Office of Administrative Law

By: Ruhani K. Aulakh, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On October 5, 2023, the New Jersey Appellate Division in A.B. v. Board of Education of the City of Hackensack affirmed that the Hackensack School Board (“Board”) was required to disclose information of a former employee’s sexual misconduct to the employee’s future employer under N.J.S.A. 18A:6-76. 

In 2013, while employed by the Board, a teacher used social media to post inappropriate and sexually suggestive content.  The Board began an investigation into the teacher’s misconduct.  Before the conclusion of the Board’s investigation, the teacher and the Board finalized a settlement agreement in which the teacher agreed to submit an irrevocable letter of resignation. 

Six years after her resignation, the teacher was offered a position with the Clifton Board of Education (“Clifton”).  Pursuant to N.J.S.A. 18A:6-76, commonly known as the “Pass the Trash” statute, Clifton was required to contact the applicant’s prior employers to obtain information relating to child abuse and sexual misconduct.  Clifton sent the Board a questionnaire in which the Board stated that the teacher was subject of a sexual misconduct investigation by the employer and that the teacher resigned from employment while allegations of sexual misconduct were under investigation.  As a result, Clifton rescinded the teacher’s offer of employment.

In August 2019, the teacher filed a complaint in the Chancery Division of the Superior Court of New Jersey, seeking to enforce the confidentiality provision of the settlement agreement between her and the Board, compel the Board to rescind and correct its response to the questionnaire, and enjoin the Board from reporting the investigation to any other prospective employer.  The Chancery court dismissed the teacher’s complaint and transferred the matter to the New Jersey Commissioner of Education who then transferred it to the Office of Administrative Law.

The Administrative Law Judge (“ALJ”) directed the parties to file simultaneous cross-motions for summary decision.  The ALJ granted the Board’s motion for summary decision and denied the teacher’s motion, ultimately dismissing the petition in its entirety.  In response, the teacher filed exceptions upon which the Commissioner issued a final agency decision that adopted the ALJ’s decision.  The teacher then appealed to the Appellate Division.

In her appeal, the teacher set forth several arguments.  First, the teacher argued that the Commissioner improperly granted summary decision because the record indicated disputed issues of material fact.  The teacher then argued that her due process rights were violated when the Commissioner denied the petitioner’s right to a hearing.  Next, she argued that the Commissioner distorted the Legislature’s plain meaning of “sexual misconduct” as defined in N.J.S.A. 18A:6-7.6 and that the Commissioner wrongfully concluded an investigation was pending for sexual misconduct at the time of her resignation.  The teacher also contended that the Commissioner erred by finding the settlement agreement was subject to the requirements of the statute because it was executed before the effective date of the statute.  Finally, the teacher argued that the Commissioner wrongfully determined she consented to the disclosure of information by signing the mandatory authorization form provided by Clifton.

In reviewing an administrative agency’s decision, the Appellate Division imposes a presumption of reasonableness upon the agency, only upsetting the agency’s determination if it was arbitrary, capricious, or unreasonable.  Here, the Appellate Division looked to each of the teacher’s arguments individually to determine whether the agency met this standard.

The Court first analyzed the teacher’s assertion that there were facts in dispute.  The teacher specifically argued that certifications from the Board’s former attorney and her former attorney dispute the principal’s certification that the Board launched an investigation into the teacher’s potential sexual misconduct.  The Court held that these certifications did not indicate that there was not an investigation; rather, these certifications simply pointed to the attorneys’ personal knowledge about the investigations.

The Court then turned to the teacher’s contention that she was never given notice or an opportunity to be heard regarding the Board’s decision.  The Court reasoned that not only is there no notice requirement in the Pass the Trash statute, but also that the Board made no factual findings, thus a hearing was not required.

Moving to the teacher’s arguments that there was no allegation of sexual misconduct nor was there a pending investigation, the Court utilized the principal’s certification.  The certification clearly noted an allegation that prompted the Board to begin an investigation.  The Court held that although the Prosecutor’s office did not press criminal charges, that did not indicate that the Board did not investigate.

Finally, the Court addressed the argument that the Legislature intended to preserve employment settlement agreements entered prior to the enactment of the statute.  To determine whether applying a statute retroactively is appropriate, the Court must look to the legislature’s intent, whether it is explicit or implicit.  Here, the statutory language required that all applicants provide all former employers within the last twenty years that were schools.  The Court held that the language clearly indicates a retroactive application of the statute.  Further, the Court reasoned that even if the language was not clear, the goal of the statute was to ensure the safety of the children and as such, the Legislature would not exempt certain teachers due to a confidentiality clause.

Upon reviewing each of the teacher’s arguments, the Court held that the administrative agency’s decision was not arbitrary, capricious, or unreasonable.  Thus, the Court affirmed the ALJ’s decision.