Nicholas Cilento v. Board of Education of the Township of Woodbridge, Middlesex County, 2/6/2023, (#35-23)

35-23
New Jersey Commissioner of Education
Decision
Nicholas Cilento,
Petitioner,
v.
Board of Education of the Township of
Woodbridge, Middlesex County,
Respondent.
Synopsis
Petitioner appealed the decision of the respondent Board of Education (Board) to terminate his
employment as a teacher after the State Board of Examiners (Board of Examiners) suspended his
teaching certificates. Petitioner sought reinstatement to his tenured teaching position with back pay,
benefits and emoluments; alternatively, petitioner requested that this matter be placed on the inactive
list at the Office of Administrative Law (OAL) pending the disposition of petitioner’s appeal of the Board
of Examiners’ suspension of his teaching certificates. This matter stems from the filing of tenure charges
against petitioner by the respondent Board following two incidents of consuming alcohol on school
premises while on duty in May 2019.
The ALJ found, inter alia, that: 	there are no material facts at issue here, and the matter is ripe for
summary decision; petitioner, formerly a tenured teacher in the respondent Board’s school district, was
discovered drinking alcohol while on the job in May 2019; the Board brought tenure charges against
petitioner and removed him from employment; after an independent arbitrator recommended against
petitioner’s dismissal, respondent reinstated him; subsequently – and notwithstanding the decision of
the arbitrator – the State Board suspended petitioner’s teaching certificates for a period of two years;
once petitioner’s certification was suspended, the Board terminated him from his tenured teaching
position consistent with the requirements of N.J.S.A. 18A:26-2 and N.J.A.C. 6A:9B-5.1(c); the law is clear
that a school board cannot permit a teacher to teach without certification, and as of October 28, 2021,
petitioner lost his certification. The ALJ concluded that the Board acted appropriately and in accordance
with the law when it removed petitioner from his tenured teaching position, because petitioner did not
have a valid teaching certificate at the time of the Board’s decision. Accordingly, the ALJ granted the
Board’s motion for summary decision and dismissed the petition.
Upon review, the Commissioner concurred with the findings and conclusion 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. EDU 01414-22
Agency Dkt. No. 249-12/21
New Jersey Commissioner of Education
Decision
Nicholas Cilento,
Petitioner,
v.
Board of Education of the Township of
Woodbridge, Middlesex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed, as have the exceptions filed pursuant to N.J.A.C. 1:1-18.4 by the
petitioner. The Woodbridge Board of Education (Board) did not a file a reply.
In this matter, petitioner – a tenured teacher – challenges the Board’s decision to
terminate him after the New Jersey State Board of Examiners (Board of Examiners) suspended
his teaching certificate. By way of background, the Board filed tenure charges against
petitioner following two incidents of consuming alcohol on school premises while on duty, on
May 20 and May 21, 2019. The arbitrator assigned under N.J.S.A. 18A:6-16 to conduct the
tenure hearing determined that petitioner engaged in unbecoming conduct and suspended his
employment for a period of three months, but determined that petitioner’s conduct did not
warrant termination. Thereafter, on October 28, 2021, the Board of Examiners found that
petitioner’s unbecoming conduct warranted a two-year suspension of his teaching certificate.
35-23

2
The Commissioner upheld the suspension, and an appeal of that decision is currently pending in
the Appellate Division. On November 9, 2021, the Board terminated petitioner’s employment,
effective the date that the Board of Examiners suspended his certificate. Petitioner
subsequently filed this appeal challenging his termination.
On a motion for summary decision, the Administrative Law Judge (ALJ) concluded that
the Board acted in accordance with the law when it terminated petitioner as he did not have a
valid teaching certificate at the time he was removed from his position. The ALJ also found that
there is no reason to delay this matter while the appeal in the Appellate Division is pending,
because: “[t]he question here is not whether the action of the [Board of Examiners] was legal, it
is whether the action of [the Board] in November 2021, made in reliance on the decision of the
[Board of Examiners], was legal.” (Initial Decision at 7).
In his exceptions, petitioner argues that the ALJ ignored the procedural dilemma faced
by petitioner when he was forced to initiate this challenge of his termination due to the 90-day
filing deadline, while his appeal of the Board of Examiners’ suspension of his certificates is still
pending in the Appellate Division. Petitioner also contends that the ALJ failed to decide claims
alleged in the verified petition, specifically whether the Board of Examiners’ Order of
Suspension was arbitrary, capricious, unreasonable and contrary to law. According to
petitioner, he has a property right in his tenured teaching position, which was taken from him
without due process. Petitioner contends that the ALJ erred in finding that petitioner would be
able to bring an action against the Board of Examiners for damages to address the violation of
petitioner’s property and due process rights if the Appellate Division finds that the Board of
Examiners’ suspension was invalid; in fact, the Commissioner does not have authority to award

3
monetary damages and the relief that petitioner seeks is reinstatement to his position.
Petitioner maintains that this matter should have been placed on the inactive list at the OAL
pending the outcome of the appeal in the Appellate Division, since it will affect the outcome of
this matter. As such, petitioner urges the Commissioner to reject the Initial Decision.
Upon review, the Commissioner agrees with the ALJ that the Board was not arbitrary,
capricious, or unreasonable in terminating petitioner. Pursuant to N.J.S.A. 18A:26-2, “No
teaching staff member shall be employed in the public schools by any board of education unless
he is the holder of a valid certificate to teach[.]” Accordingly, a school district “shall remove
from the position any teaching staff member who fails to maintain” the required certificate.
N.J.A.C. 6A:9B-5.1(c). In this matter, petitioner failed to maintain a valid certificate as of
October 28, 2021, when his teaching certificate was suspended by the Board of Examiners.
Therefore, the Board acted in accordance with law when it terminated petitioner from his
teaching position for not possessing a valid teaching certificate.
The Commissioner is also in accord with the ALJ that a decision on this matter is not
dependent on the outcome of the case at the Appellate Division. Whether the Board’s actions
in November 2021 were arbitrary, capricious or unreasonable will not change if petitioner is
successful in his pending appeal. As such, the ALJ appropriately declined to place this matter on
the inactive list.
The Commissioner is not persuaded by petitioner’s exceptions. The “procedural
dilemma” petitioner discusses does not affect the outcome of this case. Petitioner
appropriately initiated the challenge of his termination within the 90-day limitations period,
and it is of no moment that his appeal is still pending in the Appellate Division. Additionally, the

4
Commissioner disagrees with petitioner that the ALJ needed to determine whether the Board
of Examiners acted contrary to law in issuing the Order of Suspension. That issue has already
been decided by the Commissioner and is pending in the Appellate Division, and it is not
relevant to a determination of this matter. Regarding petitioner’s alleged property right in his
tenured teaching position and violation of due process, the Commissioner finds that petitioner
received the process that he was due in the suspension matter, the appeal before the
Commissioner, and the matter herein. The Commissioner agrees with petitioner that a
separate action against the Board of Examiners in the future would not result in reinstatement
to his position, as petitioner seeks, but finds that the viability of a future matter does not affect
this case.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter,
and the petition is hereby dismissed.
IT IS SO ORDERED. 1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
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.
February 6, 2023
February 8, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 01414-22
AGENCY DKT. NO. 249-12/21
NICHOLAS CILENTO,
Petitioner,
v.
TOWNSHIP OF WOODBRIDGE BOARD OF
EDUCATION, MIDDLESEX COUNTY,
Respondent.
Edward A. Cridge, Esq., for petitioner (Mellk Cridge, LLC, attorneys)
Roshan D. Shah, Esq., for respondent (Anderson & Shah, LLC, attorneys)
Record Closed: October 14, 2022 	Decided: November 18, 2022
BEFORE TRICIA M. CALIGUIRE, ALJ:
STATEMENT OF THE CASE
Petitioner Nicholas Cilento (Cilento) appeals the decision of respondent Township
of Woodbridge Board of Education (Woodbridge Board) to terminate his employment as
a teacher after the New Jersey Department of Education, State Board of Examiners (State
Board), suspended Cilento’s teaching certificates. Petitioner seeks reinstatement to his

OAL DKT. NO. EDU 01414-22
2
tenured teaching position with back pay, benefits and associated emoluments or,
alternatively, petitioner requests that this matter be placed on the inactive list, pending the
disposition of Cilento’s appeal of the State Board’s suspension of his teaching certificates.
Respondent 	contends 	that 	it 	had 	no 	choice 	but 	to 	terminate 	petitioner’s
employment once he lost his teaching certificates because without teaching certificates,
petitioner was ineligible to work as a teacher. 	See N.J.S.A. 18A:26-2; N.J.A.C. 6A:9B-
5.1(a).
PROCEDURAL HISTORY
Petitioner’s appeal was received at the Department of Education, Office of
Controversies and Disputes (DOE), on December 30, 2021. 	The DOE transmitted this
matter as a contested case to the Office of Administrative Law (OAL), where it was filed
on February 22, 2022. N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. The parties
appeared for prehearing conferences on April 25, and July 19, 2022, and on September
7, 2022, respondent filed a motion for summary decision in its favor. On September 28,
2022, petitioner filed a brief in opposition to the motion for summary decision and cross-
motion for placement on the inactive list. On October 14, 2022, respondent filed a reply
in further support of its motion for summary decision and in opposition to petitioner’s
cross-motion to place this matter on the inactive list. 	No further papers were filed, and
the cross-motions are now ripe for review.1
FACTUAL DISCUSSION
Based on the papers filed in this matter, including the certifications of counsel and
petitioner, I FIND the following FACTS undisputed:
1. 	The Woodbridge Board operates and manages the Woodbridge Township
School District.
1 Although petitioner requested oral argument, I directed that this matter would be decided on the papers.
See N.J.A.C. 1:1-12.2(d).

OAL DKT. NO. EDU 01414-22
3
2. 	Petitioner 	was 	a 	teacher 	employed 	by 	the 	Woodbridge 	Board 	from
September 1, 2007, until his termination on November 18, 2021 (effective
October 28, 2021).
3. 	Following two in-school incidents in May 2019, the Woodbridge Board filed
five tenure charges against petitioner with the recommended penalty of
removal from employment.
4. 	Charge I was for unbecoming conduct and/or other just cause, including
insubordination — consuming alcohol during work in violation of established
standards of professional behavior.
5. 	Charge II was for unbecoming conduct and/or other just cause, including
insubordination — consuming alcohol during work in violation of state law.
6. 	Charge III was for unbecoming conduct and/or other just cause, including
insubordination — consuming alcohol during work in violation of municipal
law.
7. 	Charge IV was for insubordination and unbecoming conduct and/or other
just cause — violations of district policy.
8. 	Charge V was for a pattern or course of unbecoming conduct over a
protracted period of time.
9. 	An arbitration hearing on the above charges was held on August 31, and
September 1, 2020. 	The arbitrator sustained tenure charges I through IV
but did not find dismissal from employment warranted. 	The Woodbridge
Board reinstated petitioner.
10. 	On October 28, 2021, the State Board suspended petitioner’s teaching
certificates for two years, notwithstanding the decision of the arbitrator.

OAL DKT. NO. EDU 01414-22
4
11. 	Woodbridge Board Superintendent Joseph E. Massimino notified petitioner
by letter dated November 9, 2021, that he would recommend petitioner’s
termination to respondent at its next meeting, effective as of the date of the
State Board’s decision.
12. 	On November 18, 2021, respondent approved petitioner’s termination from
employment, effective October 28, 2021.
13. 	On December 6, 2021, petitioner appealed the State Board’s decision to
suspend his teaching certificates.
14. 	On December 30, 2021, petitioner filed this appeal on the grounds that
respondent’s decision “was arbitrary, capricious, unreasonable, contrary to
and in violation of law, and without legal force or effect.”
15. 	In a final agency decision dated June 23, 2022, Acting Commissioner of
Education Angelina Allen-McMillen upheld the decision of the State Board.
16. 	On July 25, 2022, petitioner filed an appeal of the Acting Commissioner’s
decision with the Appellate Division of the Superior Court of New Jersey.
That appeal is pending.
LEGAL ANALYSIS
Summary decision may be granted when “the papers and discovery which have
been filed, together with the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to prevail as a matter of
law.” N.J.A.C. 1:1-12.5(b). The rule further provides that an adverse party must respond
by affidavit setting forth specific facts showing that there is a genuine issue which can
only be determined at an evidentiary hearing. 	Ibid. 	The OAL rule is modeled on New

OAL DKT. NO. EDU 01414-22
5
Jersey Court Rule 4:46-2. 	The New Jersey Supreme Court has explained that when
deciding a motion for summary judgment under R. 4:46-2,
. . . a determination whether there exists a “genuine issue” of
material fact that precludes summary judgment requires the
motion judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable
to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).]
I CONCLUDE that the parties raise no dispute with respect to material facts and
the issues raised by respondent’s motion for summary decision and petitioner’s cross-
motion to have this matter placed on the inactive list can be decided as a matter of law.
The decisions of local governmental bodies, such as school boards of education,
carry the presumption of validity and “will remain undisturbed absent a showing of
arbitrary, capricious or unreasonable action.” Palamar Constr., Inc. v. Pennsauken, 196
N.J. Super. 241, 250 (App. Div. 1983). 	The burden of proving the action of the
governmental agency was arbitrary and capricious lays with the petitioner. 	J.M. by his
guardian D.M. v. Hunterdon Central Regional High School Dist., 96 N.J.A.R. 2d 415, 419
(December 4, 1995), Comm’r. (January 18, 1996).
In terminating petitioner, respondent acted in compliance with the requirements of
N.J.S.A. 18A:26-2, which states that “[n]o teaching staff member shall be employed in the
public schools by any board of education unless he is the holder of a valid certificate to
teach[.]” 	See also N.J.A.C. 6A:9B-5.1(a) (“any person employed as a teaching staff
member by a district board of education shall hold a valid and appropriate certificate”);
and N.J.A.C. 6A:9B-5.1(b) (a district “shall remove . . . any teaching staff member who
fails to maintain” required certifications). As a local school board, the Woodbridge Board
has “the duty to enforce rules promulgated by the State Board.” 	Parsippany-Troy Hills
Educ. Assn. v. Bd. of Educ. of Parsippany-Troy Hills, 188 N.J. Super. 161, 166 (App. Div.
1983), citing N.J.S.A. 18A:11-1.

OAL DKT. NO. EDU 01414-22
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It is undisputed that: petitioner obtained tenure prior to May 2019; in May 2019,
petitioner was discovered drinking alcohol while on the job; respondent brought five
tenure 	charges 	against 	petitioner 	and 	removed 	him 	from 	employment; 	when 	an
independent arbitrator recommended against dismissal, respondent reinstated petitioner;
notwithstanding the decision of the arbitrator, the State Board revoked petitioner’s
teaching certificates; once petitioner lost his certification, respondent terminated him from
his tenured teaching position consistent with the requirements of the above law,
regulations, and caselaw.
By his petition, petitioner seeks to reverse the decision of respondent to remove
him from his tenured teaching position. He concedes that the present appeal is separate
and apart from his challenge to the action of the State Board. At the same time, however,
petitioner recognizes that until and unless the decision of the State Board to revoke his
teaching certificates is reversed in another forum, he cannot prevail in this one.2
Petitioner argues that the decision of the Appellate Division (or the Supreme Court of New
Jersey, should either party pursue that appeal) will be dispositive. In short, if the decision
of the State Board to revoke petitioner’s teaching certificates is upheld, so too will be the
decision of respondent to terminate him for failure to hold the requisite certification. On
the other hand, if the State Board is reversed, and petitioner’s certificates are returned to
him, then the decision of respondent must also be reversed. Therefore, petitioner argues,
fairness and the need to conserve judicial resources compels me to hold off on a decision
and simply place this matter on the inactive list until the higher court(s) act.
Respondent, however, contends that even if the action of the State Board is later
vacated by the Appellate Division, that will not change the basis by which respondent
acted in 2021. 	“The Appellate Division’s future decision, whichever way it goes, cannot
retroactively deem the Woodbridge BOE’s decision to be arbitrary and capricious.” Reply
Brief of Respondent in Further Support of Motion for Summary Decision (October 14,
2022), at 4 (emphasis in original). Therefore, there is no need to wait to decide whether
respondent’s decision to terminate petitioner’s employment was arbitrary, capricious and
2 Petitioner could not wait for the Appellate Division to act on his appeal of the State Board’s action, however,
because of the ninety-day statute of limitations to appeal the decision of the Woodbridge Board.

OAL DKT. NO. EDU 01414-22
7
unreasonable. It was not; the law is clear that a school board cannot permit a teacher to
teach without certification. As of October 28, 2021, petitioner lost his certification. 	The
decision of respondent to terminate him was correct at the time it was made.
Petitioner further argues that he has a “protectible property right in his tenured
position,” and there must be “a remedy by suit or action at law where that right is invaded.”
Letter Brief of Petitioner in Opposition to Motion for Summary Decision and in Support of
Cross-Motion to Place Case on the Inactive List (September 27, 2022), at 5. 	Here,
petitioner not only challenges the loss of his tenured position, but of “the lawfulness” of
the actions of the State Board and Acting Commissioner of the DOE. 	Ibid. 	He then
contends that a ruling here in respondent’s favor must be preceded by a finding that the
actions of the State Board and Acting Commissioner were in fact legal. 	Id. at 7. 	I
disagree.
The question here is not whether the action of the State Board was legal, it is
whether the action of respondent in November 2021, made in reliance on the decision of
the State Board, was legal. There is no reason to delay a decision on the latter issue to
account for circumstances that may change years after the Woodbridge Board acted. 	I
CONCLUDE that respondent acted appropriately and in accordance with the law to
remove petitioner from his tenured teaching position as petitioner did not have a valid
teaching certificate at the time of respondent’s decision. 	As respondent notes, any
violation of petitioner’s property and/or due process rights may be addressed by an action
against the State Board for damages and other appropriate relief if the action of the State
Board is found to be invalid.
ORDER
For the reasons cited above, I ORDER that the motion of respondent Township of
Woodbridge Board of Education for summary decision in its favor is hereby GRANTED,
the cross-motion of petitioner Nicholas Cilento to place this matter on the inactive list is
hereby DENIED and the appeal of petitioner is hereby DISMISSED.

OAL DKT. NO. EDU 01414-22
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I 	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.
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
judge and to the other parties.
November 18, 2022
DATE 	TRICIA M. CALIGUIRE, ALJ
Date Received at Agency:
Date Mailed to Parties:
TMC/nn