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Woodbridge, School District of the Township of v. Rumage, Richard

Cite As 1 N.J.A.R. 381

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SCHOOL DISTRICT OF THE TOWNSHIP OF
WOODBRIDGE,
Petitioner,
V.
RICHARD RUMAGE,
Respondent.
Decided May 29, 1980
Initial Decision
SYNOPSIS
The Board of Education certified tenure charges against Rumage for
conduct unbecoming a teacher and incapacity, pursuant to N.J.S.A. 18A:6-
10, after Rumage pled guilty to conspiracy and bookmaking charges. The
parties agreed that this matter should be decided by way of summary
judgment since there were no contested issues of fact, and agreed that the
issues to be addressed were:
1 ) whether conspiracy and bookmaking were crimes of moral turpitude;
2) does the conduct underlying these crimes and the three-month prison
sentence served constitute conduct unbecoming a teacher; and
3) may the Board reinstate Rumage to his position as guidance
counsellor?
The administrative law judge found that the acts in question occurred
away from school, did not touch upon school work and that the Board had
no objection to rehiring Rumage since it felt he had been sufficiently
punished by his sentence. In addition, the judge found that the acts in
question did not automatically involve moral turpitude since they are not,
in and of themselves, acts of vice nor do they include an element of fraud.
The judge pointed out that while the conduct underlying these crimes did
amount to conduct unbecoming a teacher, this does not mean that the teacher
must be automatically dismissed. The underlying conduct was the only
instance of impropriety in an unblemished career and the teacher had the
confidence of both the Board and the community at large. Based on these
findings, the administrative law judge concluded that the tenure charges
should be dismissed but that the conduct involved did warrant the imposition
of a penalty in the form of a forfeiture of two months salary.
Stewart Hutt, Esq., for Petitioner (Hutt, Berkow, Hollander &
Jankowski, Attorneys)

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Jack Wysoker, Esq., for Respondent (Mandel, Wysoker, Sherman
Glassner & Weingartner, Attorneys)
MOSES, ALJ:
This matter comes before the court as a result of charges certified to the
Commissioner by the Board of Education of the Township of Woodbridge,
hereinafter referred to as "Board," against Richard Rumage, hereinafter
referred to as "respondent," for conduct unbecoming a teacher, incapacity
and/or other just cause, in violation ofN.J.S.A. 18A:6-10.
These charges were prepared by Norman A. Lunde, Assistant
Superintendent, and were certified by the Board at its meeting on August
16, 1979. The charges were forwarded thereafter to the Commissioner of
Education. In February, 1978, respondent had been transferred to the
Instructional Media Center from his position as a guidance counsellor at
Avenel Junior High School.
This action comes before this tribunal pursuant to N.J.S.A. 18A:6-10,
which vests the Commissioner of Education with jurisdiction to conduct
hearings involving tenure charges. The matter was transmitted to the Office
of Administrative Law for determination as a contested case pursuant to
N.J.S.A. 52:14F-1 etseq.
A prehearing conference was held on December 6, 1979. Both counsel
stipulated that this matter should be decided by way of summary judgment,
since there were no contested issues of fact. The legal issues to be decided
are as follows:
(A) Whether or not the crime for which respondent Rumage was
convicted is a crime of moral turpitude?
(B) Does the conduct underlying that conviction and the sentence served
after conviction equal conduct unbecoming a teacher, such as is proscribed
by N.J.S.A. 18A:6-107
(C) Can the Board of Education of the School District of the Township
of Woodbridge reinstate respondent to his position as guidance counsellor
in the District considering the instant facts and circumstances?
There are no disputed facts and the following matters have been stipulated
to be true. The court therefore FINDS as fact:
1. Richard Rumage was employed as a guidance counsellor at the Avenel
Jr. High School from October 1969 until his transfer to the Instructional
Media Center in February 1978 at the direction of the Board of Education,
due to his indictment.
2. Mr. Rumage pled guilty to conspiracy and bookmaking on March 9,
1979.
3. On May 9, 1979, respondent Rumage was sentenced to serve three

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months in the Essex County Correctional Center, to pay a fine of $1,500,
and was placed on probation for two years. His actual period of
incarceration was from July 5, 1979 to August 26, 1979.
4. The majority of the Board of Education feels that Mr. Rumage has been
sufficiently punished by his sentence. They have no objection to returning
Mr. Rumage to his duties as guidance counse!lor as soon as possible.
5. The following materials, offered in mitigation, are true and accurate:
A. Confidential accounts of positive student and parent contact by Mr.
Rumage.
B. Appraisals of Teacher Performance - dating from 1973 through 1979,
which indicate Mr. Rumage was consistently given an excellent rating.
C. Letters from parents, students, teachel's and clergy, all indicating
support for this reinstatement as a guidance counsellor, which show that the
community at large does not view his conviction as conduct unbecoming
to this particular teacher in light of his outstanding record as a guidance
counsellor.
6. Richard Rumage has had a distinguished career and unblemished
record as a guidance counsellor in the School District of the Township of
Woodbridge.
7. Richard Rumage has shown a deep awareness that his criminal activity
was foolish, wrong and inexcusable, and is sincerely contrite.
8. The circumstances underlying the crime and convictions thereof
always took place after and outside of school hours and away from school
grounds, did not touch upon school work, and did not interfere or affect his
performance as a tenured teacher in the district.
The initial question which must be addressed by this judge is whether or
not the crimes for which respondent Rumage was convicted are crimes of
moral turpitude. N.J.S.A. 2A: 135-9 mandates a determination of whether
or not a particular crime involves moral turpitude. The statute reads:
Any person holding an office or position, elective or appointive,
under the government of this state or of any agency or political
subdivision thereof, who is convicted upon or pleads guilty, non vult
or nolo contendere to, an indictment, accusation or complaint charging
him with commission of a misdemeanor touching the administration
of his office or position, or which involves moral turpitude, shall forfeit
his office or position and cease to hold it from the date of his conviction
or entry of plea.
If the conviction of such officer be reversed, he shall be restored to
his office or position with all the rights and emoluments thereof from
the date of the forfeiture.
Repealed by L. 1978, c.95, Section 2C:98-2, eft. 9/I/79
The new penal code specifically eliminates the necessity to determine

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moral turpitude and sets forth other criteria to be applied in a determination
of forfeiture of office. See, N.J.S.A. 2C:51-2. This court must apply
N.J.S.A. 2A: 135-9 in the instant matter since the crime took place prior to
the effective date of the new penal code. Nevertheless, the legislative intent
evinced inN.J.S.A. 2C:51-2 is instructive.
Black's Law Dictionary defines moral turpitude as an "act of baseness,
vileness or... depravity,"Black's Law Dictionary, at 910 (5th Ed. 1979),
and is ordinarily an act associated with a violation of the accepted moral
standards of the community.
Various school law decisions have interpreted what constitutes a crime
of moral turpitude. For example, tax evasion is a crime of moral turpitude,
mandating forfeiture of a teaching position pursuant to N.J.S.A. 2A:135-9.
See, In re Tenure Hearing of Guasconi, 1977 S.L.D. 513, aft'& 1977
S.L.D. 517. The Commissioner has also determined that the sale of
controlled dangerous substances and the acceptance of a bribe involve moral
turpitude. See, In re Tenure Hearing of Myers, 1976 S.L.D. 1028; In re
Tenure Hearing ofTordo, 1974 S.L.D. 97.
The New Jersey courts have associated the term "moral turpitude" with
baseness, fraud, corruption and dishonesty. See, for example, DeMoura v.
Newark, 90 N.J. Super. 225 (App. Div. 1966), certif. denied 46 N.J. 605
(1966), where filing a false tax return for the purpose of avoiding payments
of taxes was a crime of moral turpitude. See also, In re C. Schmidt & Sons,
Inc., 79 N.J. 344 (1979), where conspiring with tavern owners to maintain
false records of beer purchases and attempting to influence a prospective
grand jury witness were held to be acts involving moral turpitude. In a
similar vein, the courts have held that conspiracy to violate the public
bidding laws is a crime of moral turpitude. O'Halloran v. DeCarlo, 156
N.J. Super. 249 (Law Div. 1978), aff'd 162 N.J. Super. 174 (App. Div.
1978), certif. denied, 79 N.J. 469 (1978). It is clear that crimes are
considered to be of moral turpitude where intent to defraud is an essential
element of the crime. In O'Halloran the conspiracy was considered to be
a crime of moral turpitude because of the underlying substantive offense of
fraud on the public and contractors.
Absent the factors of baseness or depravity, or an intent to defraud, as
an essential element of the crime, the determination of whether an act
involves moral turpitude may rest upon an examination of the facts. See,
Gauli v. Board of Trustees of the Police and Firemen's Retirement System,
143 N.J. Super. 480 (App. Div. 1976), where possession of a weapon did
not, in and of itself, involve moral turpitude. See also, discussion of the term
"moral turpitude" in State Board v. Weiner, 68 N.J. Super. 468 (App. Div.
1961).

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The case of In the Matter of the Tenu)e Hearing of David Earl
Humphreys, School District of the Township of Pennsville, Salem CounO,,
1979 S.L.D. 839, is relevant to the instant matter. In Humphreys, the State
Board of Education determined that a teacher did not automatically forfeit
his position by virtue ofN.J.S.A. 2A:135-9, after a plea of guilty, and that
such a teacher was entitled to a hearing under the Tenured Employees
Hearing Act, in accordance with the essentials of due process, in order to
speak in his own defense, explain the circumstances of the crime, and to
present factual or legal argument on whether the crime involved moral
turpitude or materially affected the administration of his position. It is only
after considering all of the underlying circumstances of a respondent's
offense that a tribunal can determine whether or not said conduct touched
the administration of his position or involved moral turpitude. Based on the
foregoing discussion, this court concludes that the instant offenses of
bookmaking and conspiracy to commit same are not crimes that
automatically involve moral turpitude since they are not, per se, vile acts,
nor do they include the element of fraud. The proceeding set forth in
Humphreys has been followed and there is no automatic forfeiture of
position.
This court must now examine the conduct underlying the conviction,
pursuant o N.J.S.A. 18A:6- I0, to determine if such conduct is unbecoming
and warrants dismissal. Less severe sanctions than dismissal of a tenured
teacher have been imposed in certain situations, since conduct which is the
subject of the conviction does not automatically mandate dismissal. See, In
re Tenure Hearing of Kittell, 1972 S.L.D. 535, where a tenured teacher
pushed a student, causing the student to hit his head, and was convicted of
a crime. The Commissioner noted that the teacher had undergone the mental
anguish of a trial and a conviction. The Commissioner also noted that his
reputation was tarnished and he would work hard to reestablish it.
Therefore, under the circumstances, the conduct, although improper, did
not warrant dismissal. In accord, In re Ten'ire Hearing of Buch, 1977
S.L.D. 95.
Most relevant to the instant matter is the case of In re Tenure Hearing
ofKane, 1975 S.L.D. 188, where a tenured janitor pleaded guilty to working
a lottery. There were no complaints about the janitor's work, as the tenure
charges rested upon the facts underlying his conviction. Although his action
was deemed improper, the Commissioner indicated that it constituted a
solitary incident in an otherwise unblemished record. The lottery in questkin
did not involve the pupils or employees of the school, the acts occurred away
from school property and there was no indication that the matter was
generally discussed in school. This tribunal finds Kane most persuasive in

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the case at bar. The Rumage tenure charges rest solely upon the conviction.
There is no evidence whatsoever that the crime involved pupils or
employees, that it occurred on or near school ground or that the matter was
generally discussed. To the contrary, there have been extensive findings of
fact, stipulated by the Board of Education, that Mr. Rumage is a dedicated,
devoted and excellent guidance counsellor. The court concludes that
examination of the specific circumstances have shown that the offense was
an isolated incident in an exemplary career and did not involve students or
occur on school property during school hours.
The reasoning of Kittell, Buch, and Kane is applicable to Rumage. As
in those cases, Mr. Rumage's conduct was unbecoming a teacher, and he
does not contest the fact that the conviction and its underlying circumstances
were improper and cannot be condoned. This conclusion that the conduct
was unbecoming does not automatically mean that respondent must be
dismissed. The Commissioner of Education has previously imposed
monetary penalties in lieu of dismissals where mitigating circumstances
existed. This court finds that there are extensive mitigating circumstances
in the instant matter. The actions underlying the conviction comprise the
only instance of impropriety in an otherwise spotless and unblemished
record. The conduct did not involve students nor did it take place on school
property. The public confidence in Mr. Rumage has not been shaken.
Parents, students, fellow teachers, clergy and the community at large see
Mr. Rumage as a teacher who performs his job with enthusiasm, dedication
and perseverance. The administration has confidence in his ability and has
concluded that he had performed his job well in the past. The Board of
Education has no objection to restoring him to his job and would like it to
be done as soon as possible. Since these factors are present and since he
had endured the mental anguish of a plea of guilty, conviction and
incarceration, dismissal would be too severe a penalty in the instant matter.
The court, therefore, CONCLUDES that the tenure charges requesting
forfeiture of his position will have to be dismissed.
Pursuant to N.J.S.A. 18A:6-10, the Commissioner can reduce
compensation of persons under tenure for conduct unbecoming a teacher.
This judge finds a reduction in salary to be required in the instant matter
as the appropriate penalty under all the circumstances of this case. See, In
re Tenure Hearing of Buch, 1977 S.L.D. at 105, where that respondent
forfeited two months salary. This court finds a similar forfeiture to be in
order in the instant matter, with said forfeiture to be at the salary schedule
in effect in 1979, the time of the plea of guilty.
This court CONCLUDES, based upon the aforementioned stipulation
off acts, analysis of the law and application of said law to the instant facts,

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that the petition certifying tenure charges against Richard Rumage and
requesting forfeiture of his position, pursuant to N.J.S.A. 2A: 135-9. should
be dismissed as the total circumstances do not dictate respondent's
dismissal. The court further CONCLUDES that the conduct underlying the
conviction is unbecoming a teacher and warrants a reduction in
compensation, said reduction to be a forfeiture of two months' salary at the
salary schedule of March 1979. The respondent, Richard Rumage, is to be
restored to his former position as guidance counsellot and continued in his
tenure status therein.
It is, therefore, ORDERED that the certified tenure charges be
DISMISSED, and
It is further ORDERED that Richard Rumage be restored to his position
as guidance counsellot in the School District of the Township of
Woodbridge, Middlesex County, and
It is further ORDERED that his salary be reduced, in that he forfeit the
equivalent of two months salary at the rate he was making when he pled
guilty in 1979.
After reviewing this Initial Decision, the Commissioner of
Education on July 22, 1980, issued the following Final
Decision:
The Commissioner has reviewed the entire record of the matter
controverted herein including the initial decision rendered by the Office of
Administrative Law.
The Commissioner affirms the findings and determination as rendered in
the its decision in this matter and adopts them as his own.