NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2292-14T4
IN THE MATTER OF THE REVOCATION OF THE CERTIFICATE OF MICHAEL BONSU BY THE STATE BOARD OF EXAMINERS.
__________________________
Argued January 10, 2017 – Decided August 7, 2017
Before Judges Rothstadt and Sumners.
On appeal from the New Jersey Department of Education, State Board of Examiners, Docket No. 4-2/14A.
Randy P. Davenport argued the cause for appellant Michael Bonsu.
Melissa Dutton Schaffer, Assistant Attorney General, argued the cause for respondent New Jersey Department of Education (Christopher S. Porrino, Attorney General, attorney; Ms. Schaffer, of counsel; Lauren A. Jensen, Deputy Attorney General, on the brief).
PER CURIAM
Michael Bonsu appeals from the final decision of the Acting
Commissioner of Education (Commissioner) upholding the decision
of the State Board of Examiners (State Board) to revoke his Teacher of the Handicapped (TOH) certificate. The State Board took its
action based on the factual findings and recommendation by an
Administrative Law Judge (ALJ) who conducted an evidentiary
hearing. The ALJ found that Bonsu submitted a forged supervisor
certificate as part of his application for a supervisory position
and recommended that his teaching certificate be revoked.
In this appeal, Bonsu argues that the Commissioner's reliance
upon the ALJ's recommendation was misplaced because the ALJ’s
factual-findings were arbitrary and capricious, the ALJ
erroneously admitted Bonsu's answer to the order to show cause to
determine he was not credible, and the ALJ erroneously barred
certified statements by Bonsu's co-workers as unsupported by the
residuum rule. Alternatively, Bonsu contends the revocation of
his teaching certificate was an unduly harsh punishment. Having
reviewed the record and based upon our standard of review, we
affirm.
The evidentiary hearing record reveals the following. Since
2010, Bonsu, the holder of a TOH certificate, had been employed
as an inclusion teacher and a member of the discipline team at
Barringer High School in the State-Operated School District of the
City of Newark. As a result of Bonsu's involvement with improving
the overall discipline of Barringer students, the school's
principal decided to recommend him for promotion to a newly created
2 A-2292-14T4 supervisory position for the 2011-2012 school year. The promotion
was conditioned upon budget approval and required that Bonsu
possess a supervisor certificate.
On January 9, 2012, Bonsu met with a personnel technician in
the district's human resources department (HR) to sign an
employment contract for the new supervisor position. The
technician testified that she advised Bonsu that there was no
supervisor certificate in his personnel file and asked him if he
had a copy. She also indicated her review of the Department of
Education's website did not indicate that he possessed a supervisor
certificate. Bonsu then handed her a copy of a supervisor
certificate, purportedly in his name. Noticing some discrepancy
in the font size and typing of Bonsu's name on the certificate
from other supervisor certificates that she had seen, the personnel
technician asked him if he had an original certificate. According
to her, Bonsu said he did not.
Bonsu, however, testified that the personnel technician did
not ask for a copy of his supervisor certificate, and he did not
tell her that he possessed a supervisor certificate. He stated
that he did not look at the document he gave her, thinking he was
handing her a copy of his teaching certificate. He knew that
despite fulfilling all the requirements necessary to obtain a
supervisor certificate, he did not possess one at that time because
3 A-2292-14T4 he had not submitted his application to the Department of
Education.
In the meantime, after the personnel technician's concerns
were reported to the State Board, it was revealed that the
certificate number of the supervisor certificate presented by
Bonsu belonged to someone else and that the certificate had been
forged to reflect Bonsu's name.
In response to the State Board's order to show cause why
Bonsu's teacher certificate should not be revoked, Bonsu's counsel
prepared an answer stating that the fake supervisor certificate
was created by a co-worker and placed with Bonsu's supervisor
credentials records, without Bonsu's knowledge, and that Bonsu
accidently submitted it to the school district. At the evidentiary
hearing, Bonsu's objection to the ALJ's consideration and
admission of the answer was overruled. The ALJ ruled that although
the statement was not signed by Bonsu, it "certainly represents .
. . an understanding by his [c]ounsel as to what [Bonsu's] position
[is] . . . in relation to the allegations."
Bonsu did not provide the testimony of his co-workers
regarding the fake supervisor certificate. Instead, he offered
into evidence, under the residuum rule, certified statements by
three co-workers, that, without Bonsu's knowledge, they created
the fake supervisor certificate as a prank and placed it in a
4 A-2292-14T4 folder on Bonsu's desk, which contained his records for the
supervisor certificate. The ALJ barred the admissibility of the
statements on the basis that they were hearsay unsupported by a
residuum of competent evidence.
In his initial decision, the ALJ found that Bonsu's submission
of a fake supervisor certificate was unbecoming conduct. He
concluded the personnel technician's testimony was credible and
did not believe Bonsu's testimony that he was unaware that he
submitted a fake supervisor certificate. The ALJ stated:
[Bonsu] claims that he never looked in his folder between November 2011 and January 2012 and never looked at the folder on January 9 because he was rushed and never looked at the document as he handed it to [the HR technician], coupled with the notion that his friends would have initiated a practical joke without his knowledge but then fail to make any inquiries of him about the joke, is a story that simply does not hang together.
The ALJ additionally pointed out that Bonsu was unable to produce
the alleged pranksters to testify in support of his account of the
events. The ALJ also pointed to inconsistencies, noting the
proffered hearsay statement by one of Bonsu’s co-workers that he
put a sticky note on the fake certification and placed it in
Bonsu's folder, was not reflected in Bonsu's testimony that he
handed the document to the personnel technician thinking it was
his teacher of the handicapped certification.
5 A-2292-14T4 The ALJ was mindful of Bonsu's "laudatory service" in
instilling a climate of discipline, but recommended revocation of
his teacher certificate. Relying upon other Commissioner
decisions, the ALJ reasoned that Bonsu's dishonest behavior set a
poor example for students, the gravity of which was worsened by
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2292-14T4
IN THE MATTER OF THE REVOCATION OF THE CERTIFICATE OF MICHAEL BONSU BY THE STATE BOARD OF EXAMINERS.
__________________________
Argued January 10, 2017 – Decided August 7, 2017
Before Judges Rothstadt and Sumners.
On appeal from the New Jersey Department of Education, State Board of Examiners, Docket No. 4-2/14A.
Randy P. Davenport argued the cause for appellant Michael Bonsu.
Melissa Dutton Schaffer, Assistant Attorney General, argued the cause for respondent New Jersey Department of Education (Christopher S. Porrino, Attorney General, attorney; Ms. Schaffer, of counsel; Lauren A. Jensen, Deputy Attorney General, on the brief).
PER CURIAM
Michael Bonsu appeals from the final decision of the Acting
Commissioner of Education (Commissioner) upholding the decision
of the State Board of Examiners (State Board) to revoke his Teacher of the Handicapped (TOH) certificate. The State Board took its
action based on the factual findings and recommendation by an
Administrative Law Judge (ALJ) who conducted an evidentiary
hearing. The ALJ found that Bonsu submitted a forged supervisor
certificate as part of his application for a supervisory position
and recommended that his teaching certificate be revoked.
In this appeal, Bonsu argues that the Commissioner's reliance
upon the ALJ's recommendation was misplaced because the ALJ’s
factual-findings were arbitrary and capricious, the ALJ
erroneously admitted Bonsu's answer to the order to show cause to
determine he was not credible, and the ALJ erroneously barred
certified statements by Bonsu's co-workers as unsupported by the
residuum rule. Alternatively, Bonsu contends the revocation of
his teaching certificate was an unduly harsh punishment. Having
reviewed the record and based upon our standard of review, we
affirm.
The evidentiary hearing record reveals the following. Since
2010, Bonsu, the holder of a TOH certificate, had been employed
as an inclusion teacher and a member of the discipline team at
Barringer High School in the State-Operated School District of the
City of Newark. As a result of Bonsu's involvement with improving
the overall discipline of Barringer students, the school's
principal decided to recommend him for promotion to a newly created
2 A-2292-14T4 supervisory position for the 2011-2012 school year. The promotion
was conditioned upon budget approval and required that Bonsu
possess a supervisor certificate.
On January 9, 2012, Bonsu met with a personnel technician in
the district's human resources department (HR) to sign an
employment contract for the new supervisor position. The
technician testified that she advised Bonsu that there was no
supervisor certificate in his personnel file and asked him if he
had a copy. She also indicated her review of the Department of
Education's website did not indicate that he possessed a supervisor
certificate. Bonsu then handed her a copy of a supervisor
certificate, purportedly in his name. Noticing some discrepancy
in the font size and typing of Bonsu's name on the certificate
from other supervisor certificates that she had seen, the personnel
technician asked him if he had an original certificate. According
to her, Bonsu said he did not.
Bonsu, however, testified that the personnel technician did
not ask for a copy of his supervisor certificate, and he did not
tell her that he possessed a supervisor certificate. He stated
that he did not look at the document he gave her, thinking he was
handing her a copy of his teaching certificate. He knew that
despite fulfilling all the requirements necessary to obtain a
supervisor certificate, he did not possess one at that time because
3 A-2292-14T4 he had not submitted his application to the Department of
Education.
In the meantime, after the personnel technician's concerns
were reported to the State Board, it was revealed that the
certificate number of the supervisor certificate presented by
Bonsu belonged to someone else and that the certificate had been
forged to reflect Bonsu's name.
In response to the State Board's order to show cause why
Bonsu's teacher certificate should not be revoked, Bonsu's counsel
prepared an answer stating that the fake supervisor certificate
was created by a co-worker and placed with Bonsu's supervisor
credentials records, without Bonsu's knowledge, and that Bonsu
accidently submitted it to the school district. At the evidentiary
hearing, Bonsu's objection to the ALJ's consideration and
admission of the answer was overruled. The ALJ ruled that although
the statement was not signed by Bonsu, it "certainly represents .
. . an understanding by his [c]ounsel as to what [Bonsu's] position
[is] . . . in relation to the allegations."
Bonsu did not provide the testimony of his co-workers
regarding the fake supervisor certificate. Instead, he offered
into evidence, under the residuum rule, certified statements by
three co-workers, that, without Bonsu's knowledge, they created
the fake supervisor certificate as a prank and placed it in a
4 A-2292-14T4 folder on Bonsu's desk, which contained his records for the
supervisor certificate. The ALJ barred the admissibility of the
statements on the basis that they were hearsay unsupported by a
residuum of competent evidence.
In his initial decision, the ALJ found that Bonsu's submission
of a fake supervisor certificate was unbecoming conduct. He
concluded the personnel technician's testimony was credible and
did not believe Bonsu's testimony that he was unaware that he
submitted a fake supervisor certificate. The ALJ stated:
[Bonsu] claims that he never looked in his folder between November 2011 and January 2012 and never looked at the folder on January 9 because he was rushed and never looked at the document as he handed it to [the HR technician], coupled with the notion that his friends would have initiated a practical joke without his knowledge but then fail to make any inquiries of him about the joke, is a story that simply does not hang together.
The ALJ additionally pointed out that Bonsu was unable to produce
the alleged pranksters to testify in support of his account of the
events. The ALJ also pointed to inconsistencies, noting the
proffered hearsay statement by one of Bonsu’s co-workers that he
put a sticky note on the fake certification and placed it in
Bonsu's folder, was not reflected in Bonsu's testimony that he
handed the document to the personnel technician thinking it was
his teacher of the handicapped certification.
5 A-2292-14T4 The ALJ was mindful of Bonsu's "laudatory service" in
instilling a climate of discipline, but recommended revocation of
his teacher certificate. Relying upon other Commissioner
decisions, the ALJ reasoned that Bonsu's dishonest behavior set a
poor example for students, the gravity of which was worsened by
his duties at the school as disciplinary officer.
The State Board adopted the ALJ's findings and
recommendations and issued an order of revocation. Bonsu filed
exceptions with the Acting Commissioner. The Acting Commissioner
issued a decision affirming the decision of the Board. He found
that "the record adequately supports the Board's determination
that [Bonsu] engaged in unbecoming conduct and that the revocation
of [his teacher c]ertificate was the appropriate penalty." We
agree.
Our review of the decision of the Commissioner is limited to
determining:
(1) whether the agency's action violated the legislative policies expressed or implied in the act governing the agency; (2) whether the evidence in the record substantially supports the findings on which the agency's actions were premised; and (3) "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."
6 A-2292-14T4 [Barrick v. State, Dep't of Treasury, 218 N.J. 247, 260 (2014) (quoting In re Carter, 191 N.J. 474, 482 (2007)).]
Here, the Commissioner's decision is well supported by the
evidence developed before the ALJ. And, while Bonsu may have
performed his duties admirably and had satisfied all the
requirements necessary to obtain a supervisor certificate, we
discern no legal basis to overturn or modify the disciplinary
sanction to revoke his teacher certificate.
We find no merit to Bonsu's argument that the ALJ committed
reversible error in admitting his answer to the order to show
cause to show Bonsu made inconsistent statements and lacked
credibility. In his answer, Bonsu contended that he "accidentally"
included the fake certificate in the folder with his application
credentials. Bonsu argues that his use of the word "accidentally"
was not meant to connote a knowing act. We discern no error in
the ALJ's finding that the term "accidentally" implies some
knowledge about the certificate, the existence of which conflicts
with Bonsu's testimony, casting doubt on his credibility.
Additionally, we view consideration of Bonsu's answer as harmless.
The ALJ did not rely solely on the answer to find that Bonsu was
not credible. More importantly, he found that the personnel
technician's testimony was credible and rebutted Bonsu's account
7 A-2292-14T4 that she did not ask him for a copy of his supervisor certificate
when he gave her a copy of the fake supervisor certificate.
Finally, we reject Bonsu's argument that his co-workers'
statements should have been admitted by the ALJ under the residuum
rule. Subject to the judge's discretion, N.J.A.C. 1:1-15.5(a)
provides hearsay is admissible in administrative proceedings,
nevertheless, "some legally competent evidence must exist to
support each ultimate finding of fact to an extent sufficient to
provide assurances of reliability and to avoid the fact or
appearance of arbitrariness." N.J.A.C. 1:1-15.5(b). "Under the
residuum rule, N.J.A.C. 1:1-15.5(b), hearsay is admissible in
administrative hearings to corroborate other, non-hearsay
evidence." Hemsey v. Bd. of Trs., Police & Firemen's Retirement
Sys., 393 N.J. Super. 524, 534 (App. Div. 2007), rev'd in part on
other grounds, 198 N.J. 215 (2009)).
In this proceeding, the co-workers' statements that
unbeknownst to Bonsu they pulled a prank on him by creating and
placing a fake supervisor certificate in a folder with his other
credentials, were not supported by legally competent evidence.
There was no first-hand witness testimony, or any other admissible
evidence, that substantiated the statements. Thus, the ALJ did
not abuse his discretion in declining to admit the co-workers'
statements.
8 A-2292-14T4 Affirmed.
9 A-2292-14T4