Superior Court finds that Board of Education did not act arbitrarily

       In an October 5, 2023 decision, the Superior Court of New Jersey, Appellate Division (Court) affirmed the decision of the Acting Commissioner of Education (“Commissioner”) and the adoption of the decision of the Administrative Law Judge that determined there was no foundation to disturb the findings of the Commissioner of the Board of Education.   Further, the Court held that the findings of the Commissioner were not “arbitrary, capricious, or unreasonable” and that the Commissioner appropriately applied discretion in finding the Hackensack Board of Education (HBOE) properly responded to a request for information under N.J.S.A. 18A:6-7.6 to -13, commonly referred to as the “Pass the Trash” law, which was enacted in 2018. 

The Appellant sought appeal upon the entry of the decision of the Commissioner that affirmed an Administrative Law Judge’s initial decision that denied the Appellant’s motion for summary judgment and dismissed Appellant’s petition in its entirety. (A.B. v. Bd. of Educ., No. A-0999-21 (N.J. Sup. App. Div. Oct. 5, 2023)).  The Appellant argued that such decision was in error in that there were disputed issues of material fact.

The Appellant was a math teacher and formerly employed by the HBOE.  In 2013, the HBOE was notified that there were “inappropriate and sexually suggestive content to [Appellant’s] social media page.”  Upon investigation, it was determined that students were able to view and comment on such content.  A settlement agreement between HBOE and the Appellant was finalized, and the Appellant submitted an irrevocable letter of resignation in June 2013.  Subsequently, in 2019, Appellant was offered a position with another board of education and signed an authorization form for the “Sexual Misconduct/Child Abuse Disclosure Information Request” form as required by the Pass the Trash law.    The form required responses to questions that included inquiries whether the Appellant was the subject of “any child abuse or sexual misconduct investigation by any employer…”   Upon completion of the form by the HBOE, the new offer of employment was subsequently withdrawn and resulted in the Appellant submitting a complaint to enforce the confidentiality provision of the settlement agreement, requesting the HBOE rescind its response to the request, and to require the HBOE to be enjoined from further reporting that the Appellant was subject of an investigation at the time of resignation.  The complaint was dismissed in 2019.

The Pass the Trash law requires prospective school district employers to contact an applicant’s prior employer to obtain information regarding child abuse and sexual misconduct.  In application of such law upon this appeal, the Court provides a significant reliance of “reasonableness to an agency’s exercise of its statutorily delegated responsibility and defer[s] to its fact-finding” (City of Newark v. Nat. Res. Council in Dep’t of Env’t Prot., 82 N.J. 530, 539 (1980); Utley v. Bd. of Rev., Dep’t of Lab., 194 N.J. 534, 551 (2008)); nor will the court “upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies.” (Lavezzi v. State, 219 N.J. 163, 171 (2014); Campbell v. Dep’t of Civ. Serv., 39 N.J. 556, 562 (1963)).  Further, the Commissioner did not err in concluding the issue of sexual conduct with respect to the timing of the resignation, nor did the Commissioner distort the “plain meaning of ‘sexual misconduct’ as defined in N.J.S.A. 18A:6-7.6.”

Here, the Court determined that the agency action was not “arbitrary, capricious, or unreasonable” and confirmed the agency followed the law given the substantial evidence in the record to support the findings of the agency decision (In re Stallworth, 208 N.J. 182, 194 (2011)(quoting In re Carter, 191 N.J. at 482-83)).

The decision of the Commissioner was affirmed.