                        NOT FOR PUBLICATION WITHOUT THE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-3383-15T1

C.H.,

        Petitioner-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT
OF THE CITY OF CAMDEN, CAMDEN COUNTY,

     Respondent-Respondent.
————————————————————————————————

              Submitted August 1, 2017 – Decided August 23, 2017

              Before Judges Hoffman and Currier.

              On   appeal   from    the   Commissioner              of
              Education, Docket No. 122-6/15.

              Michael A. Armstrong & Associates,                  LLC,
              attorneys   for  appellant (Morrison                Kent
              Fairbairn, on the briefs).

              Brown   &   Connery,   LLP,   attorneys  for
              respondent State-Operated School District of
              the City of Camden (Louis R. Lessig and
              Benjamin S. Teris, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney    for    respondent   New    Jersey
              Commissioner of Education (James M. Esposito,
              Deputy Attorney General, on the statement in
              lieu of brief).

PER CURIAM
    Petitioner C.H. appeals from the February 19, 2016 final

decision    of     the     Commissioner             of     Education      (Commissioner),

declining to reinstate her teaching position with respondent,

State-Operated School District of the City of Camden.                               For the

reasons that follow, we affirm.

    Petitioner is a tenured teacher, certified to work with

handicapped      students.         She    has        worked      for   respondent        as   a

teacher for approximately twelve years.                          During the course of

her employment, petitioner had assignments teaching high school,

middle    school,     and    elementary         school          students     with     special

needs.

    On     March     16,    2012,    petitioner             requested      an    "immediate

transfer" from her position teaching an autistic class at the

Bonsall    Family    School,       "for    [her]          own    mental    wellbeing      and

physical    safety,"        and    "due        to        circumstances       beyond      [her]

control."        Respondent       placed       petitioner         at   the      Forest   Hill

Elementary School to teach a class with behavioral disabilities.

One year later, petitioner requested a leave of absence from

February 19, 2013 to March 31, 2013, claiming she suffered from

panic     attacks,       anxiety,        and        insomnia,      which        caused    her

difficulty focusing and affected her job performance.

    Upon returning from leave, respondent assigned petitioner

to teach a class with behavioral disabilities at the Molina

                                    2                                               A-3383-15T1
Elementary School.              On April 23, 2013, petitioner was involved

in    an    incident      where    she     physically    restrained        one    of    her

students.         Following an investigation, the Institutional Abuse

Investigation Unit determined that abuse was not established,

pursuant      to    N.J.S.A.       9:6-8.21.         However,       because      of    this

incident,         respondent       assigned        petitioner       to     the        Sumner

Elementary School for the 2013-2014 school year, again to teach

an    elementary          level    class     for     students       with       behavioral

disabilities.

       On    November       15,    2013,     petitioner       attended     a     training

session for teachers of students with behavioral disabilities.

Petitioner left the session early, prompting respondent to send

her an official reprimand.                 According to petitioner, she left

the     session         after    being     chastised     by     a   supervisor,          and

thereafter suffered an anxiety attack.

       Petitioner further claimed she received the reprimand on

December 11, 2013, which caused her to have a panic attack on

that date.         According to the school principal's account of this

incident, on the morning of December 11, she found petitioner

agitated and crying in her classroom.                    The school nurse called

9-1-1       due    to     petitioner's       "agitated        state,     rambling       and

cursing,"         and     emergency       services     transferred       her     to     the

hospital.

                                      3                                          A-3383-15T1
       Because   of   this   incident    and   her    "alleged    concerning

pattern of behavior this year," respondent placed petitioner on

administrative leave, pending the result of a mental fitness

examination scheduled for January 9, 2014.             However, petitioner

declined to undergo the evaluation, after learning respondent's

chosen psychologist would review her personnel records.                      The

parties eventually reached an agreement, selecting Jonathan H.

Mack, Psy.D., to conduct the evaluation.

       Dr. Mack interviewed petitioner and conducted psychological

tests on May 28 and 29, 2014.           On August 11, 2014, he issued a

forty-five    page    "Confidential   Report,"    outlining      petitioner's

personnel file and medical records.              He diagnosed petitioner

with    an   "Other    Specified   Personality       Disorder,"    a     "Sleep

Disorder," and a "History of Panic Disorder."               Concluding his

review, Dr. Mack opined:

             The totality of the information available to
             me   at  this   time  indicates,   within   a
             reasonable   degree  of   psychological   and
             neuropsychological   scientific    certainty,
             that [petitioner] is at a high risk for
             continued problems in terms of disciplining
             her behaviorally disordered students with
             problematic behavior due to her chronic
             pain, her borderline personality features,
             and her overall heightened reactivity to the
             administration   of  the   Camden  Board   of
             Education.    It is my opinion, with all
             factors taken into account by me at this
             time that [petitioner] is at unacceptable
             risk for inappropriate behavior with her
             students when under stress.    It is further
                              4                                        A-3383-15T1
            likely that conflicts will continue with
            Administration, given her personality style
            and given her particular history with this
            school district.

            [Petitioner] appeared to have done much
            better when dealing with the high school
            autistic population, and this may be a
            better placement for her. However, based on
            the information available to me at this
            time, it is my opinion that [petitioner] is
            at unacceptable risk for future problems
            with the elementary school behaviorally
            disordered population through the Camden
            Board of Education at this time.

            If another less stressful population is
            found for [petitioner] to work with, it is
            my opinion that she should be mandated to
            have weekly psychological counseling with a
            licensed psychologist and to be evaluated
            for mood stabilizing medications, and that
            she take these medications as prescribed if
            medically so ordered.

     Following this report, on August 29, 2014, petitioner sent

respondent    a   letter,   requesting    a   transfer     to   a   position

teaching students without behavioral disabilities, in accordance

with Dr. Mack's report and her previous accommodation requests.

According    to   petitioner,   respondent    did   not   respond   to   this

request.     However, she received a document in December 2014, in

connection with a records update, which suggested respondent had

transferred her to a position at Woodrow Wilson High School,

effective September 2014.

     Nonetheless,      on   March    3,   2015,      respondent     advised

petitioner she was ineligible for further service, pursuant to
                          5                            A-3383-15T1
N.J.S.A.   18A:16-4,        due    to    Dr.   Mack's    report      indicating     she

suffered     from    a   mental         abnormality.          The    letter     stated

respondent would terminate her from payroll in sixty days, and

she would "remain ineligible for service absent the submission

of proof of recovery, satisfactory to the District"; further,

her failure to submit such proof within two years would render

her "permanently ineligible for service with the District."

      Thereafter, petitioner submitted two one-page letters to

respondent    as    proof    of    her    recovery.      In    the    first    letter,

petitioner's treating psychiatrist, Safeer Ansari, D.O., stated,

"I currently find [petitioner] to be stable and mentally healthy

to return to work."          However, Dr. Ansari agreed with Dr. Mack's

recommendation that petitioner

           is   not   to  be   placed   in   a   B.D.   or
           Behaviorally   Disordered     Classroom    with
           students who are emotionally disabled and
           can become physically violent particularly
           at the elementary level.     As stated by Dr.
           Mack, it appears that [petitioner] had the
           most success working with students at the
           High    School   level    who    suffer    from
           Multiple/Learning Disabilities, Other Health
           Impairments, and/or the Autistic population.

      In the second letter, petitioner's primary care physician,

Chris F. Colopinto, D.O., stated he reviewed Dr. Mack's report,

but   based    on    his     own        independent     findings,      he     believed

petitioner    was    "mentally          healthy   enough      to    return    to   work


                                    6                                         A-3383-15T1
granted that she is provided with the accommodations that have

been recommended as appropriate."

       According      to    petitioner,    respondent      terminated      her   from

payroll on May 3, 2015.             On June 1, 2015, petitioner filed a

petition with the Commissioner, requesting an order reinstating

her position and claiming respondent failed to respond to her

proofs of recovery.

       Shortly thereafter, on June 16, 2015, respondent informed

petitioner it reviewed her recovery letters, which "confirm that

she continues to be ineligible for service since neither letter

provides proof of [petitioner's] recovery satisfactory to the

District so that she can return to work."                  Respondent noted Dr.

Mack    diagnosed          petitioner     with    "at   least       three     mental

abnormalities," and his report did not contain "any definitive

conclusion" that her "mental abnormalities would allow her to

safely work with any population in the District."                       Respondent

found    petitioner's         doctors     both    agreed     with     Dr.     Mack's

recommendation not to place her in a behaviorally disordered

classroom.

       After    the    matter     was     transferred      to   the     Office      of

Administrative Law, petitioner moved for summary decision, and

respondent     cross-moved       for    summary   decision.      On   January       4,

2016,   an     Administrative      Law    Judge    (ALJ)    issued    an    Initial

                                   7                                        A-3383-15T1
Decision, granting summary decision in favor of respondent.                           The

ALJ    concluded     respondent         acted       reasonably        by     rejecting

petitioner's proofs of recovery, noting that "[w]hen balancing a

teacher's ability to teach against the safety of the student

population, a reasonable person would err on the side of the

safety of the student population."

      The Commissioner adopted these findings in its decision,

dated February 19, 2016, expressing concern that petitioner's

letters failed to "reference[] the multiple diagnoses made by

Dr. Mack" or "describe petitioner's recovery efforts and/or any

treatment regimen in place to address Dr. Mack's concerns."                           The

Commissioner      further       criticized      the      letters       for     "merely

provid[ing]      conditional      recommendations         that      petitioner         be

permitted to return to work – with certain parameters in place,"

finding   instead    that   "student         safety    must    be   the     District's

paramount concern."

      This appeal followed.           Petitioner now raises two issues for

our   consideration:      (1)   the    ALJ    and     Commissioner         should    have

granted   her    motion   for    summary      decision    because      respondent's

actions   were    arbitrary     and    capricious;       and    (2)    the     ALJ    and

Commissioner     improperly      granted      respondent's      cross-motion          for

summary decision based upon disputed facts.



                                  8                                            A-3383-15T1
       Our    scope      of        review         of   an    agency's        final       decision       is

limited      and    deferential.                  In   re    Carter,         191     N.J.      474,    482

(2007).      A "strong presumption of reasonableness attaches to the

actions of the administrative agencies."                                     In re Carroll, 339

N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J.

Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)),

certif.      denied,         170       N.J.       85   (2001).          We    will    refrain         from

"disturb[ing]           an     administrative                agency's         determinations            or

findings unless there is a clear showing that (1) the agency did

not follow the law; (2) the decision was arbitrary, capricious,

or    unreasonable;           or       (3)    the      decision      was      not     supported         by

substantial evidence."                    In re Application of Virtua-W. Jersey

Hosp.   Voorhees         for       a    Certificate          of    Need,      194     N.J      413,    422

(2008).       We are bound by this standard even if we would have

reached      a     different           conclusion.                Circus      Liquors,         Inc.     v.

Governing        Body    of        Middletown          Twp.,      199     N.J.      1,    10    (2009).

Conversely, we review the agency's legal conclusions de novo.

Utley v. Bd. of Review, 194 N.J. 534, 551 (2008).

       Similar      to       summary         judgment,       an     ALJ      must    grant      summary

decision upon a showing "that there is no genuine issue as to

any   material       fact          challenged          and    that      the    moving       party       is

entitled to prevail as a matter of law."                                  N.J.A.C. 1:1-12.5(b);

see also E.S. Div. of Med. Assistance & Health Servs., 412 N.J.

                                              9                                                 A-3383-15T1
Super. 340, 350 (App. Div. 2010).                If the moving party properly

supports its motion for summary decision, the "adverse party in

order to prevail must by responding affidavit set forth specific

facts showing that there is a genuine issue which can only be

determined in an evidentiary proceeding."                  N.J.A.C. 1:1-12.5(b).

In deciding a summary judgment motion, the evidence must be

viewed "in the light most favorable to the non-moving party."

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010)

(citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995)).

    At     issue    in   this   case       are   several     statutory   provisions

governing psychological evaluations of teachers.                      First, under

N.J.S.A.    18A:16-2(a),        school      boards   "may     require    individual

psychiatric or physical examinations of any employee, whenever,

in the judgment of the board, an employee shows evidence of

deviation from normal,           physical or mental health."               "If the

result of any such examination indicates mental abnormality or

communicable       disease,     the    employee      shall    be    ineligible   for

further service until proof of recovery, satisfactory to the

board, is furnished . . . ."               N.J.S.A. 18A:16-4.

    As     these     provisions        demonstrate,        our     legislature   has

granted school boards the duty to determine teacher fitness, in

order to protect students from harm.                  Gish v. Bd. of Educ. of

                                      10                                   A-3383-15T1
Paramus, 145 N.J. Super. 96, 104-05 (App. Div. 1976), certif.

denied, 74 N.J. 251, cert. denied, 434 U.S. 879, 98 S. Ct. 233,

54 L. Ed. 2d 160 (1977).          The "reasonable possibility" of harm

warrants action by a board.              Id. at 105.      Moreover, teacher

fitness "may not be measured 'solely by his or her ability to

perform   the   teaching   function      and   ignore    the   fact    that   the

teacher's presence in the classroom might, nevertheless, pose a

danger of harm to the students for a reason not related to

academic proficiency.'"      Ibid. (quoting In re Tenure Hearing of

Grossman,   127   N.J.   Super.    13,    32   (App.    Div.   1974),    certif.

denied, 65 N.J. 292 (1974)).

    Importantly, "[a]n 'action of the local board which lies

within the area of its discretionary powers may not be upset

unless patently arbitrary, without rational basis or induced by

improper motives.'"      Parsippany-Troy Hills Educ. Ass'n v. Bd. of

Educ. of Parsippany-Troy Hills, 188 N.J. Super. 161, 167 (App.

Div.) (quoting Kopera v. Bd. of Educ. of West Orange, 60 N.J.

Super. 288, 294 (App. Div. 1960)), certif. denied, 94 N.J. 527

(1983); see also Gish, supra, 145 N.J. Super. at 105 (finding a

school board's decision was "fair and reasonable").                   Similarly,

an agency's review of a school board decision is entitled to "a

presumption of correctness" and will not be disturbed unless

arbitrary and unreasonable.         Thomas v. Bd. of Educ. of Morris,

                              11                                        A-3383-15T1
89 N.J. Super. 327, 332 (App. Div. 1965), aff'd, 46 N.J. 581

(1966).

      With    these        standards    in    mind,          we    turn     to      petitioner's

argument that the ALJ and Commissioner erred by denying her

motion for summary decision because respondent's actions were

arbitrary         and    unreasonable.         In        support       of      her      argument,

petitioner cites statutes and case law that are not applicable

to    this        matter,     such     as     the        New       Jersey         Law    Against

Discrimination,          N.J.S.A.    10:5-1        to    -49,      which       we    decline    to

address      at    length.1        Nonetheless,          we       interpret         petitioner's

argument as asserting respondent misread Dr. Mack's report and

her   proof        of    recovery      letters,          unreasonably               deeming     her

ineligible         for     service     in    all        teaching       positions         without

considering         alternative        placement.                 Petitioner         adds     that

respondent        "failed     to   reasonably           exercise       its       discretion     in

evaluating        whether    [she]     was   fit        to    return      to     work    with   or

without reasonable accommodations."

      However, having reviewed the record and applicable law, we

discern no basis to disturb respondent's decision.                                    Dr. Mack's

extensive         report     diagnosed       petitioner            with      several        mental

conditions, which placed her at risk for inappropriate behavior


1
    In her brief supporting summary decision, petitioner stated
she had filed a discrimination claim with the EEOC, and thus she
was not asserting a discrimination claim here.
                           12                            A-3383-15T1
with students.          The report left no question that petitioner's

mental    health    issues          affected      her   teaching    and    disciplinary

abilities.        See Kochman v. Keansburg Bd. of Educ., 124 N.J.

Super. 203, 211-12 (Ch. Div. 1973).                       Moreover, Dr. Mack only

noted a different position "may" be better for petitioner, and

only upon certain specified conditions.                         Although the report

raised the possibility that petitioner could return to a "less

stressful       population,"          given    the      totality     of        Dr.     Mack's

findings, respondent acted reasonably by deeming her ineligible

for service absent proof of recovery.

    We     further      agree        with   the    Commissioner      that       respondent

acted    reasonably      by    rejecting       petitioner's        proof    of       recovery

letters.       Both letters stated petitioner was able to "return to

work," while agreeing with Dr. Mack's suggested conditions and

accommodations.           As    a    "reasonable        possibility"      of    harm      will

justify a board decision, the Commissioner appropriately noted

that given the interest of student safety, petitioner's letters

were insufficient proof of recovery.                          Gish, supra, 145 N.J.

super.    at     105.      Therefore,         under     our    deferential       scope       of

review,     we     find        the     Commissioner's          decision        to      uphold

respondent's        actions          was    not     arbitrary,       capricious,             or

unreasonable.       Carter, supra, 191 N.J. at 482.



                                       13                                            A-3383-15T1
      Petitioner further argues the Commissioner and ALJ erred

because they granted summary decision for respondent based on

disputed facts.        According to petitioner, these disputed issues

included whether she actually threatened student safety; whether

she failed to comply with Dr. Mack's recommendations; the basis

for Dr. Mack's conclusions; and the sufficiency of her doctors'

conclusions.       We decline to discuss this argument at length, as

the   ultimate     resolution        of    these    issues     has    no     bearing    on

whether     respondent's        exercise    of     its   statutory     authority       was

reasonable.      See Parsippany-Troy Hills, supra, 188 N.J. Super.

at 167.     In other words, this case turned on whether respondent

reasonably deemed petitioner ineligible for service based on Dr.

Mack's    report    and    reasonably       rejected      petitioner's         proof    of

recovery     letters.          See   N.J.S.A.      18A:16-4.         Here,    because    a

"reasonable possibility" of harm warrants board action, we find

the Commissioner's grant of summary decision was appropriate in

this matter.       Gish, supra, 145 N.J. super. at 105.

      Any    remaining     arguments       not     specifically       addressed      lack

sufficient     merit      to    warrant     further      discussion.          R.   2:11-

3(e)(1)(E).

      Affirmed.




                                     14                                         A-3383-15T1
