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Vitacco v. Board of Education of the School District of Lincoln Park2/5/2002
2) Upon application of the county prosecutor or the Attorney General when the forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. An order of forfeiture pursuant to this paragraph shall be deemed to have taken effect on the date the person was found guilty by the trier of fact or pled guilty to the offense.
....
g. In any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his office, position or employment. The fact that a court has declined to order forfeiture shall not preclude the public officer or public entity having authority to remove the person convicted from seeking to remove or suspend the person from his office, position or employment on the ground that the conduct giving rise to the conviction demonstrates that the person is unfit to hold the office, position or employment.
Nowhere in the statute is the commissioner authorized to seek forfeiture upon a criminal conviction. In State v. Ercolano, 335 N.J. Super. 236, 249 (App. Div. 2000), we specifically addressed the authority of the commissioner to seek an order of forfeiture under N.J.S.A. 2C:51-2. There, Judge Skillman, writing for the court, stated:
[The commissioner] may conceive that the filing of such an application would place him in an adversarial relationship with the employee, which would be inconsistent with the judicial role he is supposed to play under N.J.S.A. 18A:6-10, 11.
We held, however, that the local Board of Education, as the employer and an interested party, is authorized to apply for an order of forfeiture under N.J.S.A. 2C:51-2g.
Appellant argues that he is entitled to a hearing before the administrative law judge to determine whether his criminal convictions constituted "conduct unbecoming" and to assess the appropriate penalty if the charges are sustained. He contends that N.J.S.A. 18A:6-10 is the governing statute. That statute provides:
No person shall be dismissed or reduced in compensation,
a. If he is or shall be under tenure of office, position or employment during good behavior and efficiency in the public school system of the state, ... except for inefficiency, incapacity, unbecoming conduct or other just cause, and then only after a hearing held pursuant to the sub-article, by the commissioner, or a person appointed by him to act on his behalf, after a written charge or charges, of the cause or causes of the complaint shall have been preferred against such persons. (Emphasis added).
Appellant further contends that N.J.S.A. 18A:6-16, amended by L. 1998, c.42 ยง2, (1998), provides that such a hearing is mandatory:
Upon receipt of such a charge and certification, or of a charge lawfully made to him, the commissioner or the person appointed to act on his behalf in the proceedings shall examine the charges and certification and if he is of the opinion that they are not sufficient to warrant dismissal or reduction in salary of the person charged, he shall dismiss the same and notify said person accordingly. If, however, he shall determine that such charge is sufficient to warrant dismissal or reduction in salary of the person charged, he shall conduct a hearing thereon within a 60-day period after the receipt thereof upon reasonable notice to all parti
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