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Vitacco v. Board of Education of the School District of Lincoln Park2/5/2002
ic office under N.J.S.A. 2C:51-2 by virtue of his federal criminal conviction.
After hearing arguments on the motions, the administrative law judge denied appellant's motion stating, "Simply put, the community is entitled to a public declaration that Vitacco's behavior required his removal. He should not be permitted to resign in good standing." The administrative law judge found that the Commissioner of Education had jurisdiction to forfeit appellant's public employment pursuant to the New Jersey Code of Criminal Justice (the Criminal Code), N.J.S.A. 2C:51-2, because of his criminal convictions.
In his decision on March 24, 1997, however, the commissioner determined that he lacked jurisdiction to forfeit appellant's position under the Criminal Code. Nevertheless, he ordered that appellant "be deemed dismissed from his tenured employment with the Lincoln Park Board of Education, pursuant to N.J.S.A. 18A:6-10, for conduct unbecoming a superintendent of schools." The matter was forwarded to the State Board of Education and on April 7, 2000, the State Board affirmed the commissioner's determination.
Appellant argues the following points before us:
POINT I
THE COMMISSIONER OF EDUCATION AND STATE BOARD OF EDUCATION DENIED APPELLANT VITACCO DUE PROCESS OF LAW BY DENYING HIM A HEARING AS TO THE TENURE CHARGES AND AS TO THE APPROPRIATE PENALTY, IF THE CHARGES COULD HAVE BEEN SUSTAINED.
A. THE COMMISSIONER OF EDUCATION IMPERMISSIBLY DEPRIVED VITACCO OF A HEARING AS TO THE TENURE CHARGES THAT HIS CONDUCT WAS UNBECOMING AND AS TO THE APPROPRIATE PENALTY, IF THE CHARGES COULD HAVE BEEN SUSTAINED.
B. THE COMMISSIONER OF EDUCATION COMMITTED LEGAL ERROR BY RELYING UPON A STIPULATION IN VITACCO'S PLEA AGREEMENT WITHOUT A FACTUAL FOUNDATION SUPPORTING THE CHARACTERIZATION.
Initially, we note that the commissioner's determination that he lacked authority to enter an order forfeiting appellant's public employment under the Criminal Code is correct. The commissioner stated,
While it is axiomatic that the Commissioner of Education, pursuant to N.J.S.A. 18A:6-9, has jurisdiction to hear and determine all controversies and disputes arising under the school laws, the forfeiture statute does not arise under school law. Thus, authority for entry of an order that an individual has forfeited his public employment must be derived solely from the provisions of the controlling criminal statute.
In N.J.S.A. 2C:51-2, the Criminal Code provides for forfeiture of public office under specified circumstances:
a. A person holding any public office, position, or employment, elective or appointive, under the government of the State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:
(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
(2) He is convicted of an offense involving or touching such office, position or employment; or
(3) The Constitution or statute other than the code so provides.
b. A court of this State shall enter an order of forfeiture pursuant to subsection a:
(1) Immediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of such forfeiture pending a hearing on the merits at the time of the sentencing; or
(
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