NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0052-18T3
CECILIA MULLANAPHY,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE TOWNSHIP OF MARLBORO, MONMOUTH COUNTY,
Respondent-Respondent. ____________________________
Argued telephonically October 16, 2019 - Decided November 6, 2019
Before Judges Vernoia and Susswein.
On appeal from the New Jersey Commissioner of Education, Docket No. 187-7/16.
Stephen B. Hunter argued the cause for appellant (Detzky, Hunter & Defillippo, LLC, attorneys; Stephen B. Hunter, of counsel and on the brief).
Marc H. Zitomer argued the cause for respondent Board of Education of the Township of Marlboro (Schenck, Price, Smith & King, LLP, attorneys; Marc H. Zitomer and Sandra Calvert Nathans, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Donna Arons, Assistant Attorney General, of counsel; James M. Esposito, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM
Petitioner Cecilia Mullanaphy, a school nurse employed by the Marlboro
Township Board of Education (Board), appeals from a Commissioner of
Education final decision upholding the Board's withholding of petitioner's salary
increment for the 2015-2016 school year. Having reviewed the record in light
of the applicable law, we are convinced the Commissioner's decision is
supported by substantial credible evidence and is not arbitrary, capricious , or
unreasonable, and we affirm.
I.
In May 2015, the Board voted to withhold petitioner's salary and
adjustment increment for the 2015-2016 school year based on its determination
petitioner did not adequately investigate the circumstances surrounding a
February 4, 2015 incident during which a fifth-grade student fainted, did not
properly report the incident to the student's parents, and failed to follow the
applicable guidelines for the assessment and treatment of a fainting student.
A-0052-18T3 2 Two months later, petitioner filed a petition with the Commissioner of Education
(Commissioner) seeking rescission of the Board's decision, alleging it was
arbitrary, capricious, and unreasonable and unsupported by the evidence. 1 The
Commissioner transmitted the matter to the Office of Administrative Law,
where a hearing was held before an administrative law judge (ALJ).
The evidence at the hearing showed petitioner is a certified school nurse
who has been employed by the Board since the 1994-1995 school year. During
the 2014-2015 school year, petitioner served as the school nurse at an
elementary school.
On February 4, 2015, the school held a choral concert in its cafetorium
during which over one hundred fifth-grade students, all standing on bleachers,
performed. One of the students standing on the back row of the bleachers felt
light-headed and fainted. The student was helped from the bleachers to the floor
by two teachers. The student was given water and seated in a chair. Philip
1 Initially, petitioner's collective negotiations representative, the Marlboro Township Education Association (Association), filed a grievance alleging the Board disciplined petitioner without just cause and requesting reinstatement of the increment. Following the denial of the grievance, the Association sought the appointment of an arbitrator, and the Board filed a scope of negotiations petition with the New Jersey Public Employment Relations Commission (PERC). PERC granted the Board's request to restrain the arbitration and determined the dispute should be resolved by the Commissioner. Petitioner then filed the petition that is the subject of the pending appeal. A-0052-18T3 3 Lozada, a teacher who is also a certified emergency medical technician, hurried
over to assist the student. He took the student's pulse and assessed her breathing,
which he reported as normal.
Petitioner was called to the cafetorium, and, when she arrived, Lozada
informed her the student had been standing in the bleachers for approximately
one hour and may have fainted but was recovering. Petitioner spoke to the
student and determined emergency services were not required and that the
student could walk to the nurse's office. After petitioner and the student arrived
at the nurse's office, petitioner had the student drink water and sit on a cot with
her legs elevated. After observing the student for twenty to thirty minutes,
petitioner allowed the student to leave the nurse's office and return to her class
unsupervised.
Petitioner called the student's mother but did not inform her that the
student either fainted or may have lost consciousness. The mother later called
back and asked to speak with her daughter. Petitioner brought the student back
to the nurse's office, where she spoke to her mother on the phone and then
returned to class. Later that day, petitioner went home sick and was out of work
for the next two days.
A-0052-18T3 4 The following day, February 5, 2015, the student's mother sent petitioner
an email expressing concerns about petitioner's handling of the incident. The
student's mother described that petitioner made the incident seem "very minor"
during their phone call the prior day and that it was not until the mother received
text messages from parents of other students that she first learned her daughter
had fainted. The student's mother questioned why petitioner provided "very
little details" and wondered how long her daughter had been unconscious,
whether her daughter had hit any part of her body, and whether her daughter 's
blood pressure or pulse measurements were taken. Finally, the mother
questioned why a child who fainted had not been examined by a doctor.
Petitioner responded to the email on February 6, explaining her actions.
She described being called to the cafetorium and finding the student "alert,
responsive, pale, clammy and sitting in a chair with a water bottle." She also
stated that to her knowledge the student had not fainted. She explained th e
student was able to walk to the nurse's office without assistance and that after a
few minutes "her color returned, she interacted with another student . . . [s]he
rested for [thirty] minutes and felt fine to go back to class . . . ." Petitioner
assured the student's mother that it is not uncommon for students standing under
hot lights to "get light-headed, dizzy, and sometimes faint." Petitioner
A-0052-18T3 5 apologized for being absent from school and unavailable to answer the mother's
questions, but assured her that "had this been a medical emergency, 911 would
have been called."
Eric M. Hibbs, Ed.D., is the Superintendent of Schools in Marlboro. He
was not present at the concert, but was informed about the incident. The school
principal and the student's mother both contacted Dr. Hibbs. Dr. Hibbs met with
the student's mother, who was "furious" and felt that petitioner endangered her
daughter's health by failing to call emergency services after her daughter fainted
and failed to accurately communicate the seriousness of the incident. Dr. Hibbs
conducted an investigation of the incident.
During his investigation, Dr. Hibbs: (1) obtained statements from all of
the staff members who witnessed the incident; (2) met with the head of human
resources for the school district, Craig Vaughn; (3) reviewed video of the
incident in the cafetorium; (4) met with petitioner; (5) reviewed the nursing
manual and discussed it with nursing supervisor, Linda Attanasio; and (6) spoke
to school physician Dr. Mary Yee.
Separate statements obtained from three teachers present when the
incident occurred indicated that the student fainted. One teacher reported seeing
the student "passing out," and described how the student's "eyes were closed and
A-0052-18T3 6 she was unresponsive for about [fifteen] seconds." Another teacher reported the
student "suddenly collapsed into the backing of the top row" of the risers, and
"was not getting back up and seemed to be passed out." Finally, Lozada reported
he informed petitioner he "suspected that the [student] might have fainted" when
petitioner first arrived at the cafetorium.
Dr. Hibbs testified that he generally agreed with the student's mother that
petitioner performed ineptly during this incident. Specifically, Dr. Hibbs
concluded: (1) the incident should have been treated as an emergency because
the student had lost consciousness and did not merely feel faint; (2) emergency
services should have been called; (3) school nursing protocols were not
followed, even if he accepted petitioner's "mischaracterization" of the event as
non-urgent, because the student was not placed in a supine position, she was not
given a cold compress, her clothes were not loosened, and her vital signs were
not monitored; (4) the student should not have been allowed to walk back to
class unattended; and (5) petitioner's explanation to the student's mother was
inaccurate and incomplete.
Dr. Hibbs had instructed petitioner to prepare a report providing a formal
description of the incident beyond the details included in petitioner 's nursing
notes. Dr. Hibbs provided a copy of the report to the student's mother, who
A-0052-18T3 7 expressed concern that petitioner did not mention her daughter's loss of
consciousness.
Dr. Hibbs met with the human resources director, Vaughn, and decided,
as a result of the incident, to recommend that the Board withhold petitioner's
salary increment for the following school year. The Board unanimously
supported the recommendation and voted to withhold the increment. Dr. Hibbs
testified he made his recommendation because: (1) petitioner's nursing notes did
not accurately indicate what actually occurred; (2) petitioner did not adequately
investigate what occurred; (3) petitioner misinformed the student's mother about
the student's fainting; and (4) petitioner did not follow nursing protocols for
students that faint. Following the Board's decision to withhold the increment,
Dr. Hibbs provided petitioner with a letter detailing the reasons for the decision
and explaining the basis for his recommendation to the Board.
At the hearing before the ALJ, petitioner testified that when she arrived at
the cafetorium following the incident, Lozada said the student had felt faint and
had been placed in the chair. Petitioner explained that she assessed the student
and determined she was alert and responsive. Petitioner acknowledged
determining the student had a fainting incident. Petitioner also testified the
student was treated in accordance with the school district's published protocols,
A-0052-18T3 8 and that the student had recovered sufficiently after thirty minutes of
observations to return to class. According to petitioner, the incident constituted
a non-emergent matter that resulted solely from the student's reaction to standing
lock-kneed in the warm cafetorium for approximately one hour. Petitioner
testified she complied with the district's protocols and guidelines for non-urgent
incidents, including by telephoning the student's mother and informing her what
occurred. She further explained she did not violate a protocol requiring the
monitoring of a student's vital signs following a fainting incident because the
protocol applied only on an "as needed basis" and there was no need to check
the student's vital signs under the circumstances presented.
The ALJ found the student "briefly fainted" during the incident, was given
water, and was required to place her head in a downward position. The ALJ
further found the student's vital signs were found to be normal by Lozada, an
emergency medical technician. The ALJ also determined that upon petitioner's
arrival in the cafetorium, she evaluated the student and determined "the situation
was not urgent." The ALJ found the student suffered from heat exhaustion and
dehydration, and petitioner observed the student for thirty minutes before
allowing her to return to class. The ALJ concluded the district protocols are
guidelines and care is properly based on clinical presentation. The ALJ further
A-0052-18T3 9 determined that petitioner contacted the student's mother and "generally
described that [the student] had become dizzy . . . and was brought to the nurse's
office, where she fully recovered."
In her assessment of the Board's decision to withhold the increment, the
ALJ quoted from, and apparently relied on, the statutory standard applicable to
the dismissal or reduction in salary of a tenured teacher. See N.J.S.A. 18A:6-
10. The ALJ also suggested the district's recommended guidelines for the
treatment of an unconscious student were inapplicable because the student "had
already begun to recover when [petitioner] first observed her." The ALJ rejected
Dr. Hibb's determination that petitioner inaccurately described the incident to
the student's mother, finding petitioner's failure to inform the mother that her
daughter fainted was not "false, or misleading" because "as this was not an
emergency there was no reason to alarm the parent." The ALJ ordered that
petitioner's increment for the 2015-2016 school year be reinstated.
The Board filed exceptions to the ALJ's decision and recommendation.
The Board argued the ALJ applied an incorrect and heightened standard under
N.J.S.A. 18A:6-10 and improperly substituted her judgment for the Board's. The
Commissioner agreed, finding the ALJ erred by relying on the standard
applicable to a school board's decision reducing the compensation of, or
A-0052-18T3 10 dismissing, a tenured teacher. See N.J.S.A. 18A:6-10. The Commissioner
explained that under N.J.S.A. 18A:6-10, a board of education bears the burden
of supporting a revocation of tenure. The Commissioner noted that in contrast,
under N.J.S.A. 18A:29-14 a school employee challenging the withholding of an
increment has the burden of establishing the decision is arbitrary, capricious,
lacks a rational basis, or is the product of improper motives.
The Commissioner noted that in Kopera v. Board of Education of West
Orange, we stated that the determination of whether the withholding of an
increment is reasonable requires consideration of whether the facts supporting a
board of education's decision are as the board claims them to be, and whether it
was unreasonable for the board of education to conclude as it did based on the
facts presented. 60 N.J. Super. 288, 296-97 (App. Div. 1960).
The Commissioner determined the standard applicable to the assessment
of the Board's decision is set forth in N.J.S.A. 18A:29-14, entitled "Withholding
increments; causes; notice of appeals," which provides:
[a]ny board of education may withhold, for inefficiency or other good cause, the employment increment, or the adjusted increment, or both, of any member in any year by a recorded roll call majority vote of the full membership of the board of education.
A-0052-18T3 11 The Commissioner further noted that in Kopera, we held that the scope of review
of a board of education's decision to withhold an increment is "not to substitute
his [or her] judgment for that of those who made the evaluation but to determine
whether they had a reasonable basis for their conclusions." 60 N.J. Super. at
296.
The Commissioner determined the ALJ erred by finding the district's
protocols constituted only guidelines, explaining the Standing Operating
Procedures for School Nurses includes mandatory requirements for the
treatment of a student who faints that were ignored by petitioner. 2 The
Commissioner therefore determined the Board appropriately found petitioner
was derelict in the performance of her duties. The Commissioner further found
the Board had a rational basis for withholding petitioner's increment because she
failed to follow the required protocols for treatment of a student who faints,
failed to properly investigate whether the student lost consciousness, and failed
to provide "complete and accurate information to [the student's] parents."
2 As noted by the Commissioner, the Standard Operating Procedures for School Nurses requires a nurse must apply a cold compress to the head of a student who faints, loosen the student's clothes, monitor the student's vital signs, assess the student's breathing and pulse, activate the medical emergency response team, review the student's health history with the student's parents, and inform the student's parents the student fainted. A-0052-18T3 12 The Commissioner concluded that the Board's decision is supported by
evidence establishing petitioner's poor performance in the handling of the
fainting incident, and that petitioner failed to demonstrate the Board's decision
was arbitrary, capricious, unreasonable, or the result of any improper motives.
The Commissioner rejected the ALJ's recommendation and affirmed the Board's
decision withholding petitioner's increment for the 2015-2016 school year. This
appeal followed.
II.
Our review of the Commissioner's decision is limited. A final decision of
an administrative agency should not be disturbed unless it is arbitrary,
capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
An appellate court should undertake a "careful and principled consideration of
the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate
Setting Comm'n, 98 N.J. 458, 468 (1985). The findings of the administrative
agency should be affirmed if they "'could reasonably have been reached on
sufficient credible evidence present in the record,' considering 'the proofs as a
whole' . . . with due regard also to the agency's expertise." Close v. Kordulak
Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)
(internal quotations omitted)). We "intervene only in those rare circumstances
A-0052-18T3 13 in which an agency action is clearly inconsistent with its statutory mission or
with other State policy." Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).
To reverse an agency's judgment, we "must find the agency's decision to
be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial
credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194
(2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). Our
Supreme Court has explained that
[a]ppellate review of an agency's determination is limited in scope . . . . Without a "clear showing" that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance.
[Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009) (citing In re Herrmann, 192 N.J. 19, 27-28 (2007))].
Measured against these standards, we find no basis to reverse the
Commissioner's decision. N.J.S.A. 18A:29-14 authorized the Board to withhold
petitioner's increment "for inefficiency or other good cause," and "[t]he decision
to withhold an increment is . . . a matter of essential managerial prerogative
which has been delegated by the Legislature to the Board." Bd. of Educ. v.
Bernards Twp. Educ. Ass'n, 79 N.J. 311, 321 (1979).
A-0052-18T3 14 Generally, salary increments are "in the nature of a reward for meritorious
service to the school district," rather than being "statutory entitlement[s]."
North Plainfield Educ. Ass'n v. Bd. of Educ., 96 N.J. 587, 593 (1984). Indeed,
N.J.S.A. 18A:29-14 was "clearly . . . meant to vest local boards with the ability
to withhold increments from teachers who had not performed well during the
previous year." Probst v. Bd. of Educ., 127 N.J. 518, 526 (1992). A board's
exercise of this discretionary power "may not be upset unless patently arbitrary,
without rational basis or induced by improper motives." Parsippany-Troy Hills
Educ. Ass'n v. Bd. of Educ., 188 N.J. Super. 161, 167 (App. Div. 1983) (quoting
Kopera, 60 N.J. Super. at 294).
Petitioner argues the Board's decision withholding her increment was
impermissibly "arbitrary and capricious." She claims the "underlying facts"
relied on by the Board and Commissioner are "unsupported and unsupportable."
Her claim is founded on her version of the facts and her interpretation of the
evidence. She contends the Board and Commissioner erred by relying on Dr.
Hibbs' version of the events and his interpretation of the medical care guidelines
and other evidence.
We are not persuaded by petitioner's arguments. The Commissioner's
detailed findings of fact are amply supported by the evidence presented during
A-0052-18T3 15 the hearing, and the Commissioner correctly determined petitioner failed to
demonstrate the Board's decision is arbitrary, capricious, or unreasonable. The
evidence the Commissioner found credible established that petitioner did not
comply with the guidelines for treatment of a student who has fainted, did not
investigate the circumstances surrounding the fainting incident, and failed to
inform the student's mother that the student fainted.
Petitioner argues the guidelines are not mandatory, and, for that reason,
the Board's reliance on her departure from the guidelines renders the Board's
decision arbitrary, capricious, or unreasonable. We disagree because, as noted
by the Commissioner, even if petitioner is correct that the guidelines are not
mandatory, it was not arbitrary, capricious, or unreasonable for the Board to
consider petitioner's departure from the guidelines in its assessment of the
performance of petitioner's job duties. Moreover, the Board's decision was not
founded solely on petitioner's departure from the guidelines. Rather, the Board
also considered petitioner's failure to conduct any investigation concerning the
student's fainting, her failure to detail in her notes and report that the student
A-0052-18T3 16 fainted, and her inexplicable failure to inform the student's mother that the child
fainted when petitioner called the mother to report what occurred.3
The Commissioner also did not err by relying on Dr. Hibbs' testimony.
Petitioner argues Dr. Hibbs is not a medical expert and it was error to rely on
what petitioner characterizes as Dr. Hibbs' medical testimony. Petitioner
ignores that Dr. Hibbs did not testify as a medical expert, and he did not offer
medical testimony. To the contrary, he testified about his investigation,
published school district guidelines and protocols, petitioner's actions and
inaction, and the reasons supporting the Board's decision to withhold petitioner's
increment. Dr. Hibbs was competent to testify in each of those areas, and, in all
respects, the Commissioner found his testimony credible. That testimony,
combined with the other evidence the Commissioner found credible, supports
the Commissioner's factual findings and legal conclusion that petitioner failed
to satisfy her burden of establishing the Board's decision was arbitrary,
3 The ALJ found as a matter of fact that petitioner did not inform the student's mother that the child fainted because petitioner did not want to alarm the mother. That finding requires the conclusion that petitioner made a conscious decision to withhold the fact that the student fainted from the student's mother. The record supports that finding, which buttresses the Commissioner's conclusion that the Board's decision was not arbitrary, capricious, or unreasonable. A-0052-18T3 17 capricious, or unreasonable. We therefore discern no basis to reverse the
Commissioner's decision.
Affirmed.
A-0052-18T3 18