SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4836-93T1
A-6827-93T1
PAUL NORMAN BOWER and WILLS,
O'NEILL & MELLK,
Plaintiffs-Respondents,
v.
BOARD OF EDUCATION OF THE CITY
OF EAST ORANGE,
Defendant-Appellant,
PAUL NORMAN BOWER,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE CITY
OF EAST ORANGE,
Respondent-Respondent.
Argued November 29, 1995 - Decided January
30, 1996
Before Judges King, Landau and Kleiner.
On appeal from a Final Determination of the
State Board of Education and the Superior
Court of New Jersey, Law Division, Mercer
County.
Gail Oxfeld Kanef argued the cause for Paul
Norman Bower (Balk, Oxfeld, Mandell & Cohen,
P.A., attorneys; Ms. Kanef, on the brief).
Ronald S. Sampson argued the cause for Board
of Education of the City of East Orange (Love
& Randall, attorneys; Mr. Sampson, on the
brief).
Arnold M. Mellk argued the cause for Wills,
O'Neill & Mellk (Wills, O'Neill & Mellk,
attorneys; Mr. Mellk, on the brief).
Pamela B. Katten argued the cause for New
Jersey State Board of Education (Deborah T.
Poritz, Attorney General, attorney; Mary C.
Jacobson, Assistant Attorney General, of
counsel; Marlene Zuberman, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
By our order dated January 31, 1995, we consolidated these
two separate but related appeals to consider whether criminal
conduct ascribed to Paul Norman Bower, a tenured kindergarten
teacher employed by the East Orange Board of Education, arose
"out of and in the course of the performance of his duties," thus
qualifying Bower for indemnification for legal fees and costs
incurred in his defense of those criminal charges. For the first
time we construe N.J.S.A. 18A:16-6.1, "Indemnity of officers and
employees in certain criminal actions," in the context of a
dismissal of criminal charges prior to a criminal trial.
The first appeal, A-6827-93T1, is from a decision of the
State Board of Education denying Bower's petition seeking
indemnification by the East Orange Board of Education for legal
fees and costs incurred in his defense of indictments returned by
the Essex County Grand Jury.
The second appeal, A-4836-93T1, is from a decision in the
Law Division which granted summary judgment to plaintiffs, Bower
and his attorneys Wills, O'Neill & Mellk, against defendant Board
of Education of the City of East Orange on a complaint seeking a
judgment indemnifying Bower for attorney's fees and costs in his
defense of the same indictments.
We conclude that the charges against Bower arose "out of and
in the course of his duties" as a kindergarten teacher and that
Bower is therefore entitled to indemnification for legal fees and
costs in his defense of the indictments. We reverse the decision
of the State Board of Education that denied Bower
indemnification. We affirm the decision of the Law Division that
granted summary judgment to plaintiffs on their complaint seeking
indemnification of Bower and the payment of his legal fees and
costs.
On February 10, 1987, Bower was indicted on four counts of aggravated sexual assault in violation of N.J.S.A. 2C:14-2 and three counts of endangering the welfare of children in violation of N.J.S.A. 2C:24-4. Testimony before the grand jury from two children and their parents and a statement from a third child described incidents of sexual abuse by Bower. The incidents allegedly took place during school hours in a bathroom connected to Bower's classroom in the Ashland School. Each child was a
student of Bower. The Board suspended Bower without pay on March
3, 1987.
On October 11, 1988, Judge Falcone dismissed the indictment
without prejudice. The State's unpreparedness for trial
occasioned the dismissal. Bower returned to work in a non-teaching assignment on October 17, 1988. On March 15, 1989, an
Essex County grand jury returned a second indictment against
Bower on the same charges. On March 20, 1989, the Board of
Education again suspended Bower. Judge Hazelwood dismissed the
second indictment with prejudice on July 3, 1990.See footnote 1
On March 30, 1989, prior to dismissal of the second
indictment, Bower filed a petition with the Commissioner of
Education seeking indemnification from the Board of his legal
fees and costs incurred in defending against prosecution of the
first indictment, pursuant to N.J.S.A. 18A:16-6.1. The
Commissioner referred the matter to the Office of Administrative
Law.
Following a hearing, the Administrative Law Judge filed a
written decision recommending that the Commissioner deny Bower's
request for $20,340.95 in legal fees. On the record before him,
the A.L.J. was unable to determine whether the children allegedly
abused were Bower's students and whether the alleged abuse took
place on school property during school hours. Consequently, the
A.L.J. determined that Bower could not establish the nexus
required by N.J.S.A. 18A:16-6.1, that the conduct alleged in the
charges against him arose "out of and in the course of the
performance of [his] duties" as a teacher. Furthermore, the
A.L.J. found that dismissal of the first indictment without
prejudice was not a "final disposition in favor" of Bower as
required by N.J.S.A. 18A:16-6.1. The Commissioner of Education
adopted the A.L.J.'s findings and dismissed the petition on
August 10, 1990.
On August 14, 1990, Bower appealed the Commissioner's
dismissal to the State Board of Education. As noted, the second
indictment was dismissed on July 3, 1990. The State Board of
Education remanded the matter to the A.L.J. for determination in
light of the dismissal of the second indictment, instructing that
[o]n remand, Petitioner has the burden of
establishing 1) a nexus between the alleged
conduct forming the basis of the charges and
the performance of his duties in the district
so as to support a finding that the criminal
actions against him involved alleged acts or
omissions arising out of and in the course of
the performance of his duties, and 2) a
favorable disposition of the criminal
charges.
On September 27, 1991, after considering a supplemented
record, the A.L.J. again recommended that Bower's request for
indemnification be denied. Although the A.L.J. concluded that
the second dismissal constituted a final favorable disposition,
Bower was unable to satisfy the A.L.J. that the conduct alleged
in the criminal charges arose "out of the performance of his
duties as a teacher". The A.L.J. noted:
At most, the only thing that can be said is
that Bower's accusers are his former students
and that the locale of the alleged misconduct
is on school property. None of the proofs
supply the crucial element that the charges
are connected with his teaching assignment or
that Bower was engaged in carrying out his
official duties.
The Commissioner adopted the A.L.J.'s recommendation on
November 12, 1991, emphasizing that Bower failed to
explain[] why he was in the bathroom with any
or all of the three boys in question.
Neither is there any testimony or evidence
proffered in this remand suggesting how his
behavior in regard to any of these charges,
or denial of same, is legitimately linked to
his bona fide teaching responsibilities.
(emphasis in original).
Bower again appealed to the State Board of Education. On
August 4, 1994, the State Board affirmed the Commissioner's
ruling. The State Board reemphasized that Bower failed to meet
his "affirmative burden" of establishing the required nexus
between the conduct out of which the charges arose and the
performance of his duties as a teacher. The State Board stated:
The record, as supplemented on remand,
indicates only that the alleged conduct
occurred in a bathroom adjoining petitioner's
kindergarten classroom. There is no
indication in the record as to whether this
facility was for the exclusive use of
students or whether teachers also used the
facility. . . . Nor is there anything to
show that any of his teaching duties required
that he accompany the students into the
facility.
Bower filed a notice of appeal to this court on August 23, 1994.
On March 19, 1991, while Bower was pursuing his administrative remedy, Bower's attorneys filed suit on behalf of Bower and themselves in the Law Division, seeking a judgment of $41,024 in attorney fees and $2,500 for disbursements, representing the work done in defending Bower against both indictments. Judge Paley concluded that the criminal charges filed against Bower did, indeed, arise out of the performance of his duties because Bower's "involvement with those children was produced by his contact with them . . . as a teacher." On March 31, 1994, Judge Paley awarded $2,500 for disbursements and $30,000 for attorney fees to plaintiffs.See footnote 2
Bower claims entitlement to indemnification pursuant to N.J.S.A. 18A:16-6.1, which states:
Should any criminal action be instituted against any such person for any such act or omission and should such proceeding be dismissed or result in a final disposition in favor of such person, the board of education shall reimburse him for the cost of defending such proceeding, including reasonable counsel fees and expenses of the original hearing or trial and all appeals.
The language of this provision refers back to and incorporates the requirements of N.J.S.A. 18A:16-6, governing indemnification
in civil actions. Scirrotto v. Warren Hills Bd. of Educ.,
272 N.J. Super. 391, 396 (App. Div. 1994). N.J.S.A. 18A:16-6 states:
Whenever any civil action has been or
shall be brought against any person holding
any office, position or employment under the
jurisdiction of any board of education,
including any student teacher or person
assigned to other professional pre-teaching
field experience, for any act or omission
arising out of and in the course of the
performance of the duties of such office,
position, employment or student teaching or
other assignment to professional field
experience, the board shall defray all costs
of defending such action, including
reasonable counsel fees and expenses,
together with costs of appeal, if any, and
shall save harmless and protect such person
from any financial loss resulting therefrom;
and said board may arrange for and maintain
appropriate insurance to cover all such
damages, losses and expenses.
[(emphasis added).]
On appeal, all parties agree that N.J.S.A. 18A:16-6.1, read
in conjunction with N.J.S.A. 18A:16-6, establishes a two-part
test for entitlement to indemnification: (1) the conduct
providing a basis for the criminal charges must "aris[e] out of
and in the course of the performance of the duties" that a
claimant performs for a board of education, and (2) there must be
a final disposition on the charges favorable to the claimant.
Bower has satisfied the second prong of the test. The dismissal
of the second indictment with prejudice constituted a final
disposition favorable to Bower. The only issue is whether
Bower's alleged conduct leading to charges of aggravated sexual
assault and endangering the welfare of children arose "out of and
in the course of the performance of [Bower's] duties" as a
kindergarten teacher.
Bower contends that he meets the requirement for
indemnification because the three children named in the
indictments were students assigned to his kindergarten class and
the conduct ascribed to him is alleged to have taken place in the
school during the school day. To buttress his argument, Bower
cites the statutory definition of endangerment.
N.J.S.A. 2C:24-4 provides, in part:
a. Any person having a legal duty for the
care of a child or who has assumed
responsibility for the care of a child who
engages in sexual conduct which would impair
or debauch the morals of the child, or who
causes the child harm that would make the
child an abused or neglected child as defined
in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c. 119,
§ 1 (C.9:6-8.21) is guilty of a crime of the
third degree.See footnote 3
(emphasis added).
Bower contends that as a teacher, he had a legal duty for the care of his students and that therefore any accusation of misconduct on his part while performing his duties as a teacher must be deemed to have "arisen out of and in the course of the performance of the duties" of his employment. In evaluating Bower's contention, we note that the reported decisions in New Jersey interpreting N.J.S.A. 18A:16-6 and N.J.S.A. 18A:16-6.1 have focused on the actual conduct of the
person seeking indemnification. None of those cases involve only
alleged conduct.
The earliest reported decision construing N.J.S.A. 18A:16-6
is Errington v. Mansfield Twp. Bd. of Educ., 81 N.J. Super. 414
(App. Div 1963), rev'd and remanded on other grounds,
42 N.J. 320
(1964), decision following remand,
100 N.J. Super. 130 (App. Div.
1968). In Errington, the president of a school board was sued
for libel and sought indemnification for legal fees incurred in
defending that civil action. Id. at 416. We framed the issue as
"whether the allegedly defamatory open letter which [the
president of the board] caused to be published . . . in the
public press concerning plaintiff (the libeled party) was an act
`arising out of and in the course of the performance of her
duties as a member of the board of education[,]'" therefore
entitling her to indemnification for the costs of her legal
defense. Errington, supra, 100 N.J. Super. at 134. We concluded
that publication of the letter did not arise in the course of her
duties. Id. at 135. In doing so, we noted that the board
president had not been authorized by the board to write or
publish the letter, and that she had not notified a substantial
number of members as to its existence or contents. Id. at 134-35. We opined that the phrase "in the performance of their
duties" should not be construed to exclude all tortious conduct
on the theory that a board member never has a duty to commit a
tort. Id. at 137.
We acknowledge that Errington has limited precedential value
in this matter. In Errington, there existed no dispute as to
whether the official engaged in the tortious conduct. Here,
whether Bower ever engaged in the complained-of conduct is
unclear and has never been established by any party. This
distinction makes more difficult the task of determining whether
Bower is entitled to indemnification.
A seminal decision pertinent to the issue before us is
Powers v. Union City Bd. of Educ.,
124 N.J. Super. 590 (Law Div.
1973), aff'd o.b.,
127 N.J. Super. 294, (App. Div.), certif.
denied,
65 N.J. 575 (1974). Powers involved the indictment of a
board of education member under
18 U.S.C.A.
§1951 for
participating in a conspiracy to extort money from contractors
doing business with the Union City Board of Education. Id. at
592. After he was acquitted on all counts, Powers sought
indemnification for litigation costs pursuant to N.J.S.A. 18A:12-20, a provision similar to the statutory scheme implicated in the
present case. Id. at 591. The issue before the Powers court was
"whether the criminal charge of which defendant was acquitted was
for any act or omission arising out of and in the course of the
performance of his duties . . . .'" Id. at 593.
To begin its analysis, the Law Division rejected the
argument that Powers' acts could not be in the course of his
duties because they were illegal. The court noted, "The fact . .
. that the alleged criminal acts were obviously beyond the
prescribed duties of a board member does not in itself immunize
the board from the statutory liability; for such a construction
would exclude all criminal conduct and frustrate the express
intent of the legislature." Id. at 595.
The court then analogized the statutory language to that
found in the Workers' Compensation Act, adopting the distinction
between arising "out of" and arising "in the course of" that
characterized cases under the Act. Id. at 595-96. The arising
out of component of the standard required that the charges
"`result[] from a risk "reasonably incidental"'" to the board
member's duties. Id. at 595 (quoting Tocci v. Tessler & Weiss,
28 N.J. 582, 586 (1959)). The arising in the course of component
required that the charges result from acts or omissions
"`occur[ring] within [the employment] period at a place where the
employee may properly be and while he is fulfilling the duties of
his employment "or doing something incidental to it."'" Id. at
595-96 (quoting Tocci v. Tessler & Weiss,
28 N.J. 582, 586
(1959)).
After applying these criteria and concluding that Power's
alleged misconduct did not arise from performance of his duties,
the court cautioned that
[t]he liberal approach in applying the
statute in civil litigation . . . has no
relevancy in the context of the criminal
conduct in this case. . . .
In connection with criminal conduct the
facts should be analyzed strictly rather than
liberally, so that reimbursement of legal
fees and expenses should only ensue when the
circumstances are such as to fit clearly
within the legislative limitations.
[Id. at 597-98.]
The court in Powers chose to look at the alleged conduct in
determining the right to indemnification and framed the issue as
follows:
if the conduct giving rise to the charge
fails to meet either the requirement that it
arise out of the performance of the public
duties or in the course of the performance of
those duties, the obligation to pay for the
legal defense remains with the individual and
cannot be imposed as a public burden.
[Id. at 596 (emphasis added).]
The fact that Powers was ultimately acquitted on the charges
of extortion was apparently not persuasive to the Law Division.
The court concluded that where the alleged unlawful conduct was
carried on outside the scope of a defendant's duties, an
acquittal will not entitle him to indemnification. Id. at 597.
However, conduct may fall within the scope of a defendant's
duties even if it is unlawful. Ibid. The court distinguished
extortion from other criminal acts that may arise out of and in
the course of performance of the duties of a member of a board of
education, e.g., voting to exclude a child from a public school
because of race, creed, or color. Id. at 596-97.
In Scirrotto v. Warren Hills Bd. of Educ., supra, a public
school teacher sought indemnification under N.J.S.A. 18A:16-6.1
for legal costs incurred in successfully defending against
charges of bribery in official matters, threats and improper
influence in official matters, and compounding. 272 N.J. Super.
at 394. The charges arose from statements made in an attempt by
the teacher to obtain reinstatement and tenure following his
release from employment. Id. at 393. Although acknowledging
that the statements, made to Scirrotto's superior during a
meeting, "arguably" were made in the course of Scirrotto's
duties, we found that his conduct did not arise out of
performance of those duties. Id. at 398. The statements were
made for the purpose of pressuring administration officials to
grant tenure, not to advance Scirrotto's duties of teaching
history to high school students. Id. at 397-98. We quoted
Errington for the proposition that
[t]he officer must have been acting in a
matter in which the corporation has an
interest, he must have been acting in the
discharge of a duty imposed or authorized by
law and he must have acted in good faith.
[Id. at 397 (quoting Maitland v. Town of
Thompson,
27 A.2d 160, 162 (Conn. 1942)).]
Scirrotto focused upon the teacher's conduct in making
allegedly criminal statements, not upon the time and place
circumstances under which the statements were made. Id. at 397.
We note that Scirrotto was found guilty of bribery, but that the
charges of threats and improper influence in official matters and
of compounding were dismissed during his trial on defendant's
motion for judgment of acquittal. Id. at 394. Scirrotto's
bribery conviction was reversed when we concluded that "there was
insufficient evidence from which a reasonable jury could find
that a `benefit' had been offered by Scirrotto" to the persons to
whom the statements were made or to the school system. Id. at
394-95. Like Errington, however, Scirrotto is not conclusive on
the issue here because there was no dispute that the statements
were made. See id. at 394-95.
We think that there is a need to distinguish those cases in
which an act is alleged and a school employee is vindicated after
trial, such as Powers, from those cases in which an allegation of
misconduct is asserted against an employee and the charge is
withdrawn or dismissed prior to trial. In the latter set of
cases, there will be no findings of fact concerning the actual
conduct of the defendants. The effect of this distinction
becomes clearer when we focus on legislative intent.
Prior to 1986, the Legislature provided for indemnification
of public employees if the employee was a defendant "in any
action or legal proceeding arising out of or incidental to the
performance of his duties." See N.J.S.A. 40A:14-155, police
officers; N.J.S.A. 40A:14-117, county police or park police;
N.J.S.A. 40A:14-28, municipal fire department members or
officers, whether paid, part-paid, or volunteer. Each statute
tracked, but was not identical to N.J.S.A. 18A:16-6 which
provided indemnification for school personnel "for any act or
omission arising out of and in the course of the performance of
the duties of such office." We have viewed the differences among
the statutes as negligible. The difference in the wording of the
statute was disregarded in Powers, in which we interpreted
"arising in the course of" as requiring that the charges result
from acts or omissions "`occur[ring] within [the employment]
period at a place where the employee may properly be and while
fulfilling the duties of his employment "or doing something
incidental to it."'" 124 N.J. Super. at 595-96.
In Moya v. New Brunswick,
90 N.J. 491 (1982), plaintiff was
a police officer who had been indicted and charged in three
separate indictments with breaking and entering with intent to
steal, in violation of N.J.S.A. 2A:94-1, larceny of goods in
excess of $500, in violation of N.J.S.A. 2A:119-2, and misconduct
in office, in violation of N.J.S.A. 2A:85-1. Id. at 495. As
noted by the Supreme Court:
The indictments charged that Moya, while
"acting under color of [his] office,"
provided assistance to breaking and enterings
by other officers "in police uniforms, in
police vehicles and while performing the
duties for which [their] office was created."
[Id. at 496.]
Moya was acquitted on the first two indictments after a jury
trial; the third indictment was then administratively dismissed.
Ibid. Moya claimed in a suit against his employer the right to
be reimbursed his legal fees under N.J.S.A. 40A:14-155. The
trial court, relying on our decision in Valerius v. Newark,
168 N.J. Super. 529 (App. Div. 1979), concluded that the criminal
acts with which Moya was charged did not "by any stretch of the
imagination" arise out of and were not incidental to the
performance of Moya's duties of a police officer. Ibid. Moya
appealed. While that appeal was pending, the Supreme Court
reversed our decision in Valerius,
84 N.J. 591 (1980).
Accordingly, in an unreported decision, we reversed the trial
decision in Moya. Thereafter our decision was affirmed,
90 N.J. 491, 497 (1982).
We need not repeat the entirety of the decision of the
Supreme Court. We merely note that the court "conclusively
assume[d]" that the charges lodged against Moya were false, and
that they "were presumably made primarily because he was a police
officer." Id. at 498. At the very least, it is fair to conclude
his status was a substantial factor." Ibid.
The Supreme Court concluded:
The test which should be used,
therefore, to determine whether or not
charges are covered by the statute is whether
the charges are connected with the
defendant's occupation as a police officer--either because they arise out of the
performance of duties or out of the
defendant's status as an officer.
[Id. at 502.]
In Moya, the Supreme Court expounded upon its prior decision
in Valerius v. Newark,
84 N.J. 591 (1980).
In Valerius, a police officer was charged
with conspiring with another officer and two
civilians to set up a scam in which the sale
of drugs by the civilians would be
interrupted by the two police just as the
buyer-victim was handing the money over.
Valerius and the other police officer would
appear to make an arrest, confiscate the
money, as well as the illegal drugs, all
purportedly for the purpose of gathering
evidence to be turned over to the
municipality. Neither the drugs nor the
funds were turned over but were kept by the
co-conspirators. After trial, at which
Valerius testified, he was acquitted of all
charges. We concluded that while the charges
did not arise from the performance of
Valerius's duties (we assumed that the jury
verdict conclusively established that the
incident had never occurred since that was
Valerius's defense), the charges never would
have been made but for the fact that Valerius
was a police officer. Since it was his
status as a police officer that led to the
charge, we concluded that he should be
reimbursed for his counsel fees since it
would be grossly unfair to do otherwise.
[
90 N.J. 497-98.]
In Valerius, the Supreme Court also noted:
The conduct charged, however, if true,
constituted a perversion and prostitution of
his duties and responsibilities as a police
officer. Had Valerius been convicted of
these charges, this conviction would have
established that his conduct neither arose
out of nor was incidental to the performance
of his duties and hence, was not within the
scope of N.J.S.A. 40A:14-155.
However, the fact is that Valerius was
found innocent of all charges. Thus the
municipality had no basis for concluding that
Valerius had engaged in conduct that
constituted a perversion and prostitution of
his duties and responsibilities as a police
officer. Since the charges in the indictment
alleged improper use of his status as a
police officer and, since the jury, after the
development of the underlying facts at trial,
rejected the truth of the charges, the matter
would be included within the statutory
language "arising out of or incidental to the
performance of his duties."
[84 N.J. at 596-97].
On January 15, 1986, N.J.S.A. 40A:14-155 was amended and now
provides:
Whenever a member or officer of a municipal
police department or force is a defendant in
any action or legal proceeding arising out of
and directly related to the lawful exercise
of police powers in the furtherance of his
official duties, the governing body of the
municipality shall provide said member or
officer with necessary means for the defense
of such action or proceeding, but not for his
defense in a disciplinary proceeding
instituted against him by the municipality or
in criminal proceeding instituted as a result
of a complaint on behalf of the municipality.
If any such disciplinary or criminal
proceeding instituted by or on complaint of
the municipality shall be dismissed or
finally determined in favor of the member or
officer, he shall be reimbursed for the
expense of his defense.
(emphasis supplied)
The Senate County and Municipal Government Committee
Statement, Senate, No. 1684-L.1985, c.457 attached to the amended
statute states, in part:
A number of decisions by the courts of
this State have expanded the obligation
imposed by the literal terms of this section
to reach, not only charges of improper
performance of police duties, but also
charges arising from acts outside the scope
of police duties, but occurring in the course
of the performance of those duties, and
charges arising solely from the person's
status as a police officer. The bill would
eliminate the coverage of this section for
charges arising from acts outside the scope
of police duties, but occurring in the course
of the performance of those duties, and for
"status charges."
(emphasis added)
Although the Legislature amended N.J.S.A. 40A:14-155 in reaction to Valerius and Moya, it did not amend N.J.S.A. 18A:16-6 or N.J.S.A. 18A:16-6.1. Basic tenets of statutory construction counsel that when one of two similar or related statutes is amended, the fact that the Legislature retains the second statute as originally written operates as an implicit approval of the second statute. We recognize that N.J.S.A. 18A:16-6 and 16-6.1 were closely related to N.J.S.A. 40A:14-155 as it was written and
interpreted prior to amendment. "It is assumed that whenever the
legislature enacts a provision it has in mind previous statutes
relating to the same subject matter." 2B Sutherland on Statutory
Construction § 51.0-2 (Singer ed., 5th ed. 1992). See also
Arcell v. Ashland Chemical Co., Inc.,
152 N.J. Super. 471, 484
(L. Div. 1977) (holding that the above rule may be applied when
the statutes were adopted at different times and make no
reference to each other). Furthermore, "Legislative action by
amendment . . . with respect to other parts of a law . . . may
indicate approval of interpretations pertaining to the unchanged
and unaffected parts of the law." Sutherland, supra, § 49.10.
We take these principles, when read together, to instruct
that the Legislature's retention of the indemnification law as it
pertains to teachers is valid as written and is not subject to
the same interpretation as the amended indemnification law as it
pertains to police officers. Therefore, the limitation placed on
indemnification of police officers was not contemplated by the
Legislature to apply to teachers. We also find that although the
net results of Valerius and Moya have been rendered obsolete by
this legislative action, the rationale articulated by the Supreme
Court in those cases is appropriate for analysis in this appeal.
We acknowledge that Powers and Valerius are in tension on
the issue before us, but we find both the facts and reasoning of
Valerius to be more relevant here. We read Valerius to advocate
an examination not of the official's alleged conduct, but of the
charges which provide the basis of a criminal prosecution when
those charges are dismissed for reasons other than the merits.
That case suggests that a public official should be indemnified
for attorney's fees if the charges--not the official's actual
conduct--"arise out of and in the course of employment." As in
Powers, we again rely upon the area of workers' compensation for
guidance in interpreting that nebulous concept.
In Coleman v. Cycle Transformer Corp.,
105 N.J. 285 (1986),
the Supreme Court indicated that "[t]he task of construction is
made easier by breaking the phrase `in half, with the "arising
out of" portion construed to refer to causal origin, and the
"course of employment" portion to refer to time, place, and
circumstances of the accident in relation to the employment.'"
Id. at 288 (quoting 1A Larson, Workmen's Compensation Law § 6.10
(1985)). Although Coleman constitutes a more recent judicial
pronouncement of the meaning of "arising out of and in the course
of employment," it does not change the interpretative meaning
articulated in Powers.
We also note that Coleman amplified the definition of
"arising out of employment" in the following terms:
The accident, in order to arise "out of" the
employment, must be of such nature the risk
of which might have been contemplated by a
reasonable person when entering the
employment, as incidental to it. A risk is
incidental to the employment when it belongs
to or is connected with what a workman has to
do in fulfilling his contract of service.
[Id. at 289 (quoting Rafferty v. Dairymen's
League Coop. Ass'n,
16 N.J. Misc. 363, 366
(Dep't of Labor, Workmen's Comp. Bureau
1938).]
The Court also stated that "the `but for' or positional-risk test
is now a fixture in New Jersey law." Id. at 290. Under the "but
for" test, an injury "arises out of employment" if "it is more
probable that the injury would not have occurred under the normal
circumstances of everyday life outside of the employment . . . ."
Id. at 291. The same would apply to criminal or civil charges
that are ultimately dismissed. A charge arises out of employment
if it is more probable that the charge would not have been filed
under the normal circumstances of everyday life outside of
employment.
Applying the Coleman definitions to the facts sub judice and
substituting alleged criminal conduct for the concept of injury,
it is clear that the alleged conduct meets the standard of
"arising out of and in the course of employment" as required in
N.J.S.A. 18A:16-6.1. Here, alleged conduct unquestionably
occurred in the very school which employed Bower as a
kindergarten teacher and which was attended by the alleged
victims, students in Bower's kindergarten class. The acts are
alleged to have occurred during normal school hours at a time at
which these same students were under the specific tutelage of
Bower in his capacity as their teacher. These circumstances
fulfill the "course of employment" portion of the statute.
Superimposing criminal conduct allegations for the word
"accident" within the framework of the Coleman definition of
"arising out of employment," the test is:
[t]he criminal charges, in order to arise
"out of" the employment, must be of such
nature the risk of which might have been
contemplated by a reasonable person when
entering the employment, as incidental to it.
A risk is incidental to the employment when
it belongs to or is connected with what a
[teacher] has to do in fulfilling his
contract of service.
We conceive that a teacher may be at risk for allegations of
improper conduct, and even criminal conduct, in a setting in
which he or she is exposed to the imagination of an immature
student population. We think it would be highly improper to
require a teacher to defend against a charge of criminal conduct
which is withdrawn by the accuser or which is dismissed with
prejudice by a court where the alleged improper conduct clearly
arose because of the teacher's status. Said differently, but for
the teaching relationship, or the teacher's proximity to an
alleged victim, the allegation would not have been filed in the
first instance.
Bower was never tried. The criminal charges were dismissed
with prejudice. He was clothed with a presumption of innocence
when the charges were originally filed and was similarly clothed
when those charges were dismissed. The Board of Education had no
basis to conclude that Bower had engaged in conduct that
constituted a perversion and prostitution of his duties and
responsibilities as a school teacher. As the Supreme Court
reasoned in Valerius, had Bower been convicted, the conviction
would have established that his conduct neither arose our of nor
was incidental to the performance of his duties. See 84 N.J. at
596-97.
Relying again on Valerius, we find that the allegations
lodged against Bower are unique to and a function of his
profession. Therefore, the charges arose out of his status as a
teacher. His alleged victims were his students and the alleged
criminal acts occurred during the school day upon school
premises. Since the charges arose out of Bower's status as a
teacher, we find that he should be reimbursed for his counsel
fees since to do otherwise would be grossly unfair. See Moya,
supra, 90 N.J. at 598 (citing Valerius, supra).
We conclude that the denial of reimbursement to Bower of
those fees and expenses incurred in the defense of the two
indictments returned by the Essex County grand jury violated the
statutory right of reimbursement accorded to school personnel
under N.J.S.A. 18A:16-6.1. The decision of the State Board of
Education is reversed. The decision in the Law Division granting
summary judgment to Bower and his counsel is affirmed.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4836-93T1
A-6827-93T1
PAUL NORMAN BOWER and WILLS,
O'NEILL & MELLK,
Plaintiffs-Respondents,
v.
BOARD OF EDUCATION OF THE CITY
OF EAST ORANGE,
Defendant-Appellant,
PAUL NORMAN BOWER,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE CITY
OF EAST ORANGE,
Respondent-Respondent.
_________________________________________________________________
__
LANDAU, J.A.D., dissenting.
I would affirm the decision of the State Board of Education and reverse the Law Division judgment.See footnote 4 The Board's
interpretation of N.J.S.A. 18A:16-6.1, a statute within the area
statutorily committed to its expertise, appears to me to be that
which most accords with the probable legislative intent.
These appeals are not about whether "Bower had engaged in
conduct that constituted a perversion and prostitution of his
duties and responsibilities as a school teacher." The proper
question for review is whether plaintiffs met their burden of
proof to establish that the acts or omissions charged arose out
of and in the course of Bower's duties as a teacher, i.e., in the
good faith discharge of duties imposed or authorized. See
Scirrotto v. Warren Hills Bd. of Educ.,
272 N.J. Super. 391, 396-97 (App. Div. 1994). As we noted in Scirrotto, "the facts
underlying the criminal charge should be `analyzed strictly
rather than liberally, so that reimbursement of legal fees and
expenses should only ensue when the circumstances are such as to
fit clearly within the legislative limitations.'" Id. at 396
(quoting Powers v. Union City Bd. of Educ.,
124 N.J. Super. 590,
598 (Law Div. 1973), aff'd o.b.,
127 N.J. Super. 294 (App. Div.),
certif. denied,
65 N.J. 575 (1974)).
The majority's competently crafted opinion relies upon
selected principles of legislative construction to support an
interpretation of section 6.1 more generous to plaintiffs'
satisfaction of their evidential burden than I believe is
consistent with the need for strict analysis and a clear fit
indicated by our earlier opinions. When it comes to legislative
interpretation, there is scripture enough for all to cite. Here,
N.J.S.A. 18A:16-6.1 surely does not afford to plaintiffs an
unambiguous right to recover legal fees from the East Orange Board
of Education. We should, therefore, give substantial deference to
the interpretation of the agency charged with its enforcement.
Merin v. Maglaki,
126 N.J. 430, 436-37 (1992); Singer v. Board of
Review,
273 N.J. Super. 72, 77 (App. Div. 1994). Our primary task
is to effectuate the probable legislative intent, Lesniak v.
Budzash,
133 N.J. 1, 8 (1993), which we have previously interpreted
to require a strict, rather than expansive, view of the facts.
If the legislature has signalled anything about its probable
intent when it responded to Valerius v. City of Newark,
84 N.J. 591
(1980) and Moya v. City of New Brunswick,
90 N.J. 491 (1982) by
amending N.J.S.A. 40A:14-155, it is an aversion to paying for the
defense of a public employee against charges arising from acts
outside the scope of the employee's duties or by reason of his or
her status.
I detect no reason, nor infer any clear legislative purpose,
to treat police officers differently than other public employees.
When interpreting a statute we are bound to consider not only the
particular statute in question, but the entire legislative scheme
in order to avoid unreasonable or anomalous results. Reisman v.
Great Am. Recreation, Inc.,
266 N.J. Super. 87, 96 (App. Div.),
certif. denied,
134 N.J. 560 (1993). Further, I reject as
unreliable an interpretation of intent based upon the Workers'
Compensation Act. That Act must be liberally construed to provide
coverage, Fiore v. Consolidated Freightways,
140 N.J. 452, 464
(1995); Squeo v. Comfort Control Corp.,
99 N.J. 588, 596-99 (1985);
Torres v. Trenton Times Newspaper,
64 N.J. 458, 461 (1974), unlike
N.J.S.A. 18A:16-6.1 for which strict construction has been
mandated.
Respectfully, therefore, I dissent.
Footnote: 1 We have not been provided on appeal with a transcript
of the proceedings dismissing the second indictment. During oral
argument in the Law Division on the motion for summary judgment,
counsel for the Board of Education revealed that the dismissal of
the indictment was necessitated by the refusal of the parents of
the victims to allow their children to testify at Bower's
criminal trial.
Footnote: 2 Neither Bower nor his counsel appeals the reduction of
the award of counsel fees from $41,024 as requested to $30,000.
Footnote: 3 The Legislature has since made this a crime of the
second degree, L. 1992, c. 6, § 1.
Footnote: 4Although the issue was not raised, the Law Division action
should also have been brought before the Commissioner who had
primary jurisdiction under N.J.S.A. 18A:6-9. See Dore v. Board
of Educ.,
185 N.J. Super. 447, 452 (App. Div. 1982).