SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5537-99T3
CARTERET BOARD OF EDUCATION,
Plaintiff-Respondent,
v.
SAAD RADWAN,
Defendant-Appellant.
Submitted: October 30, 2001 Decided:
February 8, 2002
Before Judges Wefing, Ciancia and Lesemann.
On appeal from a Final Decision of the State
Board of Education, Docket No. EDU 6259-97.
Ashton E. Thomas, attorney for appellant.
Wilentz, Goldman & Spitzer, attorneys for
respondent Carteret Board of Education
(Christine D. Petruzzell, of counsel; Ms.
Petruzzell and Donna A. McBarron, on the
brief).
John J. Farmer, Jr., Attorney General,
attorney for respondent State Board of
Education (Patrick DeAlmeida, Deputy Attorney
General, of counsel; Kathleen Asher, Deputy
Attorney General, on the brief).
The opinion of the court was delivered by
WEFING, J.A.D.
Saad Radwan appeals from a Final Decision of the State Board
of Education that affirmed the decision of the Commissioner of
Education finding Radwan was guilty of conduct unbecoming a tenured
custodian and ordered his dismissal. After reviewing the record in
light of the contentions advanced on appeal, we affirm.
Radwan commenced employment with the Carteret Board of
Education in 1991. In June 1997, the Board certified tenure
charges against him, alleging conduct unbecoming a tenured
custodian and insubordination. The matter was heard in the Office
of Administrative Law in a proceeding that spanned nineteen days.
More than two hundred exhibits were received as evidence. The
administrative law judge (ALJ) who presided over the hearing issued
a detailed twenty-four page opinion in which he comprehensively set
forth his findings of fact and conclusions of law, as well as his
assessment of the credibility of the numerous witnesses who had
appeared before him. He noted that he "found the Board's witnesses
believable and respondent unconvincing."
Radwan presents three arguments on appeal. He asserts that
the State Board of Education violated his due process rights "by
adopting findings and conclusions," that it violated his due
process rights by denying his application for a hearing to
reconstruct the record and violated his due process rights by
denying his application to cross-examine a particular witness,
Karen Lopez. To the extent that his first argument challenges the
well-established principle that the decision of an administrative
body should be affirmed if it is neither arbitrary, capricious nor
unreasonable and is supported by the record, we reject it entirely.
Earl v. Johnson & Johnson,
158 N.J. 155, 161 (1999); R&R Marketing
v. Brown-Forman
158 N.J. 170, 175 (1999); Dore v. Bedminster Twp.
Bd. of Educ.,
185 N.J. Super. 447, 453, (App. Div. 1982); R. 2:11-
3(e)(1)(D). To the extent that Radwan's argument challenges the
sufficiency of the record, we reject it for the reasons set forth
below.
We have noted that the hearing before the ALJ took almost
three weeks to complete. One of the witnesses was Radwan's
immediate supervisor, Drew Packard, who testified for three days.
His direct testimony commenced on May 15, 1998 and fills slightly
more than seventy pages of transcript. His cross- examination
commenced that day, continued the entire day of May 18 and
concluded on May 19. All of the proceedings before the ALJ were
tape-recorded; unfortunately, when the transcript of the
proceedings was prepared, it was discovered that one of the tapes
of a portion of Packard's cross-examination on May 18 was blank.
Radwan's counsel sometime thereafter moved before the ALJ for
a hearing to reconstruct that portion of the record. He argues
that the denial of his request for such a hearing was error. We do
not see any grounds to reverse. We have, on occasion, reviewed a
"reconstructed" record when necessity required. State v. Kozarski,
143 N.J. Super. 12, 16 (1976). We have also recognized, however,
that the existence of gaps in the record below do not automatically
justify a reversal. "Where the transcripts of a defendant's trial
are incomplete because they omit portions of the trial proceedings,
such omissions do not mandate reversal unless the defendant
demonstrates specific prejudice." State v. Paduani,
307 N.J.
Super. 134, 142 (App. Div. 1998), quoting State v. Bates,
933 P.2d 48, 54 (Haw. 1997).
Here, Radwan can demonstrate no such prejudice. The findings
and conclusions of the ALJ, adopted by the Commissioner of
Education whose opinion was in turn adopted by the State Board of
Education, recount a number of incidents which support Radwan's
dismissal but do not rely on the testimony of Packard.
We turn to Radwan's final contention. During the course of
Radwan's employment, he said he had injured his back and was
undergoing a course of water therapy for treatment. Radwan
maintained that on several occasions when he was not present at
work, he was receiving such therapy. To rebut that testimony, the
Board presented the affidavit of Karen Lopez, who was employed at
the facility at which Radwan received his therapy. Ms. Lopez's
affidavit contradicted Radwan's testimony about the hours when such
therapy was available.
The rules against the admission of hearsay evidence are
considerably more relaxed in administrative proceedings than in
court. Weston v. State,
60 N.J. 36, 50-52 (1972); DeBartolemeis v.
Bd. of Review,
341 N.J. Super. 80, 83-85 (App. Div. 2001); N.J.R.E.
101(a)(3); Biunno, Current N.J. Rules of Evidence, comment 3 on
N.J.R.E. 101(a) at 14 (2001). N.J.A.C. 1:1-15.5. Nonetheless, we
caution against the wholesale presentation of hearsay evidence.
Again, however, as with the blank tape, we are satisfied that
Radwan was not unfairly prejudiced. As with Mr. Packard, the ALJ
did not rely on the evidence supplied through the Lopez affidavit
to conclude that Radwan should be dismissed from his position as a
tenured custodian. Although the ALJ referred in passing to the
affidavit in the course of his opinion, the opinion is replete with
a number of incidents that would justify Radwan's dismissal,
including throwing a box of supplies down the stairs instead of
carrying them, refusing to follow orders, and engaging in repeated
altercations with co-workers and supervisors. The test we must
apply is whether the Final Decision of the State Board of Education
is supported by substantial credible evidence in the record.
Murray v. State Health Benefits,
337 N.J. Super. 435, 442 (App.
Div. 2001) ("Substantial evidence is such evidence as a reasonable
mind might accept as adequate to support a conclusion.")
The Final Decision of the State Board of Education is
affirmed.