The opinion
NOT FOR PUBLICATION WITHOUT THE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-3859-21
IN THE MATTER OF THE
CERTIFICATES OF BRETT
HOLEMAN, STATE BOARD
OF EXAMINERS, NEW JERSEY
DEPARTMENT OF EDUCATION.
_____________________________
Submitted April 30, 2024 – Decided May 16, 2024
Before Judges Natali and Bergman.
On appeal from the New Jersey Commissioner of
Education, Docket No. 8-11/21A.
Brett Holeman, appellant pro se.
Matthew J. Platkin, attorney for respondent
Commissioner of Education (Melissa H. Raksa,
Assistant Attorney General, of counsel; Sadia
Ahsanuddin, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Brett Holeman appeals from a June 23, 2022 final agency
decision of the New Jersey Acting Commissioner of Education (the
Commissioner) that upheld a determination by the New Jersey State Board of
Examiners (Board of Examiners) to suspend his school psychologist certificate
for six months. After a thorough review and consideration of the record, the
parties' arguments, and the applicable legal principles, we affirm the Acting
Commissioner's decision as it is supported by the evidence and appellant makes
no showing it is arbitrary, capricious, or unreasonable.
I.
Appellant began working as a school psychologist for the Freehold
Regional High School District Board of Education (the Board) in 2004, and
obtained tenure in 2007. At all relevant times, he held a New Jersey Department
of Education school psychologist standard certificate.
A series of events in the spring of 2016 led to the deterioration of the
relationship between appellant and school staff and administration. After it
received complaints related to appellant's purported improper behavior, the
Board sent appellant a memorandum informing him of the allegations and the
scheduling of an investigatory conference.
In its memorandum, the Board maintained appellant: (1) "[e]ngaged in
inappropriate behavior (. . . comments, language and expressions), including the
use of profanity, reference to sexual activity in front of students[, and] the use
of extreme volume with students and parents within a confidential counseling
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environment;" (2) "[m]ade repeated derogatory and demeaning remarks about
and to colleagues and supervisors;" (3) "[e]ngaged in erratic and concerning
behaviors that intruded into and unnecessarily disrupted the workplace of
colleagues;" (4) "[j]eopardized the State mandated testing environment to which
he was assigned;" (5) "[d]emonstrated an overall lack of respect for authority;"
and (6) "[d]isregarded the [Board]'s organizational plan and failed to observe or
use proper chain of command when raising issues or concerns." Following the
conference, the Board placed appellant on administrative leave and directed him
to undergo a psychiatric evaluation and drug screening.1
In August 2016, the Board brought tenure charges against appellant in
which it again expressed "concerns" with his "erratic, volatile, and overall
troubling behavior." The Board also detailed "a series of inappropriate and
unethical conduct and behavior that dates back as far . . . as [appellant's] initial
application for employment." After unsuccessful efforts to amicably resolve the
dispute, an arbitrator conducted hearings over twelve days between January and
March 2017 to address the tenure charges.
1
The record indicates appellant's psychological evaluation determined him fit
to return to work, and his drug test was negative.
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3
The arbitrator rendered an Award (Award) sustaining many of the charges
and the Board subsequently terminated appellant from his position. The
arbitrator concluded appellant "engaged in inappropriate behavior as a school
counselor and a professional, habitually making disparaging and demeaning
remarks about colleagues, staff members and administration, and fail [ed] to
meet his professional obligations to special education students." He also found
appellant "accepted a counseling fee from the parents of a then current student
in 2013," and noted he admitted using "his Freehold Borough High School email
address on occasion to set up or manage appointments for his private counseling
practice."
Further, the arbitrator concluded appellant violated a student's
confidentiality by sharing information about the student with his wife. While
the arbitrator never found appellant had an inappropriate relationship with any
student, he commented the content of certain emails appellant sent to students
"could have been more carefully thought out." In addition, the arbitrator
determined appellant "did not always exercise good judgment, especially in
regard to comments concerning colleagues and administrators." He also noted
appellant "omitted his brief employment with the West Morris Regional High
School on his application," but characterized the charge as "stale," and noted the
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Board could have, but did not, inquire about the prior employment when
appellant applied for his position.
In sum, the arbitrator concluded, "[t]he statements and testimony
contained in the hearing record show a breakdown in [appellant's] relationship
with colleagues and administrators," and reasoned it would be inappropriate to
reinstate appellant to his prior position because "[i]n order to effectively serve
the needs of students it is important that the Guidance Department function free
of conflict" and the "record indicates irrevocable differences between the
administration, staff members," directly caused by appellant's conduct.
Appellant filed an order to show cause seeking to vacate the Award in the
Chancery Division. After considering the parties' submissions and oral
arguments, the court rejected appellant's application and confirmed the Award.
In doing so, the court found the arbitrator applied the correct legal standard, did
not violate N.J.S.A. 2A:24-8, the evidence established that plaintiff engaged in
misconduct, termination was appropriate, and there was no violation of public
policy.
Appellant then challenged the court's decision before us and argued the
Award should be vacated as it was procured by undue means; the arbitrator
exceeded or imperfectly executed his powers in applying the proper standard
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5
and burden of proof; the Award was not based on substantial credible evidence;
and the Award was inconsistent with public policy. We rejected appellant's
arguments and affirmed. See Holeman v. Freehold Regional High School
District Board of Education, No. A-1778-17 (App. Div. Nov. 29, 2018).
In doing so, we expressly found there was "sufficient credible evidence in
the record by which the arbitrator could have decided that plaintiff engaged in
unbecoming conduct." We specifically cited to the arbitration record where one
of appellant's former colleagues testified she had concerns referring future
students to appellant due to his inappropriate actions toward students.
We also noted a Freehold Regional Education Association representative
stated appellant previously "got in her face and seemed very confrontational,"
and the Association President was called into meetings because appellant's co-
workers were "afraid" of him and "didn't know exactly what he was going to
do." In addition, appellant's former colleagues contacted the principal with
concerns regarding appellant and testified he made them feel uncomfortable on
different occasions. The Director of Personnel for the Board stated she felt that
appellant's behavior was "malicious," and his former supervisor testified she
feels appellant "is a liar, and . . . an unprofessional staff member as a whole."
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In addition, we noted a guidance counselor testified a student confided in
her appellant used a derogatory term to refer to the student's ex-girlfriend and
encouraged the student to "go off to college" and have sex with "[forty] girls."
He also allegedly recommended the student read a "profanity-filled self-help
book."
Further, students confided in other administrative employees they no
longer felt comfortable working with appellant. On this point, appellant sent
emails to students calling them "baby" and "little girl," and allowed them to call
him "luv." He received an email from one student inquiring whether he wanted
the student to "mail or email [him] a picture," and responded either would be
fine. Appellant offered to take another student out to lunch to the on-campus
student culinary restaurant during the week with his daughters. He also
frequently used profanity in email correspondences with students.
In May 2020, the Board of Examiners filed an application with the New
Jersey Department of Education requiring appellant show cause why his school
psychologist certificate should not be revoked "as a result of the unbecoming
conduct proven in the tenure proceeding." The order to show cause detailed the
history of the previously filed tenured charges, explained the charges had been
decided by an arbitrator, and noted the arbitrator found reinstating appellant was
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inadvisable because "the record indicate[d] irrevocable differences between
administration, staff members and [appellant]." The order to show cause further
correctly noted as a result of the arbitrator's decision, appellant was dismissed
from his position.
Appellant submitted an answer and argued just cause did not exist for the
revocation of his certificate. He admitted he was subject to tenure charges but
denied the allegations.
The Board of Examiners determined there appeared to be no material facts
in dispute and, consistent with N.J.A.C. 6A:9B-4.6(d) and (e), sent appellant a
hearing notice explaining its determination and notifying him of his opportunity
to submit written arguments and appear before the Board of Examiners.
Appellant filed a written response and was represented by counsel.
In a detailed written decision, the Board of Examiners determined it "was
constrained by collateral estoppel to accept the facts as found in the tenure
hearing and therefore no material facts related to appellant's offense were in
dispute." As such, the Board of Examiners concluded a summary decision was
warranted under N.J.A.C. 6A:9B-4.6(h), and determined appellant's conduct
"represents just cause to act against his certificates pursuant to N.J.A.C. 6A:9B-
4.5."
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Based on the findings from the tenure proceeding, the Board of Examiners
found appellant's conduct "unfitting of a role model," and suspended his school
psychologist certificate for six months. The Board of Examiners noted
revocation of his certificate was not appropriate as appellant had "no record of
previous discipline for similar conduct, or other inappropriate conduct in his
employment history with Freehold," and "the [a]rbitrator's [d]ecision as to
penalty was predicated on the breakdown in relationship[s] between [appellant]
and his colleagues and less so the nature of his conduct."
Appellant appealed the Board of Examiners' suspension order to the New
Jersey Commissioner of Education. While his appeal was pending, appellant
filed a motion to settle the administrative record on appeal pursuant to N.J.A.C.
6A:4-2.5(a), seeking to include the transcripts from his tenure hearing in the
record and to exclude certain other documents.
The Acting Commissioner denied appellant's application. With respect to
the evidence appellant sought to exclude, the Acting Commissioner determined
the documents "were part of the evidence that was on file with the Board [of
Examiners] and [were] therefore appropriately included in the record." The
Acting Commissioner also noted the transcripts were properly excluded from
the record because they were not "part of the evidence on file with the Board [of
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Examiners]." The Acting Commissioner explained while N.J.A.C. 6A:4-2.5(a)
states transcripts are to typically be included as part of the administrative record,
"that provision refers to transcripts from the proceedings before the Board [of
Examiners] that led to the decision being appealed, not to transcripts from a
separate proceeding that were never submitted to the Board [of Examiners]."
On June 23, 2022, the Acting Commissioner issued a final agency decision
and concluded "the record adequately support[ed] the Board[ ] [of Examiners']
determination that appellant engaged in unbecoming conduct and that a six-
month suspension of his certificate [was an] appropriate penalty." As the Acting
Commissioner explained, "[t]he majority" of appellant's arguments "take issue
with the decision of the [a]rbitrator regarding the tenure charges," but agreed
with the Board of Examiners that collateral estoppel procedurally barred
appellant "from relitigating the issue of unbecoming conduct" as he "had a full
and fair opportunity to contest those charges during the tenure proceeding." The
Acting Commissioner also found there was "no basis to dispute the [a]rbitrator's
findings, particularly when those findings have been affirmed by the Appellate
Division."
The Acting Commissioner rejected appellant's argument his loss of tenure
and previous good record should mitigate his penalty, and explained, "N.J.A.C.
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6A:9B-4.5(a) specifically contemplates that, following a teacher's loss of tenure
or employment, the Board [of Examiners] may initiate proceedings to suspend
or revoke the teacher's certificates." As the Acting Commissioner reasoned, the
potential consequences related to unbecoming conduct charges may include both
loss of tenure and suspension of certificate, and the imposition of one penalty
does not mitigate the other. Acknowledging appellant's lack of prior discipline,
the Acting Commissioner concluded that particular finding "does not fully
mitigate the penalty," but rather served "to reduce the possible penalty from
revocation to a six-month suspension."
In sum, the Acting Commissioner determined appellant failed to
demonstrate the Board of Examiners’ decision to suspend his certificate based
on the unbecoming conduct established during the tenure proceeding was
arbitrary, capricious, or unreasonable. This appeal followed.
II.
In his pro se brief on appeal, appellant presents the following arguments
for our consideration:
I. THE COMMISSIONER ERRED IN
UPHOLDING THE STATE BOARD OF
EXAMINERS['] SUSPENSION OF
APPELLANT'S CERTIFICATE BECAUSE
SHE MADE A DECISION BASED ON AN
INCOMPLETE FILE OF REQUIRED
A-3859-21
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DOCUMENTS TO DO SO AND DID NOT
CONSIDER PRECEDENTS OF HER ABILITY
TO DO SO.
II. THE COMMISSIONER ERRED IN
UPHOLDING THE DECISION DUE TO THE
USE OF HEARSAY IN THE DECISION AS
PER THE [RESIDUUM RULE OF WESTON v.
STATE, 60 N.J. 36 (1972)].2 (Not raised below).
By way of further explication, in his first point, appellant contends the
decision of the Board of Examiners and the Acting Commissioner was arbitrary,
capricious, and unreasonable because the transcripts of his tenure proceedings
were not included in the record before the Board of Examiners or Acting
Commissioner in violation of N.J.A.C. 6A:4-2.5(a). Appellant states his appeal
is limited to the suspension cases as he "accepts the faulty tenure decision," and
is not attempting "to relitigate that matter." Rather, he argues the transcripts
provide "specific instances" in which the Board of Examiners and Acting
2
In Weston, the Supreme Court recognized the usual rules of evidence barring
hearsay testimony are not necessarily controlling in an administrative
proceeding and subsequent appeal. 60 N.J. at 50. "However, a decision in such
an appeal 'cannot be based upon hearsay alone.'" In re Dubov, 410 N.J. Super.
190, 202 (App. Div. 2009) (quoting Weston, 60 N.J. at 51). "[T]here must be a
residuum of legal and competent evidence in the record to support it." Ibid.
This rule is codified in N.J.A.C. 1:1-15.5(b), which provides: "[n]otwithstanding
the admissibility of hearsay evidence, some legally competent evidence must
exist to support each ultimate finding of fact to an extent sufficient to provide
assurances of reliability and to avoid the fact or appearance of arbitrariness."
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Commissioner could "see some evidence" disproving "some allegations," and
would allow the Board of Examiners and Acting Commissioner to render a
decision based on these unidentified facts.
In his second point, appellant contends, for the first time, the Board of
Examiners and the Acting Commissioner erred by relying on hearsay to reach
their determinations. Specifically, appellant argues because the arbitrator relied
on hearsay, and both the Board of Examiners and the Acting Commissioner
relied on the arbitrator's findings, they too erred as they based their decisions on
incompetent evidence. He also maintains by relying on hearsay in this fashion
the Board of Examiners and Acting Commissioner's decisions were contrary to
the residuum rule of Weston.
In requesting we affirm, the State contends the decisions of both the Board
of Examiners and the Acting Commissioner were properly "grounded in
collateral estoppel." The State also argues the Acting Commissioner correctly
denied appellant's application to include the transcripts of his tenure proceeding
in the record before the Commissioner as the transcripts were not in the record
before the Board of Examiners. As the transcripts were not "on file" with the
Board of Examiners, the State contends N.J.A.C. 6A:4-2.5(a) does not require
they be included in the record on appeal. Further, the State maintains although
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the Acting Commissioner had the authority to supplement the record, she
properly denied appellant's request as the transcripts are irrelevant because the
Board of Examiners properly "invoked collateral estoppel," and thus based its
decision on the arbitrator's factual findings and Award, not the proofs detailed
in the transcripts.
"Our review of administrative agency action is limited," Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011), but we are not
"relegated to a mere rubber-stamp of agency action," Williams v. Dep't of Corrs.,
330 N.J. Super. 197, 204 (App. Div. 2000). Rather, we engage in a "careful and
principled" examination of the agency's findings. Ibid. (quoting Mayflower Sec.
v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
A reviewing "court ordinarily should not disturb 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 Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,
422 (2008). In the absence of such a showing, we accord substantial deference
to an agency's fact-finding and legal conclusions, recognizing "the agency's
'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v.
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Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). It is
generally not the function of a reviewing court "to weigh the evidence, to
determine the credibility of witnesses, to draw inferences and conclusions from
the evidence, and to resolve conflicts therein." In re Grossman, 127 N.J. Super.
13, 23 (App. Div. 1974).
"The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006). Where an
agency decides an issue of law, its "decision do[es] not carry a presumption of
validity and it is for this court to decide whether those decisions are in accord
with the law." Parsippany-Troy Hills Educ. Ass'n v. Bd. of Educ., 188 N.J.
Super. 161, 165 (App. Div. 1983).
Under N.J.A.C. 6A:9B-4.4, the Board of Examiners "may revoke or
suspend the certificate(s) of any certificate holder on the basis of demonstrated
inefficiency, incapacity, conduct unbecoming a teacher, or other just cause."
Unbecoming conduct is conduct "'which adversely affects the morale or
efficiency of the [department]' or 'has a tendency to destroy public respect for
[government] employees and confidence in the operation of [public] services.'"
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Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 14 (2017) (alternations in
original) (quoting In re Young, 202 N.J. 50, 66 (2010)). A finding of
unbecoming conduct "need not be predicated upon the violation of any particular
rule or regulation, but may be based merely upon the violation of the implicit
standard of good behavior" expected of one in a public position. Id. at 13-14.
"The touchstone . . . [is] the certificate holder's 'fitness to discharge the duties
and functions of one's office or position.'" Young, 202 N.J. at 66 (quoting
Grossman, 127 N.J. Super. at 29).
We determine there was no error in the Acting Commissioner's application
of the doctrine of collateral estoppel to preclude appellant from relitigating the
identical unbecoming conduct charges that were decided by the arbitrator in the
tenure proceedings. Collateral estoppel "bars relitigation of issues previously
litigated and determined adversely to the party against whom the doctrine is
asserted . . . . When used to bar a defendant from asserting a defense previously
litigated and lost against a different plaintiff[,] it is referred to as offensive
collateral estoppel." Kortenhaus v. Eli Lilly & Co., 228 N.J. Super. 162, 164
(App. Div. 1988). For a court to determine that a party is collaterally estopped
from litigating an issue, five elements must be met:
(1) the issue to be precluded is identical to the issue
decided in the prior proceeding; (2) the issue was
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actually litigated in the prior proceeding; (3) the court
in the prior proceeding issued a final judgment on the
merits; (4) the determination of the issue was essential
to the prior judgment; and (5) the party against whom
the doctrine is asserted was a party to or in privity with
a party to the earlier proceeding.
[Allen v. V & A Bros., Inc., 208 N.J. 114, 137 (2011)
(quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511,
521 (2006)).]
Under the first prong, the prior action must have involved substantially
similar or identical issues. L.T. v. F.M., 438 N.J. Super. 76, 86 (App. Div. 2014)
(quoting Olivieri, 186 N.J. at 521). Some courts have required the issues to be
"precisely the same." In re Liquidation of Integrity Ins. Co./Celotex Asbestos
Trust, 214 N.J. 51, 68 (2013) (quoting In re McWhorter, 887 F.2d 1564, 1567
(11th Cir. 1989)).
Further, an "issue is actually litigated" if the issue "is properly raised, by
the pleadings or otherwise, and is submitted for determination, and is
determined." Allesandra v. Gross, 187 N.J. Super. 96, 105-06 (App. Div. 1982)
(quoting Restatement (Second) of Judgments § 27, cmt. d (Am. L. Inst. 1980)).
Moreover, "'final judgment' includes any prior adjudication of an issue in
another action that is determined to be sufficiently firm to be accorded
conclusive effect." Restatement (Second) of Judgments § 13. "Simply put, for
collateral-estoppel purposes, 'the question to be decided is whether a party has
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had his day in court on an issue.'" State v. K.P.S., 221 N.J. 266, 278 (2015)
(quoting McAndrew v. Mularchuk, 38 N.J. 156, 161 (1962)).
Here, the Acting Commissioner properly considered the pertinent
circumstances, and correctly applied the law when determining collateral
estoppel barred appellant from relitigating the unbecoming conduct charges in
the proceeding to suspend his school psychologist certificate. The identical
charges were fully litigated and decided after a full and fair hearing before the
arbitrator. As explained by the Acting Commissioner, appellant litigated the
underlying facts in the tenure proceeding, which included twelve days of
hearings where he was represented by counsel. The Acting Commissioner also
noted we previously rejected appellant's challenge to the Award.
Additionally, although the parties before the Acting Commissioner were
not identical to the parties in the arbitration, the party against whom collateral
estoppel was applied — appellant — was a party to the earlier proceeding before
the arbitrator. See Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85
(2012). Appellant does not dispute, and the record otherwise establishes, the
issues to be precluded by application of collateral estoppel in the proceeding
before the Acting Commissioner — that is, appellant's commission of various
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conduct unbecoming — were, as noted, identical to the issues presented before
the arbitrator. 3 See ibid.
Further, appellant does not dispute the identical issues were "actually
litigated" during the prior arbitration proceeding, id. at 85 (quoting Olivieri, 186
N.J. at 521), determination of the issues was essential to the arbitrator's decision,
and the arbitrator's decision constituted a final judgment in the tenure
proceedings, see ibid. In addition, appellant does not point to any concern of
unfairness, public policy, or newly available evidence that would be inconsistent
with the otherwise proper application of the doctrine of collateral estoppel. See
Fama v. Yi, 359 N.J. Super. 353, 359 (App. Div. 2003). The record establishes
each of the elements supporting application of the doctrine of collateral estoppel,
and appellant makes no showing why that preclusive doctrine should not apply.
We are further satisfied, based on these findings and our review of the record,
there was sufficient credible evidence supporting the determination of the Board
of Examiners and the Acting Commissioner appellant engaged in conduct
3
In our recent decision Morison v. Willingboro Bd. of Educ., we rejected the
appellant's request in that case to apply collateral estoppel to prevent the Board
of Examiners from commencing an action to suspend or revoke a teacher's
certificate following a tenure arbitration. ___ N.J. Super. ___,___ (slip op. at
16-18) (App. Div. 2024). We expressly noted in Morison, however, offensive
collateral estoppel principles were not at issue, as they are here. Id. at 18 n.6.
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warranting the suspension of his certificate. See Bound Brook Bd. of Educ., 228
N.J. at 13-14.
Additionally, appellant's argument the Acting Commissioner erred in
reaching her decision because the transcripts of appellant's arbitration
proceedings were not included in the record is unavailing. Although appellant
expressly states he is not attempting to relitigate the arbitrator's decision, it is
clear he is challenging the arbitrator's findings as they relate to the Acting
Commissioner's decision. Indeed, in advancing this argument, he essentially
asserts the inclusion of the transcripts would have resulted in a different outcome
before the Board of Examiners. Appellant has presented no evidence supporting
such a conclusion, and as detailed on direct appeal, we affirmed the findings of
the arbitrator. We also conclude the Acting Commissioner correctly interpreted
N.J.A.C. 6A:4-2.5(a) as requiring the administrative record to include
transcripts from the proceedings before the Board of Examiners, but not
transcripts from the separate tenure proceeding.
Additionally, as noted, appellant's argument the Acting Commissioner
improperly relied on hearsay in reaching her decision was first raised before us.
"It is a well-settled principle that our appellate courts will decline to consider
questions or issues not properly presented to the trial court when an opportunity
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for such a presentation is available 'unless the questions so raised on appeal go
to the jurisdiction of the trial court or concern matters of great public interest.'"
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds
Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). Neither
exception applies here.
Despite this procedural infirmity, we have considered appellant's
arguments on the merits and conclude these arguments, and any not specifically
addressed, are of insufficient merit to warrant extended discussion in a written
opinion. R. 2:11-3(e)(1)(E). Appellant's contention the Acting Commissioner
violated the residuum rule is belied by the record, as evidenced by our decision
affirming the Award where we concluded the Award was based on substantial
and credible evidence. See Holeman, slip op. at 9-11.
Affirmed.
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