LAUREN COOKE VS. BOARD OF TRUSTEES (TEACHERS' PENSION AND ANNUITY FUND) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3167-18T3
LAUREN COOKE,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION
AND ANNUITY FUND,
Respondent-Respondent.
__________________________
Argued telephonically March 23, 2020 –
Decided April 14, 2020
Before Judges Sumners and Geiger.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.
Michael Patrick DeRose argued the cause for appellant
(Crivelli & Barbati LLC, attorneys; Michael Patrick
DeRose, on the brief).
Austin J. Edwards, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Austin J. Edwards, on the
brief).
PER CURIAM
Petitioner Lauren Cooke appeals from a February 14, 2019 final decision
of respondent Board of Trustees (the Board) of the Teachers' Pension and
Annuity Fund (TPAF), imposing a ten percent forfeiture of Cooke's pension
benefits pursuant to N.J.S.A. 43:1-3 and N.J.A.C. 17:1-6.1. We affirm.
I.
Commencing on September 1, 1993, Cooke was employed by the Egg
Harbor Township Board of Education (the School Board) as an elementary
teacher. In November 2007, Cooke called another teacher, Jamesella Johnson,
"Aunt Jemima" in the presence of other teachers. In June 2008, Cooke called
Johnson a "nigger" in the presence of students and other teachers. Both
statements were made during school hours and on school property. The School
Board contended that Cooke's racial epithets were made in anger and not in jest.
The School Board certified tenure charges with the Commissioner of
Education to terminate Cooke from employment and suspended her without pay
for 120 days, for violating the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42. The School Board alleged Cooke engaged in harassment,
intimidation, and bullying in making improper, racially derogatory comments
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towards Johnson and lying to an administrator during a resulting investigation
in violation of N.J.A.C. 6A:16-7.9(a)(2)(vi),1 School Board Policy No. 5512.01,
and School Board Policy No. 3281. Cooke contested the termination and
suspension without pay.
The matter was transferred to the Office of Administrative Law (OAL) as
a contested case. On July 22, 2010, an Administrative Law Judge (the Tenure
ALJ) issued an Initial Decision finding Cooke had engaged in conduct
unbecoming a teacher in violation of School Board Policy No. 3281. The Tenure
ALJ found
that on "Fun Day" in June 2008, when Ms. Cooke was
speaking to Jordan Brown, another teacher, in the
hallway of the Davenport school during school hours
with teachers and school children present, and referred
to a third teacher, Jamesella Johnson, as a "nigger" she
engaged in conduct unbecoming a teaching staff
member.
The Tenure ALJ further found
that in November 2007, when Ms. Cooke was speaking
to Lynne Dixon, another teacher in the teachers' lounge
of the Davenport elementary school during school
hours with other teachers present, and Ms. Cooke
referred to a third teacher, Jamesella Johnson, as "Aunt
Jemima," she engaged in conduct unbecoming a
teaching staff member. I have reached this conclusion
because the term "Aunt Jemima" carries the
1
Now codified in N.J.A.C. 6A:16-7.7.
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connotation of servitude or slavery involving cooking
services provided by an African-American woman to a
Caucasian "master."
The Tenure ALJ determined that removal was not warranted and recommended
a 150-day suspension without pay.
On November 22, 2010, the Acting Commissioner of Education adopted
the Tenure ALJ's factual findings but modified the penalty to 120 days of salary
withholding pursuant to N.J.S.A. 18A:6-14, plus an additional thirty-day
suspension without pay, and mandatory training on racial sensitivity at Cooke's
own expense. Both parties appealed the Commissioner's decision. Cooke also
filed a complaint in the Law Division against the School Board and several other
parties seeking relief for alleged discrimination and retaliation under the LAD
and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.
In February 2012, the tenure appeal and the Law Division action were
settled without any "assurance, warranty or guaranty" as to how the Board would
decide any application for retirement benefits. The settlement included
withdrawal of the tenure decision cross-appeals and the Law Division action.
As part of the settlement, Cooke received compensation for administrative leave
from January 1 to December 31, 2012.
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Cooke then applied for accidental disability retirement benefits but was
granted, and ultimately accepted, ordinary disability retirement benefits
effective January 1, 2013. On October 7, 2014, the Board informed Cooke that
it had recently learned of the tenure charges brought against her. The Board
performed an honorable service review, applying and weighing the eleven
factors set forth in Uricoli v. Police and Firemen's Retirement System, 91 N.J.
62, 77-78 (1982), later codified in N.J.S.A. 43:1-3(c). The Board imposed a ten
percent reduction in her ordinary disability retirement benefits effective January
1, 2013 (allocating five percent to each of the two incidents).
Cooke appealed the Board's decision. The appeal was transferred to the
OAL as a contested case. An ALJ (the Forfeiture ALJ) conducted a one-day
hearing, without either party calling witnesses, on the following stipulated facts:
1. Cooke has sixteen years and eleven months of membership service in the
TPAF.
2. On January 16, 2012, the Division received Cooke's application for an
accidental disability retirement.
3. Cooke was vested with over ten years of service on October 1, 2012, her
effective date of retirement.
4. Cooke was employed as a teacher.
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5. On September 1, 1993, Cooke was enrolled in the TPAF as a result of her
employment as a teacher with the Egg Harbor Township Board of
Education. During her employment she was suspended without pay from
December 1, 2008 through May 1, 2009, and from December 1, 2010
through January 20, 2011. She was placed on paid administrative leave
from January 1, 2012 to December 31, 2012, which was the last date
pension contributions were remitted on her behalf. She resigned from
employment pursuant to the terms of the settlement agreement.
6. Cooke had no other public employment or service.
7. The Egg Harbor Township Board of Education filed tenure charges
against petitioner for conduct unbecoming a tenured teacher. On appeal,
the Tenure ALJ found that on two occasions, in approximately November
2007 and June 2008, Cooke used racial epithets in reference to another
teacher. The Tenure ALJ concluded these incidents constituted
unbecoming conduct for a teacher and determined that Cooke violated
School Board Policy No. 3281, Inappropriate Staff Conduct. The
Commissioner of Education concurred with the conclusion of the Tenure
ALJ. Cooke filed an appeal of the tenure matter in the Appellate Division
and filed a LAD claim against her employer in the Superior Court, Law
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Division. Subsequently, the parties negotiated a settlement and both
matters were dismissed. The Board noted that the Commissioner of
Education indicated that the charges against petitioner were serious in
nature.
8. Cooke's and the Board's appeals were dismissed.
9. As of January 1, 2013, petitioner's total pension benefit was $2,624.58
per month. After the ten percent reduction in the amount of $262.46, her
current allowance is $2,362.12 per month.
On November 14, 2018, the Forfeiture ALJ issued an Initial Decision in
which she relied upon the Tenure ALJ's factual findings, which were
subsequently adopted by the Board. The Forfeiture ALJ found that on both
occasions, the racial epithets were made to a staff member other than the target
of the inappropriate racist comments, who was not present. No students were
present during either incident.
The Forfeiture ALJ noted that the parties stipulated to the seven Uricoli
factors. As to factor seven, the Forfeiture ALJ found Cooke was charged
misconduct, not criminal behavior. "Neither of the comments were made in the
presence of any students." The misconduct involved two incidents that "were
isolated events that occurred in private conversations."
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As to factor eight, the Forfeiture ALJ noted the Commissioner determined
"that the misconduct did not establish [Cooke's] unfitness to discharge the duties
and functions of her position as a teacher." Based on that determination, the
Forfeiture ALJ concluded factor eight weighed in favor of Cooke because "there
is no direct relationship between [Cooke's] misconduct and her public duties as
a teacher and the [Board] is collaterally estopped from finding otherwise."
As to factor nine, the Forfeiture ALJ noted "[t]he Acting Commissioner
characterized the misconduct as serious in nature" and a "a serious error in
judgment." Based on the previously described circumstances of the misconduct,
the Forfeiture ALJ concluded that factor nine weighed in favor of Cooke.
As to factor ten, the Forfeiture ALJ noted the Acting Commissioner
determined that the loss of 120 days of salary, coupled with a thirty-day
suspension without pay, and racial sensitivity training was a sufficient penalty.
Therefore, factor ten weighed in favor of Cooke.
Finally, as to factor eleven, the Forfeiture ALJ noted the Acting
Commissioner found the mitigating factors included: Cooke had never been
previously disciplined; there was no evidence that Cooke treated the students
inappropriately; Cooke's comments were not directed at a student; no student
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overheard her comments; and the comments were made during private
conversations. Therefore, factor eleven also weighed in favor of Cooke.
The Forfeiture ALJ concluded that Cooke's "misconduct did not constitute
a breach of the condition that public service be honorable." She also concluded
that "the ten percent partial forfeiture of [Cooke's] retirement benefits [was]
inappropriate and should be reversed." The Attorney General filed exceptions
to the Initial Decision.
The Board found the Forfeiture ALJ "failed to appropriately weigh" the
Uricoli factors, misapplied the law, and failed "to make conclusions based on
the entire record." The Board modified the Initial Decision by making the
following additional findings of fact.
The Board noted the Tenure ALJ found as aggravating circumstances that:
(1) Cooke's statements were made during school hours; (2) Cooke's reference to
another teacher as a "nigger" was made in the presence of children and other
teachers; (3) Cooke is a teacher in an elementary school; (4) Cooke's statements
were said out of anger and not in a joking manner; and (5) Cooke referred to the
same teacher as "Aunt Jemima" on a subsequent occasion.
The Board further noted that the Tenure ALJ found Cooke's testimony was
outweighed by the testimony of two credible witnesses having no apparent
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motive for being less than truthful. The Tenure ALJ also found that as a public
role model, Cooke's actions are judged with more scrutiny than the typical
government employee. As an elementary school teacher, Cooke was arguably
required to exercise even greater self-restraint. "[H]er failure to act
appropriately ha[d] recklessly put young children at risk, ha[d] created
unnecessary tension among the teachers and ha[d] cast doubt as to her fitness to
teach impressionable children." The Tenure ALJ further found the utterance of
racial slurs was unbecoming conduct regardless of whether children were
present. Finally, the Tenure ALJ found that Cooke's reference to the same
teacher as "Aunt Jemima" showed a pattern of behavior rather than an isolated
incident.
As to Uricoli factors, the Board found factors one through seven weighed
in favor of a partial forfeiture. Regarding factor seven (nature of misconduct or
crime), the Board noted that its "powers to determine a pension forfeiture are
not limited to criminal misconduct," citing Corvelli v. Board of Trustees, Police
& Firemen's Retirement System, 130 N.J. 539, 552 (1992).
As to factor eight (relationship between misconduct and public duties),
the Board rejected the Forfeiture ALJ's application of collateral estoppel to the
finding in the tenure proceeding that Cooke's "misconduct did not establish [her]
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unfitness to discharge the duties and functions of her position as a teacher."
Relying on Winters v. North Hudson Regional Fire & Rescue, 212 N.J. 67, 85
(2012), the Board concluded it was not collaterally estopped because it was not
a party to the tenure proceeding. It deemed Cooke collaterally estopped from
disputing the finding that she called Johnson racial epithets on two identifiable
occasions because she was a party to the tenure proceeding.
The Board rejected "the Forfeiture ALJ's conflation of the standards in
disciplinary matters and pension forfeiture matters." While the tenure decision
properly considered progressive discipline in determining whether the record
supported removal, it did not analyze whether the misconduct had a direct
relationship to her teaching duties. The Board found "the Forfeiture ALJ erred
in not making an independent analysis of these facts under Uricoli." The Board
concluded that factor eight weighed in favor of partial forfeiture.
As to factor nine (quality of moral turpitude), the Board noted that "the
Forfeiture ALJ acknowledged that the Tenure Decision described Cooke's
conduct as serious in nature and as a serious error in judgment, but failed to give
sufficient weight to the sustained charges of conduct unbecoming." The Board
concluded the Forfeiture ALJ failed to recognize how Cooke's misconduct
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related to her duties as a teacher and rose to the level of moral turpitude. The
Board found factor nine weighed in favor of partial forfeiture.
As to factor ten (availability and adequacy of other penal sanctions), the
Board rejected "the Forfeiture ALJ's summary conclusions." It found that even
though factor ten weighed more heavily in Cooke's favor, factors seven, eight,
and nine should be given greater weight in the Board's decision, citing Corvelli,
130 N.J. at 553.
Finally, as to factor eleven (other personal circumstances bearing upon
justness of forfeiture), the Board rejected "the Forfeiture ALJ's failure to balance
mitigating factors against the aggravating circumstances found by the Tenure
ALJ." Because she found the personal circumstances asserted by Cooke
unavailing, factor eleven weighed in favor of partial forfeiture.
The Board concluded that Cooke's dishonorable conduct warranted partial
forfeiture. It modified the Forfeiture ALJ's findings of fact, modified and
rejected her conclusions of law, and affirmed the ten percent forfeiture of
Cooke's pension. This appeal followed.
In this appeal, Cooke raises the following points: (1) the Board's rejection
of the Forfeiture ALJ's Initial Decision and affirmance of the ten percent partial
pension forfeiture was arbitrary, capricious, and inconsistent with governing
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law; (2) the Board failed to afford due consideration of Uricoli factor ten,
regarding the adequacy of other penal sanctions, and factor eleven, pertaining to
other personal circumstances bearing upon the justness of forfeiture; and (3)
alternatively, it was error for the Board to apply collateral estoppel in light of
the underlying procedural history.
II.
A.
Our review of a final decision of an administrative agency is limited.
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing
In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should be upheld
"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting Herrmann, 192 N.J. at
27-28). "The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006) (citations
omitted).
"We recognize that agencies have 'expertise and superior knowledge . . .
in their specialized fields.'" Hemsey v. Bd. of Trs., Police & Firemen's Ret.
Sys., 198 N.J. 215, 223 (2009) (alteration in original) (quoting In re License
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Issued to Zahl, 186 N.J. 341, 353 (2006)). We therefore accord deference to the
"agency's interpretation of a statute" it is charged with enforcing. Thompson v.
Bd. of Trs., Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 483 (App.
Div. 2017) (quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys.,
192 N.J. 189, 196 (2007)), aff'd o.b., 233 N.J. 232 (2018). "'Such deference has
been specifically extended to state agencies that administer pension statutes,'
because 'a state agency brings experience and specialized knowledge to its task
of administering and regulating a legislative enactment within its field of
expertise.'" Id. at 483-84 (quoting Piatt v. Police & Firemen's Ret. Sys., 443
N.J. Super. 80, 99 (App. Div. 2015)).
"A reviewing court 'may not substitute its own judgment for the agency's,
even though the court might have reached a different result.'" In re Stallworth,
208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This
is particularly true when the issue under review is directed to the agency's
special 'expertise and superior knowledge of a particular field.'" Id. at 195
(quoting Herrmann, 192 N.J. at 28).
That said, when the facts are undisputed, determinations involving
statutory interpretation are reviewed de novo. Bowser v. Bd. of Trs., Police &
Firemen's Ret. Sys., 455 N.J. Super. 165, 170-71 (App. Div. 2018). Conversely,
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when controlling facts are disputed, we afford deference to the Board's factual
findings. Oceanside Charter Sch. v. Dep't of Educ., 418 N.J. Super. 1, 9 (App.
Div. 2010).
B.
A public employee must provide "honorable service" to receive pension
or retirement benefits. N.J.S.A. 43:1-3(a) ("The receipt of a public pension or
retirement benefit is . . . expressly conditioned upon the rendering of honorable
service by a public officer or employee."); N.J.A.C. 17:1-6.1(a); see also
Corvelli, 130 N.J. at 550 (noting all of New Jersey's public pension statutes
have an implied requirement of honorable service, and forfeiture can be ordered
for employees who violate that requirement). The Board is authorized to order
forfeiture, in whole or in part, "for misconduct occurring during the member's
public service which renders the member's service or part thereof dishonorable."
N.J.S.A. 43:1-3(b); see also N.J.A.C. 17:1-6.1(a), (c).
The forfeiture of a public employee's pension is governed by the eleven
factors enumerated in Uricoli, 91 N.J. at 77-78, and subsequently codified in
N.J.S.A. 43:1-3(c):
(1) the member's length of service; (2) the basis for
retirement; (3) the extent to which the member's
pension has vested; (4) the duties of the particular
member; (5) the member's public employment history
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and record covered under the retirement system; (6) any
other public employment or service; (7) the nature of
the misconduct or crime, including the gravity or
substantiality of the offense, whether it was a single or
multiple offense and whether it was continuing or
isolated; (8) the relationship between the misconduct
and the member's public duties; (9) the quality of moral
turpitude or the degree of guilt or culpability, including
the member's motives and reasons, personal gain and
similar considerations; (10) the availability and
adequacy of other penal sanctions; and (11) other
personal circumstances relating to the member which
bear upon the justness of forfeiture.
[N.J.S.A. 43:1-3(c).]
The factors "must be balanced and then weighed in terms of the goals to
be achieved under the pension laws." Uricoli, 91 N.J. at 78. The test
"accommodates equitable considerations." Corvelli, 130 N.J. at 552. The Board
may, however, attribute more weight to factors seven, eight, and nine, when
applicable. Id. at 552-53.
Forfeiture may be total or partial; partial forfeiture is generally "calculated
as if the accrual of pension rights terminated as of the date the misconduct first
occurred." N.J.S.A. 43:1-3(d); see also Uricoli, 91 N.J. at 79. If the resulting
forfeiture is excessive, the forfeiture should be modified to "reflect[] the nature
and extent of the misconduct and the years of honorable service." N.J.S.A. 43:1-
3(d).
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C.
With those principles in mind, we consider whether the Board's decision
was arbitrary, capricious, unreasonable, or unsupported by substantial credible
evidence in the record.
We first note that an ALJ's factual findings of lay-witness credibility
generally receive deference. See N.J.S.A. 52:14B-10(c) ("The [Board] may not
reject or modify any findings of fact as to issues of credibility of lay witness
testimony unless . . . the findings are arbitrary, capricious or unreasonable or are
not supported by sufficient, competent, and credible evidence in the record.").
In considering that evidence, "the reviewing court should give 'due regard to the
opportunity of the one who heard the witnesses to judge of their credibility. '"
Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v.
Kordulak Bros., 44 N.J. 589, 599 (1965)). "[I]t is not for us or the agency head
to disturb that credibility determination, made after due consideration of the
witnesses' testimony and demeanor during the hearing." H.K. v. Dep't Human
Servs., 184 N.J. 367, 384 (2005). Here, the Tenure ALJ found Cooke's
testimony was outweighed by the testimony of two credible witnesses having no
apparent motive to lie.
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Their testimony demonstrated that Cooke's misconduct occurred on
school property during school hours. It involved two separate incidents of using
racial epithets to disparage a fellow teacher. One statement was made in the
presence of teachers; the other was made in the presence of teachers and
students. The epithets were stated in anger, not jest. The misconduct involved
a repeated pattern of behavior rather than an isolated incident. Cooke's repeated
misconduct was related to her position.
The Board contends that the Forfeiture ALJ erred in applying collateral
estoppel against it rather than Cooke. We agree. In order to apply collateral
estoppel, the party against whom the doctrine is asserted must have been a party
to the earlier proceeding and "the issue to be precluded [must be] identical to
the issue decided in the prior proceeding." Winters, 212 N.J. at 85 (quoting
Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)). Here, neither of those
elements are met. The Board was not a party to the tenure proceedings. The
tenure proceeding involved a different issue (removal or discipline short of
removal) than the pension proceeding (forfeiture of pension benefits).
Consequently, it was error to apply collateral estoppel against the Board.
The result is, of course, different as to Cooke. Cooke was a party to the
tenure proceeding. The misconduct involved was identical in both proceedings;
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the issue was actually litigated in the tenure proceeding; the issue was decided
on the merits in the tenure proceeding; the determination of the issue was
essential to the decision in the tenure proceeding; and Cooke was a party in the
tenure proceeding. See ibid. (quoting Olivieri, 186 N.J. at 521). Moreover,
Cooke has not demonstrated that the settlement agreement was intended "to
operate to vacate" the tenure decision since the settlement agreement contained
no such language. Perez v. Rent-A-Center, Inc., 186 N.J. 188, 201 (2006).
Consequently, the Board properly applied collateral estoppel against Cooke as
to the factual findings of the Tenure ALJ. See Winters, 212 N.J. at 73
(reaffirming that "estoppel principles can apply to findings made in
administrative proceedings and affect subsequent judicial proceedings").
Given our deferential standard of review and the serious nature of Cooke's
repeated misconduct, we discern no basis to overturn the Board's final decision
to impose a ten percent forfeiture of Cooke's pension benefits. The Board's
findings are supported by substantial evidence in the record. The Board
carefully applied and weighed the Uricoli factors, thus, its decision is neither
arbitrary, capricious, nor unreasonable. Lastly, the partial forfeiture is not "so
disproportionate to the offense, in light of all the circumstances, as to be
shocking to one's sense of fairness." Matter of Hendrickson, 235 N.J. 145, 159
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(2018) (quoting Herrmann, 192 N.J. at 28-29). On the contrary, the Board
limited the forfeiture so that it was not excessive, even if hypothetically a more
severe sanction might have been imposed.
Affirmed.
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