In the Matter of the Certificates of Nicholas Cilento, State Board of Examiners, 6/23/2022, (#131-22)

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State Board of Examiners Dkt No. 2021-123
Agency Dkt. No. 9-12/21A
New Jersey Commissioner of Education
Final Decision
In the Matter of the Certificates of
Nicholas Cilento, State Board of Examiners,
New Jersey Department of Education.
Order of Suspension by the State Board of Examiners, October 28, 2021
For the Respondent-Appellant, Edward A. Cridge, Esq.
For the Petitioner-Respondent, State Board of Examiners, Michal Czarnecki,
Deputy Attorney General (Matthew J. Platkin, Acting Attorney General of
New Jersey)
The Commissioner has reviewed the record and the papers filed in connection with
appellant Nicholas Cilento’s appeal of the State Board of Examiners’ (Board) Order of
October 28, 2021, suspending his Teacher of the Handicapped certificate (certificate) for two
years. The Board found that the appellant engaged in unbecoming conduct when he possessed
and used alcohol on school premises while on duty on May 20 and May 21, 2019 (May
incidents). The appellant previously had tenure charges filed against him related to the May
incidents and the Arbitrator, assigned to the case pursuant to N.J.S.A. 18A6-16, found that the
appellant engaged in unbecoming conduct and suspended him for a period of three months.
Thereafter, the Board issued an Order to Show Cause upon the appellant requiring him to show
cause as to why his certificate should not be revoked.
On appeal the appellant does not argue that the May incidents did not occur, but
instead contends that the Order of Suspension is barred by the principles of res judicata and
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collateral estoppel. Res judicata, or claim preclusion, is a doctrine that declares that once a
matter has been fully litigated and resolved, it cannot be re-litigated. Here, the appellant
asserts, the Arbitrator assigned to the tenure proceedings was statutorily empowered to act in
a judicial capacity under the auspices of the Department of Education in issuing the award, just
as the Board is empowered to preside over Order to Show Cause proceedings. Therefore, the
principles of res judicata bar the Board from relitigating whether the appellant can be removed
from his position for conduct unbecoming based upon allegations set forth in the underlying
tenure case and final award. The appellant also maintains that the Board cannot issue a
suspension that is inconsistent with the Arbitrator’s final penalty determination. The appellant
notes that the application of these principles would not foreclose the Board from issuing an
Order to Show cause when tenured cases are settled, but the principles apply in this case
because the Arbitrator determined as a matter of fact and law that the appellant should not be
removed from his tenured position. Finally, the appellant argues that the Board’s penalty
determination is inconsistent with the factors outlined in In re Fulcomer, 93 N.J. Super 404 (App.
Div. 1967). As a result, the appellant maintains that the Commissioner should reject the
Board’s decision.
In reviewing appeals from decisions of the State Board of Examiners, the Commissioner
may not substitute her judgment for that of the Board so long as the appellant received due
process and the Board’s decision is supported by sufficient credible evidence in the record.
Further, the Board’s decision should not be disturbed unless the appellant demonstrates that it
is arbitrary, capricious, or unreasonable. N.J.A.C. 6A:4-4.1(a).

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Upon a comprehensive review of the record, the Commissioner finds that the record
adequately supports the Board’s determination that the appellant engaged in unbecoming
conduct, and that a two-year suspension of his certificate was the appropriate penalty. It is
undisputed that the appellant possessed and used alcohol on school premises during the May
incidents. Therefore, the Board’s determination regarding the characterization of appellant’s
behavior as unbecoming conduct is amply supported by the record and consistent with
applicable law.
Despite the appellant’s contentions to the contrary, the Board is not constrained by the
Arbitrator’s penalty determination in the tenure proceeding under the principles of res judicata
and collateral estoppel. For res judicata to become applicable, the party asserting the bar must
demonstrate: 1) a final judgment by a court or tribunal of competent jurisdiction, 2) the same
identity of issues, 3) the same parties, and 4) the same cause of action and thing sued for. City of
Hackensack v. Winner, 162 N.J. Super. 1, 28 (App. Div. 1978), modified, 82 N.J. 1 (1980). A party
attempting to invoke collateral estoppel must establish similar criteria. “Collateral estoppel is the
branch of res judicata which bans relitigating an issue of fact or law that has been actually
determined on the merits in a prior proceeding. Res judicata applies when either party attempts to
relitigate the same cause of action. Collateral estoppel applies when either party attempts to
relitigate facts necessary to a prior judgment.” T.W. v. A.W., 224 N.J. Super. 675, 682 (citations
omitted).
First and foremost, the party against whom the doctrines of both res judicata and
collateral estoppel are to be invoked must have been a party to the other proceeding. It is
undisputed that the Board was not a party to the arbitration proceedings and had no role

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whatsoever in the determination of the final award. Nor are the Board, whose statutory power
is derived from N.J.S.A. 18A:6-38, and the panel of Arbitrators, whose statutory power is
derived from N.J.S.A. 18A:6-17.1, deemed to be one in the same as the appellant attempts to
suggest.
The principle of res judicata is also inapplicable because the two actions addressed herein
were separate proceedings undertaken for different purposes. The proceeding held before the
Arbitrator was limited to a determination as to whether the tenure charges proven against the
appellant warranted his dismissal or the reduction of his salary. N.J.S.A. 18A:6-16. The Order to
Show Cause proceeding before the State Board of Examiners was a separate and distinct action
to determine whether the appellant’s certificate should be revoked pursuant to N.J.S.A. 18A:6-
38. Practically speaking, when a tenured employee is dismissed from a tenured position
through the arbitration process, the employee is not precluded from seeking employment that
requires a certificate in another school district. However, when the Board issues an order
suspending or revoking a certificate, the certificate holder is precluded from utilizing the
certificate. Thus, a final arbitrator award dismissing an employee from a tenured position does
not equate to an order issued by the Board suspending or revoking a certificate under the
principles of res judicata.1 Therefore, the Board was not precluded from conducting the Order
1 Notably, there are cases in which the tenured employee was dismissed from employment by an arbitrator but did
not have their certificates revoked by the Board. See, In the Matter of the Certificates of Kimberley Peschi, Dkt.
No. 1920-192 (State Board of Examiners Decision, June 25, 2021); In the Matter of the Certificates of
Bruce Bassetti, Dkt. No. 2021-103 (State Board of Examiners Decision, September 17, 2021).

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to Show Cause proceedings and from issuing an Order suspending the appellant’s certificate for
two years.2
Finally, for the reasons outlined in the October 21, 2022 Order, the Board’s penalty
determination is consistent with the factors outlined in In re Fulcomer, 93 N.J. Super 404 (App.
Div. 1967). Accordingly, the Commissioner finds no basis upon which to disturb the decision of
the State Board of Examiners.
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
2 The Commissioner finds that the Board properly invoked collateral estoppel with respect to the facts related to
the unbecoming conduct found during the arbitration proceeding. The appellant was a party to the action, the
baseline facts are the same and the appellant had a full and fair opportunity to litigate the issue.
June 23, 2022
June 23, 2022