Robert Finlay v. New Jersey Department of Education, State Board of Examiners, 5/15/2024, (#195-24)

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195-24
New Jersey Commissioner of Education

Final Decision

Robert Finlay,

Petitioner,

New Jersey Department of Education,
State Board of Examiners,

Respondent.

Synopsis

Pro-se petitioner appealed the determination of the respondent New Jersey State Board of Examiners (SBE)
denying his request for a third extension of time to satisfy the requirements of New Jersey’s Alternate
Route teacher certification program. Specifically, in 2023, petitioner sought an additional two-year
extension of his provisional certificate as a Teacher of Business: Finance/Economics, after having been
granted extensions in 2019 and 2021. The SBE filed a motion to dismiss the petition.

The ALJ found, inter alia, that: petitioner was issued his first provisional certificate in September 2017; the
certificate was renewed in 2019; in 2021, petitioner’s application for renewal of his provisional certificate
was denied; petitioner appealed and was granted a renewal of his provisional certificate based on his
specific circumstances; further, petitioner admitted that he has still not completed all of the academic
coursework associated with the Alternate Route program, which he entered into more than six years ago.
The ALJ concluded that petitioner has already been granted two renewals of his provisional certificate,
which is the maximum permitted by law. Accordingly, the ALJ granted the SBE’s motion to dismiss the
petition.

Upon review, the Commissioner concurred with the findings and conclusions of the ALJ and adopted the
Initial Decision as the final decision in this matter. 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.

OAL Dkt. No. 09353-23
Agency Dkt. No. 229-8/23
New Jersey Commissioner of Education
Final Decision
Robert Finlay,
Petitioner,
v.
New Jersey Department of Education,
State Board of Examiners,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL)
have been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge (ALJ) that
petitioner has already been granted two renewals of his provisional certificate, the maximum
permitted by law.
Accordingly, the Initial Decision is adopted as the final decision in this matter. The State
Board of Examiners’ motion to dismiss is granted, and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: May 15, 2024
Date of Mailing: May 16, 2024
1 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.
195-24

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

GRANTING MOTION TO DISMISS
OAL DKT. NO. EDU 09353-23
AGENCY DKT. NO. 229-8/23

ROBERT FINLAY,

Petitioner

Vv.
NEW JERSEY DEPARTMENT OF EDUCATION,
STATE BOARD OF EXAMINERS,

Respondent.

Robert Finlay, pro se

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

Record Closed: April 5, 2024 Decided: April 9, 2024

BEFORE: MATTHEW G. MILLER, ALJ

STATEMENT OF THE CASE

Appellant, Robert Finlay appeals the June 29, 2023 denial of his third renewal
request of his provisional teaching certificate that had first been issued in 2017, then

renewed for two years in July, 2019 and then for an additional year on October 28, 2021.

New Jersey is an Equal Opportumiy Employer

’ OAL BKT. NO. EDE 09353-2023

PROCEDURAL HISTORY

In 2017, petitioner, Robert Finlay, was issued a provisional teacher's certificate.
That certificate was renewed in July, 2019. During its meeting of October 28, 2021, the
New Jersey Board of Examiners renewed his provisional certificate for one year. This
decision was ratified on December 16, 2021. In 2023, Mr. Finlay requested another
renewal of his provisional certificate. That request was denied, and his appeal of that
decision was denied during the meeting of June 29, 2023. That decision was ratified on
August 4, 2023.

On August 24, 2023, Mr. Finlay emailed a Petition for Appeal to the State
Department of Education’s Office of Controversies & Disputes ("OCD"). After supplying
proof of service on respondent the following day, on August 29, 2023, that appeal was
transmitted to the Office of Administrative Law (“OAL”) where it was received on
September 18, 2023 for a hearing as a contested case. N.J.S.A. 52:14B-1 to -15 and
N.J.S.A. 52:14F-1 to -13.

Prior to the matter being forwarded to the OAL, on September 14, 2023, in reply
to the filing, the State Board of Examiners filed a Motion to Dismiss in Lieu of Answer.

An initial conference was held on October 3, 2023 at which time, after a detailed
discussion of the case, a briefing schedule was set with Mr. Finlay being given until
November 8, 2023 to either find an attorney, file opposition to the Motion to Dismiss or
withdraw his appeal. Since that telephone conference, Mr. Finlay has not communicated
with the Court, nor did he reply to a December 14, 2023 email from respondent requesting
that its Motion be considered unopposed.

Having given Mr. Finlay more than sufficient time in which to communicate with the

Court and having not heard from him, the record was formally closed on April 5, 2024.

INITIAL FINDINGS OF UNDISPUTED FACT

The following FACTS of the case are not in dispute:

’ OAL DKT. NO. EDE 09353-2023

1. In September, 2017, appellant, Robert Finlay was issued a provisional
Teacher of Business: Finance/Economics/Law Certificate by the State Board
of Examiners in furtherance of his attempt to obtain full certification pursuant
to the “Alternate Route” program. See N.J.A.C. 6A:9A-5.1 et seq.

2. Per NJAC. 6A:9B-8.5(a), in July, 2019, Mr. Finlay’s provisional
certificate was renewed since he had “not yet completed the requirements for

the standard certificate.”

3. In 2021, Mr. Finlay applied for another two-year renewal of his certificate.
That application was initially denied.

4. Mr. Finlay appealed that denial and at its October 28, 2021 meeting, that
appeal was granted by the State Board of Examiners. That decision was
formalized in an Order dated December 16, 2021. (Exhibit R-2.)

5. In 2023, appellant applied for a third two-year renewal of his provisional
certificate. This application was considered during the Board’s June 29, 2023
meeting and was denied by Order dated August 4, 2023, (Exhibit R-1.)

6. That decision was appealed by Mr. Finlay on August 25, 2023. (Exhibit
R-3.)

7. Todate, Mr. Finlay has yet to complete the requirements for a standard

certificate.

APPEAL

In his appeal to the Board, Mr. Finlay wrote:

The New Jesey (sic) Dept. of Education State Board of
Examiners has denied my application for a provisional
certificate “ne has not demonstrated enough effort or progress
towards completion of the required alternate route program in

OAL DKT. NO. EDE 09353-2023

the nearly six years since receiving his initial provisional
certificate.”

While | have not completed the required course work it isn’t from
lack of effort. When | originally began pursuing my Teacher of
Business: Finance/Economics/Law certificate. | was enrolled
through the Rutgers Alternate Route program. After completing
Stage I! | was informed by the administrators at Brookdale
Community College that the Rutgers Alternate Route program
was not the recognized altemate route program for this
certification. At no point during this process did | have a mentor
or anyone to officially guide me through the process. Everything
was done by trial and error. And | admit there were many
missteps by me during this process but at no point did | stop
attempting to complete the process.

| did all | could to become the best teacher | could be.
Whenever possible | took additional classes for professional
development in order to improve my teaching abilities and
expand my knowledge of the materials used for teaching my
classes. | immersed myself in the daily life of Bloomfield High.
Volunteering to supervise after school activities and coaching
multiple sports. | developed a positive rapport with my students.
During this time, | continued to receive above average
observations from my Principal and Supervisor. | was
recommended to be rehired without any hesitation and | was
granted tenure on schedule, (which | foolishly assumed couldn't
happen if 1 hadn't completed my alternate route requirements).
My Principal and supervisor want me in the building as |
complete this process.

Ultimately, | believe teaching is what | am good at and it is what
| am supposed to be doing with my life. Teaching young people
not just about Personal and Business Finance but teaching
them about life. Sharing stories about my mistakes and
missteps. Letting them know that if you fall down you get back
up and succeed. Perseverence (sic) does payoff! Give me the
opportunity to educate. Give me the opportunity to be a positive
role model.

| have been in contact with Brookdale Community College and
I'm prepared to continue the alternate route process without
hesitation or delay.

(Exhibit R-3.)

OAL BDKT. NO, EDE 09353-2023

MOTION

Respondent filed a Motion to Dismiss arguing that there is no legal basis to permit
another renewal of appellant's provisional certificate and that same is explicitly barred by
N.J.A.C. 6A:9B-8.5 et seg., which provides the Commissioner of Education no discretion in
considering the application.

It is argued that the Motion to Dismiss is appropriate here since, per N.J.A.C. 6A:3-
1.10, even if appellant’s factual allegations are all found to be true, there is no legal basis

for his appeal.

Mr. Finlay has not responded to the Motion. However, he did present argument in his

initial appeal which will be reviewed below.

TIMELINE

A more visceral view of Mr. Finlay’s provisional certificate history is best

demonstrated by the following timeline:

September, 2017 — Issuance of two-year provisional certificate

July, 2019 — Grant of application for a first renewal of provisional certificate

Summer/Fall, 2021 — denial of application for a second renewal of provisional

certificate

October 28, 2021 — Grant of application for second renewal of provisional

certificate on appeal Spring, 2023 — Denial of application for a third renewal of
provisional certificate

June 29, 2023 — Denial of appeal of the denial of the application for a third renewal
of provisional certificate

August 25, 2023 — Appeal filed with Board of Examiners

OAL DKT. NO. EDE 09353-2023

LAW AND ANALYSIS

A Motion to Dismiss filed per N.J.A.C. 6A:3-1.5(g) is the functional equivalent of a
Motion to Dismiss for Failure to State a Claim filed in civil court per R. 4:6-2(e). Graves
v. State Operated Sch. Dist. of Newark & Cami Anderson, 2017 N.J. Super. Unpub. LEXIS
2417 (App Div., September 26, 2017). The Court stated the standard for the granting of

same:

When reviewing a Rule 4:6-2(e) motion, a court must
determine the adequacy of the pleading and decide whether
a cause of action is "suggested" by the facts. Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)
(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189,
192 (1988)). The court must "search[] the complaint in depth
and with liberality to ascertain whether the fundament of a
cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if
necessary.” Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'!
Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

Id. at *7.

The rules covering the renewal of provisional teaching certificates is
N.J.A.C. 6A:9B-8.5, which reads as follows:

{a) The school district may recommend a provisional teacher
for renewal of the teacher's two-year provisional certificate if
the candidate has not yet completed the requirements for the
standard certificate within the first two years of employment,
pursuant to N.J.A.C. 6A:9A-8.7.

1. A provisional teacher who meets the criteria
at (a) above but is not renewed for employment
within the same school district following the two-
year provisional certificate may seek and
accept, under the same endorsement, a position
with another school district, pursuant to N.J.A.C.
6A:9B-8.4(d).

“OAL DKT. NO. EDE 09353-2023

(b) Except as indicated at N.J.A.C. 6A:9B-8.8, 10, and 11', a
candidate shail meet the following requirements to be eligible
for one renewal of a provisional certificate:

1. Hold a CE or CEAS in the endorsement area
required for the teaching assignment;

2. Be employed or accept an offer of
employment in a position that requires an
instructional certificate;

3. Complete a district mentoring program:

4. Be enrolled in or have completed a CE
educator preparation program, if the candidate
has a CE; and

5. Be recommended for renewal by the
candidate's principal pursuant to NJAC.
6A:9B-8.6.

(c) The two-year provisional certificate may be renewed twice
for a maximum provisional period of six years if the candidate
fulfills the renewal requirements at (b) above and one of the
following criteria:

1. Holds a CE with a teacher of students with
disabilities endorsement, or a CE with a
bilinguai/bicultural endorsement, and a CE with
an endorsement appropriate to the subject or
grade level to be taught; or holds a CE with an
English as a second language endorsement.
The duration of the CE educator preparation
program and required coursework for the
endorsement(s) also extends beyond the four-
year provisional period; or

2. Does not receive from the school district, by
July 31 of the fourth year, the annual summative
rating as required for a standard certificate,
pursuant to N.J.A.C. 6A:9B-8.4.

(d) A candidate issued a temporary instructional certificate,
pursuant to N.J.A.C. 6A:9B-8.10, shall not be eligible for a
renewal of a temporary provisional certificate in the specific
endorsement area issued pursuant to N.J.A.C. 6A:9B-8.4(f)

' None of which apply in this instance,

OAL DKT. NO. EDE 09353-2023

It should also be noted that per N.J.A.C. 6A:9B-8.4(c):

A provisional certificate shall last a maximum of two school
years and shall expire on July 31 of the second year
regardless of issuance date.

PRIOR ORDERS

December 26, 2021

After the initial denial of Mr. Finlay's second renewal application, he appealed to
the State Board of Examiners. This was considered during its meeting of October 28,
2021 and the appeal was granted by Order dated December 16, 2021. The substance of

the Order reads as follows;

Finlay requests that the Board grant him the renewal so that
he can finish the alternate route coursework required for
standard certification. In his narrative statement to the Board,
Finlay stated that when he started the alternate route
program, he was required to repeat the pre-professional
service course as the course he previously completed was not
approved. He further stated that he did not restart the
program due to personal and financial issues as well as
hesitancy to restart during the COVID-19 pandemic. Finlay
further stated that he is now working to complete the program
at Brookdale Community College and hopes to be finished by
the start of the 2022 school year.

Finlay was present at the Board meeting on October 28, 2021.
The Board asked Finlay when he anticipated completing the
alternate route coursework and he stated he would be finished
by the end of this school year in June 2022.

After full consideration of Finlay’s submission, the Board finds
that his demonstrated progress towards completing the
alternate route program despite the challenges he faced
warrants the renewal of his provisional certificate for one year.
As Finlay anticipates completing the program in June 2022,
this will give him ample time to do so.

OAL DKT. NO. EDE 09353-2023

The Board's finding is limited to this particular set of facts and
circumstances and is intended as a one-time only, limited
issuance of the additional provisional. The Board reserves all
rights and maintains all discretion regarding future requests
for issuance of an additional provisional certificate beyond the
express limitations in regulation(s).

[Exhibit R-2.] (Emphasis in original)

August 4, 2023

At or about the time of the expiration of the one-year extension, Mr. Finlay applied
for another renewal of his provisional certificate. This application was considered by the
Board during its meeting of June 29, 2023 and was formally denied by Order dated August
4, 2023. The substance of the Order reads as follows;

Finlay was present at the meeting on June 29, 2023, but the
Board had no questions of him.

In December, 2021, the Board granted Finlay an additional
provisional renewal beyond the limits in N.J.A.C. 6A:9B-8.5(c)
because he needed time to complete the alternate route
program and he anticipated completing the program in 2022.
In his current request, Finlay requests an additional
provisional renewal as he still has not completed the alternate
route program. He admits that he procrastinated in restarting
the program and offers no explanation why he was unable to
complete the program within the anticipated time frame he
gave to the Board when he was granted his last provisional
renewal.

The Board notes that Finlay was initially granted a provisional
certificate in September, 2017. The Board finds that Finlay
has exceeded the limits on issuance of a provisional
certificate and he has not demonstrated enough effort or
progress towards completion of the required alternate route
program in the nearly six years since receiving his initial
provisional certificate. As such, another renewal of his
provisional certificate is unjustified.

[Exhibit R-1.]

OAL DKT. NO. EDE 09353-2023

As detailed above, Mr. Finlay has already been granted two renewals of his
provisional certificate, which, per N.J.A.C. 6A:9B-8.5, is the maximum permitted by law.
Further, his provisional certificate has covered six school years (2017-18, 2018-19, 2019-
20, 2020-21, 2021-22 and 2022-23), also the maximum permitted by the Code. In its
December 16, 2021 Order, the Board granted him a one-year extension of his provisional
certificate. Interpreting the Order in light of N.J.A.C. 6A:9B-8.4{c), Mr. Finlay’s renewed
certificate was now valid through July 31, 2023, which would “give him ample time” to
complete his required alternate route educational program. (Exhibit R-2.)

However, he did not complete that program and in June, 2023, he returned to the
Board having had his application for a third renewal of his provisional certificate denied.
This time, the Board found that he had “exceeded the limits on issuance of a provisional
certificate and he has not demonstrated enough effort or progress towards completion of
the required alternate route program in the nearly six years since receiving his initial

provisional certificate.” (Exhibit R-1.}

There is next to no case law concerning this issue. However, it was addressed in
Cash v. New Jersey Dept. of Educ.; OAL Dkt. No. EDU 01325-23 (Initial Decision, July
18, 2023). In Cash, the appellant alleged that he was misinformed by his district employer

regarding the necessity for completing various requirements to obtain full certification
under the same alternate route program under which Mr. Finlay is seeking certification.
His initial provisional certification was issued in August, 2018. After being granted an
initial extension through August, 2022, his application for a second extension was denied

by the Board the foliowing month.

The Court found that despite Mr. Cash’s accomplishments and the fact that he had
completed many of the requirements to obtain a full certificate, he simply did not meet the
requirements for a second extension. It was noted that neither the judge nor the Board
“have the discretion to consider the totality of the circumstances to extend/renew his
status.” Id. at 5. This decision was affirmed by the Board in Cash v. New Jersey Dept.
of Educ., 2023 N.J. Agen. LEXIS 422 (August 22, 2023).

10

OAL DKT. NO. EDE 09353-2023

Here, the factual scenario facing Mr. Finlay is even less favorable than that facing
appellant in Cash, Whether he was qualified for the second extension or not, Mr. Cash
at least had a viable administrative pathway to obtain it. Here, Mr. Finlay has already
exhausted both of the options afforded by the Code. | agree with respondent's counsel
that given the limitations on the number and duration of the extensions, even if Mr. Finlay
had demonstrated good cause for an extension (and, frankly, he has not), as noted in
Cash, there is “(no) discretion to consider the totality of the circumstances to

extend/review his status.”

Given the above, | FIND that Mr. Finlay is ineligible for a third extension of his
provisional certificate. Ultimately, | CONCLUDE that given the respondent's decision to
deny appellant's request for the third extension was appropriate and that no facts have

been presented to demonstrate that it was unreasonable, arbitrary or capricious.

ORDER

Based on the foregoing, it is hereby ORDERED that respondent's Motion to
Dismiss be and is hereby GRANTED and;

It is further ORDERED that Mr. Finlay’s appeal be and is hereby DISMISSED.

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

This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the 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.

11

OAL BKT. NO. EDE 09353-2023

Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the

Mark Uo

judge and to the other parties.

April 9, 2024

DATE MATTHEW G. MILLER, ALJ
Date Received at Agency: April 9, 2024

Date Mailed to Parties: April 9, 2024

sej

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OAL ’DKT. NO. EDE 09353-2023

APPENDIX
EXHIBITS
FOR APPELLEE:
None
FOR RESPONDENT:

R-1 Board of Examiners decision (August 4, 2023)
R-2 Board of Examiners decision (December 16, 2021)
R-3 Appellant's Petition of Appeal

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