Hawk v. New Jersey Institute of Technology, A-2059-11T3; Appellate Division; opinion by Parrillo, P.J.A.D.; decided and approved for publication October 29, 2012. Before Judges Parrillo, Fasciale and Maven. On appeal from the Chancery Division, Essex County, C-204-11. DDS No. 16-2-xxxx [17 pp.]

Plaintiff David Hawk, a tenured professor at New Jersey Institute of Technology (NJIT), brought an action in the General Equity Part seeking to enjoin pending “detenure” proceedings against him, claiming deprivation of procedural due process in the university’s internal investigation of his conduct.

Specifically, plaintiff’s complaint alleged that defendants (1) did not provide fair notice to plaintiff identifying his conduct that allegedly violated New Jersey law and university policy, nor did they provide evidence of such conduct; (2) did not give plaintiff a fair and timely opportunity to respond to defendants’ charges against him; (3) have not provided a fair and timely adjudication of the charges; (4) have destroyed or ignored exculpatory evidence; and (5) have relied on allegedly incriminating evidence with indifference to the facially evident or readily determinable falseness of such evidence. These allegations all relate to the investigatory phase of the administrative proceedings against plaintiff.

Plaintiff moved for an interlocutory injunction and defendants cross-moved to dismiss plaintiff’s complaint under Rule 4:6-2(e) for failure to state a claim on which relief could be granted. The trial judge granted defendants’ motion, holding that plaintiff had failed to exhaust his administrative remedies and that, pursuant to the Higher Education Restructuring Act (HERA), NJIT had primary jurisdiction over the dispute. The court also stated that plaintiff should raise any issues or concerns about NJIT’s investigation before the hearing officer or, after a final decision is rendered by the board, before the Appellate Division.

On appeal, plaintiff does not challenge NJIT’s authority to determine whether he should be removed from tenured employment. Instead, plaintiff argues that the procedures used by defendants in their investigation of his conduct deprived him of protectable property and liberty interests without affording him procedural due process in violation of state constitutional law and the doctrine of fundamental fairness.

Held: Plaintiff’s constitutional claim does not rise to the level to warrant interlocutory judicial interference in this detenure matter. The full panoply of procedural due process rights does not attend the administrative investigative stage and the process actually afforded plaintiff prehearing was more than adequate.

HERA gives public institutions of higher education “final authority to determine controversies and disputes concerning tenure.” The doctrine of exhaustion of administrative remedies applies when a claim is cognizable in the first instance by an administrative agency alone. The exhaustion requirement may not apply when the administrative remedies would be futile or when irreparable harm would result. The assertion of a constitutional claim is but one factor to be considered in determining whether judicial intervention is justified, and that claim must be a colorable one and not dependent on facts to be developed at the administrative proceeding, or capable of being vindicated therein.

Plaintiff argues that the constitutional dimension of his complaint, namely, the deprivation of procedural due process in the investigatory stages of the university’s proceeding against him, somehow excuses his failure to exhaust his administrative remedies. Yet he has demonstrated none of the prerequisites for relief from the doctrine. Although plaintiff has alleged several so-called deficiencies in NJIT’s investigation of the charges against him, he has made no showing that the matter is incapable of being adjudicated in a fair, impartial and proper manner in the administrative forum. The administrative proceeding, presently in its 43 day of hearing from 33 witness thus far, has offered plaintiff a forum in which to voice his complaints and concerns about defendants’ investigation to the end that a complete and proper factual record may be developed for ultimate appellate review. Plaintiff has failed to show that the conduct of the administrative proceedings has been arbitrary or that he will not receive a fair hearing and resolution from the board.

Nor has plaintiff demonstrated irreparable harm. To date, plaintiff remains a tenured employee of NJIT. Furthermore, his constitutional claim does not rise to such level to warrant interlocutory judicial interference. The due process requirements that govern the proceedings of an agency that makes binding legal determinations directly affecting legal rights do not apply to agency proceedings that are purely investigatory in nature. Even assuming here that plaintiff’s suspension without pay is a protectable property or liberty interest worthy of some due process protection, plaintiff has made no showing of a deprivation thereof to warrant the injunctive relief he seeks.

Plaintiff was, in fact, given multiple and detailed notices of the allegations against him as well as several opportunities to be heard and to present his own evidence and argument prior to the administrative determination to proceed to a formal adjudication of the charge. In light of these procedural protections, his claim of a violation of fundamental fairness fares no better than his constitutional deprivation contention. Plaintiff has proffered no reason — much less a compelling one — to excuse him from the requirement that he exhaust his statutorily prescribed administrative remedies. By denying injunctive relief, the General Equity judge properly disallowed plaintiff from disrupting the heavily favored and legislatively authorized administrative process.

For appellant — E. Daniel Larkin, of the Pa. bar, admitted pro hac vice (Andrew S. Bondarowicz of counsel). For respondents — M. Trevor Lyons (Connell Foley; Lyons and Tricia B. O’Reilly on the brief).