IN THE MATTER OF THE TENURE HEARING OF DONALD SALAAM, SCHOOL DISTRICT OF THE TOWNSHIP OF IRVINGTON, ESSEX COUNTY, 2/16/10, (#49-10)

#49-10 (OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu13599-08_1.html)
IN THE MATTER OF THE TENURE 	:
HEARING OF DONALD SALAAM, 	: 	COMMISSIONER OF EDUCATION
SCHOOL DISTRICT OF THE TOWNSHIP : 	DECISION
OF IRVINGTON, ESSEX COUNTY. 	:
SYNOPSIS
The 	petitioning 	Board 	certified 	tenure 	charges 	of 	conduct 	unbecoming 	against 	respondent
Donald Salaam – a tenured teacher with 30 years of experience – for allegedly making inappropriate
sexually-oriented comments toward, and inappropriately touching, a female eighth-grade summer
school student in August 2008. Respondent denies the charges.
The ALJ found that: 	the petitioning Board bears the burden of proving the tenure charges of
unbecoming conduct against respondent by a preponderance of the credible evidence; there were
substantial inconsistencies in the testimony and written statements of the two students who testified
on behalf of the petitioning Board; and respondent’s denial that he engaged in any inappropriate
conduct in regard to the alleged incident was credible. 	Accordingly, the ALJ determined that
respondent neither made inappropriate physical contact with the student, nor made inappropriate
comments to her, and concluded that the Board did not meet its burden of establishing that
respondent engaged in any unbecoming conduct. The ALJ ordered that: the tenure charges against
Mr. Salaam be dismissed; respondent be restored to his position in the district as of the date of his
suspension; and he be awarded back pay and benefits.
Upon independent review of the record, the Commissioner concurred with the ALJ’s findings and
adopted the Initial Decision of the OAL as the final decision in this matter.
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.
February 18, 2010

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OAL DKT. NO. EDU 13599-08
AGENCY DKT NO. 312-10/08
IN THE MATTER OF THE TENURE 	:
HEARING OF DONALD SALAAM, 	: 	COMMISSIONER OF EDUCATION
SCHOOL DISTRICT OF THE TOWNSHIP : 	DECISION
OF IRVINGTON, ESSEX COUNTY. 	:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	The District requested and was granted an extension of time
within which to file exceptions to the Initial Decision. These exceptions, and respondent’s reply
thereto, were submitted in accordance with the extended timelines.
The District’s exceptions charge that the Administrative Law Judge (ALJ) erred
in his evaluation of the credible evidence in concluding that the District failed to establish its
charges against respondent. Most particularly, it claims he mistakenly discounted the credibility
of T.J., whose statements and testimony he found deviated in a substantial manner from those of
her fellow classmate S.W. 	The District argues that the ALJ failed to properly weigh the
testimony and consider what was consistent between the respective statements and testimony
rather than dwell on the inconsistencies. 	It submits that “the essence of T.J.’s testimony and
statements demonstrated unbecoming conduct by Mr. Salaam.” 	(District’s Exceptions at 1-5,
quote at 3, emphasis supplied)
In reply, respondent urges that the ALJ – who was in the unique position to hear
the testimony of the two student witnesses while at the same time observe their demeanor as they
testified – reached the only reasonable conclusions possible as to what testimony to believe and

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the weight to be accorded to such testimony. 	It was the District’s burden, respondent posits, to
present a preponderance of the credible evidence in order to sustain its tenure charges against
him, a burden which it failed to satisfy. 	As such, respondent maintains the ALJ properly
dismissed the charges against him. (Respondent’s Reply Exceptions 1-6)
Upon review and consideration of the entire record of this matter – which it is
noted included neither transcripts of the proceedings at the OAL nor post-hearing briefs – the
Commissioner agrees with the conclusion of the Administrative Law Judge (ALJ) that the
District has failed to sustain its burden of proof with regard to the instant charges against
respondent, necessitating dismissal of these charges.
Notwithstanding that the Commissioner recognizes that the outcome of this case
with regard to the proving of the charges turns almost exclusively on the credibility of witnesses,
the District’s exception challenge to the ALJ’s credibility determinations and his resultant factual
findings must 	be rejected out-of-hand. 	Initially, 	it 	is by now well-established that 	the
Commissioner’s review in this regard is severely circumscribed, specifically:
The agency head 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).
Moreover, the Commissioner is acutely aware that he cannot properly consider rejecting the
credence and weight ascribed to witnesses by the ALJ without reviewing those portions of the
transcript of the hearing below relevant to the District’s exceptions. 	See In re Morrison,
216 N.J. Super. 143 (App. Div. 1987; Rowley v. Board of Education of Manalapan-Englishtown,
205 N.J. Super. 65 (App. Div. 1985) 	Inasmuch as it was the District’s duty to provide the
Commissioner with such portions of the hearing transcript (Morrison at 158) to review and allow

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him to draw his own conclusions, and the District failed to do so, the Commissioner accepts
those credibility determinations reached by the ALJ. 	Based on the existing record, the
Commissioner is satisfied that the ALJ, who had the benefit of observing the witnesses
demeanor, considered all testimony and weighed it according to the credibility of the witnesses
and the plausibility of its content.
A District which chooses to lodge tenure charges against one of its employees
bears the burden of proving those charges by a preponderance of the credible evidence.
In re Tenure Hearing of Grossman, 127 N.J. Super. 12 (App. Div. 1974) 	In the instant matter,
the paucity of the record and factual evidence in support of the District’s charges makes it
abundantly clear that the District has not sustained its burden of establishing that respondent
engaged in any unbecoming conduct.
Accordingly, the recommended decision of the OAL is adopted as the final
decision in this matter for the reasons expressed therein. 	The instant tenure charges are hereby
dismissed and the Commissioner directs that respondent be reinstated to his position and credited
with all salary and emoluments due him as a result of this decision.
IT IS SO ORDERED.*
ACTING COMMISSIONER OF EDUCATION
Date of Decision: February 18, 2010
Date of Mailing: 	February 23, 2010
*
This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1)