IN THE MATTER OF THE REVOCATION OF THE CERTIFICATES OF ANDREA GIUFFRIDA, STATE BOARD OF EXAMINERS (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NOT FOR PUBLICATION WITHOUT THE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-0868-18T3
IN THE MATTER OF THE
REVOCATION OF THE
CERTIFICATES OF ANDREA
GIUFFRIDA, STATE BOARD
OF EXAMINERS.
_____________________________
Argued December 16, 2019 – Decided February 19, 2020
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the New Jersey Commissioner of
Education, Docket No. 3-5/18A.
Sanford R. Oxfeld argued the cause for appellant
Andrea Giuffrida (Oxfeld Cohen, PC, attorneys;
Sanford R. Oxfeld, of counsel; Gail Oxfeld Kanef, on
the brief).
Jennifer Victor Hoff, Deputy Attorney General, argued
the cause for respondent New Jersey Commissioner of
Education (Gurbir S. Grewal, Attorney General,
attorney; Donna Sue Arons, Assistant Attorney
General, of counsel; Joan M. Scatton, Deputy Attorney
General, on the brief).
PER CURIAM
Andrea Giuffrida appeals from the final decision of the Commissioner of
the New Jersey Department of Education (Commissioner), upholding the State
Board of Examiners' (Board) decision revoking her teaching certificates:
Teacher of Elementary School Certificate of Eligibility with Advance Standing;
Teacher of Students with Disabilities; and Learning Disabilities Teacher –
Consultant. On appeal, she argues:
POINT ONE
HERE[,] WHERE THE AGENCY BELOW LACKED
AN OPPORTUNITY TO JUDGE CREDIBILITY[,]
THIS COURT MUST APPLY A DE NOVO OR MORE
PROBING STANDARD OF REVIEW
POINT TWO
THE EXTREME DELAY IN RENDERING A FINAL
DECISION GIVES LIFE TO THE MAXIM "JUSTICE
DELAYED IS JUSTICE DENIED" AND THE
COMMISSIONER FAILED TO CONSIDER
APPELLANT'S REHABILITATION DURING THE
PERIOD OF DELAY
POINT THREE
THE STATE BOARD FAILED TO CONSIDER ANY
MITIGATING FACTORS
POINT FOUR
BECAUSE NO STUDENTS WERE INVOLVED IN
THE INCIDENTS, THE REVOCATION
PUNISHMENT IS TOO SEVERE
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We are constrained to reverse and remand because the Commissioner's
affirmance of the Board's decision, based on the adoption of the credibility
findings of an administrative law judge (ALJ) who did not sit as the judge at the
hearing, was arbitrary and capricious.
Following accusations that she acted inappropriately towards male
colleagues on numerous occasions, a school district imposed a sixty-day
suspension about three months after it hired Giuffrida in August 2011. In
January 2012, she was removed from her position as a non-tenured teacher.
The Board thereafter issued Giuffrida an order to show cause why her
certificates should not be suspended or revoked because of her behavior. The
matter was transferred to the Office of Administrative Law (OAL), and a hearing
took place before an ALJ on April 15, 2013 and February 18, 2014; the record
was closed in July 2014. The ALJ (first ALJ) retired without issuing an initial
decision. The case was not transferred to another ALJ (deciding ALJ) until April
2017.
In her October 13, 2017 written decision, the deciding ALJ recounted the
testimony of the witnesses who appeared before the first ALJ, including that of
three male teachers who alleged Giuffrida inappropriately touched them; one of
those teachers said Giuffrida made inappropriate comments to him. The judge
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recognized that Giuffrida "denied that she acted inappropriately toward any of
her male colleagues and argue[d] that either the allegations are untrue or friendly
gestures to co-workers [that] have been misinterpreted to the Board."
In the deciding judge's findings of fact, she wrote:
Where facts are contested, the trier of fact must
assess and weigh the credibility of the witnesses for
purposes of making factual findings as to the disputed
facts. Credibility is the value that a finder of the facts
gives to a witness' testimony. It requires an overall
assessment of the witness' story in light of its
rationality, internal consistency and the manner in
which it "hangs together" with the other evidence.
Carbo v. U.S., 314 F.2d 718, 749 (9th Cir. 1963).
"Testimony to be believed must not only proceed from
the mouth of a credible witness but must be credible in
itself" in that "[i]t must be such as the common
experience and observation of mankind can approve as
probable in the circumstances." In re Perrone, 5 N.J.
514, 522 (1950). Overall, the witnesses against Ms.
Giuffrida had no reason to fabricate the incidents that
they recounted in their testimony. Their testimony was
specific and credible.
Based on the evidence presented at the hearing as
well as on the opportunity to observe the witnesses and
assess their credibility, I FIND the following[.]
The judge's ensuing findings demonstrate that the facts of the case were highly
disputed, and the resolution of those disputes rested largely on the witnesses'
credibility.
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The judge found Giuffrida "grabbed [P.B.'s]1 rear-end in the office." The
judge continued:
Ms. Giuffrida denied grabbing [P.B.'s] rear-end as he
stood showing a picture of his daughter to a secretary
in the office. She explained in her summation that
somehow brushing up against [P.B.] was
misinterpreted. However, even she could not come up
with a reason that [P.B.] would fabricate the specifics
of such a story. Although I did not see the witnesses as
they testified, [P.B.'s] testimony was very credible in
describing what he recognized as a distinct grab. It was
not a touch or anything else that could have been
misinterpreted. When considering how the testimony
hangs together with the other evidence, [P.B.] is
certainly the more believable of the two.
Based on her admission that she hugged him and her answers to
interrogatories in which she admitted kissing him on the cheek, the judge further
found Giuffrida hugged D.D. and kissed him on the cheek. The judge also found
as undisputed that Giuffrida sent an email to D.D. "because she had gotten 'a
vibe' from him that she thought that it may have been an uncomfortable thing
for him and she did not want it to be," "saying that she was sorry if her touching
him made him feel uncomfortable."
1
We use the male teachers' initials to protect their privacy inasmuch as some
of the allegations involve alleged unreciprocated sexual conduct by Giuffrida.
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The judge also found, despite that Giuffrida "denied having made
inappropriate comments to [D.D.] that her breasts do not look bad for a woman
over forty," that comment was made because D.D. was
the more credible witness. The comment was too
specific for [D.D.] to have made it up and it is
consistent with the other evidence presented that Ms.
Giuffrida would make a comment like that. I therefore
FIND that sometime prior to November 2011, Ms.
Giuffrida said to [D.D.] words to the effect that, "[m]y
breasts don't look bad for a woman over forty, do they?"
The comment was totally inappropriate and made
[D.D.] feel awkward and shocked. He did not tell her
that he felt that way at any time.
Lastly, the judge found Giuffrida admitted kissing J.F., but that Giuffrida
disagre[ed] that the kiss was on the lips and believes
that the kiss was closer to the cheek. Again, Ms.
Giuffrida lacks credibility when considering the totality
of the evidence against her. I therefore FIND that Ms.
Giuffrida inappropriately kissed [J.F.] on the lips in the
presence of other staff members. I further FIND that
the kiss was unwanted and [J.F.] was embarrassed,
surprised and shocked by it. I further FIND that [J.F.]
told her that her actions were inappropriate and that he
asked that she never do it again.
The deciding ALJ recommended the suspension of Giuffrida's teaching
certificates.
Both parties filed cross-exceptions, and the Board issued a final decision
adopting the deciding ALJ's initial decision, citing in part to the judge's
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credibility findings, but modified the penalty to impose a complete revocation
of Giuffrida's certificates. In so holding, the Board noted:
Giuffrida systematically engaged in behavior that
violated all norms of acceptable conduct in a workplace
environment. Moreover, her actions embarrassed and
discomfited her colleagues. Her arguments that any
penalty is unnecessary because she's "learned her
lesson" or inappropriate because of the lengthy passage
of time are misplaced. The Board's focus is and should
be on Giuffrida's conduct at the time it happened and
its impact upon those around her. . . . The Board
therefore believes that the appropriate penalty in this
matter is the revocation of her certificates.
Giuffrida appealed to the Commissioner who, in affirming the Board's
decision "for the reasons expressed therein," recognized "[t]he Board stresse[d]
that it did not reject or modify any findings of fact nor any of the ALJ's
conclusions with respect to the findings of unbecoming conduct[.]" The
Commissioner determined the conduct that was "amply supported by the record"
included:
grabbing the rear-end of a co-worker; kissing a co-
worker on the lips in front of other staff members;
hugging and kissing another co-worker; and making
comments such as, "my breasts don't look bad for a
woman over forty."
The Commissioner concluded: "There is nothing in the record to suggest that
the Board's decision to revoke [Giuffrida's] certificates – based on the nature
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and extent of the unbecoming conduct proven at the OAL – was arbitrary,
capricious or unreasonable."
Our review of that decision is limited. In re Carter, 191 N.J. 474, 482
(2007). We will not upset the decision of an administrative agency "absen[t]
. . . a showing that it was arbitrary, capricious or unreasonable, or that it lacked
fair support in the evidence, or that it violated legislative policies expressed or
implicit in the civil service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556,
562 (1963). In determining whether an agency action was arbitrary, capricious
or unreasonable, we are obliged to consider:
(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]
When the agency's decision satisfies those criteria, we are cognizant of
our responsibility to afford "substantial deference to the agency's expertise and
superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28
(2007). That deference also applies to our review of the disciplinary sanction
the agency chose to impose. Ibid.; In re Stallworth, 208 N.J. 182, 195 (2011).
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Of course, among those disciplinary sanctions is the express authority granted
to the Board to "revoke" teaching certificates, N.J.S.A. 18A:6-38, on the basis
of "inefficiency, incapacity, conduct unbecoming a teacher, or other just cause,"
N.J.A.C. 6A:9B-4.4.
While we also defer to an agency's final determination based on the ALJ's
findings of fact and credibility, see Burlington Cty. Bd. of Soc. Servs. v. G.W.,
425 N.J. Super. 42, 47 (App. Div. 2012), and to the Commissioner's adoption of
credibility findings, we do so because the ALJ had the first-hand opportunity to
observe the witnesses, assess their demeanor, and determine which witnesses, if
any, are credible, In re Taylor, 158 N.J. 644, 656 (1999).
That deference is unwarranted here because, contrary to the legion of
cases expressly prohibiting the practice, see e.g., Conforti v. Guliadis, 128 N.J.
318, 322-23 (1992), the deciding ALJ judged the witnesses' credibility without
hearing their testimony, see Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587
(1988).
We are mindful that "it is the agency's function, not the [ALJ]'s, to make
the findings of fact and . . . the ultimate decision" in the case. N.J. Dep't of
Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 505 (App. Div.
1983) (quoting N.J. Bell Tel. Co. v. State, 162 N.J. Super. 60, 77 (App. Div.
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1978)). The final decision adopted by the Commissioner, however, fully
considered the credibility findings based only on the ALJ's review of the cold
transcripts. As such, it cannot be determined, absent that evidence, "whether
the record contains substantial evidence to support the findings on which the
agency based its action[.]" Mazza, 143 N.J. at 25.
We decline to exercise de novo review of the record to determine if the
Commissioner could have reached the same conclusion without those factual
findings based on the deciding judge's credibility findings; that is, would the
decision have been supported by the record without reference to those findings .
See Herrmann, 192 N.J. at 27-28. If we parsed the expurgated factual findings,
we would be unable to apply the Commissioner's expertise in this educational
disciplinary matter, to which we owe substantial deference. Id. at 28.
The Court's observations in Abbott v. Burke, 100 N.J. 269, 300-01 (1985),
albeit made in addressing the proper procedure in school-funding controversies,
are apt in this case:
[T]he issues of educational quality and municipal
finance may be more effectively presented,
comprehended, and assessed by a tribunal with the
particular training, acquired expertise, actual
experience, and direct regulatory responsibility in these
fields. For these reasons, the Court has repeatedly
acknowledged and approved the administrative
handling of educational controversies that arise in the
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context of constitutional and statutory litigation,
including evaluation of local educational problems,
design of remedial measures, and supervision of the
program implementation. E.g., In re Trenton Bd. of
Educ., 86 N.J. 327 (1981) (concerning operation of
classroom programs, revenue raising and budgeting,
and affirmative action); In re Upper Freehold Reg'l Sch.
Dist., 86 N.J. 265 (1981) (concerning physical plant
and revenue raising); [Hinfey v. Matawan Reg'l Bd. of
Educ.], 77 N.J. 514 (1978) (concerning discrimination
in academic courses of study and curriculum); Dunellen
Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17 (1973)
(concerning school administration); Jenkins v. Morris
Twp. Sch. Dist., 58 N.J. 483 (1971) (concerning
integration).
We remand this matter to the Commissioner to decide whether the record,
devoid of the evidence based on the deciding ALJ's credibility findings,
sufficiently supports the revocation of Giuffrida's teaching certificates. If that
determination cannot be made on the redacted record, a new hearing before a
different ALJ should be held because the deciding ALJ has already made
credibility determinations. See In re Wolf, 231 N.J. Super. 365, 378 (App. Div.
1989) (remanding a case to a different ALJ because "the ALJ who initially heard
the case . . . made credibility findings which might [have been] difficult to
disregard after a rehearing").
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In light of our decision, we need not address Giuffrida's remaining
arguments. Reversed and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
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