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Vitacco v. Board of Education of the School District of Lincoln Park2/5/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2001
This is an appeal from a decision by the State Board of Education dismissing appellant from his tenured employment with the Lincoln Park Board of Education for conduct unbecoming a superintendent of schools. We affirm.
On November 2, 1995, appellant pled guilty to two counts of filing false federal income tax returns, under-reporting income earned from the school district and deducting false and inflated expenses claimed from the school district. On June 18, 1996, appellant was sentenced to ten months in the custody of the Federal Bureau of Prisons followed by supervised release for a term of two years. He was also sentenced to pay certain fines and penalties and to comply with certain special conditions involving full disclosure of his financial records and to cooperate fully with the Internal Revenue Service with respect to filing delinquent or amended returns.
In the plea agreement entered into with the United States Attorney, appellant agreed to a "two-level enhancement [under the federal sentencing guidelines] for abuse of a position of trust." During sentencing, United States District Court Judge Harold Ackerman denied appellant's motion for downward departure from the sentencing guidelines, indicating that "the Court finds no reason to depart from the sentence called for by application of the guidelines." In imposing sentence, Judge Ackerman stated:
There can be no doubt whatsoever that ... you occupied extraordinarily important position ... in the Lincoln Park School District. You, Mr. Vitacco, were superintendent of schools .... And you were ... making very healthy salar by any reasonable standard.
Now, Mr. Vitacco, when you addressed the Court, you indicated that you felt that what you had done was stupid. I would have used a different word. Please forgive me. The crime that you committed, namely attempting to evade or defeat income taxes, the underlying rationale in your case ... is greed. Greed. Pure and simple. A desire to rip off the system, carry out your very important responsibilities ... in, to say the least, a hypocritical manner.
....
hen an individual ... occupies the position that you ... occupied, that responsibility ... is increased proportionately.
And the reason is very simple: You're not only paying or not paying your taxes as John Q. Citizen, ... you occupied a very important position .... And as I said before, you set an example. You set an example, and you blew it.
....
y philosophy is based on two factors: One, punishment; and secondly, deterrence. Because we know ... from a standpoint of sentencing philosophy, that there are a few crimes in which the deterrence factors play a very, very important role. And the crimes that you pled guilty to back in November fall precisely within that category.
....
Now, I'm going to send ... you to prison, and I want you to know that. And I believe that you ... rate it.
The Lincoln Park Board of Education (Board) certified tenure charges seeking removal of appellant as superintendent of schools for conduct unbecoming a public employee, including tax evasion, misappropriation of public funds, misuse of vacation days, destruction of public records and financial mismanagement. The matter was referred to the Office of Administrative Law for an evidentiary hearing. Appellant, however, moved to dismiss the tenure charges as moot because he agreed to retire, effective September 30, 1995. The Board cross-moved for a declaratory ruling that appellant forfeited his publ
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