Erskine Barrino v. New Jersey Department of Education, 10/27/2023, (#321-23)

321-23
New Jersey Commissioner of Education
Final Decision
Erskine Barrino,
Petitioner,
v.
New Jersey Department of Education,
Office of Student Protection,
Respondent.
Synopsis
Petitioner challenged the determination of the New Jersey Department of Education, Office of Student
Protection, 	to 	permanently 	disqualify 	him 	from 	employment 	in 	a 	public 	school 	pursuant 	to
N.J.S.A. 18A:6-7.1 after a criminal history background check revealed that in November of 1990,
petitioner entered a plea of guilty to a charge of unlawful possession of a weapon. Petitioner had been
conditionally approved to serve as a security guard at a New Jersey public school. The Department filed
a motion to dismiss petitioner’s appeal.
The ALJ found, inter alia, that: 	in 1990, petitioner was sentenced to two years’ probation, which he
completed; petitioner did not file a Petition for Expungement of his conviction until August 22, 2023; a
hearing on the expungement is scheduled for October 23, 2023 in Superior Court; since the record of
the conviction has not been expunged to date, the criminal record still exists and petitioner is therefore
disqualified from holding any position in a New Jersey public school.
Upon review, the Commissioner concurred with the ALJ that petitioner’s criminal history disqualifies him
from working in a public school. Accordingly, the Initial Decision was adopted as the final decision in this
matter, and the petition of appeal 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.

New Jersey Commissioner of Education
Final Decision
Erskine Barrino,
Petitioner,
v.
New Jersey Department of Education,
Office of Student Protection,
Respondent.
The record of this matter and the decision1 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 that petitioner is
disqualified from employment in public schools.
Accordingly, the OAL decision is adopted as the final decision in this matter, and the petition of
appeal is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 The decision is captioned as “Supplemental Order Denying Emergent Relief and Denying the Substantive Petition
for Relief.” However, pursuant to N.J.A.C. 1:1-18.1(b), decisions that are fully dispositive of all issues in the case
are initial decisions. Accordingly, the Commissioner deems the “Supplemental Order” to be an initial decision. The
parties were notified of this determination and given the opportunity to file exceptions in accordance with N.J.A.C.
1:1-18.4.
2 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.
321-23
OAL Dkt. No. EDU 07863-23
Agency Dkt. No. 224-8/23
October 27, 2023
November 1, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
SUPPLEMENTAL
ORDER DENYING
EMERGENT 	RELIEF 	AND
DENYING 	THE 	SUBSTANTIVE
PETITION FOR RELIEF
OAL DKT. NO. EDU 07863-23
AGENCY DKT. NO. 224-8/23
ERSKIN BARRINO,
Petitioner,
v.
NEW JERSEY DEPARTMENT OF EDUCATION,
OFFICE OF STUDENT PROTECTION,
Respondent.
_______________________________________
Erskine Barrino, petitioner, pro se
Sadia Ahsanuddin, Deputy Attorney General, for respondent (Matthew J. Platkin,
Attorney General of New Jersey, attorney)
BEFORE: JOHN P. SCOLLO, ALJ:

OAL DKT. NO. EDU 07863-23
2
STATEMENT OF THE CASE
Erskin Barrino seeks emergent relief from the Department of Education, Office of
Student Protection’s determination dated August 8, 2023 that he is disqualified from
serving as a Security Officer for the West Orange (Essex County) Board of Education.
PROCEDURAL HISTORY
Petitioner, Erskin Barrino, filed a Pro Se Petition of Appeal on August 17, 2023
seeking Emergent Relief from the Commissioner of Education. He challenges the OSP’s
August 8, 2023 determination, as expressed in its Notice of Disqualification sent to him
on August 8, 2023, that he is permanently disqualified from serving in any position with
an educational institutional which is under the supervision of the N.J. Department of
Education due to a November 14, 1990 guilty plea (Judgment of Conviction) to the charge
of Possession of a Weapon (N.J.S.A. 2C:39-5B). 	On August 23, 2023, the OSP,
represented by the New 	Jersey Attorney General’s 	Office, filed papers 	(Brief) 	in
Opposition to the Petition for Emergent Relief and a Motion to Dismiss said Petition.
On August 25, 2023, this judge issued his Order. On September 14, 2023, the
Acting Commissioner of Education issued her Order concurring with this judge’s denial of
emergent relief; but directing this Tribunal to continue to the substantive issues presented,
(i.e., a decision on the merits of the appeal). Since the parties were afforded the
opportunity to address all issues, including both the issue of whether there was a basis

OAL DKT. NO. EDU 07863-23
3
for emergent relief as well as the opportunity to address the merits of their positions, this
judge is satisfied that there is no need for further submissions or arguments.
This writing is the Tribunal’s Supplemental Order addressing the mandate of the
Commissioner’s September 14, 2023 Order.
FACTUAL DISCUSSION
Based on the submissions and the testimony elicited at the hearing on August 24,
2023, the Tribunal FINDS that the parties are not in disagreement about any of the
following facts.
By way of background, on May 1, 1989, Petitioner Erskin Barrino was arrested in
Bergen County on a charge of Possession (N.J.S.A. 2C:39-5B) of a Weapon.
On November 14, 1990, Barrino entered a plea of guilty to said charge. 	He was
sentenced to two years’ probation, which he completed. He did not file a Petition for
Expungement of said conviction until August 22, 2023. There will be a hearing on the
Expungement Petition on October 23, 2023 in the Superior Court of New Jersey, Criminal
Part, Bergen County.
Erskine Barrino applied for the position of Security Officer with the Board of
Education 	of 	West 	Orange, 	Essex 	Couty, 	New 	Jersey. 	On 	July 	26, 	2023, 	the
Superintendent of School for West Orange sent a letter notifying Barrino that his
appointment as a Security Officer was approved at the West Orange Board of Education’s
meeting of July 25, 2023 for the period from September 1, 2023 through June 30, 2024.
However, on August 8, 2023, the State Department of Education, Office of Student
Protection (OSP) sent a letter to Barrino notifying him of its determination that he is
permanently disqualified from serving in any position with an educational institutional
which is under the supervision of the N.J Department of Education. The OSP explained
that Barrino’s criminal history shows that on November 14, 1990 he entered a plea of
guilty (a Judgment of Conviction) to the charge of Possession of a Weapon (N.J.S.A.

OAL DKT. NO. EDU 07863-23
4
2C:39-5B). Since the record of the conviction has never been expunged, said criminal
record still exists and he is therefore disqualified from holding said position.
ANALYSIS OF THE RESPECTIVE POSITIONS OF THE PARTIES
Arguments Presented by the Petitioner
Erskin Barrino’s August 17, 2023 Pro Se Petition of Appeal admits that on
November 14, 1990 	he entered a guilty plea to the charge of Possession of a Weapon
N.J.S.A. 2C:39-5B; that he was sentenced to two years of probation; and that he
successfully completed probation. In his testimony, he admitted that he did not apply for
an expungement until August 23, 2023. His Petition of Appeal seeks emergent relief
pursuant to Crowe v. DeGioia, 90 N.J. 126 (1982). The argument upon which he seeks
emergent relief is that he needs to work to support his family, which includes a child who
has medical issues. 	He was appointed to the Security Officer position by the WOBOE,
admittedly subject to the results of a background check. 	If he does not get the job with
the WOBOE he will be jobless and unable to support himself and his family. 	He stated
that he left his last employment during the week before the hearing because he had to
give two weeks’ notice to his employer, Mancon, Inc., where he worked for wages as a
Parts Specialist and from whom he received health insurance coverage for himself and
his family members. During the hearing, he stated that there was a possibility that he
could regain his job with Mancon, Inc, unless it has been filled in the interim. He argued
that since his guilty plea in 1990, he has not been involved in any criminal activity and
that he learned from his mistake. He is a family man and wants to serve the interests of
his own children and those of other schoolchildren and their parents.
The Tribunal explained the requirements of the four prongs of Crowe. The Tribunal
emphasized that it is the burden of the person seeking emergent relief to persuade the
Tribunal that he meets the requirements of each of the four prongs of Crowe. Barrino
acknowledged that he understood this and addressed each of the four prongs.
When asked to explain how he met the requirements of demonstrating that he
would suffer irreparable harm (the first Crowe factor) if the requested relief were not

OAL DKT. NO. EDU 07863-23
5
granted, he explained that needed both the wages and the health insurance coverage
that was part of the prospective job, especially since he has a child who has medical
issues. 	He admitted that the health insurance coverage, like wages, was an economic
benefit. 	Of course, Crowe held that a harm is not irreparable if it can be redressed by
money. 	Barrino had no response to this. When asked to present whether he had any
other arguments that demonstrated irreparable harm that were not based on economic
harm, Barrino basically had no response.
Given that opportunity to address the second, third and fourth Crowe factors,
Barrino was not able to demonstrate that the law supported his claim for relief. In regard
to the second Crowe factor, he could not overcome the OSP’s argument that the law
imposed a mandatory disqualification to people convicted of the type of offense that he
had on his record. In regard to the third Crowe factor, he was unable to demonstrate why,
that under the circumstances of the matter, he would have a likelihood of success on the
merits. 	Finally, on the fourth Crowe factor, he could not demonstrate how, when the
equities of the matter were compared, that he would suffer greater harm than the
Respondent, if the relief he sought was not granted. Moreover, he was not able to refute
the Respondent’s argument that the interest of the students required that there be no
exceptions to the disqualification of applicants who have a record of offenses proscribed
by the applicable statutes.
Arguments Presented by the Respondent
DAG Ahsahuddin stated that she would rely on the arguments presented in her
Opposition papers (Brief) to demonstrate that Barrino could not demonstrate that he
would suffer irreparable harm (the first Crowe factor). As such, he could not meet all four
of the Crowe factors and his Petition must fail. 	Moreover, since Barrino could not

OAL DKT. NO. EDU 07863-23
6
demonstrate that he was entitled to relief under any of the other three Crowe factors, it
was clear that he was not entitled to the emergent relief he sought.
Since Barrino could not demonstrate entitlement to emergent relief, the motion to
dismiss Barrino’s Petition must be granted.
DISCUSSION AND FINDINGS OF FACT
Having reviewed the documents, testimony, and arguments presented, I make the
following findings of FACT.
I FIND that Barrino’s arguments on the issue of irreparable harm were based only
on the economic effects of the Respondent’s determination that he was disqualified from
the position he seeks. Moreover, Barrino did not demonstrate that he was not capable of
finding alternate employment. He even stated that he might be able to become re-
employed with Mancon, Inc., a job where he received both wages and health insurance
coverage.
I FIND that Barrino did present a sympathetic argument concerning the need for
him to maintain health insurance coverage, but I further FIND that this is an argument
based on the economic effects of the Respondent’s determination.
I FIND that Barrino did not present cogent arguments that would meet the
requirements of the second, third, and fourth prongs of Crowe.
I FIND that Barrino did not present sufficient facts or sufficient arguments that
would satisfy any of the four Crowe factors.
I FIND that the disqualification is set forth in N.J.S.A. 18A:6-7.1(c) (2) where it
states:
“[a]n individual … shall be permanently disqualified from
employment 	or 	service 	under 	this 	act 	if 	the 	individual’s
criminal history check reveals a record of conviction for any

OAL DKT. NO. EDU 07863-23
7
crime of the first or second degree; or [a] crime as set forth in
chapter 39 of Title 2C of the New Jersey Statutes.”
I FIND that the use of the word “shall” in N.J.S.A. 18A:7.1 (c) (2) means that the
disqualification is permanent and non-discretionary. I FIND that Barrino was not able to
refute the Respondent’s argument that the interest of the students required that there be
no exceptions to the disqualification of applicants who have a record of offenses
proscribed by the applicable statutes.
APPLICABLE LAW
Jurisdiction of the Commissioner of Education
N.J.S.A. 18A:6-9 provides
The 	commissioner 	shall 	have 	jurisdiction 	to 	hear 	and
determine, without costs to the parties, all controversies and
disputes arising under the school laws ….
Law Governing the Granting of Injunctions Seeking Emergent Relief
N.J.A.C. 6A:3-1.6(a) provides:
Where the subject matter of the controversy is a particular
course of action by a district board of education … the
petitioner may include with the petition of appeal, a separate
motion for emergent relief … pending the Commissioner’s
final decision in the contested case.”
N.J.A.C. 6A:3-1.6(b) provides:
A motion for stay or emergent relief shall be accompanied by
a 	letter 	memorandum 	or 	brief 	which 	shall 	address 	the
following standards to be met for granting such relief pursuant
to Crowe v. DeGioia , 90 N.J. 126 (1982):
1. The petitioner will suffer irreparable harm if the requested
relief is not granted;
2. The legal right underlying petitioner’s claim is settled;
3. 	The petitioner has a likelihood of prevailing on the merits
of the underlying claim; and

OAL DKT. NO. EDU 07863-23
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4. 	When 	the 	equities 	and 	interests 	of 	the 	parties 	are
balanced, the petitioner will suffer greater harm than the
respondent will suffer if the requested relief is not granted.
The Crowe Factors
Crowe v. DeGioia, 90 N.J. 126 (1982) arose out of a set of circumstances regarding
support and palimony matters. Nonetheless, the case has been the polestar decision in
New Jersey for cases wherein injunctive relief is sought. 	The case stands for the
proposition that an injunction cannot be granted unless and until the party seeking relief
presents clear and convincing evidence that: (1) the injunction is “necessary to prevent
irreparable harm”; (2) that “the legal right underlying the claim is settled”; (3) that the party
seeking relief has made “a preliminary showing of a reasonable probability of ultimate
success on the merits”; and (4) that “the relative hardship to the parties in granting or
denying [injunctive] relief”, on a balancing of the equities, weighs in his favor. Crowe, 90
N.J. at 132-34. 	In order to prevail, the party seeking injunctive relief must demonstrate
by clear and convincing evidence that he meets all four Crowe factors. Brown v. City of
Paterson, 424 N.J. Super. 176, 183 (App. Div. 2012).
“[A] party who seeks mandatory preliminary injunctive relief must satisfy a
‘particularly heavy’ burden.” Guaman v. Velez, 421 N.J. Super. 239, 247 (App. Div. 2011),
Rinaldo v. RLB Inv., LLC, 387 N.J. Super. 387, 396 (App. Div. 2006).
Also, “[w]hen a case presents an issue of ‘significant public importance’, a court
must [also] consider the public interest in addition to the traditional Crowe factors.”
Garden State Equal. v. Dow, 216 N.J. 314, 321 (2013).
Appellate courts are bound by the trial court’s factual findings if they are supported
by “substantial, credible evidence” in the record. 	Triffin v. Automatic Data Processing,
Inc., 411 N.J. Super. 292,315 (App. Div. 2010).
Under the first Crowe factor, a party who seeks injunctive relief must establish that
injunctive relief is necessary to prevent irreparable harm and to preserve the status quo.

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9
Citizens Coach Co. v. Camden Horse R.R. Co. , 29 N.J. Eq. 299, 303 (E.&A. 1878).
Irreparable harm is an “injury to be suffered in the absence of injunctive relief [that] is
substantial and imminent.” Waste Mgmt. of N.J., Inc. v. Union City Utils. Auth., 399 N.J.
Super. 508, 520 (App. Div. 2008).
Under the second Crowe factor, injunctive relief will be withheld when the legal
right underlying the claim is unsettled. Citizens Coach, at ps. 304-05.
Under the third Crowe factor, the party seeking relief is obligated to present clear
and convincing evidence that he / she has a reasonable probability of ultimate success
on the merits. 	Therefore, injunctive relief will not be granted where there are material
facts in controversy. Citizens Coach at ps. 305-06. The party who seeks injunctive relief
must be prepared to demonstrate facts which support his case and “must make a
preliminary showing of reasonable probability of success on the merits.” Crowe, at p. 133.
The second and third Crowe factors involve fact-sensitive analysis that “requires a
determination of whether the material facts are in dispute, and whether the applicable law
is settled.” Waste Mgmt., at p. 528.
Under the fourth Crowe factor, the party who seeks injunctive relief must address
the issue of relative hardship to the parties and he must establish that, on balance, the
equities favor the grant of temporary relief to maintain the status quo pending the outcome
of a final hearing.” Crowe at p. 134. 	The party seeking injunctive relief must prove his
case by clear and convincing evidence. Brown at p. 183 and thus his burden is
‘particularly heavy’. Guaman at p. 247.
LEGAL ANALYSIS AND CONCLUSIONS
The First Crowe Factor
Regarding the first Crowe factor, the Respondent convincingly argued that the
Petitioner did not demonstrate that he would suffer irreparable harm if emergent relief
were not granted. 	The Respondent convincingly argued that the Petitioner’s failure to

OAL DKT. NO. EDU 07863-23
10
prevail on the first Crowe factor means that he cannot meet his burden of proving that he
satisfied all of the Crowe factors, and it therefore follows that the Petition must be
dismissed.
The Second Crowe Factor
Regarding the second Crowe factor, the Petitioner did not meet his burden of
demonstrating that the law is settled in his favor.
The Third Crowe Factor
Regarding the third Crowe factor, the Petitioner did not meet his burden of
demonstrating that under the circumstances of this matter he would be likely to prevail on
the merits at trial.
The Fourth Crowe Factor
Regarding the fourth Crowe factor, the Petitioner did not demonstrate that on
balance, the equities favor the grant of the temporary relief which the Petitioner seeks.
I CONCLUDE that the Petitioner failed to meet the requirements of any of the
Crowe factors.
The Substantive Issues
I have found that N.J.S.A. 18A:6-7.1(c) (2) imposes a mandatory, permanent
disqualification for anyone who has a criminal record of an offense listed under N.J.S.A.
18A:6-7.1 (here, a conviction for illegal possession of a weapon). 	I have found that
Barrino was not able to refute the Respondent’s argument that the interest of the students
required that there be no exceptions to the disqualification of applicants who have a
record of an offense enumerated under N.J.S.A. 18A: 6-7.1. I note that the language of
N.J.S.A. 	18A: 	6-7.1 	(c) 	(2) 	allows 	no 	discretion 	regarding 	the 	imposition 	of 	the
disqualification. 	I therefore CONCLUDE that since Barrino has a criminal record that

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11
includes a conviction for an offense listed under N.J.S.A. 18A:6-7.1 (illegal possession of
a weapon), he is disqualified from serving as a school security guard.
ORDER
It is hereby ORDERED that Barrino’s Petition seeking Emergent Relief in the form
of an Order overturning the OSP’s determination dated August 8, 2023 must be and
hereby is DENIED; and
it is further ORDERED that Petitioner’s Petition, having not met the requirements
of Crowe, must be and hereby is DISMISSED; and
it is further ORDERED that Petitioner, having failed to demonstrate that he is not
disqualified from applying for the position of school security guard or from serving as a
school security guard, his petition must be dismissed; and
it is further ORDERED 	that a copy of this ORDER shall be transmitted by email
from the OAL to the Pro Se Petitioner, Erskin Barrino and to the Respondent’s counsel,
Sadia Ahsahuddin, DAG.
This order on application for emergency relief may be adopted, modified, or
rejected by the COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who is
authorized by law to make the final decision in this case. 	The final decision shall be
issued without delay but no later than forty-five days from the entry of this order. 	If the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION does not adopt, modify, or
reject this order within those forty-five days, this recommended order shall become the
final decision on the issue of emergency relief under N.J.S.A. 52:14B-10.
September 20, 2023
______________________ 	_______________________________
DATE 	JOHN P. SCOLLO, ALJ
db