Opinion
DOCKET NO. A-1442-11T3
08-28-2013
IN THE MATTER OF THE TENURE HEARING OF SUSAN PAREZO, SCHOOL DISTRICT OF THE BOROUGH OF LAKEHURST, OCEAN COUNTY.
Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for appellant Susan Parezo (Jason E. Sokolowski, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Angela L. Velez, Deputy Attorney General, on the statement in lieu of brief). Citta, Holzapfel & Zabarsky, attorneys for respondent Lakehurst Borough Board of Education (Steven A. Zabarsky and Christian E. Schlegel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Nugent and Haas.
On appeal from the State Department of Education, Docket No. 646-11/10.
Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for appellant Susan Parezo (Jason E. Sokolowski, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Angela L. Velez, Deputy Attorney General, on the statement in lieu of brief).
Citta, Holzapfel & Zabarsky, attorneys for respondent Lakehurst Borough Board of Education (Steven A. Zabarsky and Christian E. Schlegel, on the brief). PER CURIAM
Appellant Susan Parezo, formerly a teacher in the Borough of Lakehurst School District, appeals from the Acting Commissioner of Education's final decision upholding charges against her of unbecoming conduct, and dismissing her from her tenured teaching position. Appellant contends that the Acting Commissioner's decision is unsupported by substantial credible evidence in the record and violates statutory law. Appellant also contends that during an administrative law hearing, the judge's in camera examination of two children violated appellant's right to due process. Lastly, appellant challenges her dismissal as contrary to the doctrine of progressive discipline. We reject those contentions and affirm.
I.
Appellant was employed for more than twenty years as a health and physical education teacher with respondent Borough of Lakehurst School District (the District) before the District filed the tenure charges that led to her dismissal. During her tenure she taught physical education "to every student in the school, pre-k[indergarten] through eighth grade for the entire school year," and health education for half of the school year. On September 30, 2010, the District, through its superintendent, filed tenure charges against her alleging that she humiliated and embarrassed a student (charge one), and that she later made a false statement to the superintendent by denying the incident (charge two). Appellant disputed the charges, which were then referred to the Office of Administrative Law (OAL) where a five-day hearing took place before an administrative law judge (ALJ). The parties presented the following proofs at the OAL hearing.
On Friday, June 11, 2010, during gym class for teacher Kathleen Bixby's fourteen second-grade students, appellant asked four or five of the children to help her remove colored and laminated shapes from the gym wall. The geometric shapes, which were made from construction paper, had been taped to the gym wall with single-sided tape that was looped to make it double-sided.
According to the account of the events that appellant later gave to the school principal, as appellant and the children began peeling tape from the shapes, "[t]he children were laughing as she placed tape on herself and pretended to place tape on [a student's] cheek since [the child] had been standing in front of her." The child, Michael, was seven years old.
Following a preliminary investigation of the incident by the superintendent, the principal conducted a formal investigation.
We use pseudonyms for the children involved in the incident to protect their privacy.
Appellant also reported to the principal that "another student attempted to place tape on [Michael's] mouth as well, but [appellant] . . . stopped the student right away." Although appellant pushed the other student's hand away from Michael's lips, appellant admitted that she allowed "several students to place balls of tape on [Michael] while he stood in the center of the gym." No other student had tape placed on them. Appellant never admitted to the principal that she put tape on Michael.
When the second grade teacher, Kathleen Bixby, went to the gym to take her fourteen second-graders back to her class the children were not waiting in line. Bixby heard what she considered to be "chaotic sounds" coming from the kids in the gym. Bixby looked through the entrance to the gym and "observed [appellant] removing tape from one of [her] student's . . . mouth." Feeling a sense of uncertainty and confusion, almost disbelief, Bixby turned around and walked to the end of the hallway. After composing herself, she returned to the gym and lined up her students.
Michael and another student, Alex, were the last two students to come out of the gym. Noticing that Michael looked "quite shy, had his head down, and seemed embarrassed," Bixby walked to the back of the line where Michael and Alex were standing, and asked them what happened. Alex said that appellant "was taking tape off of [Michael's] mouth." When Bixby asked how the tape got on Michael's mouth, Alex said that appellant put it there. Bixby asked Michael why appellant put the tape on his mouth. Michael said, "[m]aybe because I talk too much." Bixby subsequently reported the incident to the superintendent.
Michael and another student, who testified in camera outside of the presence of the attorneys, also said that appellant had taped Michael's mouth. The ALJ asked questions that had been prepared by the attorneys, and the witnesses spoke into microphones which transmitted their testimony into the courtroom where the attorneys listened. When the ALJ asked if Michael knew why he was in court, Michael said "because [appellant] put tape on my mouth." Michael explained that during the 2009-10 school year he went to gym classes two days each week. On June 11, appellant asked Michael and three other students if they would take the shapes off the wall. The students gave the shapes to appellant who, according to Michael, started to put tape on him, first on his left arm, then on his shoulder. Michael began to get scared. Another student who saw appellant put tape on Michael's arm thought she was joking, so the student put tape on Michael's other shoulder. Appellant then put tape on Michael's mouth. According to Michael, appellant put the tape over his entire mouth and pressed on it. Michael could not move his lips under the tape.
Michael further testified that shortly after appellant taped his mouth, Michael's second grade teacher, Mrs. Bixby, walked in, and appellant removed the tape from his mouth. Appellant hurt Michael when she removed the tape. Two of Michael's friends were giggling, pointing at him, and laughing. Appellant did not put tape on anyone else.
In response to other questions from the ALJ, Michael explained that he did not like appellant before she taped his mouth because sometimes she would make him "sit out on [his] favorite things even if [he] wasn't doing anything." Michael claimed appellant would not make anyone else sit out. Michael felt that appellant picked on him.
Michael's classmate, Jayne, who also testified in camera, was one of the students that appellant asked to take the shapes off the wall. According to Jayne, appellant said: "Just put the tape on [Michael's] shoulder." Jayne was surprised, "[b]ecause there was a garbage can in [appellant's] office." Appellant did not tell the students to put tape on anyone else. Jayne put tape on Michael's left shoulder, and then appellant put tape across Michael's mouth. Jayne said that another student was laughing and wanted to put another piece of tape on Michael's mouth, but appellant said the student could not do that. When appellant removed the tape, it left a red mark on Michael. According to Jayne, Michael reacted by laughing.
Shana, an eighth-grader, testified by telephone at appellant's request. In response to the ALJ's questions, Shana testified that she was in the gym waiting to get permission slips from appellant. Appellant had "the little kids" take the tape off the wall. Shana saw appellant and the other kids "taking the tape off the back of the shape, and . . . sticking it on this one kid[.]" According to Shana, they were playing around and "the kid" was laughing. Shana recounted that appellant "put a piece of tape next to the kid's cheek, like kind of on it, but not really." At that point, another teacher walked into the doorway and "looked at [appellant] kind of in a dirty look like she was upset with something." When that happened, appellant had the other children take the tape off the other student. The kids then left the gym.
When questioned further, Shana said she did not actually hear appellant instruct the children to put tape on another student. Rather, "they were kind of playing around, and one kid put it on and then the other kid decided to do it." Appellant did not attempt to stop them, "but it wasn't like they were doing it in a bullying or mean type of way. They were playing around." Appellant joined them. The boy was laughing.
Later that day, Bixby attempted to report the incident to the school principal, but the principal was not in, so Bixby reported it to the superintendent the following Monday. The superintendent, Theresa Hamilton, met with appellant, Barbara DiCicco, a Lakehurst Education Association representative, and Dr. Clifford Barneman, the District's supervisor of special education. When Hamilton explained that they were there about the incident that had occurred the previous Friday in appellant's class, appellant initially did not "seem to indicate that she knew what [Hamilton was] talking about." When Hamilton said she was referring to the shapes that had been on the gym wall, appellant said she had asked several of the children to remove the shapes and the students just took the shapes off the wall. After some prompting, appellant then said that "there were pieces of tape that we were fooling around with." Appellant further explained that, in a fun way, they started to stick tape on students. Hamilton asked "what students?" and appellant responded that Michael "was having tape put on him by several students." Appellant admitted that she put a piece of tape on Michael's shoulder.
When Hamilton specifically asked appellant if appellant put tape anywhere else on Michael, appellant replied, "[n]o, just on his shoulder." Hamilton followed up that question by asking appellant if she put tape on Michael's mouth, and appellant said no, she did not. Hamilton said, "[s]o you're telling me you did not put tape anywhere on [Michael's] face" and appellant insisted that she had not. She did say however, that she held up a piece of tape in front of Michael's mouth. Appellant repeated that it was all done in fun.
Following her interview with appellant, Hamilton contacted Michael's mother, who knew nothing of the incident. When she asked Michael about it, Michael told her that appellant put pieces of tape on his shoulder. Michael said one piece was okay, but five were too much. Michael also said that appellant had put tape on his mouth. Some students began to make fun of him, and others put tape on him. The next day Hamilton spoke to Michael, who repeated what he had told his mother.
Following her interviews of the students, Hamilton met with the school principal, Carmen Davis, appellant, and two of appellant's representatives. Hamilton suggested that she arrange a meeting with Michael's parents. That meeting eventually took place in August. In the meantime, Hamilton prepared a report, which she summarized for the Board of Education at its June 22, 2010 meeting. According to Hamilton's report, "[appellant] had received a Rice letter with notice of this meeting." Hamilton's report also documented that a formal investigation by the principal would begin.
Rice v. Union Cnty. Reg. High School Bd. of Ed., 155 N.J. Super. 64 (App. Div. 1977).
Appellant denied that she taped Michael's mouth. She testified that as two of the students handed shapes to appellant, appellant removed the tape and stuck it on her arm. When she stuck the tape on her arm, some of the students began sticking tape on their arms. One of the students put a piece of tape on Michael's left shoulder. Appellant then put no more than three pieces of tape on Michael's arm.
As appellant and the students removed more tape, appellant had a piece in her hand. "[I]n a joking-around way, [appellant] went by the side of [Michael's] face with the tape, went by his mouth and said, 'oops,' and took that tape and put it on his shoulder." Although appellant held the tape up "right in front" of Michael's mouth, she did not place tape on his mouth or lips. She denied placing tape on Michael's cheek, and also denied that any tape brushed against either his mouth or his cheek. According to appellant, Michael and the other students were laughing. One of the other students commented that the tape looked like a flower growing out of Michael's shoulder. Appellant insisted that when she held the tape in front of Michael's mouth, she was just joking around and that the atmosphere was playful. She was not trying to bully Michael. When another student attempted to put tape near Michael's lips, appellant stopped the student, because she did not want the student to put tape on Michael's face.
As part of her case before the ALJ, appellant presented the testimony of two paraprofessionals employed by the District who passed through the gym on June 11, 2010. Neither person witnessed appellant's interaction with Michael, but one of the paraprofessionals heard appellant ask some students to take down the shapes. She confirmed that all of the students were laughing. The other paraprofessional also passed through the gym as appellant asked the students to remove the shapes.
Appellant also presented the testimony of witnesses who attested to her ability as an educator; clarified that another teacher, not appellant as once alleged by Bixby, wrote a progress report about Michael's "excessive talking"; and gave accounts of what occurred at some of the meetings that took place during the investigation of the incident involving Michael. Appellant herself testified about events involving Bixby in an attempt to show that Bixby was prejudiced against her.
On August 18, 2010, well after the District's investigation of the incident began, appellant, her representative, and Hamilton met with Michael and his mother. Appellant told Michael that she wanted him to have a good year. When she referred to the incident, however, both Michael's mother and Hamilton stopped her. Michael's mother told appellant that Michael was waiting to hear those "magic words"; appellant then apologized. At the end of the meeting, Michael's mother gave Hamilton a letter and requested it be read to the Board.
On August 24, 2010, having completed her formal investigation, the principal prepared a report, which was presented to the Board of Education. The report included the following:
Each student that I interviewed reported consistently that when they peeled the tape from the plastic shapes which were stuck on the gymnasium walls, [appellant] directed them to "place the tape on [Michael]." Without prompting, the students were consistent in their claim that [appellant] placed a piece of tape on [Michael's] lips and that tape balls were placed on . . . [Michael] in the last few minutes of class.
Although appellant received a "welcome back" letter from the District for the 2010-2011 school year, the Board suspended her, pending further action. That started the procedural events that culminated with the Acting Commissioner adopting the ALJ's initial determination.
According to appellant, she did not receive notice of the Board's September 21, 2010 meeting to discuss her employment until September 22, 2010. Nevertheless on September 30, 2010, two charges were lodged against appellant. Specifically, the charges included:
(1) Unbecoming conduct: That on or about June 11, 2010 [appellant], a tenured physical education teacher with Lakehurst, placed a piece of clear tape on the mouth and shoulder of [Michael], a student in the second grade, during school hours. Further, that [appellant], on the same date, caused or allowed to be caused at least one or more students to place tape on the person of [Michael], a student in the second grade during school hours and that, further, that conduct by [appellant] caused the student [Michael] to be humiliated and embarrassed.
(2) Unbecoming conduct: That on or about June 14, 2010, [appellant] . . . did knowingly, intentionally, and willfully making [sic] false statements to Theresa M. Hamilton, interim superintendent of Lakehurst, when questioned about the incident involving [Michael] . . . by denying placing tape on the mouth of [Michael] Further, when she was questioned about the incident by Carmen M. Davis, principal of the Lakehurst School on a separate occasion, did knowingly, intentionally, and willfully making [sic] false statements by denying placing tape on the mouth of [Michael.]
Appellant received these charges on October 1, 2010. She responded to the charges through her attorney on October 18, 2010. The Board thereafter determined that the charges were sufficient to warrant appellant's dismissal or reduction of salary, and appellant was suspended for 120 days without pay. Appellant contested the District's decision, and the matter was sent to the OAL and a hearing was scheduled before the ALJ.
Following the administrative hearing, the ALJ issued a comprehensive written opinion. The ALJ found that appellant had "inappropriately singled-out one student, [Michael], and made him the butt of her 'fun' time in the presence of all of his classroom peers plus the eighth grader [Shana]." The ALJ concluded that appellant's longstanding good service did not excuse her misconduct "as it applied to the incident or subsequently in her denial of the occurrence of the events." The ALJ further determined that appellant compounded her inappropriate conduct with Michael by being untruthful with the superintendent and principal when they conducted their respective investigations. The ALJ specifically found that "[appellant's] denials about the happenings and occurrence of the event have not been supported by the credible evidence." The ALJ found that appellant's "account of the events is not credible and is not worthy of belief."
In contrast, the ALJ found the testimony of the students and Bixby credible. Based on his credibility assessments, the ALJ concluded that appellant "specifically, intentionally and unequivocally affixed tape to the mouth of [Michael] and then removed it as Bixby entered the area."
Based on his determination that the district had proved its charges against appellant, the ALJ found her guilty and, due to the serious nature of the charges, ordered that she be dismissed and removed from her tenured employment with the district.
Following an independent review of the record, the Acting Commissioner of Education adopted the ALJ's initial decision "as the final decision in this matter." Rejecting the exceptions appellant filed to the ALJ's initial decision, the Acting Commissioner also upheld the ALJ's sanction of dismissal. Although "duly considering" appellant's unblemished service record, the Acting Commissioner agreed with the ALJ's assessment of appellant's behavior. The Acting Commissioner also found "particularly disturbing" appellant's refusal to recognize the seriousness of her actions or take responsibility for them. In view of those considerations, the Acting Commissioner was "not persuaded that such conduct would not be repeated in the future." For those reasons, as well as the reasons stated in the ALJ's comprehensive decision, the Acting Commissioner could not "entertain the prospect of [appellant's] return to the District and the resultant potential for the perpetration of an unhealthy educational environment." The Acting Commissioner upheld appellant's dismissal.
II.
Appellant raises the following points for our consideration in this appeal.
POINT I
THE ACTING COMMISSIONER OF EDUCATION'S DECISION TERMINATING MS. PAREZO'S EMPLOYMENT IS NOT ENTITLED TO ANY DEFERENCE BY THIS COURT BECAUSE IT WAS NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE IN THE RECORD AND IS CONTRARY TO N.J.S.A. 52:14B-10(C)
A. THERE IS NO EVIDENCE THAT PAREZO'S CONDUCT WAS UNBECOMING
POINT II
THE ACTING COMMISSIONER OF EDUCATION'S FAILURE TO FIND THAT THE ALJ'S IN CAMERA EXAMINATIONS OF CHILD TESTIMONY VIOLATED PAREZO'S DUE PROCESS RIGHTS AND TO USE CAUTION IN EXAMINING CHILD TESTIMONY GIVEN THAT THERE WERE INCONSISTENCIES IN THE CHILDREN'S STATEMENTS AND TESTIMONY CONSTITUTES REVERSIBLE ERROR
POINT III
AS TO PENALTY, THE ACTING COMMISSIONER ERRED BY FAILING TO EVEN ADDRESS THE DOCTRINE OF PROGRESSIVE DISCIPLINE AND TAKING INTO ACCOUNT PAREZO'S UNBLEMISHED SERVICE WITH THE DISTRICT IN FINDING THAT PAREZO'S CONDUCT WARRANTED DISMISSAL FROM HER TENURED TEACHING POSITION
Our review of agency determinations is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's decision unless we "find [it] to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Additionally, we give "due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility[,]" In re Taylor, 158 N.J. 644, 656 (1999), and therefore accept their findings of fact "when supported by adequate, substantial and credible evidence[.]" Id. at 656-57. "Furthermore, it is not our function to substitute our independent judgment for that of an administrative body [, and] . . . we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
When reviewing a final agency action under the arbitrary, capricious, and unreasonable standard, we must examine whether the agency's decision conforms with relevant law; whether the decision is supported by substantial credible evidence in the record; and whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. Stallworth, supra, 208 N.J. at 194.
Appellant's arguments in her first point warrant little discussion. Referencing her testimony, her denial of taping Michael's mouth, and the testimony of her witnesses; and disregarding the District's countervailing evidence; she asserts that her "truthful, forthcoming, and highly credible testimony demonstrated at most that she exercised poor judgment, but never engaged in unbecoming conduct." Her argument overlooks entirely the ALJ's findings of fact and credibility determinations. More significantly, it overlooks our standard of review. Contrary to appellant's testimony, Bixby and two students testified that appellant taped Michael's mouth. Another student, whose testimony was presented by appellant, testified that appellant put tape on Michael's cheek. After thoroughly and comprehensively analyzing the evidence, the ALJ found Bixby and the students credible, and resolved the conflicting testimony against appellant. The ALJ's findings of fact and credibility determinations are more than amply supported by sufficient credible evidence in the record. We find no basis to disturb them.
Appellant also argues that even if we accept the ALJ's and Acting Commissioner's determinations that she taped Michael's mouth, her conduct was not so significantly flagrant to constitute unbecoming conduct. We disagree.
"[U]nbecoming conduct" is an "elastic" concept that "has been defined as 'any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for [government] employees and confidence in the operation of [government] services.'" Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)) (alteration in original). Unbecoming conduct "'may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" Id. at 555 (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 39-40 (App. Div. 1992)).
Although appellant emphasizes the testimony of witnesses who observed the children having fun and laughing when they were taking down the shapes and putting tape on Michael, there was also testimony about seven-year-old Michael's embarrassment about being laughed at by other students, and his belief that appellant might have taped his mouth because he talked excessively. Moreover, if appellant taped Michael's mouth, which the ALJ found she did, then she was not honest with the superintendent or the principal when she told them what happened during her gym class. One could readily conclude, as the ALJ and Acting Commissioner concluded, that taping the mouth of a seven-year-old and then denying it, violates the implicit standard of good behavior which devolves upon a teacher who develops and shapes the minds of second graders.
III.
In Point II, appellant argues that the ALJ's in camera examination of Michael and Jayne violated her rights to due process. She also argues that the ALJ was required to, but did not, use caution when evaluating the children's testimony. The ALJ's decision to examine the children in camera was wrong. A tenure hearing places a teacher, in this case, a teacher with more than a twenty-year unblemished record, in jeopardy of losing not only a job, but a career. See In re Wolf, 231 N.J. Super. 365, 374 (App. Div.), certif. denied, 117 N.J. 138 (1989). Absent a finding that the children would likely "suffer severe or emotional or mental distress if required to testify in open court, . . . [appellant] should have had an opportunity to face [her] accusers." Id. at 375 (internal quotation marks and citation omitted). Nothing in the record before us suggests the ALJ considered whether the children would suffer severe emotional or mental distress if required to testify in open court.
Several times, appellant refers to the children's testimony as "unsworn," but does not argue as a ground for reversal that the children were required to take a formal oath. The ALJ did, however, conduct a colloquy with the children to determine whether they understood the truth and would testify truthfully. See State v. G.C., 181 N.J. 118, 131-34 (2006).
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Nevertheless, there is no record of the ALJ's decision, and no written decision or memorandum explaining the decision. More significantly, there is nothing in the record that suggests appellant objected to the procedure. On the first day of the administrative hearing, the ALJ referred to a rather extensive case management conference that occurred on March 2, 2011, approximately one month before the hearing began. The ALJ also referred to his "in camera order," but that order is not included in the appellate record.
The ALJ thanked appellant's counsel for the "questions" counsel supplied, presumably for the in camera examination of the children, and the ALJ also said he would give the District's attorney time to review the questions before he took the in camera testimony of the first child later that morning. The ALJ concluded by explaining to the attorneys how the recording system would work so that the examination would take place in one courtroom, and the attorneys and their clients would hear the testimony in another courtoom. Nothing in the record suggests that appellant objected to either the ALJ's "in camera order" or to the ALJ's examining the witnesses in camera.
In a not entirely dissimilar context, the United States Supreme Court has explained that a criminal defendant's "right to confrontation may . . . be waived, including by failure to object to the offending evidence[.]" Melendez-Diaz v. Mass., 557 U.S. 305, 313-14 n.3, 129 S. Ct. 2527, 2534 n.3, 174 L. Ed. 2d 314, at 323 n.3 (2009). Our Supreme Court has "insisted that, in opposing the admission of evidence, a litigant must 'make known his position to the end that the trial court may consciously rule upon it.'" State v. Robinson, 200 N.J. 1, 19 (2009) (quoting State v. Abbott, 36 N.J. 63, 76 (1961)). One reason for the Court's insistence on timely objections is
the canny recognition that if late-blooming issues were allowed to be raised for the first time on appeal, this would be an incentive for game-playing by counsel, for acquiescing through silence when risky rulings are made, and, when they can no longer be corrected at the trial level, unveiling them as new weapons on appeal.
[Ibid. (quoting Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 84-85 (W.W. Norton & Co. 1994)).]
Significantly, in matters before us, the appellant must include in her appendix "such . . . parts of the record . . . as are essential to the proper consideration of the issues . . . ." R. 2:6-1(a)(1)(I). Moreover, "[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also Cooper River Convalescent Ctr., Inc. v. Dougherty, 133 N.J. Super. 226, 233 (App. Div. 1975) (noting that issues raised for the first time on appeal and not supported by the record are not properly before us).
Here, the District and appellant spent considerable time, and we are certain went to great expense, to present their respective cases during a five-day hearing that involved multiple witnesses, one who participated by telephone from Texas. Appellant now seeks to nullify those proceedings by raising for the first time an issue that could have easily been resolved before the first witness testified. And from the record before us, we cannot determine if appellant agreed to have the children testify in camera. Consequently, though mindful that fundamental fairness requires that teachers in tenure hearings be able to confront their accusers, we decline to address the issue here, where there is an inadequate record and it does not appear that appellant raised the issue before the ALJ.
We are unpersuaded by appellant's argument that the ALJ did not use caution when examining the children who testified against her. The ALJ carefully questioned the children. In his written opinion, the ALJ stated explicitly that he considered and closely scrutinized the testimony of Michael, Jayne, and Shana, and also considered corroborating evidence. Appellant's argument to the contrary is without merit.
IV.
In her final point, appellant argues that the acting commissioner failed to address the doctrine of progressive discipline and failed to take into account her unblemished service record in dismissing her from her tenured employment.
Appellate courts are cautioned against substituting their own views on the penalty imposed for that of the administrative body. In re Carter, 191 N.J. 474, 486 (2007). Rather, we owe substantial deference to the agency's "'choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated.'" In re Herrmann, 192 N.J. 19, 34-35 (quoting N.J. Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. l997), certif. denied, l53 N.J. 52 (l998)). On review, we consider whether the punishment imposed is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." In re Carter, supra, 191 N.J. at 484 (internal quotation marks and citation omitted).
Principles of progressive discipline have been applied where the offending party has a "substantial record of employment that is largely or totally unblemished by significant disciplinary infractions." Herrmann, supra, l92 N.J. at 32-33. However, progressive discipline is never immutable and can be patently inappropriate depending upon the nature of the violation. See id. at 33-36.
The ALJ provided clear, thorough, and compelling reasons for his decision to terminate appellant from her tenured teaching position. While considering appellant's twenty-one years of unblemished service with the District, the Acting Commissioner nonetheless agreed with the ALJ's evaluation of the seriousness of appellant's conduct. The Acting Commissioner added:
Finally, particularly disturbing here is [appellant's] refusal — even at this late date — to recognize the seriousness of her actions or take responsibility for them. Rather she continues to view the whole incident as de minimis in nature and scope and remains adamant that the Board's witnesses lied, for one reason or another, about what they saw. Given her steadfast attitude in this regard the Commissioner is not persuaded that such conduct would not be repeated in the future. Under these circumstances, the Commissioner cannot entertain the prospect of [appellant's]
return to the District and the resultant potential for the perpetration of an unhealthy education environment.
We are not empowered to substitute our judgment for that of the agency. See Herrmann, supra, 192 N.J. at 28; In re Polk, 90 N.J. 550, 578 (1982). Considering the nature of appellant's conduct along with her continued recalcitrance, in the context of our deference to the Acting Commissioner, we do not find the sanction shocking to one's sense of fairness.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPHJlATE DIVISION