COREY J. LOWELL VS. GENEVA SMALLWOOD(NEW JERSEY COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE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-1306-15T2
COREY J. LOWELL,
Complainant-Respondent,
v.
GENEVA SMALLWOOD and
ASBURY PARK BOARD OF
EDUCATION, MONMOUTH COUNTY,
Respondents,
and
FELICIA SIMMONS,
Respondent-Appellant.
________________________________
Argued March 27, 2017 – Decided May 22, 2017
Before Judges Sabatino, Nugent, and Currier.
On appeal from the New Jersey Commissioner of
Education, Docket No. 2-4/15A.
Carl N. Tripician argued the cause for
appellant Felicia Simmons.
James M. Esposito, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Education (Christopher S.
Porrino, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Mr. Esposito, on the brief).
PER CURIAM
Appellant Felicia Simmons appeals from the decision of the
Commissioner of Education (Commissioner) upholding the
determination of the School Ethics Commission (SEC) that she
violated certain provisions of the Code of Ethics for School Board
Members (Code) and the ensuing penalty of censure.
Appellant and respondent Geneva Smallwood were members of the
Asbury Park Board of Education (Board). Another Board member,
Corey Lowell, filed a complaint with the SEC, asserting that
appellant and Smallwood had violated the Code, N.J.S.A. 18A:12-
24.1(a)-(j), in their dealings with a potential candidate for
superintendent of their school district. Appellant filed an answer
through counsel stating that her "actions were legal and in
accordance with [N.J.S.A.] 18A:12-24.1(a)." The answer listed
"Defenses" which included the statement: "Respondent[] [was]
within [her] lawful right to attend the meetings alleged in the
complaint and with full knowledge of the Asbury Park Board of
Education."
2 A-1306-15T2
At the SEC hearing, Lowell was the only witness. She
testified that although the Board had appointed a candidate to be
its superintendent in November 2013, the State fiscal monitor for
the school district overturned the decision after determining the
candidate was not qualified. The Board held a closed meeting in
February 2014 during which it discussed the possibility of hiring
the same candidate as an interim superintendent. The personnel
committee1 was directed to meet with the state monitor to discuss
the appointment.
Lowell recalled that the following month, at another closed
Board meeting, Smallwood advised that she and appellant had met
with representatives of the former employer of the potential
candidate to discuss his qualifications for employment. This
action was contrary to the instructions of the Board from the
prior meeting. Lowell stated that the remaining board members
were unaware of this site visit, and she asserted that the
unauthorized visit was a violation of the code.
Several documents were admitted into evidence, including
emails between Smallwood and the candidate that discussed the
arrangement of a meeting. A portion of an email sent from
Smallwood to the candidate advised that "a delegation (personnel)
1
Appellant and Smallwood were on the personnel committee.
3 A-1306-15T2
will be available to meet with your group." Appellant and
Smallwood did not testify or present any witnesses at the SEC
hearing.
On March 24, 2015, the SEC issued its decision containing
extensive findings of fact and concluding that appellant and
Smallwood had both violated N.J.S.A. 18A:12-24.1(c) and (e)2; a
penalty of censure was recommended.
The SEC found Lowell to be "a credible witness who offered
consistent testimony which was not weakened by an often contentious
cross-examination." The SEC also found that "[t]he Public Session
minutes of the March 18, 2014 [Board] meeting clearly show that
Complainant Lowell attended the entire meeting," and thus, she had
testified from personal knowledge about the meeting. The SEC
2
The relevant portions of the Code provide:
(c) I will confine my board action to policy
making, planning, and appraisal, and I will
help to frame policies and plans only after
the board has consulted those who will be
affected by them.
. . . .
(e) 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 (c) and (e).]
4 A-1306-15T2
noted that appellant and Smallwood "elected not to testify or call
witnesses on their behalf," and therefore, "Complainant Lowell's
testimony and documentary evidence are unchallenged and
uncontroverted by any competent, credible evidence by either
respondent." Thus, the SEC concluded that appellant and Smallwood
"conducted the site visit without Board approval in violation of
the Code of Ethics for School Board Members."
The SEC held that appellant and Smallwood "took board action
beyond the scope of their authority and in violation of [N.J.S.A.
18A:12-24.1(c)] when, without Board authority and without the
approval of the State Monitor, they conducted a site visit to
assess a candidate for Assistant Superintendent." The SEC further
held that appellant and Smallwood "violated [N.J.S.A. 18A:12-
24.1(e)] when they made personal promises to the candidate by
advancing the possibility of his employment with the District."
The Commissioner affirmed the SEC's decision and penalty on October
16, 2015, finding that it was supported by "sufficient credible
evidence."
Appellant contends on appeal3 that there was insufficient
evidence for the Commissioner to conclude she violated any
provisions of the code, and that the SEC and Commissioner
3
Smallwood did not appeal the Commissioner's decision.
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improperly shifted the burden of proof to her to contradict
Lowell's testimony. She also asserts that the imposed penalty was
disproportionately severe.
Appellate review of administrative agency decisions is
limited. A reviewing court generally will not disturb an agency's
action unless it was clearly "arbitrary, capricious, or
unreasonable." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
(citation omitted). The reviewing court "can intervene only in
those rare circumstances in which an agency action is clearly
inconsistent with its statutory mission or with other State
policy." George Harms Constr. v. Turnpike Auth., 137 N.J. 8, 27
(1994). Judicial review of an agency's factual determination is
highly deferential. In re Bridgewater, 95 N.J. 235, 245 (1984).
"[I]f substantial credible evidence supports an agency's
conclusion, a court may not substitute its own judgment for the
agency's even though the court might have reached a different
result." Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992) (citations omitted).
Appellant argues that the hearsay evidence relied upon by the
Commissioner was not supported by legally competent evidence in
the record, and therefore, did not satisfy the "residuum rule" for
administrative agency hearings. She also contends that the
Commissioner conflated the evidence against Smallwood with the
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evidence (or lack thereof) against her. Appellant maintains that
her answer to the complaint is not an admission and does not
support the conclusion of the Commissioner that she attended the
unauthorized meeting. Finally, she claims that Lowell was not
present during the Board's executive session on March 18, 2014,
and therefore, had no personal knowledge of the alleged Board
meeting.
In administrative proceedings, parties are not bound by the
formalities of the Rules of Evidence. N.J.A.C. 1:1-15.1.4 Thus,
"[h]earsay may be employed to corroborate competent proof, or
competent proof may be supported or given added probative force
by hearsay testimony." Weston v. State, 60 N.J. 36, 51 (1972).
However, "a fact finding or a legal determination cannot be based
upon hearsay alone . . . . [T]here must be a residuum of legal and
competent evidence in the record" for a court to uphold an
administrative decision. Ibid. (citations omitted). The residuum
rule, however, "does not require that each fact be based on a
residuum of legally competent evidence but rather focuses on the
ultimate finding or findings of material fact. The competent
evidence standard applied to ultimate facts requires affirmance
if the finding could reasonably be made." Ruroede v. Borough of
4
N.J.S.A. 18A:12-29(b) provides that a hearing shall be conducted
in accordance with the rules of the Office of Administrative Law.
7 A-1306-15T2
Hasbrouck Heights, 214 N.J. 338, 359-60 (2013) (citations
omitted).
Here, the Commissioner's finding that appellant violated
N.J.S.A. 18A:12-24.1(c) and (e) is supported by credible evidence
in the record.
Subsection (c) of the Code provides: "I will confine my board
action to policy making, planning, and appraisal, and I will help
to frame policies and plans only after the board has consulted
those who will be affected by them." Pursuant to N.J.A.C. 6A:28-
6.4(a)(3): "Factual evidence of a violation of N.J.S.A. 18A:12-
24.1(c) shall include evidence that the [board member] took board
action to effectuate policies and plans without consulting those
affected by such policies and plans, or took action that was
unrelated to the [board member's] duty."
In addressing the alleged violation of N.J.S.A. 18A:12-
24.1(c), the Commissioner found that Lowell's testimony that
appellant and Smallwood conducted a site visit without Board
approval was supported by Smallwood's email and appellant's
answer, "in which both, respectively, admit to attending the site
visit."
Appellant argues that her "loosely crafted" and "inartfully
drafted" answer should not serve as legally competent evidence to
satisfy the residuum rule. We disagree. Appellant is bound under
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N.J.R.E. 803(b)(3) by counsel's statements of her legal position.
See also Howard Sav. Bank v. Liberty Mut. Ins. Co., 285 N.J. Super.
491, 497 (App. Div. 1995). We also reject the argument that the
term "meetings" in the answer is ambiguous and could refer to
Board meetings. The sentence refers directly to the allegations
in the complaint; the only meeting referenced in the complaint was
the one appellant attended on site with the candidate's employer
and the subject of the ethical violation.
The Commissioner also noted that Lowell testified that
appellant and Smallwood were not authorized to conduct a site
visit; instead, the Board had directed the personnel committee to
meet with the state monitor to discuss the hiring of an interim
superintendent. The Commissioner determined that Lowell's
uncontradicted testimony was supported by "[t]he fact that three
other Board members confirmed to [Lowell] that they did not
authorize respondents to conduct a site visit, and that the State
Monitor did not object at the [Board] meeting" of March 18, 2014,
when Lowell raised the site visit as an ethics violation.
Subsection (e) 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." Pursuant to N.J.A.C. 6A:28-6.4(a)(5): "Factual evidence
of a violation of N.J.S.A. 18A:12-24.1(e) shall include evidence
9 A-1306-15T2
that the [board member] 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."
In addressing the violation of N.J.S.A. 18A:12-24.1(e), the
Commissioner found that "[b]oth the site visit and the email
exchange had the potential to compromise the Board because they
implied that respondents w[]ere acting on behalf of the Board when
there was no authorization for a site visit or to communicate with
the candidate about the position."
Appellant's allegation that the residuum rule was violated
is unpersuasive. There is independent evidence from Smallwood's
emails and appellant's pleading that she participated in the
unauthorized site visit and resulting promise of employment.
We are also satisfied that appellant's contention that Lowell
was not present at the March 18, 2014 Board meeting where Smallwood
revealed the occurrence of the unauthorized site visit has no
merit. The SEC determined that the Public Session minutes for the
March 18 meeting, coupled with Lowell's testimony that she was
present for the entire meeting, proved that "Lowell was present
to hear Smallwood's account of the site visit, which she and
[appellant] conducted." Appellant did not contradict Smallwood's
statement at that meeting.
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In her merits brief, appellant incidentally argued that the
Commissioner appeared to suggest in a footnote to its decision
that her failure to offer any evidence to contradict Lowell's
testimony could permit the invocation of an adverse inference.
Appellant contends this is an improper shifting of the burden of
proof to her. After noting that Lowell's testimony was
uncontradicted, the Commissioner's decision states in footnote
six: "In administrative matters, the trier of fact is permitted
to draw an adverse inference from the silence of a party who
declines to testify. State Dep't of Law and Public Safety v.
Merlino, 216 N.J. Super. 579 (App. Div. 1987), aff'd, 109 N.J.
134 (1988)."
In Merlino, several gamblers were placed on a list by the
Casino Control Commission (CCC) that served to exclude them from
the premises of any licensed gambling casino in New Jersey. During
the hearing before the Administrative Law judge (ALJ), the gamblers
invoked their Fifth Amendment privilege against self-
incrimination. The ALJ did not draw an adverse inference as a
result of the assertion of the privilege. In its decision on the
administrative appeal, the CCC ruled that it was proper to draw
an adverse inference from the gamblers' invocation of the Fifth
Amendment in refusing to answer questions about their criminal
associations.
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In the appeal before this court, we considered the issue and
noted that "[i]t is well settled that in administrative and civil
proceedings, it is permissible for the trier of fact to draw
adverse inferences from a party's plea of the Fifth Amendment."
Id. at 587. However, we cautioned that "the inference may be
drawn only if there is other evidence supporting an adverse
finding; it must not alone constitute the evidence of guilt."
Ibid. We also warned that an inference could not be drawn if the
penalty to be imposed was "so severe as to effectively destroy the
privilege, such as disbarment or the loss of professional
reputation." Ibid.
Here, appellant did not invoke her Fifth Amendment privilege;
rather she declined to present any witnesses or testimony on her
behalf. This of course is appellant's prerogative. It does not
result in a shifting of the burden of proof to her. Her choice
of defense strategy likewise does not permit the drawing of an
adverse inference against her. Despite the Commissioner's
allusion to the viability of an adverse inference in the cited
footnote, we are unable to discern, and appellant does not
identify, anything in the respective decisions to suggest the
invocation of an adverse inference or a shifting of the burden of
proof. To the contrary, the Commissioner relied on ample other
12 A-1306-15T2
evidence as discussed, supra, in support of its determination to
uphold the SEC's findings.5
We add only the following comment, although not asserted by
appellant, that in light of the imposed penalty of censure, it
would have been improper for the Commissioner to draw an adverse
inference in this setting. A censure is "a formal expression of
disapproval by the Commissioner which is publicized by the adoption
of a formal resolution by the School Ethics Commission and the
school official's district board of education . . . at a public
meeting." N.J.A.C. 6A:28-1.2. Such a public penalty might
reasonably be considered as threatening appellant with the risk
of losing her professional reputation. In those circumstances,
as we noted in Merlino, supra, 216 N.J. Super. at 587, the
assertion of an adverse inference is not permissible. We again
discern, as we did in our discussion of appellant's alleged
5
The adverse inference charge enunciated in State v. Clawans, 38
N.J. 162 (1962) has fallen into disfavor with the Court in recent
years. See State v. Hill, 199 N.J. 545, 566 (2009) ("It is
difficult to foresee a situation where a Clawans charge might play
a proper role in a case against a criminal defendant."). See also
Washington v. Perez, 219 N.J. 338, 358-59 (2014) (In both civil
and criminal trials, "the adverse inference charge should only be
given if the party seeking it gives appropriate notice to the
court and counsel, and the trial court, after carefully considering
the four factors identified in Hill, determines that it is
warranted.").
13 A-1306-15T2
violations of the code, no indication in the record that
appellant's decision to not present any evidence was considered
in any respect in the assessment of the penalty.
In addressing appellant's argument that a censure was a
penalty "disproportionately severe" to the violations, we remain
mindful of our limited and deferential review. In re Herrmann,
192 N.J. 19, 28 (2007). A censure is one of the four penalties
that the SEC is required to recommend upon a finding that the Code
has been violated. N.J.S.A. 18A:12-29(c).6 The Commissioner
agreed with the SEC's finding that censure was consistent with the
penalties imposed in previous cases involving a breach of N.J.S.A.
18A:12-24.1(c) and (e). As the agency's action is in conformity
with its delegated authority, we decline to overturn its decision.
The Commissioner's affirmance of the SEC's finding that
appellant violated the Code is supported by the credible evidence
in the record and is neither arbitrary nor capricious.
Affirmed.
6
The SEC may recommend a penalty of reprimand, censure,
suspension, or removal from the Board. N.J.S.A. 18A:12-29(c).
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