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Vitacco v. Board of Education of the School District of Lincoln Park2/5/2002
es in interest. (Emphasis added).
The commissioner concluded that under the totality of the circumstances here, "he can find no justification for the expenditure of scarce time and resources to conduct a plenary hearing, as he determine that the conduct giving rise to Vitacco's federal conviction amply establishes the Board's charges of unbecoming conduct and calls for his removal from his tenured position." We agree. Appellant's position was mandatorily forfeited as of the date of his conviction. Ercolano, supra, 335 N.J. Super. at 245; N.J.S.A. 2C:51-2b(2). To proceed with a removal hearing under Title 18A, under these circumstances, would be superfluous and an unnecessary "expenditure of scarce time and resources."
Appellant argued before the commissioner, as he does before us, that he is entitled to an adjudication on the merits of the tenure charges by virtue of the fact that his federal convictions "did not touch upon or involve his duties as superintendent of schools." Appellant's argument is disingenuous. As noted by Judge Ackerman, appellant's crimes clearly violated his position of public trust. Moreover, the very charges to which he pled guilty involved funds earned from the Board of Education and Board expenses that were falsely deducted and inflated.
In his brief, appellant cites numerous cases in which public school personnel were disciplined to a lesser extent than dismissal. He argues:
It is averred that in the above cited cases in which only the penalties of suspension or less were sustained against the teachers or assistant superintendents in question, that the behaviors proved, including corporal abuse of students, inappropriate exposure by teachers to students of explicit sexual materials, language and conduct, sexual harassment and drunkenness on school premises, are far more egregious than under-reporting income.
While we agree the conduct described in those cases is serious, we can think of no more egregious conduct than a superintendent of schools who engages in a deliberate, calculated pattern of dishonesty in under-reporting income earned from public monies in the performance of public duties. As Judge Ackerman stated at sentencing, appellant had a greater responsibility than "John Q. Citizen." As superintendent of schools he had a duty to set an example and to conduct himself in accordance with the highest standards.
Finally, we find no merit in appellant's argument that the commissioner committed legal error by relying upon the stipulation that appellant agreed to a two level enhancement of penalty in his federal plea agreement. The plea agreement was a matter of record. The reference cannot be deemed "legal error."
We note that appellant is subject to forfeiture under N.J.S.A. 2C:51-2. Consistent with Ercolano and N.J.S.A. 2C:51-2g, the Lincoln Park Board of Education may make the application to a court of this state for an order of forfeiture. The Board need not seek the assistance of the county prosecutor or Attorney General to undertake that action.
We have not been advised that the consequences of forfeiture under N.J.S.A. 2C:51-2 differ from dismissal for conduct unbecoming a superintendent of schools under N.J.S.A. 18A:16-10. The Lincoln Park Board of Education, which has sought appellant's removal since he was indicted, may proceed with a forfeiture action pursuant to N.J.S.A. 2C:51-2g. Forfeiture "shall be deemed to have taken effect on the date the person ... pled guilty to the offense." N.J.S.A. 2C:51-2b(2).
Affirmed.
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