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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1636-06T11636-06T1
IN THE MATTER OF THE TENURE HEARING
OF DARLENE DONAHUE, SCHOOL DISTRICT
OF PEMBERTON,
and
DARLENE DONAHUE,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF PEMBERTON, BURLINGTON COUNTY,
Respondent-Respondent.
Argued January 28, 2008 - Decided
Before Judges Lintner, Sabatino and Alvarez.
On appeal from a Final Decision of the State Board of Education, 25-06.
Steven R. Cohen argued the cause for appellant (Selikoff & Cohen, attorneys; Mr. Cohen,
of counsel; Mr. Cohen and Carol H. Alling, on the brief).
LaTonya N. Bland argued the cause for respondent Pemberton Township Board of
Education (Capehart & Scatchard, attorneys; Ms. Bland, of counsel and on the brief).
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Anne Milgram, Attorney General, attorney for respondent State Board of Education
(Cynthia Ann Raymond, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM
Darlene Donahue, a tenured librarian-media specialist employed by the Pemberton Township Board of
Education (District) at the Newcomb Middle School, appeals a final decision of the State Board of Education (State
Board). The State Board found that the record fully supported the Administrative Law Judge's (ALJ) conclusions that
Donahue engaged in conduct unbecoming a public school teacher, and affirmed the Acting Commissioner of
Education's (Commissioner) decision dismissing Donahue from her tenured employment. Donahue appeals and we
affirm.
Donahue was employed at Newcomb Middle School for approximately thirteen years, until tenure charges
were filed against her in May 2003. Her duties included "running the operation of the educational media center and
handling selection of books, cataloguing, instructing students in research skills [and] Internet skills[, and] . . .
working with both students and teachers in helping with projects of a research nature." According to Donahue, she
was also responsible for screening both books and videos to ensure that they "were grade appropriate, content
appropriate for . . . students."
In October 1998, the District adopted Policy No. 2361, entitled "ACCEPTABLE USE OF COMPUTER
INTERNET/COMPUTERS AND RESOURCES" (computer policy). Daniel Bevilacqua, the District's Director of Personnel,
described the computer policy as
a comprehensive document that outlines an agreement providing a privilege to
employees for the use of Internet access and E-mail, and calls it out as a privilege, in
that it details the do's and don'ts, if you will, and the appropriate protocols and
procedures to be followed in the event of a determination of inappropriateness. It also
clearly spells out that it . . . shouldn't be used for lobbying and political purposes and
inappropriate access, and that it is signed by the employee upon an orientation in the
District.
All existing "employees signed [the] document before any Internet access was ever made available."
Section L.8 of the computer policy prohibits students and teachers from accessing inappropriate material and
states:
a.                                                                                                                     Users will not use the District system to access material that is profane or
obscene (pornography) that advocates illegal acts, or that advocates
violence or discrimination towards other people (hate literature). For
students, a special exception may be made for hate literature if the
purpose of such access is to conduct research and access is approved by
both the teacher and the parent. District employees may access the
above material only in the context of legitimate research.
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b.                                                                                                                      If a user inadvertently accesses such information, they should immediately
disclose the inadvertent access in a manner specified by their school. This
will protect users against an allegation that they have intentionally
violated the Acceptable Use Policy.
Section L.4 of the computer policy restricts employees' use of the District's e-mail:
a.                                                                                                                      Restrictions against Inappropriate Language apply to public messages,
private messages, and material posted on Web pages.
b.                                                                                                                      Users will not use obscene, profane, lewd, vulgar, rude, inflammatory,
threatening, or disrespectful language.
At the time the District was preparing to use the Internet, Kathy Bernacki, the District Information Officer
"responsible for the infrastructure of the network" and "procurement of all software and hardware related to both
instructional applications as well as administrative applications," "visited each school in the District . . . [and]
presented the Internet use policy in the form of a Power Point presentation." According to Bernacki, the faculty was
advised that "if there was inadvertent access, the teacher or staff member should notify [her] directly immediately."
At the conclusion of Bernacki's presentation, employees were asked to review a copy of the computer policy and, if
they agreed to it, sign and return the policy so that a user account could be set up for them. Donahue signed the
computer policy on November 4, 1998, and a user account was created for her.
On Friday, October 11, 2002, an English teacher at Pemberton Township High School contacted Bernacki to inform
her that an inappropriate website needed to be blocked by the District's Internet filter. Bernacki located Lori
McMillan, the District's Network Engineer, and asked her to add the website to the filter. That evening, McMillan
remotely accessed the District's server from her home computer so that she could block the website. After adding
the website to the filter, McMillan went through the user activity log and noticed a pattern of activity from the IP
address associated with the circulation desk computer located behind the counter in Newcomb Middle School's
library.
On Tuesday morning, October 15, 2002, McMillan informed Bernacki of her discovery. Both Bernacki and McMillan
went to look at the computer to "make sure that the time on the computer was set appropriately" and that it
matched up with the activity shown on the logs.
Bernacki discovered that the computer's history revealed "sites that were []obviously inappropriate in nature based
on the names of the sites." There were also "inappropriate sites bookmarked on the Favorites" link in the Internet
toolbar. Bernacki determined that the computer was "a threat to any staff that would have been in the library or
students that were in the library." She and McMillan removed the computer from the library and brought it back to
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McMillan's office.
Using the Surfer Watch filtering program and Super Scout software, McMillan obtained a "User Activity Detail"
report for the computer covering a seven-day period, including October 9, 10, and 11, 2002. McMillan was unable go
back any further because "[t]he logs rotate every 7 days" and essentially "write over" the data amassed during each
prior seven-day period. McMillan and Bernacki accessed approximately fifty-two of the questionable websites that
she described as "inappropriate" because they included words such as "sexy blondes, hard core porno, sex
pictures," "100 percent adult sex positions," "bound brunettes," "Top 3 nude, [and] beautiful teen brunette pussy
girls picks." Accessing the computer's Internet history file, McMillan found a list of websites that had been visited up
to the date the computer had been removed. The following are just a few of the many websites on that list:
100-percent-adult-sex-positions.com
101sexualhealth.com
celebrateintimacy.com
free-hot-gay-nude-hairy-chested-mean-bears-sex-porn-pics.com
The "Favorites" folder, which is used to intentionally save links for faster access included the following websites:
Yahoo! Society and Culture - Sexuality
Yahoo! Society and Culture - Sexuality Activities
Men's Health Men's Guide to Fitness, Health, Sex . . .
McMillan testified that the information under the "Favorites" folder "corresponded" with the computer's "history as
well [as] with the logs."
McMillan and Bernacki were also able to determine from cookies found on Donahue's login name that Donahue
had accessed the Internet sites. Searching the computer's e-mail files, they found the following questionable e-
mails to another employee.
From: Donahue, Darlene
Sent: Monday, June 17, 2002 2:54 PM
To: [fellow employee]
I'll meet you for some ball!!!!!!! Hm
From: Donahue, Darlene
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Sent: Monday, June 1, 2002 7:39 AM
To: [fellow employee]
Good Morning
I hope you like the card I sent you. Little nasty, so you might want to turn the screen
and turn down volume if you have sound on your comp. I also sent a nasty message
too. Your messages aren't getting to my home comp. Maybe K isn't getting his either. It
was great seeing you yesterday!!!! I have a note and a big blanket for you. I'll meet you
at the ballfield for a little "ball playing"!!!??? Have a great day!!! Miss you. . .
XXXXXXXXXXXXXXXXXXOOOOOOOOOOOOO
From: Donahue, Darlene
Sent: Monday, June 18, 2002 10:24 AM
To: [fellow employee]
Hi!!!!!! I'm sooooo glad the messages are [getting] through. Sounds great for this
afternoon. I love the Ahhhhhhhh badge!!!! You got my motor running!!! Vrooom Can't
wait to help them with the Ahhhhhhhh badge. Miss you!!!! I can't wait to show you how
much. XXXXXXXXXXXXXOOOOOOOOOOOOO
McMillan made a copy of the computer's hard drive and stored it in the school's safe because the original hard drive
was programmed to recycle every twenty days.
Anthony DeFeciani, Vice President of Open Systems Technologies, Inc. (OST) in charge of Engineering and Emergent
Technologies, testified as an expert on behalf of the District. OST summarized its analysis in a report introduced at
trial. According to the report:
During a six-hour period on October 11, 2002 in which the [computer's] history file and
the server's log file coincide there are several sexually explicit accesses. Many of these
sexually explicit accesses take the form of Yahoo searches such as:
"http://search.yahoo.com/bin/search?p=falatio"
"http://search.yahoo.com/search?p=fallatio"
"http://search.yahoo.com/bin/search?p=fallatio"
"http://search.yahoo.com/bin/search?p=positions"
The report indicated that there was a "presence of sexually explicit material in the temporary Internet files" as well
as in the Favorites folder. It also notes "that sexually explicit material was accessed from the machine during school
hours" and that "the searches indicate that someone was actively searching for sexually explicit material." The report
further states:
Throughout the recovered history file there are sites which have more than just one
page or the initial "welcoming" page accessed. The following example . . . represents
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several pages accessed over approximately 8 minutes.
"http://www.askmen.com/love/love_tip/50_love_tip.html"
"http://www.askmen.com/love/love_tip/28_love_tip.html"
"http://www.askmen.com/love/love_tip_60/76_love_tip.html"
"http://www.askmen.com/love/love_tip_60/64_love_tip.html"
"http://www.askmen.com/love/love_tip_60/73_love_tip.html"
"http://www.askmen.com/love/love_tip_60/75_love_tip.html"
"http://www.askmen.com/love/love_tip/59_love_tip.html"
"http://www.askmen.com/love/love_tip/47_love_tip.html"
The report concluded that
[i]t is apparent that some websites were accessed beyond the first page. This report
[c]ites one example of multiple pages accessed over several minutes which clearly
refutes the claim that time spent accessing inappropriate sexually explicit sites was
typically not longer then eight seconds. While the user's intent cannot be determined
from the data, it is clear that sexually explicit material was actively pursued and in some
cases examined beyond a cursory glance.
DeFeciani opined that the searches conducted on the Yahoo search engine could not "have been produced
through an inadvertent access." He based this conclusion on the fact that "typically searches are not [inadvertent],
and . . . there were several attempts, based on different spellings of the key word."
Jason Hovak, OST's senior systems engineer, agreed with DeFeciani that the searches were not inadvertent because
"inadvertent access wouldn't search a term with multiple variations of spelling." Hovak also testified that the
askmen.com website pages that had been accessed "were related to sexual positions."
Donahue presented expert testimony from Kevin Gilper, the chief technology officer of Worldwide Web
Communications, "a web design, web posting, web software development company." Gilper testified that, based on
"the sheer quantity of records" in the history log file, "[i]t appeared that the user was performing a survey of
websites." Gilper found that "the user spent more time performing keyword searches . . . searching out sites instead
of spending time in those specific sites." He testified that "[t]here was such a brief amount of time in between
activities . . . that there was no time to actually -- to view the contents of the page . . .                          ." In his written report he
wrote:
On October 11, 2002, 1,716 sites were accessed. Given the 4.5 hours that the temporary
internet files recorded all types of sites being accessed (taking into account time spent
at lunch, lunch duty, and time spent in class), the user would have only 9.5 seconds to
view each page. If you subtract the time spent viewing sites that were work related the
time would be much less. This is not enough time to completely view the content of
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the adult sites.
Gilper's report concluded that there was
no evidence the user accessed pages beyond the portals of the website due to the fact
that [he] was able to determine, by viewing the sites chronologically in the history and
temporary internet files[] that internal pages from adult sites were not opened.
She did not access pages beyond the first page of the adult sites, which indicates that
she was not interested in viewing the material contained within each site.
According to DeFeciani, Gilper's investigation did not take into account daylight savings time which resulted in a
one-hour time difference in reports. Also, [t]he software that [Gilper] used included seconds in the time stamps. The
program that [OST] used did not include seconds."
Donahue gave the following testimony. In September 2002, she was receiving many e-mails advertising such things
as penile implants and Viagra which she reported to the District's technology coordinator, Adam Sheridan. Sheridan
told her to "just delete them, which [she] did." She grew concerned that the students could access inappropriate
material. She reported her concerns to both Sheridan and Fred Rubin, the principal at the school. According to
Donahue, she met with Rubin on October 9, 2002, and "told him things were coming up on the computers -- I was
afraid for . . . the students' safety . . . I did not think the filters were working. I thought maybe there was a virus,
maybe there was [a] worm." Donahue claimed that Rubin told her to "continue on with the Internet instruction after
Columbus [Day]."
After meeting with Rubin, Donahue reported for lunch duty where she encountered a group of students giggling.
When she inquired as to why the students were laughing, they asked her whether she had seen "Thumbzilla" on the
computer. Because she had a "bad feeling" and believed that the computer's filters were "seriously damaged," she
did an Internet search for "thumbzilla" on her computer in the library and ultimately gained access to an adult
website. She related the following regarding why she checked to see if other sites were blocked:
I did . . . a word search, sex, I thought. There is no need of that being anywhere in an
elementary system. That should be blocked, but it was not. It not only screened sites,
there were search engines leading to other -- the clicking and clicking, and I found so
many things going through it . . . just -- it just shocked me.
I started to record topics on looseleaf paper that I stapled together. I called on Thursday
and Friday morning before my first class and left these topics on Kathy[] Bernacki's
voice mail, and I also pleaded to please just leave a message -- that you've gotten this --
that you're working on this, 'cause I'm starting Internet next week. Please --
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I also book marked a few of them on Friday. I planned to have a meeting with my
principal, Ms. Bernacki, and . . . our superintendent.
When asked why she did not eventually have a meeting with Bernacki on Friday afternoon, Donahue claimed she
went to see her aunt who was critically ill in a coma in the hospital.
Donahue returned to school on Wednesday, October 16, she noticed that part of her computer was missing. After
her last morning class, she was called into Rubin's office where she was told that she needed to have a union
representative present. Donahue obtained a union representative and met with Rubin and Bevilacqua and was
advised that she was suspended with pay pending action by the Board of Education.
Donahue admitted that the e-mails she sent to her colleague on June 17 and 18, 2002, did contain sexual
innuendos. Donahue also acknowledged that she signed the District's computer policy and that her job did not
entail investigating the Internet filter. She admitted that she never obtained permission to access inappropriate
websites and that it was "[a]bsolutely" her right to access inappropriate and pornographic materials. Donahue also
explained that she no longer had the piece of paper on which she kept track of the inappropriate websites because
it was left on her computer desk and she was never allowed back into the school to retrieve it.
Sheridan disputed Donahue's testimony, stating that Donahue never reported to him that inappropriate material
was accessed on the circulation desk computer in the library nor did she ever express her concern to him that
pornographic material could be accessed over the Internet on the school's computers. Sheridan did say, however,
that Donahue had approached him in February 2002, regarding pop-up advertisements appearing on the library's
computers for Viagra and dating services and, as a result, he installed software on the computers to eliminate any
pop-up advertisements.
Bernacki stated that, contrary to Donahue's testimony, she did not receive a voice mail from Donahue regarding
inappropriate websites accessed on the Internet. Bernacki explained that she keeps a written record of voice mails
and that a review of her record book showed no such message from Donahue.
The ALJ determined that the issue was not whether or not Donahue attempted to access pornographic websites
during school hours using the school library's circulation desk computer, but whether she did so for personal
gratification or to expose flaws in the school's Internet content filter software. Noting that credibility was a central
issue, the ALJ found that "Donahue's testimony raises so many more questions than it provides answers that it
simply does not 'hang together.'" He noted that although Donahue testified that she was initially "'shocked at what
[she] saw,'" she continued an extensive search of a significant number of websites, even after she left her alleged
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voicemail communication with Bernacki. The ALJ found that Donahue's claim that she kept a written list of the
offensive websites in order to show the District what she had been able to access was "nothing more than a
pretext." He pointed out that Donahue never informed Bernacki or Bevilacqua of the list or advised them that she
saved some of the sites in her Favorites folder even after she was served with the notice of suspension. Discrediting
Donahue's claim, the ALJ accepted Bernacki's testimony, noting that, had a voice mail been left, Bernacki would
have dispatched McMillan to take care of the problem immediately, as she had done so that same day when
another teacher had called about another inappropriate website.
The ALJ did not accept Donahue's assertion that she performed a panic-driven search, noting that she methodically
stayed on "a topic such as blondes, fellatio, and sexual positions before moving on to another." Noting that the
record established that Donahue clicked on sites listed in a search result and then clicked the individual web pages,
he accepted DeFeciani's and Hovak's conclusions that she actively pursued certain sexually explicit material,
examining it beyond a cursory glance. Finding that Donahue was no stranger to sexually explicit material, he noted
the content of the e-mail messages sent to her fellow employee. Finally, the ALJ rejected Donahue's argument that
in assessing the case he should consider the fact that no students were exposed to the pornographic material. He
noted that the material fact was not whether students viewed the material, rather it was that "Donahue embarked
on these searches during school hours, in the school library, using the circulation desk computer[, and] . . . knew or
certainly should have known[] that [such] conduct was . . . improper and unprofessional . . . [and] in violation of the
District's policy."
The principles are well settled. "Ordinarily, we will not reverse the determination of an administrative agency
unless it is arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record
as a whole. We adhere to that standard to resolve disputes arising under school laws." Dennery v. Bd. of Educ., 131
N.J. 626, 641 (1993) (citations omitted); see also Impey v. Bd. of Educ., 142 N.J. 388, 397 (1995); Capodilupo v. Bd. of
Educ., 218 N.J. Super. 510, 515 (App. Div.) (holding that final decision of State Board of Education should not be
upset unless unreasonable, and unsupported by the record or violative of the legislative will), certif. denied, 109 N.J.
514 (1987). Thus, we are required to uphold the Board's determination so long as it "could reasonably have been
reached on sufficient credible evidence presented in the record, considering the proofs as a whole, with due regard
to the opportunity of the one who heard the witnesses to judge their credibility." In re Tenure Hearing of Grossman,
127 N.J. Super. 13, 22-23 (App. Div.), certif. denied, 65 N.J. 292 (1974).
The Tenure Employees Hearing Law, N.J.S.A. 18A:6-10, addresses the dismissal of persons under tenure in the
public school system and states, in relevant part:
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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 this subarticle, by the commissioner, or a person appointed
by him to act in his behalf, after a written charge or charges, of the cause or causes of
complaint, shall have been preferred against such person, signed by the person or
persons making the same, who may or may not be a member or members of a board of
education, and filed and proceeded upon as in this subarticle provided.
Donahue was charged with "Unbecoming Conduct" and "Misbehavior." Thus, it was the District's burden to prove
these charges by a fair preponderance of the evidence. See In re Polk, 90 N.J. 550, 560 (1982). It is undisputed that
Donahue accessed the inappropriate websites and violated the District's computer policy that specifically states
that "Users will not use the District system to access material that is profane or obscene (pornography)."
Donahue maintains that her loss of tenure was an unwarranted penalty. She argues that a lesser penalty is
appropriate because her motives grew out of an education purpose to find flaws in the District's Internet content
filter software, rather than gratification. Donahue maintains in Point I of her appellate brief that "[t]he Board never
established and the ALJ never determined that Ms. Donahue had any motive other than the one which she
described." In the same vein, she argues in Point II that the judge should have credited her testimony that she
accessed the websites to test the computer filters. We disagree.
"It is not ordinarily our function to weigh the evidence, to determine the credibility of witnesses, to draw inferences
and conclusions from the evidence, and to resolve conflicts therein." Grossman, supra, 127 N.J. Super. at 23. Our
responsibility is to "determin[e] whether pertinent principles of law were properly interpreted and applied to the
facts as found by the trier thereof." Ibid. "The determination of what constitutes conduct unbecoming a public
employee is primarily a question of law." Karins v. Atl. City, 152 N.J. 532, 553 (1998).
The phrase "unbecoming conduct" has been described as "'elastic'" and "'defined as any conduct which adversely
affects the morale or efficiency'" of the public entity or "'which has a tendency to destroy public respect for [public]
employees and confidence in the operation of [public] services.'" Id. at 554 (quoting In re Emmons, 63 N.J. Super.
136, 140 (App. Div. 1960)). "[A] finding of misconduct need not 'be predicated upon the violation of any particular
rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which
devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" Id. at
555 (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)).
In the context of a tenured teacher, the contours for dismissal set forth in N.J.S.A. 18A:6-
10 have been found to provide a sufficient standard which, while "general in terms,"
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when "measured by common understanding . . . fairly and adequately conveys its
meaning to all concerned." Succinctly stated, "the touchstone is fitness to discharge the
duties and functions of one's office or position." Such unfitness to remain a teacher may
be demonstrated by a single incident, if sufficiently flagrant.
[In re Tenure Hearing of Prinzo, EDU 10324-00, Initial Decision, (June 29, 2001)
<http://lawlibrary.rutgers.edu/oaldecisions/initial/edu10324-00_1.html> (citations
omitted) (alterations in original).]
See also Pietrunti v. Bd. of Educ. of Brick Twp., 128 N.J. Super. 149, 153-63 (App. Div.) (tenured teacher who spoke
against school administration and superintendent of schools at orientation meeting was appropriately dismissed for
conduct unbecoming a teacher), certif. denied, 65 N.J. 573, cert. denied, 419 U.S. 1057, 95 S. Ct. 640, 42 L. Ed.2d 654
(1974).
The ALJ correctly focused on the salient issue whether Donahue accessed the pornographic material "for
personal gratification or to expose flaws in the District's internet content filter software." He discredited Donahue's
testimony that she did so for educational purposes and found, contrary to her expert's opinion, that the evidence
established the pornographic websites were actively pursued by her. The record supports that finding. It
established that Donahue gained access to the contents of multiple pornographic websites and saved them in her
Favorites folder. Her failure to advise the appropriate school official and her use of the school computer to send
sexually suggestive e-mails to a fellow employee represented additional evidence supporting her prurient motives.
In Point II of her appellate brief, Donahue challenges the introduction into evidence of the User Activity
Report from the Super Scout Web Program used by McMillan. McMillan introduced the User Activity Report from
the Super Scout Web Program that she "ran off the Surf Watch filtering program off the proxy server." Donahue
objected, arguing that "[u]nless the witness is aware of the underlying data and has the underlying data from which
this log is generated, testimony without this material is simply hearsay." The District's counsel responded that she
had "informed counsel that because of the skin system [the digital file] had already been overwritten" and could not
be supplied, but that "Ms. McMillan [could] testify with regard to the digital file that counsel is requesting." The ALJ
held:
The objection is this. In all due respect I believe it's hypertechnical, because the digital
record is nothing but a series of [zeros and ones].
. . . It will be pages, and pages, and pages of zeros and ones and various sequences.
That will be absolutely or virtually unintelligible to the average human being, except
for a computer programmer. That, in turn, would lead to extensive experts, expert
testimony on zeros and ones, how digital records are kept. I believe that in the Office of
Administrative Law it is sufficient if the witness identifies this log, identifies it as a log,
she downloaded, identifies it as similar to other logs she has downloaded using this
program, and has checked various entries in this log . . . 'cause she obviously . . . might
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understand what is in here --
. . . And, to insist on digital records . . . that would mean you then have to call in
executives or programmers from Surf Watch . . . and the individual who programs
Super Scout and then all of a sudden instead of a tenure proceeding this becomes an
intellectual property proceeding, and there will be objections on the grounds of . . .
company secrets and the like.
"The rules against the admission of hearsay evidence are considerably more relaxed in administrative proceedings
than in court." Carteret Bd. of Educ. v. Radwan, 347 N.J. Super. 451, 455 (App. Div.), certif. denied, 174 N.J. 38 (2002);
see also N.J.R.E. 101(a)(3) (noting that, in general, "proceedings before administrative agencies shall not be
governed by" the New Jersey Rules of Evidence); see also N.J.A.C. 1:1-15.5.
The admission of hearsay evidence is govern by the "residuum rule." Weston v. State, 60 N.J. 36, 50-52 (1972).
It is common practice for administrative agencies to receive hearsay evidence at their
hearings. . .                                                                                                                . However, in our State as well as in many other jurisdictions the rule is that
fact finding or a legal determination cannot be based upon hearsay alone. Hearsay may
be employed to corroborate competent proof, or competent proof may be supported
or given added probative force by hearsay testimony. But in the final analysis for a court
to sustain an administrative decision, which affects the substantial rights of a party,
there must be a residuum of legal and competent evidence in the record to support it.
It is not possible to state a hard and fast rule as to the extent hearsay may be utilized in
evaluating the sufficiency of the evidentiary basis of a particular administrative
determination. Suffice it to say that much may be left to the discretion of the
administrative official who should be aware of the principle which warrants reception
of hearsay, as well as the qualification thereon that the decision should not be
predicated on hearsay alone. On judicial review, in deciding whether the evidence in its
totality sustained the administrative conclusion, naturally the same rule of admissibility
would apply. Of course more sensitive awareness would be expected of a court
weighing the combined probative force of the relevant hearsay and the relevant
competent evidence.
[Ibid. (citations omitted).]
See also Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 393 N.J. Super. 524, 534 (App. Div. 2007); In re Tenure
Hearing of Cowan, 224 N.J. Super. 737, 750 (App. Div. 1988).
The User Activity Report merely corroborated the competent proof that Donahue had accessed
inappropriate websites. Aside from the User Activity Report, there was evidence downloaded from the hard drive of
the computer itself as well as its Favorites folder that demonstrated that Donahue had accessed the sites. Donahue
admitted to accessing the pornographic websites. It was just one of several factors the judge considered in
determining Donahue's credibility. Beyond that, there is nothing in the record indicating that the User
Activity Report was unreliable or that Super Scout would generate inaccurate logs. Indeed, it is this very type of
summarized evidence that is permitted when presented by a qualified witness where the underlying information is
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so voluminous that it cannot be conveniently examined by the court. See N.J.R.E. 1006.
Finally, we address briefly Donahue's contention that the ALJ improperly ignored her expert's conclusion
that there was not enough time for her to "completely view the contents of the adult pornographic sites," thus
confirming her assertion that she was performing a survey to determine whether access to these sites were blocked
or not. A factfinder "has no duty to give controlling effect to any or all of the testimony provided by the parties'
experts, even in the absence of evidence to the contrary." Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985). A
judge sitting as a factfinder "may adopt 'so much of [an expert's opinion] as appears sound, reject all of it, or adopt
all of it.'" County of Middlesex v. Clearwater Village, Inc., 163 N.J. Super. 166, 174 (App. Div. 1978) (quoting State
Highway Com. v. Dover, 109 N.J.L. 303, 307 (E. & A. 1932)), certif. denied, 79 N.J. 483 (1979). Here, the experts
presented by both parties gave differing opinions respecting the opening of various inappropriate websites and
whether the material contained within them was pursued or simply surveyed to see whether the Internet filter was
working. The ALJ accepted the opinions of the District's experts rather than the contradictory expert opinion
presented by Donahue. We need not rehash the contradictory evidence presented. Stated simply, there was
sufficient credible evidence in the record to support the ALJ's decision to adopt the conclusions of the District's
experts over those presented by Donahue's expert.
Affirmed.
Despite Donahue's testimony, the "Circulation Station User Activity Extract" report shows that on October 9, 2002,
the website www.thumbzilla.com was "Blocked."
According to Donahue, her aunt died over the weekend, and her funeral was on Tuesday. School was closed on
Monday, October 14, 2002, for Columbus Day.
(continued)
(continued)
26
A-1636-06T1
March 3, 2008
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