IN THE MATTER OF THE SUSPENSION OF THE TEACHING CERTIFICATE OF THOMAS FESOLOWICH, TERA NOVA GROUP T/A CHANCELLOR ACADEMY II, MORRIS COUNTY, 9/14/06, (#319-06)

#319-06 (OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu11608-05_1.html)
IN THE MATTER OF THE SUSPENSION :
OF THE TEACHING CERTIFICATE OF 	:
COMMISSIONER OF EDUCATION
THOMAS FESOLOWICH, TERA NOVA 	:
DECISION
GROUP T/A CHANCELLOR 	:
ACADEMY II, MORRIS COUNTY. 	:
:
SYNOPSIS
Petitioner 	sought 	to 	suspend 	the 	instructional 	certificate 	of 	respondent 	pursuant 	to
N.J.S.A. 18A:26-10 for not providing adequate notice of resignation from his position as a
physical education teacher at Chancellor Academy II, a private school for the disabled.
Respondent contends that petitioner: did not offer him a contract renewal at the time other staff
members were renewed; was critical of his work performance in a meeting on May 18 which
respondent had requested in order to clarify his work status for the following academic year; and
terminated him two days after this hostile meeting by signaling that he should hand over his
keys.
The ALJ found, inter alia, that: the primary issue in this case is whether the respondent was
terminated or left voluntarily; the testimony of the witness for the petitioner was less than
straightforward and decisive, and therefore lacking in credibility; the witness for the respondent
was credible; and the petitioner failed to sustain the burden of proof in this matter. Accordingly,
the ALJ concluded that the petition should be dismissed with prejudice.
Upon a thorough and independent review, the Commissioner concurs with the determination of
the ALJ that this matter is appropriately dismissed. 	In so doing, she emphasizes that the
language of the controlling statute is clear and explicit, and requires that both of the requisite
conditions for a cause of action to arise under its terms must be met, ie.: a teaching staff member
has ceased to perform his duties before the expiration of the term of his employment, and the
board has not consented to the teaching staff’s action. The Commissioner agrees that petitioner
has failed to sustain its burden of establishing that respondent is guilty of unprofessional conduct
so as to justify the Commissioner’s suspension of his teaching certificate for a period not
exceeding one year. Accordingly, the Initial Decision of the OAL is adopted, and the petition is
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.
September 14, 2006

OAL DKT. NO. EDU 11608-05
AGENCY DKT NO. 205-8/05
IN THE MATTER OF THE SUSPENSION :
OF THE TEACHING CERTIFICATE OF 	:
COMMISSIONER OF EDUCATION
THOMAS FESOLOWICH, TERA NOVA 	:
DECISION
GROUP T/A CHANCELLOR 	:
ACADEMY II, MORRIS COUNTY. 	:
:
The record and Initial Decision issued by the Office of Administrative Law
(OAL) have been reviewed. The parties filed no exceptions to the Initial Decision.
Upon an independent and careful review of the record in this matter, the
Commissioner concurs with the determination of the Administrative Law Judge (ALJ) that this
matter is appropriately dismissed. In so determining, the Commissioner finds that the language
of the controlling statute in this matter, N.J.S.A. 18A:26-10, is clear and explicit as to the
requisite conditions for a cause of action to arise under its terms, namely, 1) a teaching staff
member ceases to perform his duties before the expiration of the term of his employment, and 2)
the board does not consent to the teaching staff member’s action. 	According due deference to
the ALJ credibility determinations,1 the Commissioner agrees that petitioner has failed to sustain
its burden of establishing that Mr. Fesolowich is guilty of unprofessional conduct pursuant to this
1 The Commissioner “may not reject or modify any findings of fact as to issues of credibility of lay witness
testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or
unreasonable 	or 	are 	not 	supported 	by 	sufficient, 	competent 	and 	credible 	evidence 	in 	the 	record.”
N.J.S.A. 52:14B-10(c). The record before the Commissioner provides no cause for modification or rejection in this
regard.

provision so as to justify the Commissioner’s suspension of his teaching certificate for a period
not exceeding one-year.
Accordingly, the recommended Initial Decision is adopted for the reasons clearly
stated therein and the instant matter is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: September 14, 2006
Date of Mailing: 	September 14, 2006
2 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq.
and N.J.A.C. 6A:4-1.1 et seq.