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NOT FOR PUBLICATION WITHOUT THE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).]

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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.

5 A-1306-15T2
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

6 A-1306-15T2
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.

10 A-1306-15T2
 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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