Opinion
DOCKET NO. A-5418-13T3
03-31-2016
JAMES MESSNER and ROBERT CONDO, Complainants-Respondents, v. STACY GRAY, Respondent-Appellant, and DEPTFORD TOWNSHIP BOARD OF EDUCATION, GLOUCESTER COUNTY, Respondent. and WALTER BERGLUND, Complainant-Respondent, v. STACY GRAY, Respondent-Appellant, and DEPTFORD TOWNSHIP BOARD OF EDUCATION, GLOUCESTER COUNTY, Respondents.
Alterman & Associates, L.L.C., attorneys for appellant (Stuart J. Alterman, of counsel; Matthew R. Dempsky, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Christopher Huber, Deputy Attorney General, on the statement in lieu of brief). Respondents James Messner, Robert Condo and Walter Berglund have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Commissioner of the Board of Education, Docket No. 1-1/14A. Alterman & Associates, L.L.C., attorneys for appellant (Stuart J. Alterman, of counsel; Matthew R. Dempsky, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Christopher Huber, Deputy Attorney General, on the statement in lieu of brief). Respondents James Messner, Robert Condo and Walter Berglund have not filed briefs. PER CURIAM
In its December 20, 2013 decision, the School Ethics Commission (the Commission) concluded that appellant, Stacy Gray, a member of the Deptford Township Board of Education (the Board), had violated two provisions of N.J.S.A. 18A:12-24.1, the Code of Ethics for School Board Members (the Code). The Commission dismissed allegations that Gray had violated four other provisions of the Code and reprimanded Gray. Gray appealed to the Commissioner of Education (the Commissioner), see N.J.A.C. 6A:28-11.1, who on June 9, 2014, concluded the Commission's decision was supported by sufficient credible evidence and Gray had violated the Code. The Commissioner affirmed the penalty imposed.
Before us, Gray argues that the Commissioner's findings were not supported by sufficient credible evidence. Since the material facts were never disputed before the Commission or on appeal to the Commissioner, the argument lacks sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). We focus, therefore, on Gray's other contention, specifically that based upon the undisputed facts, she did not violate the Code as a matter of law.
The record developed before the Commission revealed that Gray was a newly-sworn member of the Board as of January 3, 2013. That spring, two complaints were filed against her with the Commission. The first brought by two Board members, James Messner and Robert Condo, alleged that, without notice to the other members, Gray had recorded an executive session of a Board meeting on March 26, 2013, during which "personnel matters and negotiation matters" were discussed. The complaint further alleged that Gray "taped portions of the meeting to discuss a grievance to send to her attorney."
A second complaint was filed by Walter Berglund on April 17, 2013. Berglund was the former president of the Board who had resigned in June 2012. In November 2012, with Messner and Condo voting in the affirmative, the Board appointed Berglund to the position of Supervisor of Buildings and Grounds. Berglund's complaint alleged that the executive session Gray recorded included personnel discussions involving his position.
Seven of the nine Board members, including Gray, testified before the Commission. The March 26, 2013 Board meeting included a discussion of a grievance Berglund had previously filed against the Board that centered on a "blog" Gray maintained on the internet during her election campaign, and which criticized the Board's approval of Berglund's employment as a conflict of interest. Also to be discussed was a possible letter of apology to Berglund, as well as the contracts of four employees who had received Rice notifications. Gray and the four employees were members of the same union.
See Rice v. Union County Regional High School Bd. of Education, 155 N.J. Super. 64, 74 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978), where we held that "employees were entitled to reasonable notice of the intention of the board to consider personnel matters related to them."
During the executive session, when the discussion turned to the Berglund apology letter, Gray began to record the session on her cell phone. Gray believed the incumbent Board members would treat her unfairly, given her blog and Berglund's prior grievance. Other Board members confronted Gray, and she admitted that she was recording the executive session and intended to play the recording for her attorney. The Board's solicitor advised her that recording of the executive session was not permitted, but Gray voiced her disagreement.
Gray recorded nineteen minutes of the session before the solicitor and other Board members left the room, effectively ending the meeting. Gray subsequently shared the tape with her attorney, as well as her appellate counsel.
The Commission concluded that Gray's taping of the session was not prohibited. However, it also concluded that Gray's decision to share the tape with her attorneys violated two provisions of the Code.
Specifically, the Commission found that Gray violated subsection (e) of the Code, which provides: "I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board." N.J.S.A. 18A:12-24.1(e). The Commission cited N.J.A.C. 6A:28-6.4(a)(5), which explains that "[f]actual evidence of a violation of N.J.S.A. 18A:12-24.1(e) shall include evidence that the respondent made personal promises or took action beyond the scope of his or her duties such that, by its nature, had the potential to compromise the board." (Emphasis added). The Commission concluded that Gray "took private action, or action that was outside the scope of her duties as a Board member when she intended to and did disclose the deliberations to two other third parties who would not otherwise have been privy to the Board's deliberations." The Commission further concluded that Gray's action was of "such a nature that it had the potential to compromise the Board."
The Commission also found that Gray violated that portion of subsection (g) of the Code, which provides: "I will hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools." N.J.S.A. 18A:12-24.1(g). The Commission cited its implementing regulation, which states that
[f]actual evidence of a violation of the confidentiality provision of N.J.S.A. 18A:12-24.1(g) shall include evidence that the respondent(s) took action to make public, reveal or disclose information that was not public under any laws, regulations or court orders of this State, or information that was otherwise confidential in accordance with board policies, procedures or practices.The Commission concluded that Gray's actions disclosed information that was confidential and not public under regulations or law, although it did not find that the disclosure "needlessly injure[d] individuals or the schools." N.J.S.A. 18A:12-24.1(g).
[N. J.A.C. 6A:28-6.4(a)(7).]
The Commissioner's final decision only stated that the Commission's conclusion that Gray "breached the confidentiality of the Board's deliberation during the executive session by sharing the recording with two individuals who would not have been permitted to attend the executive session" was supported by "sufficient credible evidence" and was not "arbitrary, capricious or contrary to law." See N.J.A.C. 6A:4-4.1(a) (defining the Commissioner's standard of review of the Commission's decision).
Before us, Gray argues that the complainants failed to establish a violation of subsection (g) of the Code because there was no evidence that any breach of confidentiality would injure individuals or the schools. She also argues that disclosure of the taped session to her attorneys did not breach confidentiality because the attorneys are prohibited by RPC 4.4(a) from obtaining evidence that violate the legal rights of a third party. Regarding the subsection (e) violation, Gray refers to the RPC and contends there was no evidence to support the Commissioner's conclusion that disclosure of the audio recording "had the potential to compromise the Board."
RPC 4.4(a) provides: "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."
We have considered these arguments. We affirm in part and reverse in part.
The guideposts for our review are well-known. "[W]e 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." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v. Bd. of Educ, 131 N.J. 626, 641 (1993)). We limit our review "to a determination of whether the [Commissioner's] decision is 'unreasonable, unsupported by the record or violative of the legislative will.'" D.L. v. Bd. of Educ. of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting Capodilupo v. Bd. of Educ. of W. Orange, 218 N.J. Super. 510, 515 (App. Div.), certif. denied, 109 N.J. 514 (1987)). Regarding educational matters, the Court has cautioned that "the courts cannot supplant educators; they are not at liberty to interfere with regulatory and administrative judgments of the professionals in the field of public education unless those judgments are palpably arbitrary or depart from governing law." Dennery, supra, 131 N.J. at 643.
Although we are not bound by an administrative agency's legal opinions, Levine v. State Department of Transportation, 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Department of Human Services, 157 N.J. 161, 170 (1999)), the "'agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). And, while there is a "presumption that the [agency's] regulations are both valid and reasonable[,]" New Jersey Associationn of School Administrators v. Schundler, 211 N.J. 535, 548 (2012), they may be challenged, based upon "an inconsistency between the regulation and the statute it implements, a violation of policy expressed or implied by the Legislature, an extension of the statute beyond what the Legislature intended, or a conflict between the enabling act and other statutory law that cannot be harmonized." N.J. Ass'n of Sch. Adm'rs v. Cerf, 428 N.J. Super. 588, 596 (App. Div. 2012), certif. denied, 213 N.J. 536 (2013).
The Code is part of the School Ethics Act, N.J.S.A. 18A:12-21 to -34, enacted in 1991 by the Legislature, which specifically found it was "essential that the conduct of members of local boards of education . . . hold the respect and confidence of the people. These board members . . . must avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated." N.J.S.A. 18A:12-22(a). The Legislature further determined that "[t]o ensure and preserve public confidence, school board members . . . should have the benefit of specific standards to guide their conduct and of some disciplinary mechanism to ensure the uniform maintenance of those standards among them." N.J.S.A. 18A:12-22(b). The Code sets forth those "specific standards." Ibid.
"Any person" can bring a complaint alleging violation of the Code. N.J.S.A. 18A:12-29. The Commission was formed to, among other things, receive complaints regarding the conduct of board members, to conduct investigations, to hold hearings and recommend sanctions. N.J.S.A. 18A:12-28(b); -29(b) and (c). Pursuant to the Commission's implementing regulations, the complainant "has the burden to factually establish a violation in accordance with the standards set forth" in the regulations regarding the various subsections of the Code. N.J.A.C. 6A:28-6.4(a).
As noted, the Commissioner concluded that Gray had violated N.J.S.A. 18A:12-24.1(g). No published decisions have interpreted that subsection of the Code, and, thus, "we must consider the statute[] and attempt to 'divine and effectuate the Legislature's intent.'" L.A. v. Bd. of Educ. of City of Trenton, 221 N.J. 192, 201 (2015) (quoting State v. Shelley, 205 N.J. 320, 323 (2011)). We do so by examining the statute's plain language and applying generally accepted meaning to its terms. Ibid. "When the Legislature's chosen words lead to one clear and unambiguous result, the interpretative process comes to a close, without the need to consider extrinsic aids." Ibid. (quoting Shelley, supra, 205 N.J. at 323).
Gray's citation to a footnote in the dissent in Besler v. Board of Educ. of West Windsor-Plainsboro Regional School District, 201 N.J. 544, 602 n.11 (2010), regarding N.J.S.A. 18A:12-24.1(g) provides little aid to our analysis. --------
According to the plain language of the statute, to prove a violation of that section of the Code, the complainants in this case were required to show that Gray failed to "hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools." Ibid. (emphasis added). The Commission's implementing regulation, however, only requires proof that Gray "took action to make public, reveal or disclose information" that was not public, N.J.A.C. 6A:28-6.4(a)(7), and does not require proof that disclosure would "needlessly injure" another person or the schools. Thus, the regulation effectively prohibits conduct that does not necessarily violate the Code, thereby extending the statute beyond what the Legislature intended. N.J. Ass'n of Sch. Adm'rs, supra, 428 N.J. Super. at 596. As a result, we are constrained to conclude that the Commissioner's determination as to subsection (g) of the Code is arbitrary, capricious and unreasonable, and we reverse that decision.
We reach a different result as to subsection (e). The Code prohibits a board member from "tak[ing] any private action that may compromise the board." N.J.S.A. 18A:12-24.1(e). The Commission's implementing regulation regarding subsection (e) fully reflects the Legislature's determination that any potential for harm is sufficient. See N.J.A.C. 6A:28-6.4(a)(5). Here, the undisputed evidence was that Gray recorded the executive session for her own private purposes and shared it with her attorneys. Whether the attorneys intended to use the recording, or whether they were constrained from doing so by RPC 4.4(a), strikes us as irrelevant. Gray's decision to further her own, purely private purposes had the potential to, and did, compromise the Board's ability to conduct its business in a lawfully convened executive session. We therefore affirm the Commissioner's decision regarding subsection (e).
Affirmed in part, reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION