Staff Members’ Right to Due Process
Under the New Jersey Anti-Bullying Bill of Rights Act
When the New Jersey Legislature resolved to strengthen the Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13, et seq., the focus was directed toward student relationships. Once the amendments to the Act were being implemented, the intent to protect all students from harassment, intimidation and bullying (HIB), regardless of the source, was also viewed as the predominant goal. Two recent cases demonstrate the importance of following the specified investigatory and notice procedures as well as providing the opportunity for a due process hearing regardless of whether the charge concerns the actions of a student or staff member.
In Stephen Gibble, Petitioner, v. Board of Education of the Hunterdon Central Regional School District, Hunterdon County, Respondent, C. #254-16 (July 13, 2016), the Commissioner affirmed the finding of the ALJ that Gibble, a teacher, also serving as a head coach for the Hunterdon Central wrestling team, was denied due process when the board made a finding that Gibble violated the Act, and it suspended him from all coaching activities with pay.
Gibble attended the 2014 Scarlet Knights wrestling team camp with 15 then-current and prospective members of the Hunterdon Central wrestling team. R.F., a freshman classified special education student was one of the 15. Gibble did not know that R.F. was a classified student. On two occasions, Gibble, in the presence of other team members, stated that he hoped R.F. did not have access to any weapons or keys to the gun closet.
R.F. was embarrassed by these comments and felt that Gibble thought that he was crazy and disliked him. After the second incident, R.F. called his mother and asked to be taken out of camp. R.F.’s mother did come to pick him up from camp and Gribble told R.F. that he had just been joking. R.F.’s parents reported the incidents to the principal, and the district conducted an HIB investigation. The investigation report concluded that Gibble’s conduct met the definition of HIB. The investigation found that petitioner had made insulting or demeaning remarks, thereby publicly humiliating R.F. The report’s findings were provided to the board, and at that meeting, the Board suspended the Gibble, with pay, from all of his coaching duties. Notice of the outcome of the meeting was sent home to the parents. Gibble then requested a board-level hearing. In response, the board advised Gibble that neither board policy nor the regulation provides for a procedure for anyone other than a parent or guardian of a student to be given a board-level hearing. However, as a courtesy, the board permitted Gibble and his attorney to appear before the board. The appearance was limited to 20 minutes and the petitioner was not permitted to present witnesses.
Gibble’s appeal sought to have the ALJ evaluate whether the conduct at issue constituted HIB, and whether he was denied due process. The ALJ held that the board denied Gibble the due process rights guaranteed by the Act, and that the HIB finding must be removed from the petitioner’s personnel records.1 Though the ALJ’s opinion examined the alleged conduct and reviewed the definition of HIB, the determination solely turned on the board’s failure to follow the Act’s procedural requirements.
The ALJ held that Gibble was denied due process when the board did not grant him a hearing. While conceding that the statute is silent on this guarantee for staff members accused of HIB, the ALJ held that the hearing requirement must be extended to staff members in such circumstances.2 The ALJ explained that the intent of the statute must be gleaned from examining the entire statute with the real statutory intention prevailing over the literal. The ALJ concluded that the Act can only be interpreted to give a staff member the opportunity to defend him/herself at a board meeting. The school district did concede in its brief that, while the Act only specifically addresses HIB acts committed against students, it applies to all, including staff members who violate the same. While this was cited to persuade the ALJ that the staff member violated the Act, so too it must also apply to the staff member for every aspect of the investigation process, including his right to a board hearing. Here, Gibble was only given the opportunity to address the board for up to 20 minutes as a courtesy; he was not permitted to offer witnesses. Accordingly, the ALJ also concluded that the petitioner’s personnel records must be expunged.3
The Commissioner affirmed the ALJ’s determination that staff members who are accused of HIB are entitled to a board hearing under the Act. The Commissioner, however, disagreed with the finding that the HIB should be expunged from the staff member’s personnel records. Instead, the Commissioner ruled that the matter should be remanded to the board to conduct a hearing.
In contrast with Gibble, in Edward Sadloch, Charles Manzo, Brian Gogerty, Michael Weber and David Sinisi, Petitioners, v. Cedar Grove Township Board of Education, C. #216-15 (June 23, 2015), the ALJ and the Commissioner also found that a staff member cannot be denied due process under the Act; although, the Commissioner did not order a remand for a board hearing. In Sadloch, A.P., a high school student alleged that the petitioners, all football coaches, had made the football program very uncomfortable for him. A.P. claimed he was harassed by the coaching staff. He alleged that staff required him stay after practice for “extra conditioning,” and unfairly assigned him extra homework because he used the word “slightly” responding to a question. In addition, due to his inquisitive nature, coaches taped question marks over his jersey, and said that A.P. reminded them of the Batman character, the Riddler. The ensuing investigative report found the action of taping over the jersey as the only HIB act. A.P.’s distinguishing characteristic was identified as being inquisitive.
The superintendent advised the board of the investigation findings and the board found that two of the coaches (Weber and Gogerty) had committed HIB. The ALJ found that the board never issued a written report of its findings.4 There was some evidence presented to the ALJ that A.P. was being harassed due to a mental disability, but the board and the superintendent insisted that the only distinguishing characteristic was A.P.’s propensity to ask questions. Two of the coaches (Weber and Gogerty) were placed on administrative leave for the remainder of the football season, while the remaining coaches were given one or two-game suspensions for exercising poor judgment. The superintendent said that he met with the Weber and Gogerty privately to advise them of the board’s findings, but the parent report that included these findings was never shared with the coaches. In addition, the ALJ found that the parent report was “nonspecific” with regard to the rationale for the findings, lacking a description of the conduct that was found to be in violation and a description of the distinguishing characteristic.5
A.P.’s parents requested a board-level hearing which took place, but the coaches were not present. The ALJ concluded that the HIB findings must be reversed due to the gross procedural violations; the coaches never received written information concerning the investigation–a requirement that the ALJ believed must be extended to staff members. The coaches did not learn the details of the charges, and the findings until they conducted discovery in preparation for the appeal. Accordingly, the ALJ ordered the coaches’ records expunged. The ALJ explained that the Act is specific as to procedure and timelines, both to insure that the victim’s issues are promptly addressed, and to also insure that allegations are promptly explored. Here, the ALJ concluded that a remand to the board would only unfairly prejudice the coaches.6
The Commissioner affirmed the ALJ’s decision including not permitting a remand to the board because the board never issued a written determination nor afforded the staff members a hearing. The Commissioner concurred with the ALJ that, due to the lack of documentation, there was a complete failure to support any HIB findings.
These staff member HIB cases demonstrate that it is essential that boards and administrators adhere to the procedural requirements of the Act whether the alleged HIB violation was committed by a student or a staff member. School administrators should review current district policies to be certain that staff members’ due process rights are protected. It is always advisable to work closely with the board attorney when following the procedural requirements of the Act.
- Stephen Gibble, Petitioner, v. Board of Education of the Hunterdon Central Regional School District, Hunterdon County, Respondent, C. #254-16 (July 13, 2016) at 7-8.
- Id. at 7.
- Id. at 8.
- Edward Sadloch, Charles Manzo, Brian Gogerty, Michael Weber and David Sinisi, Petitioners, v. Cedar Grove Township Board of Education, C. #216-15 (June 23, 2015), at 4.
- Id. at 5.
- Id. at 6-8.