DEPARTMENT OF EDUCATION v. EMMANUEL CAPERS (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NOT FOR PUBLICATION WITHOUT THE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-0835-20

DEPARTMENT OF EDUCATION,

Petitioner-Respondent,

v.

EMMANUEL CAPERS,

Respondent-Appellant.
_____________________________

Submitted March 9, 2022 – Decided September 2, 2022

Before Judges Gooden Brown and Gummer.

On appeal from the New Jersey Commissioner of
Education, Docket No. 3-3/20A.

Whipple Azzarello, LLC, attorneys for appellant (John
C. Whipple, of counsel and on the briefs; William J.
Munoz, on the briefs).

Matthew J. Platkin, Acting Attorney General, attorney
for respondent New Jersey Commissioner of Education
(Sookie Bae-Park, Assistant Attorney General, of
counsel; Sadia Ahsanuddin, Deputy Attorney General,
on the brief).

PER CURIAM
 Emmanuel Capers, an elected member of the Paterson School Board

(Board), appeals from the October 20, 2020 final agency decision of the Interim

Commissioner of Education for the Department of Education (Commissioner),

which affirmed the March 17, 2020 decision of the School Ethics Commission

(SEC). The SEC concluded that Capers violated the School Ethics Act (Act),

N.J.S.A. 18A:12-21 to -34, by attending an all-expenses-paid conference offered

by a potential vendor of the Paterson School District (District). Based on its

conclusion that Capers had violated various subsections of the Act, the SEC

imposed the penalty of removal. 1 The Commissioner upheld the violations but

rejected the penalty and imposed a six-month suspension instead. We affirm.

I.

We derive the following facts from the record, which, with limited

exceptions, are uncontroverted. Capers served on the Board's Curriculum

Committee during the 2017-18 school term. His role included "investigat[ing],

learn[ing] and enhanc[ing] the educational [c]urriculum" for the District. In the

summer of 2017, Capers learned about a company called "Woz U" while he was

volunteering at a camp for disadvantaged youth. Capers "exchanged contact

1
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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information" with Billy Gardner, the Woz U representative, and later "told

members of the Curriculum Committee about Woz U's services," which included

"free coding courses for juniors and seniors." Capers also provided the Board

with Gardner's contact information.

On January 31, 2018, Gardner and other Woz U representatives "provided

a coding and drone program demonstration" for members of the Board and

District staff at the "central offices of the . . . District." The staff members in

attendance included William Gaurlich, a social studies teacher; Eric Crespo, the

"Associate Chief Academic Officer [who] oversaw program content and

materials"; Joann Tsimpedes, the "Assistant Superintendent of Academic and

Special Services"; and Jose Correa, the Director of Instructional Technology.

Gardner's marketing presentation demonstrated both free programs and cost-

based programs.

At the end of the presentation, Gardner mentioned that there were four all

expenses-paid spots available at an upcoming conference in Arizona at the

Scottsdale Plaza Resort, which would be funded by a Woz U scholarship valued

at "$2,455." Subsequently, Gardner offered the spots to Correa, Crespo,

Gaurlich, and Capers. Eileen Shaffer, the District's Superintendent, instructed

Crespo and Correa, both "full-time employee[s] of the . . . District," to decline

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"the trip because . . . [Woz U was] a potential vendor," and "[t]he legal

department" thought "there might be a conflict." Shaffer also told Correa that

"Board members should follow the same protocol." Additionally, Shaffer

"spoke to Capers and recommended that he not go . . . because Woz U [was a

potential] vendor." Ultimately, "[e]veryone except . . . Capers declined the

trip." When Correa told Capers he (Correa) was not going, Capers responded

that he (Capers) was going, and if a Board vote came up on Woz U, he would

recuse himself.2

Capers attended the conference from February 20 to 23, 2018. Upon

learning of his attendance, Shaffer asked James Smith, the Executive Director

of Security and Internal Investigation for the District, to conduct an

investigation to determine whether Capers's trip was "unauthorized." Based on

his investigation, Smith determined there was no board resolution approving

Capers's trip. After speaking with Correa, Crespo, Gaurlich, and others, Smith

also determined that "Capers was advised by . . . Correa and Board Secretary

Cheryl Williams that he wasn't authorized to go [on the trip] as per . . . Shaffer's

instructions." After completing his investigation, Smith "forwarded [his] report

2
In September 2018, the Board voted to implement Woz U's free programs.
Capers recused himself from the vote.

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to . . . Shaffer" and others, who then sent it to "the State Ethics Office, the

Commissioner of Education, and other [B]oard members."

On July 24, 2018, Smith filed a formal complaint with the SEC alleging

Capers violated subsections (a), (c), (e), and (f) of N.J.S.A. 18A:12-24.1, which

delineates a Code of Ethics (Code) for School Board Members. Specifically,

under N.J.S.A. 18A:12-24.1(a), School Board Members are required to "uphold

and enforce all laws, rules and regulations of the State Board of Education, and

court orders pertaining to schools." N.J.S.A. 18A:12-24.1(a) also specifies that

"[d]esired changes shall be brought about only through legal and ethical

procedures."

Under N.J.S.A. 18A:12-24.1(c), School Board Members must

"confine . . . board action to policy making, planning, and appraisal," and "help

to frame policies and plans only after the board has consulted those who will be

affected by them." Under N.J.S.A. 18A:12-24.1(e), School Board Members

must "recognize that authority rests with the board of education" and refrain

from making "personal promises" or taking "any private action that may

compromise the board." Under N.J.S.A. 18A:12-24.1(f), School Board

Members must "refuse to surrender [their] independent judgment to special

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interest or partisan political groups or to use the schools for personal gain or for

the gain of friends."

Capers moved to dismiss the alleged violations, arguing that the complaint

was frivolous. On October 30, 2018, the SEC granted Capers's motion to

dismiss the subsection (a) violation only, but denied the motion as to the other

subsections. On November 21, 2018, the SEC transmitted the matter to the

Office of Administrative Law (OAL) as a contested case. Following hearings

conducted on October 3, November 4, and December 5, 2019, an administrative

law judge (ALJ) issued an initial decision on December 23, 2019, detailing her

findings of fact and legal conclusions. In the decision, after considering the

testimony of Crespo, Tsimpedes, Gaurlich, Correa, Smith, Shaffer, and Oshin

Castillo, a fellow Board member, as well as documentary evidence, the ALJ

determined Capers did not violate the Code and denied the petition.3

First, the ALJ found no violation of N.J.S.A. 18A:12-24.1(c) because

Capers had brought Woz U to the District's attention ostensibly because Woz U

had a program "that would offer free coding services to high school juniors and

seniors," which was "consistent" with being a member of the Board's Curriculum

Committee and did not constitute "framing policy or plans." Regarding N.J.S.A.

3
Capers did not testify.
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18A:12-24.1(e), the ALJ noted, "[t]here was no testimony or evidence that

Capers made any personal promises to anyone connected to Woz U." According

to the ALJ, Capers's attendance at the conference "could have been done to gain

a clearer understanding of the programs that Woz U offered," and "did not

compromise the Board."

Additionally, the ALJ pointed out that "Woz U was not a vendor of the

Board" at the time of the conference, and "[t]here was no testimony or evidence

that Capers attempted to sway the other Board members to vote on a resolution

to have Woz U become a vendor for the District." The ALJ noted that when a

vote was held to determine whether the District should contract with Woz U,

Capers recused himself. Furthermore, "Capers was not informed . . . that a

resolution was necessary for him to attend the [conference]."

Finally, the ALJ found no violation of N.J.S.A. 18A:12-24.1(f) because

although "Capers knew Gardner," there "was no evidence or documentation that

Capers had a prior business relationship with Woz U or anyone related to Woz

U." The ALJ determined that simply going to the conference and recusing

himself from the vote to determine whether Woz U would become a vendor was

not sufficient evidence "to show that Capers surrendered his independent

judgement to anyone." The ALJ explained that although Capers was "the only

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one from [the District]" who went to the conference, there was "no evidence that

Capers used the school to get the all-expense[s]-paid [trip]."

Thereafter, the matter was transferred to the SEC for a determination on

whether a violation of the Act occurred and, if so, a penalty recommendation.

On March 17, 2020, the SEC voted to adopt the ALJ's findings of fact but reject

the legal conclusion that Capers did not violate the Code provisions. See Hayes

v. Bd. of Trs. of Police & Firemen's Ret. Sys., 421 N.J. Super. 43, 51–52 (App.

Div. 2011) (holding an "agency need not defer to an ALJ's legal conclusions,"

but deference is owed to factual findings). Based on its decision, the SEC

recommended Capers "be removed from his position as a Board member." In

support, the SEC relied on the enabling regulations to demonstrate that the

evidence sufficed to sustain the violations. See N.J.A.C. 6A:28-6.4(a)(3);

N.J.A.C. 6A:28-6.4(a)(5); N.J.A.C. 6A:28-6.4(a)(6).

The SEC concluded Capers "was overly involved in ensuring that the

District used . . . program[s] offered by Woz U"; "had a 'relationship' with the

representative from Woz U"; "vigorously lobbied for the courses/programs

offered by Woz U to be implemented in the District"; and "recognized that his

acceptance and attendance" at the conference "created a conflict requiring

recusal." Additionally, the SEC determined Capers's "acceptance . . . and

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attendance . . . [wa]s exacerbated" by his "blatant[] disregard[]" of Shaffer's

recommendation not to attend the conference.

Specifically, the SEC found Capers violated N.J.S.A. 18A:12-24.1(c)

because even if his action in bringing a coding curriculum program to the

District's attention was "'consistent with being on the [C]urriculum

[C]ommittee,' his ensuing advocacy for the potential vendor, especially when

[Capers] had a pre-existing - yet not completely defined - relationship with a

representative of the company [was] problematic." The SEC explained:

[B]y requesting that a course/program be implemented
before it was fully analyzed by the District's
administration; requesting that a course/program be
presented to the Board before the Department of
Academic Services believed it was appropriate to do so;
and accepting and attending an all-expense[s]-paid-
[conference] in Arizona with the foresight that such
acceptance and attendance would preclude him from
being involved in any vote(s) regarding Woz U,
[Capers] took actions unrelated to his duties and
responsibilities as a Board member.

The SEC also found Capers violated N.J.S.A. 18A:12-24.1(e) because his

conduct

constituted action beyond the scope of his duties as a
Board member. Moreover, [Capers's] actions could
have compromised the Board's ability to contract with
Woz U for free and/or cost-based programs, services,
or courses, and could have compromised the public's
opinion about the ethics and integrity of the Board

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 when it comes to the appropriateness of accepting gifts
from vendors, potential vendors, or from any entity
which may provide or offer to provide goods or services
to the Board. Because [Capers] accepted and attended
the all-expense[s]-paid [conference] in his capacity as
a Board member, it could appear as if the Board had
authorized or sanctioned his attendance when, in fact,
the chief school administrator specifically
recommended that [he] not attend.

Finally, the SEC determined Capers violated N.J.S.A. 18A:12-24.1(f) by

"us[ing] his position as a member of the Board to acquire a benefit for himself,

namely a 'free' trip to Arizona," from "a potential vendor." In support, the SEC

noted that the "offer was extended . . . because of [Capers's] membership on the

Board," and Capers "accepted and attended" "in his capacity as a member and

representative of the Board."

Thereafter, Capers appealed to the Commissioner. For substantially the

same reasons as those cited by the SEC, in an October 23, 2020 decision, the

Commissioner affirmed the SEC's conclusion that Capers violated the Code

provisions, finding that the SEC's "decision [wa]s supported by sufficient

credible evidence, and that [Capers] failed to establish that the decision [wa]s

arbitrary, capricious or contrary to law." However, the Commissioner

determined that "removing [Capers] from the [B]oard [wa]s an unduly harsh

penalty for the proven violations," and that a less harsh penalty would still deter

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Board members from accepting gifts from vendors. Accordingly, the

Commissioner imposed a six-month suspension and this appeal followed.

II.

"[We] have 'a limited role' in the review of [agency] decisions." In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81

N.J. 571, 579 (1980)). "In order 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.'" Ibid.

(second alteration in original) (quoting Henry, 81 N.J. at 579-80).

As our Supreme Court has instructed:

In determining whether agency action is
arbitrary, capricious, or unreasonable, [we] must
examine:

(1) whether 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.

[Ibid. (quoting In re Carter, 191 N.J. 474, 482-83
(2007)).]

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 The burden of proving that an agency action is arbitrary, capricious, or

unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J. Super. 227,

234 (App. Div. 2011). "[A] 'strong presumption of reasonableness attaches to

[an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)

(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J.

306 (1994)). Thus, we "may not substitute [our] own judgment for the agency's,

even though [we] might have reached a different result." In re Stallworth, 208

N.J. at 194 (quoting Carter, 191 N.J. at 483). "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 In re Herrmann, 192 N.J.

19, 28 (2007)).

Furthermore, "[i]t is settled that '[a]n administrative agency's

interpretation of statutes and regulations within its implementing and enforcing

responsibility is ordinarily entitled to our deference.'" E.S v. Div. of Med.

Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (second

alteration in original) (quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.

Super. 52, 56 (App. Div. 2001)). "Nevertheless, 'we are not bound by the

agency's legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs., 407

N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v. State Dep't of Transp.,

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338 N.J. Super. 28, 32 (App. Div. 2001)). To be sure, "[s]tatutory and regulatory

construction is a purely legal issue subject to de novo review." Ibid.

III.

Applying the above standards, we discern no reason to disturb the

Commissioner's decision. We begin by providing some background on the Code

for context. The Code is part of the School Ethics Act, N.J.S.A. 18A:12 -21 to -

34, enacted in 1991 by the Legislature, which specifically found it was "essential

that the conduct of members of local boards of education . . . hold the respect

and confidence of the people. These board members . . . must avoid conduct

which is in violation of their public trust or which creates a justifiable

impression among the public that such trust is being violated." N.J.S.A. 18A:12 -

22(a). The Legislature further determined that "[t]o ensure and preserve public

confidence, school board members . . . should have the benefit of specific

standards to guide their conduct and of some disciplinary mechanism to ensure

the uniform maintenance of those standards among them." N.J.S.A. 18A:12 -

22(b). To that end, the Code sets forth specific standards for school board

members to follow. N.J.S.A. 18A:12-24.1.

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 IV.

Capers argues his "actions cannot have violated subsection (c)" of the

Code because "[t]here is no evidence that in accepting the scholarship he was

acting . . . on behalf of the Board, or in his official capacity as a Board member."

We disagree.

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 to:

(i) develop the general rules and principles
that guide the management of the school
district or charter school;

(ii) formulate the programs and methods to
effectuate the goals of the school district or
charter school; or

(iii) ascertain the value or liability of a
policy.

[(emphasis added).]

In considering the violation, the Commissioner found that Capers took

action that was unrelated to his duty as a Board member as defined in N.J.A.C.

6A:28-6.4(a)(3). By accepting the trip, when it was not necessary as a "means

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of learning about [Woz U's] programs," and no other District personnel found it

necessary to accept the trip to better understand the programs being offered,

Capers violated N.J.S.A. 18A:12-24.1(c). Furthermore, as the Commissioner

explained, "[r]esearch into a program that was appropriate and consistent with

[Capers's] position on the [C]urriculum [C]ommittee would not result in his

being unable to vote on the [D]istrict's implementation of that program." Thus,

the Commissioner's finding that Capers violated N.J.S.A. 18A:12-24.1(c) is

supported by sufficient credible evidence in the record.

Next, Capers argues "[m]aking the District aware of Woz U[,] . . .

encouraging the District to investigate Woz U's free offerings," and accepting

the all-expenses- paid trip "was not 'board action,' but instead 'private action,'"

and there is "no evidence that [his] actions may have compromised the Board"

in violation of N.J.S.A. 18A:12-24.1(e).

Under N.J.A.C. 6A:28-6.4(a)(5), "[f]actual evidence of a violation of

N.J.S.A. 18A:12-24.1(e) shall include evidence 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." N.J.A.C. 6A:28-

6.4(a)(5) fully reflects the Legislature's determination that any potential for

harm is sufficient. Contrary to Capers's contention, the Commissioner's

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determination that Capers's action in unilaterally accepting an all-expenses-paid

trip "went beyond the scope of the duties and responsibilities" of a Board

member and "had the potential to compromise the [B]oard," in violation of

N.J.S.A. 18A:12-24.1(e), is clearly supported by ample evidence in the record.

Finally, Capers contends because Woz U extended the offer to other Board

members and certain District employees, "[t]here is simply no evidence . . . that

[he] 'used the schools' for personal gain," or that he "caused or influenced the

schools to take any action to obtain this scholarship" in violation of N.J.S.A.

18A:12-24.1(f). We disagree.

Pursuant to N.J.A.C. 6A:28-6.4(a)(6):

Factual evidence of a violation of N.J.S.A.
18A:12-24.1(f) shall include evidence that the [board
member] took action on behalf of, or at the request of,
a special interest group or persons organized and
voluntarily united in opinion and who adhere to a
particular political party or cause; or evidence that the
respondent(s) used the schools in order to acquire some
benefit for the [board member], a member of his or her
immediate family or a friend.

In addressing the violation, the Commissioner observed that "[t]he trip

was offered to board members and school personnel, and thus was clearly related

to those individuals' positions relative to the schools." Additionally, given the

Legislative intent behind the Code, Capers's acceptance of the benefit could

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create a "a justifiable impression among the public that such trust is being

violated." N.J.S.A. 18A:12-22(a). Thus, the Commissioner's finding that

Capers violated N.J.S.A. 18A:12-24.1(f) is supported by credible evidence in

the record.

In sum, the Commissioner's affirmance of the SEC's finding that Capers

violated the Code provisions is supported by sufficient credible evidence in the

record and is neither arbitrary, capricious, nor unreasonable. Given our

deferential standard of review, we discern no basis to intervene.

Affirmed.

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