IN THE MATTER OF THE TENURE HEARING OF DR. ANTONIO LEWIS, SCHOOL DISTRICT OF ASBURY PARK, MONMOUTH COUNTY, 6/7/04 (#234-04)

234-04 (Link to OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu00921-04_1.html)
IN THE MATTER OF THE TENURE 	:
HEARING OF ANTONIO LEWIS, 	: 	COMMISSIONER OF EDUCATION
SCHOOL DISTRICT OF ASBURY PARK, : 	DECISION
MONMOUTH COUNTY. 	:
SYNOPSIS
The Board brought ìDisciplinary Chargesî of unbecoming conduct, incapacity and conduct
detrimental to a thorough and efficient education against respondent superintendent.
The ALJ determined that the Boardís Count One was a charge of ìinefficiencyî as the
Legislature uses the word in N.J.S.A. 18A:17-20.2. The ALJ found, however, that there was no
record that the Board complied with legislatively required procedures requiring notice and an
opportunity for improvement before a board may prosecute a charge of inefficiency. 	The ALJ
dismissed Count One.
The Commissioner concurred with the ALJ that the charges comprising Count One were
properly categorized as ones of inefficiency and had to be dismissed for the Boardís failure to
comply 	with 	the 	requirements 	of N.J.S.A. 18A:6-11. 	With respect to Count Two, the
Commissioner determined that the charge, even if true, standing alone was insufficient to
warrant respondentís dismissal or reduction in salary. 	The Commissioner, therefore, dismissed
Count Two. The Commissioner directed that the Board immediately reinstate respondent to his
position of superintendent with full pay from the first day of his suspension.
This synopsis is not part of the Commissionerís decision. It has been prepared for the convenience of the
reader. It has been neither reviewed nor approved by the Commissioner.
June 7, 2004

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OAL DKT. NO. EDU 921-04
AGENCY DKT. NO. 42-2/04
IN THE MATTER OF THE TENURE 	:
HEARING OF ANTONIO LEWIS, 	: 	COMMISSIONER OF EDUCATION
SCHOOL DISTRICT OF ASBURY PARK, : 	DECISION
MONMOUTH COUNTY. 	:
The record and Initial Decision issued by the Office of Administrative Law
(OAL) have been reviewed. 	Exceptions of the Board were submitted in accordance with
N.J.A.C. 1:1-18.4 and fully considered by the Commissioner in his determination herein.
The 	Boardís 	exceptions 	charge 	that 	the 	Administrative 	Law 	Judge 	(ALJ)
erroneously concluded that the charges against respondent contained in Count One were ones of
inefficiency within the intendment of N.J.S.A. 18A:17-20.2. 	In so finding, it avers, he relied
solely on the dictionary definitions of the terms ìinefficiencyî and ìunbecoming,î wholly failing
to take into consideration any other factors in interpreting the meaning of these terms. 	The
Board professes that a statute should be accorded such ìplain meaningî only when it is clear and
unambiguous which, it contends, is not the case here. In situations such as this, where terms can
be subject to more than one interpretation, recourse must be made to the statuteís ìpurpose,
legislative intent, and prior precedentî to resolve interpretation differences. (Boardís Exceptions
at 1-2) 	In this regard, the Board proposes that the overall purpose of N.J.S.A. 18A:17-20.2,
which the ALJ failed to recognize or take into account,
is to prevent the arbitrary dismissal of superintendents without
cause. 	***[T]here is no dispute that the Board filed the present
charges against the respondent for cause and has therefore not

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violated 	the 	legislative 	intent 	and 	purpose 	of 	the 	statute.
(emphasis in text) (Id. at 3)
The Board next contends that by confining the parameters of unbecoming conduct
to its dictionary definition the ALJ failed to consider prior case law. Referencing In re Howard,
decided by the Commissioner April 1, 2002, affíd with modification by the State Board March 3,
2004, it claims that unbecoming conduct has been defined as ìa lack of fitness to discharge the
duties and functions of oneís office or position,î which, it contends, exemplifies the behavior at
issue here. (Id. at 4) Citing In re Vitacco, 347 N.J.Super. 337 (App. Div. 2002); In re Howard;
and In re Romanoli, decided by the Commissioner 93 N.J.A.R. 2d. (EDU) 82, affíd State Board
87, affíd Appellate Division April 13, 1994, No. A-2346-92T3, the Board professes that the ALJ
additionally ìfailed to take into account past practices which demonstrates (sic) that tenure
charges filed against superintendents are commonly based on ëunbecoming conductí while tenure
charges for ëinefficiencyí are reserved for cases involving teaching staff members.î (emphasis in
text) (Ibid.) More particularly, it charges, ì[i]n the present case, the Board has provided a long
line of cases upholding tenure charges against superintendents based on unbecoming conduct
while [the ALJ] and the respondent have both failed to cite to any case in which tenure charges
were filed against a superintendent based on inefficiency.î (emphasis in text) (Ibid.)
Next, the Board continues to argue, as it did below, that N.J.S.A 18A:17-20.2 does
not contain a procedural process for bringing charges of inefficiency against a superintendent
and compliance with all sections of the regulatory provisions which provide such a process is
technically impossible when the charged individual is a superintendent. Therefore, it postulates:
[d]ue to the fact that there is no statute or regulation which sets
forth the procedure for a board of education to follow to file tenure
charges based upon inefficiency against a superintendent and since
there is (sic) has not been a single case in New Jersey in which
tenure 	charges 	have 	been 	initiated 	or 	sustained 	against 	a

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superintendent based upon inefficiency, it is more than evident that
the present tenure charges against Dr. Lewis were properly based
on unbecoming conduct. 	The petitioner should not be burdened
with defending an issue of first impression, especially since the
respondent himself did not raise the issue. The result of having to
respond to something that heretofore has been omitted from
consideration by our courts is unfair and contrary to the legislative
intent of the statute. (emphasis in text) (Boardís Exceptions at 6)
Finally, the Board objects to the ALJís ìinformationalî analysis of Count Two of
its tenure charges against respondent, as the Commissionerís transmittal of this matter to the
OAL requested nothing more than a determination of whether the Boardís charges were, in fact,
ones of inefficiency. 	As such, it contends that the ALJís analysis was ìoffered as a means to
assist the Commissioner of Education in rendering a decision which would completely dismiss
the charges against this petitioner without any discovery or an opportunity for the petitioner to be
heard.î (Id. at 3)
Upon his independent and comprehensive review of the record, the Commissioner
concurs with the ALJ, that the charges comprising Count One are properly categorized as ones of
inefficiency and must, therefore, be dismissed for the Boardís failure to comply with the
requirements of N.J.S.A. 18A:6-11. 	In so determining, the Commissioner finds the Boardís
exception arguments, both with respect to the nature of its charges and the propriety of bringing
inefficiency charges against a superintendent, antithetic to both the governing statutes, N.J.S.A.
18A:17-20.2, N.J.S.A. 18A:6-11, and applicable case law. 	See In the Matter of the Tenure
Hearing of Richard P. Adams, School District of the Borough of Ocean Gate, Ocean County,
decided by the Commissioner September 19, 1997, a case virtually identical to the instant
matter.1 (See also In the Matter of the Tenure Hearing of Dr. Frank J. Napoli, School District of
1 Charges against District superintendent were found to be ones of inefficiency as they related to the Boardís
dissatisfaction with the performance of its superintendent. Because the Board had not accorded the respondent the
requisite 90-day period to improve his performance as mandated by N.J.S.A. 18A:6-11, the charges were dismissed.

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the City of Salem, Salem County, 1988 S.L.D. 261, affíd with modification by the State Board,
1988 S.L.D. 284.) 	Notwithstanding the categorization the Board attempts to ascribe to its
charges, the Commissioner is in full agreement with the ALJ that charges of inefficiency are
qualitatively different from charges of unbecoming conduct. 	(Initial Decision at 16-17) 	More
particularly, as was found in Adams, supra:
Inefficiency amounts to the teaching staff member failing to
effectively perform his or her duties. 	Rowley v. Manalapan-
Englishtown Board of Education, 205 N.J. Super. 65, 70 (App.
Div. 	1985). 	In 	sustaining 	charges 	of 	inefficiency, 	the
Commissioner noted conduct must amount to ìinefficiencies and
inadequaciesî in a respondentís performance of his duties. 	In the
Matter of the Tenure Hearing of Slovney, 84 S.L.D. 1764, 1794.
The 	charges 	which 	allege 	failure 	to 	perform 	duties 	are, 	by
definition, another phrase for the term of ìinefficiency.î 	(Adams
Slip Opinion at 7)
Here, the Commissioner is in full accord with the ALJ that ìthe BOEís ëCount One,í alleging
that the respondent failed to properly and effectively lead, supervise and/or manage the Asbury
Park school system constitutes a charge of ëinefficiencyíî***. 	(Initial Decision at 17)
Consequently, inasmuch as the Board did not fulfill its obligation, pursuant to N.J.S.A. 18A:6-11,
of providing respondent written notice of the inefficiency and according him 90 days to improve
his performance, Count One of the Boardís charges must be dismissed.
With respect to Count Two of the Boardís charges, charging respondent with
unbecoming conduct for knowingly entering into an invalid contract, the Commissioner, in
fulfillment of his responsibility pursuant to N.J.S.A. 18A:6-16 and N.J.A.C. 6A:3-5.5, has
reviewed this charge and upon such review, has determined that the charge, even if true, is,

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standing alone, deemed insufficient to warrant respondentís dismissal or reduction in salary and,
therefore, Charge Two must be dismissed. 2
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter for the reasons stated therein. 	Therefore, tenure charges against respondent are
dismissed and, pursuant to N.J.S.A. 18A:6-14, the Commissioner directs that the Asbury Park
Board of Education immediately reinstate Antonio Lewis to his position of superintendent with
full pay from the first day of his suspension. 	In so holding, the Commissioner notes that the
above result is compelled by law and that nothing herein precludes the Board, in its discretion,
from filing new tenure charges in compliance with the Tenure Employees Hearing Law.
IT IS SO ORDERED. 3
COMMISSIONER OF EDUCATION
Date of Decision: 	June 7, 2004
Date of Mailing: 	June 7, 2004
2 Because the Commissionerís transmittal of this matter to the OAL requested that, subsequent to a determination on
respondentís Motion to Dismiss for failure to comply with the procedural requirements of N.J.S.A. 18A:6-11 and
N.J.A.C. 6A:3-5.1(c), alleging charges were ones of inefficiency rather than unbecoming conduct, the matter be
returned to the Commissioner for a sufficiency determination pursuant to N.J.S.A. 18A:6-16, the Commissioner does
not reach to the ALJís informational comments with regard to Charge Two.
3 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and N.J.A.C.
6A:4-1.1 et seq.