject." Abbott v. Burke, 153 N.J. 480, 526 (1998). Our role in reviewing the Commissioner's decision is to determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[,] considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (internal quotation marks omitted). Thus, we will not "weigh the evidence, . . . determine the credibility of witnesses, . . . draw inferences and conclusions from the evidence, [or] . . . resolve conflicts therein." In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974).
Pursuant to N.J.S.A. 18A:6-10, a tenured employee cannot be dismissed or have their compensation reduced, "except for inefficiency, incapacity, unbecoming conduct, or other just cause . . . ." The "touchstone" for cases in which the Board has sought the dismissal of a tenured individual is to determine the "fitness to discharge the duties and functions of one's office or position." In re Tenure Hearing of Grossman, supra, 127 N.J. Super. at 28-29.
Based on our review of the record, we are satisfied that the Commissioner's decision to dismiss Geurds as a tenured employee was not arbitrary, capricious or unreasonable and was fully supported by the record, and therefore we affirm substantially for the reasons stated in the Commissioner's final decision of March 27, 2013. We add only the following comments.
On August 27, 2010, the Commissioner, in adopting the ALJ's initial decision, found Geurds' "approach to dealing with students' use of vulgarities or handling other incidents relating to matters of health and hygiene was well-intentioned but inappropriate[,]" and that "the language she used was unprofessional and insensitive to her students and their parents, and that she acknowledged [the] same." As a result, the Commissioner agreed that Geurds' behavior amounted to unbecoming conduct and ordered her "to complete coursework in pedagogy to address her inappropriate behavior and classroom demeanor." Geurds made no attempt to comply with this directive until Dr. Forsthoffer contacted her in December 2011 to determine her progress with the required coursework. Thereafter, Dr. Forsthoffer granted Geurds an extension through the end of the 2011-2012 school year to complete this requirement. However, after eventually enrolling in an approved course, the Board discovered that she received an "F" in April 2012. Geurds does not dispute these facts, but rather contends that the Commissioner's determination that she severely neglected her course work was arbitrary, capricious and unreasonable and that the order dismissing her tenure should be reversed.
Geurds' failure to even attempt to complete the Commissioner's August 2010 order until Dr. Forsthoffer contacted her in December 2011 coupled with her ultimately failing an approved course in April 2012 demonstrates that she unacceptably neglected her coursework. Despite being given these opportunities to continue her tenured employment in light of her prior disciplinary action, as the Commissioner notes, Geurds has demonstrated "that she is simply unable to appreciate the seriousness of her conduct and, as a result, there is no evidence to suggest that she will not continue to evade her obligations and engage in a pattern of unprofessional behavior." Further, when Dr. Forsthoffer tried to contact Geurds regarding her failing grade, she responded that there was no further information that she needed to disclose. The Commissioner's decision to reject the ALJ's recommendation and dismiss Geurds from her tenured teaching position based on her failure to complete the required coursework, and given the leniency she has already received from both the Board and the Commissioner, was reasonable and fully supported in the record below.
Additionally, contrary to Geurds' contention, it was appropriate for the Commissioner to reason that Geurds' "prior record and present attitude demonstrate that she" does not "appreciate the seriousness of her conduct" and that there is no evidence "that she will not continue to evade" this directive. Despite her not appearing or presenting testimony for this subsequent action, it was reasonable for the Commissioner to infer her attitude towards the required coursework based on her: (1) failure to even attempt to complete the directive until Dr. Forsthoffer contacted her in December 2011; (2) failing an approved course after receiving a year-long extension from the Board; and (3) response to Dr. Forsthoffer's inquiry regarding her failing grade that she had nothing further to disclose. It is clear that Geurds has not approached the Commissioner's August 2010 directive with the seriousness that it required.
We thus conclude the Commissioner's decision to dismiss Geurds from her tenured position was not arbitrary; Geurds' failure to attempt to complete the August 2010 directive until December 2011 and her grade of an "F" in an approved course in April 2012, despite receiving a year-long extension on the deadline, supports the determination that she, at a minimum, severely neglected her coursework; and the decision does not violate any legislative policies.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION