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                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0868-18T3

IN THE MATTER OF THE
REVOCATION OF THE
CERTIFICATES OF ANDREA
GIUFFRIDA, STATE BOARD
OF EXAMINERS.
_____________________________

                Argued December 16, 2019 – Decided February 19, 2020

                Before Judges Rothstadt, Moynihan and Mitterhoff.

                On appeal from the New Jersey Commissioner of
                Education, Docket No. 3-5/18A.

                Sanford R. Oxfeld argued the cause for appellant
                Andrea Giuffrida (Oxfeld Cohen, PC, attorneys;
                Sanford R. Oxfeld, of counsel; Gail Oxfeld Kanef, on
                the brief).

                Jennifer Victor Hoff, Deputy Attorney General, argued
                the cause for respondent New Jersey Commissioner of
                Education (Gurbir S. Grewal, Attorney General,
                attorney; Donna Sue Arons, Assistant Attorney
                General, of counsel; Joan M. Scatton, Deputy Attorney
                General, on the brief).

PER CURIAM
      Andrea Giuffrida appeals from the final decision of the Commissioner of

the New Jersey Department of Education (Commissioner), upholding the State

Board of Examiners' (Board) decision revoking her teaching certificates:

Teacher of Elementary School Certificate of Eligibility with Advance Standing;

Teacher of Students with Disabilities; and Learning Disabilities Teacher –

Consultant. On appeal, she argues:

            POINT ONE

            HERE[,] WHERE THE AGENCY BELOW LACKED
            AN OPPORTUNITY TO JUDGE CREDIBILITY[,]
            THIS COURT MUST APPLY A DE NOVO OR MORE
            PROBING STANDARD OF REVIEW

            POINT TWO

            THE EXTREME DELAY IN RENDERING A FINAL
            DECISION GIVES LIFE TO THE MAXIM "JUSTICE
            DELAYED IS JUSTICE DENIED" AND THE
            COMMISSIONER     FAILED    TO   CONSIDER
            APPELLANT'S REHABILITATION DURING THE
            PERIOD OF DELAY

            POINT THREE

            THE STATE BOARD FAILED TO CONSIDER ANY
            MITIGATING FACTORS

            POINT FOUR

            BECAUSE NO STUDENTS WERE INVOLVED IN
            THE    INCIDENTS,    THE  REVOCATION
            PUNISHMENT IS TOO SEVERE

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                                      2
We are constrained to reverse and remand because the Commissioner's

affirmance of the Board's decision, based on the adoption of the credibility

findings of an administrative law judge (ALJ) who did not sit as the judge at the

hearing, was arbitrary and capricious.

        Following accusations that she acted inappropriately towards male

colleagues on numerous occasions, a school district imposed a sixty-day

suspension about three months after it hired Giuffrida in August 2011. In

January 2012, she was removed from her position as a non-tenured teacher.

        The Board thereafter issued Giuffrida an order to show cause why her

certificates should not be suspended or revoked because of her behavior. The

matter was transferred to the Office of Administrative Law (OAL), and a hearing

took place before an ALJ on April 15, 2013 and February 18, 2014; the record

was closed in July 2014. The ALJ (first ALJ) retired without issuing an initial

decision. The case was not transferred to another ALJ (deciding ALJ) until April

2017.

        In her October 13, 2017 written decision, the deciding ALJ recounted the

testimony of the witnesses who appeared before the first ALJ, including that of

three male teachers who alleged Giuffrida inappropriately touched them; one of

those teachers said Giuffrida made inappropriate comments to him. The judge

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                                         3
recognized that Giuffrida "denied that she acted inappropriately toward any of

her male colleagues and argue[d] that either the allegations are untrue or friendly

gestures to co-workers [that] have been misinterpreted to the Board."

      In the deciding judge's findings of fact, she wrote:

                      Where facts are contested, the trier of fact must
               assess and weigh the credibility of the witnesses for
               purposes of making factual findings as to the disputed
               facts. Credibility is the value that a finder of the facts
               gives to a witness' testimony. It requires an overall
               assessment of the witness' story in light of its
               rationality, internal consistency and the manner in
               which it "hangs together" with the other evidence.
               Carbo v. U.S., 314 F.2d 718, 749 (9th Cir. 1963).
               "Testimony to be believed must not only proceed from
               the mouth of a credible witness but must be credible in
               itself" in that "[i]t must be such as the common
               experience and observation of mankind can approve as
               probable in the circumstances." In re Perrone, 5 N.J.
               514, 522 (1950). Overall, the witnesses against Ms.
               Giuffrida had no reason to fabricate the incidents that
               they recounted in their testimony. Their testimony was
               specific and credible.

                     Based on the evidence presented at the hearing as
               well as on the opportunity to observe the witnesses and
               assess their credibility, I FIND the following[.]

The judge's ensuing findings demonstrate that the facts of the case were highly

disputed, and the resolution of those disputes rested largely on the witnesses'

credibility.



                                                                            A-0868-18T3
                                           4
      The judge found Giuffrida "grabbed [P.B.'s]1 rear-end in the office." The

judge continued:

            Ms. Giuffrida denied grabbing [P.B.'s] rear-end as he
            stood showing a picture of his daughter to a secretary
            in the office. She explained in her summation that
            somehow brushing up against [P.B.] was
            misinterpreted. However, even she could not come up
            with a reason that [P.B.] would fabricate the specifics
            of such a story. Although I did not see the witnesses as
            they testified, [P.B.'s] testimony was very credible in
            describing what he recognized as a distinct grab. It was
            not a touch or anything else that could have been
            misinterpreted. When considering how the testimony
            hangs together with the other evidence, [P.B.] is
            certainly the more believable of the two.

      Based on her admission that she hugged him and her answers to

interrogatories in which she admitted kissing him on the cheek, the judge further

found Giuffrida hugged D.D. and kissed him on the cheek. The judge also found

as undisputed that Giuffrida sent an email to D.D. "because she had gotten 'a

vibe' from him that she thought that it may have been an uncomfortable thing

for him and she did not want it to be," "saying that she was sorry if her touching

him made him feel uncomfortable."




1
  We use the male teachers' initials to protect their privacy inasmuch as some
of the allegations involve alleged unreciprocated sexual conduct by Giuffrida.
                                                                          A-0868-18T3
                                        5
      The judge also found, despite that Giuffrida "denied having made

inappropriate comments to [D.D.] that her breasts do not look bad for a woman

over forty," that comment was made because D.D. was

                the more credible witness. The comment was too
                specific for [D.D.] to have made it up and it is
                consistent with the other evidence presented that Ms.
                Giuffrida would make a comment like that. I therefore
                FIND that sometime prior to November 2011, Ms.
                Giuffrida said to [D.D.] words to the effect that, "[m]y
                breasts don't look bad for a woman over forty, do they?"
                The comment was totally inappropriate and made
                [D.D.] feel awkward and shocked. He did not tell her
                that he felt that way at any time.

      Lastly, the judge found Giuffrida admitted kissing J.F., but that Giuffrida

                disagre[ed] that the kiss was on the lips and believes
                that the kiss was closer to the cheek. Again, Ms.
                Giuffrida lacks credibility when considering the totality
                of the evidence against her. I therefore FIND that Ms.
                Giuffrida inappropriately kissed [J.F.] on the lips in the
                presence of other staff members. I further FIND that
                the kiss was unwanted and [J.F.] was embarrassed,
                surprised and shocked by it. I further FIND that [J.F.]
                told her that her actions were inappropriate and that he
                asked that she never do it again.

The deciding ALJ recommended the suspension of Giuffrida's teaching

certificates.

      Both parties filed cross-exceptions, and the Board issued a final decision

adopting the deciding ALJ's initial decision, citing in part to the judge's


                                                                             A-0868-18T3
                                            6
credibility findings, but modified the penalty to impose a complete revocation

of Giuffrida's certificates. In so holding, the Board noted:

            Giuffrida systematically engaged in behavior that
            violated all norms of acceptable conduct in a workplace
            environment. Moreover, her actions embarrassed and
            discomfited her colleagues. Her arguments that any
            penalty is unnecessary because she's "learned her
            lesson" or inappropriate because of the lengthy passage
            of time are misplaced. The Board's focus is and should
            be on Giuffrida's conduct at the time it happened and
            its impact upon those around her. . . . The Board
            therefore believes that the appropriate penalty in this
            matter is the revocation of her certificates.

      Giuffrida appealed to the Commissioner who, in affirming the Board's

decision "for the reasons expressed therein," recognized "[t]he Board stresse[d]

that it did not reject or modify any findings of fact nor any of the ALJ's

conclusions with respect to the findings of unbecoming conduct[.]"          The

Commissioner determined the conduct that was "amply supported by the record"

included:

            grabbing the rear-end of a co-worker; kissing a co-
            worker on the lips in front of other staff members;
            hugging and kissing another co-worker; and making
            comments such as, "my breasts don't look bad for a
            woman over forty."

The Commissioner concluded: "There is nothing in the record to suggest that

the Board's decision to revoke [Giuffrida's] certificates – based on the nature


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                                        7
and extent of the unbecoming conduct proven at the OAL – was arbitrary,

capricious or unreasonable."

      Our review of that decision is limited. In re Carter, 191 N.J. 474, 482

(2007). We will not upset the decision of an administrative agency "absen[t]

. . . a showing that it was arbitrary, capricious or unreasonable, or that it lacked

fair support in the evidence, or that it violated legislative policies expressed or

implicit in the civil service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556,

562 (1963). In determining whether an agency action was arbitrary, capricious

or unreasonable, we are obliged to consider:

            (1) [W]hether 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.

            [Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

      When the agency's decision satisfies those criteria, we are cognizant of

our responsibility to afford "substantial deference to the agency's expertise and

superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28

(2007). That deference also applies to our review of the disciplinary sanction

the agency chose to impose. Ibid.; In re Stallworth, 208 N.J. 182, 195 (2011).

                                                                            A-0868-18T3
                                         8
Of course, among those disciplinary sanctions is the express authority granted

to the Board to "revoke" teaching certificates, N.J.S.A. 18A:6-38, on the basis

of "inefficiency, incapacity, conduct unbecoming a teacher, or other just cause,"

N.J.A.C. 6A:9B-4.4.

      While we also defer to an agency's final determination based on the ALJ's

findings of fact and credibility, see Burlington Cty. Bd. of Soc. Servs. v. G.W.,

425 N.J. Super. 42, 47 (App. Div. 2012), and to the Commissioner's adoption of

credibility findings, we do so because the ALJ had the first-hand opportunity to

observe the witnesses, assess their demeanor, and determine which witnesses, if

any, are credible, In re Taylor, 158 N.J. 644, 656 (1999).

      That deference is unwarranted here because, contrary to the legion of

cases expressly prohibiting the practice, see e.g., Conforti v. Guliadis, 128 N.J.

318, 322-23 (1992), the deciding ALJ judged the witnesses' credibility without

hearing their testimony, see Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587

(1988).

      We are mindful that "it is the agency's function, not the [ALJ]'s, to make

the findings of fact and . . . the ultimate decision" in the case.   N.J. Dep't of

Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 505 (App. Div.

1983) (quoting N.J. Bell Tel. Co. v. State, 162 N.J. Super. 60, 77 (App. Div.


                                                                          A-0868-18T3
                                        9
1978)).   The final decision adopted by the Commissioner, however, fully

considered the credibility findings based only on the ALJ's review of the cold

transcripts. As such, it cannot be determined, absent that evidence, "whether

the record contains substantial evidence to support the findings on which the

agency based its action[.]" Mazza, 143 N.J. at 25.

      We decline to exercise de novo review of the record to determine if the

Commissioner could have reached the same conclusion without those factual

findings based on the deciding judge's credibility findings; that is, would the

decision have been supported by the record without reference to those findings .

See Herrmann, 192 N.J. at 27-28. If we parsed the expurgated factual findings,

we would be unable to apply the Commissioner's expertise in this educational

disciplinary matter, to which we owe substantial deference. Id. at 28.

      The Court's observations in Abbott v. Burke, 100 N.J. 269, 300-01 (1985),

albeit made in addressing the proper procedure in school-funding controversies,

are apt in this case:

             [T]he issues of educational quality and municipal
             finance may be more effectively presented,
             comprehended, and assessed by a tribunal with the
             particular training, acquired expertise, actual
             experience, and direct regulatory responsibility in these
             fields. For these reasons, the Court has repeatedly
             acknowledged and approved the administrative
             handling of educational controversies that arise in the

                                                                         A-0868-18T3
                                       10
            context of constitutional and statutory litigation,
            including evaluation of local educational problems,
            design of remedial measures, and supervision of the
            program implementation. E.g., In re Trenton Bd. of
            Educ., 86 N.J. 327 (1981) (concerning operation of
            classroom programs, revenue raising and budgeting,
            and affirmative action); In re Upper Freehold Reg'l Sch.
            Dist., 86 N.J. 265 (1981) (concerning physical plant
            and revenue raising); [Hinfey v. Matawan Reg'l Bd. of
            Educ.], 77 N.J. 514 (1978) (concerning discrimination
            in academic courses of study and curriculum); Dunellen
            Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17 (1973)
            (concerning school administration); Jenkins v. Morris
            Twp. Sch. Dist., 58 N.J. 483 (1971) (concerning
            integration).

       We remand this matter to the Commissioner to decide whether the record,

devoid of the evidence based on the deciding ALJ's credibility findings,

sufficiently supports the revocation of Giuffrida's teaching certificates. If that

determination cannot be made on the redacted record, a new hearing before a

different ALJ should be held because the deciding ALJ has already made

credibility determinations. See In re Wolf, 231 N.J. Super. 365, 378 (App. Div.

1989) (remanding a case to a different ALJ because "the ALJ who initially heard

the case . . . made credibility findings which might [have been] difficult to

disregard after a rehearing").




                                                                          A-0868-18T3
                                       11
      In light of our decision, we need not address Giuffrida's remaining

arguments. Reversed and remanded for proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                  A-0868-18T3
                                     12
