403-24

New Jersey Commissioner of Education

Final Decision

Robert Cauvin,

Petitioner,

v.

Board of Education of the Township of North

Brunswick, Middlesex County, and New Jersey
Department of Education, Office of Student
Protection,

Respondent.

Synopsis

Petitioner, a tenured teacher, challenged the determination of the NJDOE, Office of Student Protection
(OSP), to permanently disqualify him from employment in a public school pursuant to N.J.S.A. 18A:6-
7.1(a) after a criminal history background check revealed that petitioner pled guilty in 1997 to lewdness,
N.J.S.A. 2C:14-4, in North Brunswick Municipal Court. N.J.S.A. 18A:6-7.1(a) mandates that individuals
convicted of an offense set forth in Chapter 14 of Title 2C are “permanently disqualified from
employment” in public schools. Petitioner’s offense was not detected by OSP until 2022, after he had
worked for years as a teacher without his 1997 conviction coming to light. Petitioner contended that
the Board violated his tenure rights by terminating him without the filing of tenure charges; he sought
reinstatement of his employment and restoration of emoluments including pension contributions. The
parties filed cross motions for summary decision.

The ALJ found, inter alia, that: the lewdness offense is not a disqualifying crime because under
State v. O., private consensual sexual activity does not constitute lewdness within the meaning of
N.J.S.A. 2C:14-4; petitioner has not forfeited his tenure rights and is entitled to a hearing before an
arbitrator regarding his employment; petitioner’s termination is unwarranted given prior Commissioner
decisions in tenure matters involving teachers found guilty of lewdness who were given lesser penalties,
as well as prior decisions in TEACH NJ arbitration matters; and OSP was not barred under the doctrine
of laches from asserting that petitioner’s conviction was a disqualifying crime or offense. The ALJ
granted petitioner’s motion for summary decision and ordered his reinstatement effective May 3, 2022.

Upon review, the Commissioner, inter alia, rejected the Initial Decision and granted the respondents’
motions for summary decision. In so doing, the Commissioner found that the ALJ committed several
legal errors in summarily reversing petitioner’s disqualification and ordering his reinstatement, including
disregarding the plain language of the mandatory disqualification statute, N.J.S.A. 18A:6-7.1, and
revisiting the propriety of the 1997 lewdness conviction entered following petitioner’s guilty plea – for
which the ALJ lacked jurisdiction. Accordingly, the petition was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.
403-24
OAL Dkt. No. EDU 06237-22
Agency Dkt. No. 195-7/22

New Jersey Commissioner of Education

Final Decision

Robert Cauvin,

Petitioner,

v.

Board of Education of the Township of North

Brunswick, Middlesex County, and New Jersey
Department of Education, Office of Student
Protection,

Respondents.

The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),

the exceptions filed by respondent Board of Education of the Township of North Brunswick

(Board) and respondent New Jersey Department of Education, Office of Student Protection (OSP)

pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply thereto, have been reviewed and considered.

The material facts are uncontested. In October 1997, petitioner pled guilty to lewdness,

N.J.S.A. 2C:14-4, in North Brunswick Municipal Court. He maintains that he was charged with the

offense after engaging in a consensual sexual act in a car parked in a very private area of North

Brunswick. N.J.S.A. 18A:6-7.1(a) mandates that individuals convicted of “[a]n offense as set forth

in Chapter 14 of Title 2C” are “permanently disqualified from employment” in public schools. For

reasons not known from the record, petitioner’s October 1997 lewdness offense was not

detected by OSP during his long career as a teacher until 2022. He worked as a special education
teacher for the Scotch Plains-Fanwood Regional School District from 1998 until 2003, and for the

North Brunswick Township School District from 2003 until May 3, 2022. In 2000 and 2003, he

underwent criminal history record checks conducted by OSP which found no criminal record.

On May 3, 2022, OSP informed the Board’s Superintendent via email that petitioner was

permanently disqualified from public school employment pursuant to N.J.S.A. 18A:6-7.1(a) based

upon a 1997 conviction in North Brunswick Municipal Court “for a disqualifying crime or offense.”

On that same date, the Board terminated his employment. At its next meeting on May 11, 2022,

the Board adopted a resolution approving his termination. At the time of petitioner’s

termination, he was on paid administrative leave following an unrelated November 2021 arrest.

In his petition of appeal, petitioner contends that the Board violated his tenure rights

when it terminated him without the filing of tenure charges and seeks reinstatement of his

employment, retroactive to May 3, 2022, plus restoration of economic emoluments including

pension contributions. Citing State v. O., 69 N.J. 574 (1976), he further contends that OSP

wrongly considered the lewdness offense to be a disqualifying offense.1 Once the matter was

transmitted to the Office of Administrative Law (OAL), the parties moved for summary decision.

The ALJ granted petitioner’s motion for summary decision and ordered his reinstatement

effective May 3, 2022.

The ALJ found: (1) the lewdness offense is not a disqualifying crime or offense because

under State v. O., private consensual sexual activity does not constitute lewdness within the

1
Petitioner also alleged that the Board violated the Open Public Meetings Act (OPMA), specifically N.J.S.A.
10:4-12(b)(8), by failing to provide him with a Rice notice to advise that his employment would be
discussed by the Board at its May 11, 2022, meeting. The ALJ did not make findings on this issue in the
Initial Decision, and petitioner has not filed exceptions thereto. Therefore, the Commissioner deems the
issue waived and will not consider it.

2
meaning of N.J.S.A. 2C:14-4; (2) petitioner has not forfeited his tenure rights and is entitled to a

hearing before an arbitrator regarding his employment; (3) petitioner’s termination is

unwarranted given prior Commissioner decisions in tenure matters involving teachers found

guilty of lewdness who were given lesser penalties, and prior decisions in TEACH NJ arbitration

matters; and (4) OSP was not barred under the doctrine of laches from asserting that petitioner’s

conviction was a disqualifying crime or offense. Initial Decision, at 9-13.

In its exceptions, the Board argues that the ALJ erred in summarily ordering the reversal

of petitioner’s disqualification and his reinstatement. It contends that the ALJ sought to analyze

the propriety of the 1997 conviction, which is an overreach to a question not presented. It notes

that petitioner is not challenging the accuracy of his criminal history record, and that the

implications of the offense must be analyzed under the mandatory disqualification statute,

N.J.S.A. 18A:6-7.1. It also contends that the ALJ’s reliance on prior Commissioner tenure

decisions is misplaced because the holdings in those cases, which concern whether lewd acts

constituted “conduct unbecoming,” cannot be extrapolated to disqualification cases. Regarding

petitioner’s reinstatement, the Board contends that the ALJ exceeded his authority because only

the Board can re-employ petitioner, either on its own initiative or by order of the Commissioner.

Furthermore, even if petitioner’s reinstatement stands, the Board argues that it should not be

compelled to bear the cost of his back pay and benefits because it had no choice under State law

but to terminate petitioner.

OSP also takes exception to the ALJ’s conclusion that the 1997 lewdness offense is not a

disqualifying offense and requests that petitioner’s disqualification from public school

employment be upheld. It asserts that it is undisputed that petitioner was convicted of an

3
offense that automatically results in disqualification pursuant to N.J.S.A. 18A:6-7.1. It further

argues that disqualification is mandatory regardless of when the conviction occurred. It also

notes that petitioner does not challenge the accuracy of his criminal history record. It maintains

that the ALJ did not have the authority to rule upon or revisit the merits of the underlying

conviction, and that petitioner’s opportunity to challenge the conviction occurred during the

municipal court proceedings.

In response, petitioner continues to dispute the legality of his 1997 conviction, arguing

that under State v. O., decided in 1976, his actions did not constitute lewdness within the

meaning of N.J.S.A. 2C:14-4. Consequently, he argues that the incident cannot serve as a basis

for his disqualification and that N.J.S.A. 18A:6-7.1 is inapplicable. He reiterates his claim that his

tenure rights were violated because the Board did not file tenure charges against him prior to

terminating his employment. He repeats his assertion that any alleged disqualifying criminal

misconduct must in some way involve his official employment duties for forfeiture of any vested

tenure rights to occur. He again cites numerous prior Commissioner tenure decisions and TEACH

NJ arbitration awards to support his position that his termination was unwarranted for

committing a lewdness offense.

Upon review, the Commissioner concurs with respondents that the Initial Decision must

be rejected because the ALJ erred by summarily reversing petitioner’s disqualification and

ordering his reinstatement. First, the ALJ committed legal error by disregarding the plain

language of the mandatory disqualification statute, N.J.S.A. 18A:6-7.1. N.J.S.A. 18A:6-7.1(a)

unambiguously states that individuals convicted of “[a]n offense as set forth in Chapter 14 of Title

2C” are “permanently disqualified from employment” in public schools. While N.J.S.A. 18A:6-

4
7.1(e) allows an individual “to challenge the accuracy of the disqualifying criminal history record,”

petitioner does not challenge the accuracy of his criminal history record.2 It is uncontested that

he pled guilty to lewdness, N.J.S.A. 2C:14-4, in 1997. Consequently, upon learning of same in

May 2022, OSP notified petitioner and the Board that petitioner was permanently disqualified

from public school employment. The Board was obligated as a matter of law to terminate

petitioner’s employment once he was permanently disqualified. In the Matter of the Tenure

Hearing of John Socrates, Commissioner Decision No. 235-11 at 3 (June 24, 2011).

Second, the ALJ committed legal error when revisiting the propriety of the 1997 lewdness

conviction entered following petitioner’s guilty plea. The ALJ lacked jurisdiction to review the

conviction, to decide that private consensual sexual activity does not constitute lewdness within

the meaning of N.J.S.A. 2C:14-4, and to hold that, therefore, petitioner did not commit a

disqualifying offense. The Commissioner has jurisdiction to determine “controversies and

disputes arising under the school laws.” N.J.S.A. 18A:6-9. Bower v. Bd. of Educ. of E. Orange, 149

N.J. 416, 420 (1997). N.J.S.A. 2C:14-4 is not a school law; it is part of the New Jersey Code of

Criminal Justice. Neither the adjudication of crimes and offenses nor the appellate review of

convictions falls within the Commissioner’s purview. The ALJ’s opinion regarding the factual basis

for the conviction is irrelevant to the question of petitioner’s disqualification from public school

employment. As explained above, it is uncontested that petitioner pled guilty to a permanently

disqualifying offense as per the plain language of N.J.S.A. 18A:6-7.1, and he does not challenge

the accuracy of his criminal history record. The conviction stands and has not been expunged.

2
Since petitioner has repeatedly acknowledged that he does not challenge the accuracy of his criminal
history record, the ALJ’s determination that OSP did not provide him with an opportunity to challenge it
is rejected as unsupported by the record.

5
Accordingly, OSP acted appropriately when it permanently disqualified petitioner from public

school employment, and the Board acted appropriately when it terminated his employment.

Third, the ALJ committed legal error when holding that the Board violated petitioner’s

tenure rights by terminating his employment without the filing of tenure charges, and that he is

entitled to a hearing before an arbitrator regarding his employment. In Socrates, which the ALJ

did not consider, respondent, a tenured teacher, pled guilty to a Chapter 14, Title 2C lewdness

offense in municipal court. Socrates, at 2. Although the Board had filed tenure charges against

him that were stayed pending disposition of the criminal matter before he pled guilty, the

Commissioner upheld his summary termination immediately following OSP’s determination to

permanently disqualify him from public school employment because he pled guilty to a

permanently disqualifying offense as identified in N.J.S.A. 18A:6-7.1. Id. at 2-3.

The Commissioner held in Socrates that removal from his tenured teaching position did

not occur as a consequence of the tenure charges filed against him, but rather was “obligatory

as a matter of law” under N.J.S.A. 18A:6-7.1. Id. at 2. Thus, the Commissioner found no basis for

a hearing or oral argument on the tenure charges, which were never adjudicated. Id. at 2-3. The

same is true in this case. The Board had an obligation to terminate petitioner’s employment

upon notification from OSP that he was convicted of a permanently disqualifying offense. Tenure

charges are unnecessary given the circumstances, and petitioner is not entitled to a hearing

before an arbitrator. 3

3
The ALJ’s reliance upon Caucino v. Board of Trustees, Teachers’ Pension and Annuity Fund, 475 N.J.
Super. 405 (App. Div. 2023), in further support of his conclusion that petitioner is entitled to a tenure
hearing is misplaced. The Commissioner rejects the ALJ’s finding that under Caucino, “an individual cannot
be presumed guilty of any form of ‘unbecoming conduct’ if they were not employed as a teacher” and
that, therefore, petitioner has not forfeited his “vested tenure rights.” Initial Decision, at 11. At the

6
 Fourth, the ALJ committed legal error when holding that petitioner’s termination is

unwarranted given prior Commissioner decisions in tenure matters involving teachers found

guilty of lewdness who were given lesser penalties, as well as TEACH NJ arbitration matters

involving “sexual activities.” Initial Decision, at 13. Apart from the fact that the instant case does

not involve adjudication of tenure charges or a determination regarding whether petitioner’s

actions constitute unbecoming conduct, the tenure matters cited by the ALJ were decided in 1985

and 1988—many years before N.J.S.A. 18A:6-7.1 was amended in 1998 to mandate permanent

disqualification from public school employment upon conviction of a lewdness offense. See L.

1998, c. 31, § 5 (amending N.J.S.A. 18A:6-7.1 to require permanent disqualification from

employment if convicted of certain enumerated crimes and offenses, including offenses set forth

in chapter 14 of Title 2C).

Thus, the fact that individuals in the 1980s tenure matters were not permanently

disqualified or terminated from employment at the conclusion of tenure proceedings is neither

dispositive nor controlling because, at that time, N.J.S.A. 18A:6-7.1 did not mandate permanent

disqualification upon conviction of a lewdness offense as it does today. Similarly, the ALJ’s

reliance upon TEACH NJ arbitration matters to support the conclusion that petitioner is entitled

to a tenure hearing ignores N.J.S.A. 18A:6-7.1 and its applicability to the facts of this case. That

statute was not at issue in the TEACH NJ arbitration matters relied upon by petitioner and the

outset, Caucino concerned pension rights, not tenure rights. Moreover, neither the Commissioner nor
the Board nor OSP has presumed petitioner guilty of “unbecoming conduct.” A finding regarding whether
petitioner’s conviction constitutes unbecoming conduct is unnecessary given N.J.S.A. 18A:6-7.1’s mandate
that he be permanently disqualified from public school employment based upon his criminal history
record. Any issues concerning forfeiture of vested rights under pension laws following permanent
disqualification from employment pursuant to N.J.S.A. 18A:6-7.1—which is the focus of the Caucino
opinion—are beyond the scope of this proceeding.

7
ALJ, and none of those individuals were convicted of a lewdness offense. Therefore, the TEACH

NJ arbitration matters are distinguishable and fail to support the conclusion that petitioner is

entitled to a tenure hearing.

Accordingly, the Initial Decision is rejected for the reasons explained herein.

Respondents’ motions for summary decision are granted, and the petition of appeal is hereby

dismissed. Petitioner remains permanently disqualified from public school employment

pursuant to N.J.S.A. 18A:6-7.1 as per OSP’s May 2022 determination, and the Board’s termination

of petitioner’s employment is upheld on that basis.

IT IS SO ORDERED.4

ACTING COMMISSIONER OF EDUCATION

Date of Decision: November 4, 2024

Date of Mailing: November 6, 2024

4
This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days
from the date of mailing of this decision.

8
 State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 06237-22
AGENCY DKT. NO. 195-7/22
ROBERT CAUVIN,
Petitioner,
v.
BOARD OF EDUCATION OF
THE TOWNSHIP OF NORTH BRUNSWICK,
MIDDLESEX COUNTY,
Respondent.
________________________________________

Stephen Hunter, Esq., for petitioner Robert Cauvin (Detzky, Hunter & DeFillippo,
LLC, attorneys)

Eric L. Harrison., Esq., for respondent Board of Education of the Township of

North Brunswick, Middlesex County (Methfessel & Werbel, P.C., attorneys)

David L. Kalisky, Deputy Attorney General for respondent New Jersey Department
of Education (Matthew Platkin, Attorney General of New Jersey, attorney)

Record Closed: February 26, 2024 Decided: August 26, 2024

BEFORE CARL V. BUCK III, ALJ:

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EDU 06237-22

STATEMENT OF THE CASE

This case was initially filed through an application for emergent relief pursuant to
N.J.A.C. 6A:3-1.6, in which petitioner Robert Cauvin (Cauvin or petitioner) challenged
termination of his employment as a tenured special education teacher by the North
Brunswick Township Board of Education (Board), viz., the North Brunswick Township
School District (District). Petitioner sought immediate reemployment retroactive to May
3, 2022. Petitioner’s termination was based upon information provided to the District from
the Office of Student Protection (OSP) (under the State of New Jersey, Department of
Education (DOE)), dated May 3, 2022. This information stated that petitioner is
permanently disqualified from serving in “any position, paid or unpaid, with any
educational institution under the supervision of the Department of Education, or with a
contracted service provider under contract with said school or educational facility.” This
disqualification was based on an arrest which occurred in North Brunswick on October
15, 1997 (arrest), and subsequent conviction.

On May 3, 2022 the Board hand delivered a letter (Letter) to petitioner, dated May
3, 2022, which stated, “as a result of a conviction stemming from an arrest in 1997, you
are ‘permanently disqualified from serving in any position, paid, or unpaid, with any
education under the supervision of the Department of Education.’” The Letter further
states petitioner is terminated “[a]s a result of the foregoing notification, and [his]
disqualification from serving as a teacher.” (Pet’r’s Mot. Ex. B.) The District
superintendent stated that she recommends the Board to retroactively approve same
during its next meeting. The Board’s public meeting notes of May 11, 2022 indicate that
the Board adopted a resolution to approve the termination of [petitioner]. Id.

Petitioner seeks a determination that respondent erred in disqualifying him from

employment due to the 1997 arrest, where petitioner did not know that:

1. Such arrest in 1997 would lead to a disqualification from employment; and

2
OAL DKT. NO. EDU 06237-22

2. Such arrest never appeared on prior investigations performed for

employment.

Petitioner challenges the action of OSP on the following bases:

1. The lack of a Rice Notice required by N.J.S.A. 10:4-6, the Open Public
Meetings Act (OPMA), prior to public meeting where the Board voted to
terminate him; and

2. The lack of providing a tenure proceeding prior to his termination;

3. The additional reasons detailed herein.

PROCEDURAL HISTORY AND FACTUAL FINDINGS

On July 21, 2022, petitioner appealed the action by the District and moved for
emergent relief and alternatively for relief through a due process hearing.

The matter was transferred to the Office of Administrative Law (OAL), where it was
filed on July 26, 2022, as a contested case. N.J.S.A. 52:14B-1 to –15; N.J.S.A. 52:14F-
1 to –13. In an Order on the emergent matter issued by me on August 4, 2022, petitioner’s
request for emergent relief was denied. That denial was made without prejudice.

On or about August 21, 2023, petitioner filed a Motion for Summary Decision.
Respondent filed a response to the Motion and Cross Motion on the same date. The
parties filed joint stipulations on August 24, 2023. On September 22, 2023, petitioner
filed a reply letter memorandum and supporting documentation. Oral argument on the
motions was held on December 12, 2023. Final submissions were made, and the record
was closed on February 26, 2024. Extensions for issuance of this Initial Decision were
requested and granted.

3
OAL DKT. NO. EDU 06237-22

The following FACTS have been agreed to by the parties and are submitted as
joint exhibits and accordingly I FIND the following as FACT:

1. Robert Cauvin is the holder of a Teacher of Handicapped certificate.

2. On October 15, 1997, Robert Cauvin was arrested in New Brunswick, New
Jersey and charged with N.J.S.A. 2C:14-4, Lewdness under complaint S-1997-
534513.

3. On October 28, 1997, Robert Cauvin was found guilty and assessed fines for
the Lewdness charge stemming from the October 15, 1997 arrest.

4. On October 28, 1997, Robert Cauvin completed all financial obligations related
to the Lewdness charge stemming from the October 15, 1998 arrest (sic).

5. Robert Cauvin worked for the Scotch Plains-Fanwood School District from
1998 until 2003.

6. As an employee of the Scotch Plains-Fanwood School District, Robert Cauvin

was required to undergo a background check.

7. Background checks for prospective public school employees are done by the
New Jersey Department of Education, Office of Student Protection (OSP).

8. On July 24, 2000, a payment for a background check was requested for Robert
Cauvin for purposes of employment with Scotch Plains-Fanwood School
District.

9. The background check stemming from the July 24, 2000 payment found no
criminal record for Robert Cauvin. Therefore, OSP did not disqualify Robert
Cauvin from working for the Scotch Plains-Fanwood School District.

4
OAL DKT. NO. EDU 06237-22

10. Robert Cauvin worked for the North Brunswick Township School District
(District) from 2003 until May 3, 2022.

11. As an employee of the District, Robert Cauvin was required to undergo a

background check.

12. On August 5, 2003, a check to pay for a background check was requested for
Robert Cauvin for purposes of employment with the District.

13. The background check resulting from the August 5, 2003 payment found no
criminal record for Robert Cauvin. Therefore, OSP did not disqualify Robert
Cauvin from working for the District.

14. On May 3, 2022, OSP informed the District that Robert Cauvin was
permanently disqualified from teaching based on the finding of guilty for the
October 15, 1997 arrest for lewdness.

15. On May 3, 2022, based on the disqualification, the District terminated Robert
Cauvin’s employment.

16. The Lewdness charge stemming from the October 15, 1997 arrest has not been
expunged.

17. Robert Cauvin has filed to expunge the Lewdness charge stemming from the
October 15, 1997 arrest in Middlesex County Superior Court.

5
OAL DKT. NO. EDU 06237-22

The following FACTS are not in dispute and accordingly I FIND:

On or about October 15, 1997, petitioner was arrested. (Pet’r’s Cert. 2. 1) The
petitioner was ultimately convicted of the charge of with a violation of N.J.S.A. 2C:14-4 2,
Lewdness under complaint S-1997-534513.

Beginning in 1998, petitioner was employed in two positions in two separate school
districts; both of which required background checks. (Pet’r’s Resp. 2-3.) The background
check from July 24, 2000, revealed no criminal convictions. The background check from
August 5, 2003, revealed no criminal convictions. Petitioner’s second position was with
the Board where he was a Special Education teacher from 2003 until his termination.

1Petitioner states that he was arrested “for engaging in a consensual sexual act in [his] car that was
parked in a very private area in North Brunswick.” Pet’r’s Resp. 2. Petitioner has not provided records of
said arrest.
2 N.J.S.A. 2C:14-4. Lewdness

a. A person commits a disorderly persons offense if he does any

flagrantly lewd and offensive act which he knows or reasonably expects
is likely to be observed by other nonconsenting persons who would
be affronted or alarmed.

b. A person commits a crime of the fourth degree if:

(1) He exposes his intimate parts for the purpose of arousing or

gratifying the sexual desire of the actor or of any other person under
circumstances where the actor knows or reasonably expects he is
likely to be observed by a child who is less than 13 years of age
where the actor is at least four years older than the child.

(2) He exposes his intimate parts for the purpose of arousing or

gratifying the sexual desire of the actor or of any other person under
circumstances where the actor knows or reasonably expects he is
likely to be observed by a person who because of mental disease or
defect is unable to understand the sexual nature of the actor's
conduct.

c. As used in this section:

"lewd acts" shall include the exposing of the genitals for the purpose
of arousing or gratifying the sexual desire of the actor or of any other
person.

L.1978, c.95; amended 1992,c.8,s.1.

(emphasis added)
6
OAL DKT. NO. EDU 06237-22

(Pet’r’s Cert. 1.) On May 3, 2022, petitioner was provided a letter from Board
Superintendent Janet Ciarrocca (Ciarrocca) which stated Cauvin was terminated from his
teaching position. (Pet’r’s Mot. Ex. A.) Petitioner’s medical benefits ended on May 22,
2022.

The Board cites a redacted email, dated May 3, 2022, in support of this termination
from James C. Scaringelli (Scaringelli), Investigator with the OSP, which was sent to
Ciarrocca and dated May 3, 2022. (Pet’r’s Mot. Ex. A.) The email states that the OSP
received documentation showing a conviction for a disqualifying crime or offense, and
that “the applicant has been notified that he is permanently disqualified from serving in
any position, paid or unpaid, with any educational institution under the supervision of the
Department of Education . . .” The email asks the Board to advise the OSP of the status
of the applicant’s employment.

The Board hand delivered the Letter to petitioner, dated May 3, 2022 which stated,
“as a result of a conviction stemming from an arrest in 1997, you are ‘permanently
disqualified from serving in any position, paid, or unpaid, with any education under the
supervision of the Department of Education.’” The Letter further states petitioner is
terminated “[a]s a result of the foregoing notification, and [his] disqualification from serving
as a teacher.” (Pet’r’s Mot. Ex. B.) The superintendent further stated she recommends
the Board to retroactively approve same during its next meeting. Ibid. The Public Meeting
notes of May 11, 2022, indicate that the Board adopted a resolution to approve the
termination of [petitioner]. Id.

ARGUMENTS OF THE PARTIES

Petitioner asserts that he is entitled to relief in the form of his motion for summary
decision and provides the following five points in support of his claim:

POINT I:

7
OAL DKT. NO. EDU 06237-22

The petitioner is entitled to the granting of his motion for summary decision and his
reinstatement as a teacher within the North Brunswick School District since the New
Jersey Supreme Court's 1976 decision in State v. O. mandates the conclusion that
engaging in private consensual sexual activity is not within the ambit of New Jersey
criminal statutes and did not represent a "disqualifying crime or offense" that could result
in the termination of the petitioner's tenured employment.

POINT II:

The 2023 published Appellate Division decision, Caucino v. Board of Trustees,

Teachers' Pension and Annuity Fund, supports the petitioner's legal argument that
even any alleged disqualifying criminal misconduct must in some way involve an
employee's official employment duties in order to qualify for the forfeiture of any vested
rights under a New Jersey state statute.

POINT III:

Prior Commissioner of Education and judicial decisions that relate to either criminal
acts of teaching staff members and other certificated personnel or "conduct unbecoming
a teacher" involving impermissible contact or acts directed at students mandate the
conclusion that petitioner's 1997 plea to lewdness in consideration of the State v. O.
supreme court decision does not support a conclusion that the petitioner committed any
"disqualifying crime or offense" to warrant his dismissal.

POINT IV:

Teacher NJ arbitration awards also substantiate petitioner Cauvin's legal argument

that his involvement in consensual sexual contact on October 15, 1997, does not support
a conclusion that petitioner committed any "disqualifying crime or offense" to warrant his
termination.

POINT V:

8
OAL DKT. NO. EDU 06237-22

The respondent OSP is equitably estopped and barred by the principle of laches
from arguing that in 1997the petitioner committed a "disqualifying crime or offense" when
the OSP, on two separate occasions in conducting criminal history background checks of
petitioner, determined that there was no basis to conclude that the petitioner committed
any disqualifying act that required his dismissal.

The first argument of petitioner relies on the New Jersey Supreme Court Decision
in State v. O., 69 N.J. 574 (1976). This case found that the private consensual acts
between adults are not within the ambient of State criminal statutes, and thus the Board
violated petitioner’s rights when it summarily terminated petitioner based upon his offense
in 1976 without initiating tenure charge proceedings. (P-Mot. 1-2.)

The Board’s response to this contention is that petitioner’s tenure rights were not
violated when the Board was directed by the NJ DOE to terminate him because he was
convicted a crime that permanently disqualified him from serving in any position with any
educational institution under the supervision of the NJ DOE, and the Board has no
authority to reject these findings.

Considering the facts, circumstances and documentary evidence supplied by the

parties, I FIND that State v. O. dictates that individuals engaged in private consensual
sexual activity could not be found guilty of indecent exposure, or committing an act of
open lewdness, within the meaning of N.J.S.A. 2C:14-4, and that private consensual acts
between adults are not within the ambit of any State criminal statutes. Extending then,
petitioner's engagement in a private act of "exposure" between consenting adults in
October, 1997, did not represent any criminal activity within the meaning of the New
Jersey Criminal Statutes, such as N.J.S.A. 2A:115-1 or N.J.S.A. 2C:14-4 and therefore
was not a disqualifying crime. Therefore, petitioner prevails on this point.

Petitioner’s second point is borne out in his citation to Caucino v. Board of

Trustees, Teachers’ Pension and Annuity Fund, 475 N.J. Super. 405 (App. Div. 2023),
wherein the Appellate Division noted that Caucino had been a teacher employed by the
Monmouth County Vocational School District (Monmouth) and a contributing member of
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the Teachers' Pension and Annuity Fund (TPAF) during the time period between
September 1993 until August 2004. He pled guilty in Federal District Court to bank fraud
in 1995 and was sentenced in 1999. In June 2004, the New Jersey Board of Education
notified Caucino that he was disqualified from employment as a teacher, pursuant to
N.J.S.A. 18A:6-7.1, which permanently disqualifies teachers and other school employees
who have been convicted of certain crimes from employment in all school systems under
the supervision of the Department of Education.

The Appellate Division in Caucino found that in October 1999, six years after he
was hired by the School District, Federal authorities advised the New Jersey Board of
Education of Caucino's conviction and sentence, yet the New Jersey Board of Education
took no action against Caucino's teaching certificate until five years later when a search
conducted by the New Jersey Board of Education's Criminal History Review Unit
confirmed Caucino's conviction and sentence.

The Appellate Division determined that any alleged disqualifying criminal

misconduct must in some way involve an employee's official employment duties in order
to qualify for the forfeiture of any vested rights under a New Jersey State Pension statute.
Petitioner analogizes this to his case and states that there could not be the forfeiture of
Cauvin's vested tenure rights based on any reliance that he had pled guilty to a violation
of a statute determined by the New Jersey Supreme Court in 1976 to not encompass
private consensual sexual activity, which the Supreme Court in State v. O. determined
was not within the ambit of any criminal statute. Caucino holds that an individual cannot
be presumed guilty of any form of "unbecoming conduct" if they were not employed as a
teacher, especially in consideration of the significance of the State v. O.

The State counters that Cauvin’s contention that he (Cauvin) cannot be disqualified
because the act of lewdness for which he was arrested did not involve his employment.
This is furthered in the State’s brief that the disqualification statute is much more definitive
and mandates that persons shall be permanently disqualified from service if that
individual’s criminal history check reveals a record of conviction for enumerated violations
of N.J.S.A. 2C:14. N.J.S.A. 18A:6-7.1. The disqualification statute does not require that
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the enumerated violations occur at a school, or that they touched upon an educator’s
employment, for action to be taken against them by OSP. In fact, to his detriment, Cauvin
acknowledges this fact and provides support for his disqualification.

The State further argues that in Caucino, the court did not reverse the removal of
Caucino from Monmouth, nor did it reverse his permanent disqualification and that
Cauvin’s disqualification was appropriate and actually supported by the case law cited by
Cauvin. As in Caucino, Cauvin’s disqualifying offense was found after he began teaching,
and, despite the offense being unrelated to his employment as an educator, the court took
no issue with Caucino’s removal. As such, as in Caucino, Cauvin’s removal, per N.J.S.A.
18A:6A-7.1, was appropriate and supported by the law.

Considering the facts, circumstances and documentary evidence supplied by the

parties I FIND that Caucino holds that an individual cannot be presumed guilty of any
form of "unbecoming conduct" if they were not employed as a teacher, especially in
consideration of the significance of the State v. O. Therefore, petitioner prevails on this
point.

Petitioner’s third point cites a number of cases (and their respective penalties) in
asserting that his termination is unwarranted. The most salient of these are Board of
Education of the Township of Old Bridge v. Richard M. Pappa, 1988 S.L.D. 542, where a
tenured teacher was accused of “conduct unbecoming” because of his open public
lewdness conviction. Pappa was arrested in a rest area on the Garden State Parkway
by undercover agents operating a “sting” operation. His conduct was described as “sitting
on a picnic table bench with his pants open, exposing his genitals and masturbating in
the presence of an undercover officer”. Id. at 543. Pappa pled guilty to public lewdness
(N.J.S.A. 2C:14-4) in Municipal Court. The ALJ and the Commissioner of Education
imposed a penalty of 120-day salary forfeiture, and the withholding of salary increment
for one year.

The second salient case is In Town of West Orange Board of Education v. Martin
Lieb, 1985 S.L.D. 933, the Commissioner affirmed the findings of the ALJ that Lieb should
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be reinstated as a school teacher following a public lewdness conviction. Lieb was

originally charged with criminal sexual conduct in violation of N.J.S.A. 2C:14-3(b), but the
offense was downgraded. Lieb had touched the “genital area” of an Essex County Police
Officer in a secluded area of the South Mountain reservation.

The State counters that Cauvin’s argument that he cannot be disqualified because
the act of lewdness for which he was arrested did not involve his employment is
erroneous. The State cites that in OSP’s moving brief, the disqualification statute is much
more definitive and mandates that persons shall be permanently disqualified from service
if that individual’s criminal history check reveals a record of conviction for enumerated
violations of N.J.S.A. 2C:14. N.J.S.A. 18A:6-7.1. The disqualification statute does not
require that the enumerated violations occur at a school, or that they touched upon an
educator’s employment, for action to be taken against them by OSP. In fact, to his
detriment, Cauvin acknowledges this fact and provides support for his disqualification.

Considering the facts, circumstances and documentary evidence supplied by the

parties I FIND the Pappa and Lieb cases persuasive. As a note, petitioner cites cases in
which the “incidents” all occur during the pendency of teacher employment. The State
cites, among other cases, the Caucino case noting that the bank robber Caucino was
convicted of occurred in 1995 and Caucino taught from 1993 to 2004. It was not until
2004 that he was permanently disqualified from employment based on his conviction, and
removed by Monmouth. Although the court took no issue of his removal from Monmouth
for a crime that was wholly unrelated to his position as a teacher and which was
discovered years after he began teaching. The court only reversed Caucino’s deferred
retirement benefits denial and did not reverse the removal of Caucino from Monmouth,
nor did it reverse his permanent disqualification.

Considering the facts, circumstances and documentary evidence supplied by the

parties I FIND that Caucino is not persuasive in that the category of the offense of bank
robbery is not analogous to a conviction of lewdness. The dissimilar nature of the crime,
and the caselaw provided shows that, petitioner prevails on this point.

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Petitioner’s fourth point is that Teacher NJ arbitration awards provide support of

petitioner's arguments that teachers who were found guilty of "conduct unbecoming a
teacher" because of sexual activities, while employed as certificated teachers, were not
dismissed from their tenured employment, while petitioner was dismissed as a tenured
teacher based on consensual, non-criminal sexual activity prior to the start of his teaching
career. The caselaw cited by petitioner provides a variety of situations where teachers
are entitled to an appropriate hearing before an arbitrator as called for.

The State’s position on this issue is that Cauvin demonstrates a fundamental lack
of understanding of the disqualification statute, and these proceedings. The State
contents that the disqualification statute operates outside from, and independent of,
employer-initiated tenure proceedings of a disciplinary nature, or actions against a
teacher’s certificates by the Board of Examiners. It is a mandatory, non-discretionary,
absolute bar against employment if an individual has a disqualifying offense on their
record. Tenure proceedings are wholly irrelevant to the inquiry in this matter.

Considering the facts, circumstances and documentary evidence supplied by the

parties, I FIND that petitioner’s argument on this point is persuasive and that the employer
initiated tenure proceedings are precisely indicated here to avoid the summary
dispensation which occurred to Cauvin. Petitioner prevails on this point.
The final point raised by petitioner is that OSP is equitably estopped and barred by
the principal of laches from arguing that the 1997 action constituted a “Disqualifying Crime
or Offense.” On this point I FIND that OSP is not barred from the ability to make this
finding; HOWEVER, the proper processes in this instance were not followed. Respondent
prevails on this point.

LEGAL ANALYSIS AND CONCLUSIONS

A. Summary Decision Standard

Under N.J.A.C. 1:1-12.5(b) a “motion for summary decision shall be served with
briefs and with or without supporting affidavits.” N.J.A.C. 1:1-12.5(b). A summary
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decision may be rendered “if the papers and discovery which have been filed, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to prevail as a matter of law.” Ibid.

A court should grant summary judgment when the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, show that there is
no genuine issue of material fact and that the moving party is entitled to a judgment as a
matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-529 (1995). The
Supreme Court of New Jersey has adopted a standard that requires judges to “engage in
an analytical process to decide whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 533.

“When a motion for summary decision is made, an adverse party in order to prevail
must by responding affidavit set forth specific facts showing that there is a genuine issue
which can only be determined in an evidentiary proceeding . . ..” N.J.A.C. 1:1-12.5(b). A
court should deny a motion for summary decision when the party opposing the motion
has produced evidence that creates a genuine issue as to any material fact challenged.
Brill, 142 N.J. at 528-29. When making a summary decision, the “judge’s function is not
himself [or herself] to weigh the evidence.” Id. at 540.

The petition filed by Cauvin, along with his certification, states that he engaged in
a private consensual sexual act in October 1997, while in his parked car in a private unlit
area. The arrest for this action and plea to a violation of N.J.S.A. 2C:14-4, was made
before petitioner began teaching and twenty-five years before petitioner was first advised
that the respondent OSP determined that he had committed a disqualifying "crime or
offense" so as to mandate his dismissal as a public school teacher.

No testimony or documentation contravenes petitioner’s statement as to the event

and the fact that he was engaged in consensual sexual activity in a parked vehicle owned
by the petitioner in a private area when discovered by local municipal police officers.

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Cauvin challenges his procedural due process rights and right to be heard, which is a
question of law.

B. The Employee Disqualification Statute:

A school or school system, under the supervision of the Department of Education

and board of education which cares for or is involved in the education of children under
the age of eighteen, shall not employ for pay or contract for the paid services of any
custodian, school maintenance worker, or any other person serving in a position which
involves regular contact with pupils unless the employer has first determined consistent
with the requirements and standards of this act, that no criminal history record information
exists on file in the Federal Bureau of Investigation, Identification Division, or the State
Bureau of Identification which would disqualify that individual from being employed or
utilized in such capacity or position (N.J.S.A. 18A:6-7.1)

N.J.S.A. 18A:6-7.1(a) provides that “[a]n individual[] . . . shall be permanently

disqualified from employment or service under this act if the individual’s criminal history
record check reveals a record of conviction for any crime of the first or second degree; or
[a]n offense as set forth in chapter 14 of Title 2C of the New Jersey Statutes[.]”

An individual shall not be disqualified from employment or service under this act
on the basis of any conviction disclosed by a criminal record check performed pursuant
to this act without an opportunity to challenge the accuracy of the disqualifying criminal
history record (N.J.S.A. 18A:6-7(e). (emphasis added)

Cauvin does not deny the criminal conviction that resulted in his disqualification
from employment. In addition, he does not challenge the “accuracy” of his criminal
conviction. He states that he was not provided with an opportunity for appropriate hearing
and opportunity to expunge his record considering that the event occurred before he
began teaching, the lewdness conviction was inaccurate as material aspects of the
statute were not present and the conviction for lewdness was never revealed in his prior

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investigations. Specifically marked portions of the statute – pertaining to intention as to

other uninterested parties – were not present in the 1997 action.

The statute provides that an individual shall not be disqualified from employment
or service under this act on the basis of any conviction disclosed by a criminal record
check performed pursuant to this act without an opportunity to challenge the accuracy of
the disqualifying criminal history record (N.J.S.A. 18A:6-7(e). Said opportunity was not
provided to Cauvin and he has challenged the disqualification process. He has also filed
for expungement of the conviction.

Considering the facts and circumstances of the OSP in light of the history of
investigations previously performed and the failure of the OSP to provide Cauvin with the
opportunity to challenge the veracity, accuracy and impact of the disqualifying criminal
history, the petitioner’s motion for summary decision in lieu of an answer to dismiss the
petition is GRANTED. The respondent’s cross-motion for summary decision is DENIED.

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ORDER

It is hereby ORDERED that the petitioner’s motion for summary decision in lieu of
an answer to dismiss the petition is GRANTED and that petitioner is reinstated to his
position effective May 3, 2022. It is further ORDERED that the respondent’s motion for
summary decision in lieu of an answer to dismiss the petition is DENIED.

I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.

This recommended decision may be adopted, modified, or rejected by the ACTING

COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Acting Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION. Exceptions may be filed
by email to [email protected] or by mail to Office of
Controversies and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton,
New Jersey 08625-0500. A copy of any exceptions must be sent to the judge and to the
other parties.

August 26, 2024

DATE CARL V. BUCK III, ALJ

Date Received at Agency:

Date Mailed to Parties:

CVB/lam
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