David Kelly v. New Jersey State Department of Education, Criminal History Review Unit and Board of Education of the Township of Lawrence, Mercer County, 12/18/18, (#396-18R)

396-18R
DAVID KELLY, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
NEW JERSEY STATE DEPARTMENT 	: 	DECISION
OF EDUCATION, CRIMINAL HISTORY
REVIEW UNIT and BOARD OF EDUCATION 	:
OF THE TOWNSHIP OF LAWRENCE,
MERCER COUNTY, 	:
RESPONDENTS. 	:
SYNOPSIS
This matter comes before the Commissioner on remand from the Appellate Division. Petitioner –
formerly employed as a teacher in Lawrence Township schools – was disqualified from employment in
any New Jersey school or educational facility under the supervision of the Department following his
criminal conviction in 2012 in the Bucks County, Pennsylvania, Court of Common Pleas. Petitioner’s
conviction stemmed from a criminal complaint that petitioner had fired a rifle toward two teenagers on his
property; petitioner contended that the teens were trespassing. The Criminal History Review Unit
(CHRU) – in determining that petitioner’s crimes were disqualifying under N.J.S.A. 18A:6-7.1 – relied
upon two of petitioner’s convictions under Pennsylvania law, one for possession of instruments of a
crime and one for recklessly endangering another person. By decision dated August 21, 2014, the
Commissioner determined that one of petitioner’s convictions in Pennsylvania was for a crime involving
the use or threat of force upon another person, and – since that conviction was for an offense enumerated
in N.J.S.A. 18A:6-7.1 – petitioner was properly disqualified from teaching. 	On appeal, the Appellate
Division disagreed with the Commissioner’s decision, and remanded the matter for further proceedings.
The Commissioner, determining that additional fact-finding was required, transferred the case back to the
Office of Administrative Law (OAL).
On remand, the ALJ found, inter alia, that: there are no genuine issues of material fact in this case, and
the matter is ripe for summary decision; petitioner was convicted in Pennsylvania of possessing
instruments of a crime, in violation of 18 Pa.C.S.A. §907(a), which is a crime “substantially equivalent”
to N.J.S.A. 2C:39-4(a); further, petitioner is also disqualified by N.J.S.A. 18A:6-7(1) due to his conviction
for recklessly endangering another person. Accordingly, the ALJ granted summary decision to the
respondents, and dismissed the petition.
Upon comprehensive review of the record, the Commissioner concurred with the ALJ – for the reasons
set forth in the Initial Decision – that the petitioner’s conviction for possessing instruments of crime, in
violation of 18 Pa.C.S.A. §907, is an offense substantially equivalent to N.J.S.A. 2C:39-4(a); further, the
Commissioner also concurred with the ALJ that the petitioner is also disqualified from employment under
N.J.S.A. 	18A:6-7.1 	as 	the 	result 	of 	his 	conviction 	for 	recklessly 	endangering 	another 	person.
Accordingly, the Initial Decision of the ALJ was adopted 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.
December 18, 2018

1
OAL DKT. NO. EDU 12761-16
(ON REMAND EDU 5753-12)
AGENCY DKT. NO. 51-3/12
DAVID KELLY, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
NEW JERSEY STATE DEPARTMENT 	: 	DECISION
OF EDUCATION, CRIMINAL HISTORY
REVIEW UNIT and BOARD OF EDUCATION 	:
OF THE TOWNSHIP OF LAWRENCE,
MERCER COUNTY, 	:
RESPONDENTS. 	:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed.1 	Petitioner herein is challenging the determination of the
New Jersey State Department of Education, Criminal History Review Unit (CHRU), that he is
statutorily disqualified from school employment based upon convictions for certain crimes in the
state of Pennsylvania. 	Petitioner contends that the criminal convictions on which CHRU based
its determination – namely, recklessly endangering another person in violation of 18 Pa.C.S.A. §
2705 and possessing instruments of crime in violation of 18 Pa.C.S.A. § 907 – do not constitute
disqualifying convictions under N.J.S.A. 18A:6-7.1.
Upon a comprehensive review of the record, the Commissioner concurs with the
Administrative Law Judge – for the reasons stated in the Initial Decision – that the petitioner’s
conviction for possessing instruments of crime, in violation of Pa.C.S.A. § 907, is an offense
substantially equivalent to N.J.S.A. 2C:39-4(a). 	As a result, the petitioner is disqualified from
1 The parties did not file exceptions to the Initial Decision.

2
employment or service as a teacher in New Jersey. The Commissioner is likewise in accord with
the 	ALJ’s 	determination 	that 	the 	petitioner 	is 	also 	disqualified 	for 	employment 	under
N.J.S.A. 18A:6-7.1 	due 	to 	his 	conviction 	for 	recklessly 	endangering 	another 	person.
Accordingly, the recommended decision of the ALJ is adopted as the final decision in this
matter.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: December 18, 2018
Date of Mailing: 	December 18, 2018
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 12761-16
AGENCY DKT. NO. 51-3/12
(ON REMAND OAL DKT. NO. EDU
5753-12)
DAVID KELLY,
Petitioner,
v.
NEW JERSEY STATE DEPARTMENT
OF EDUCATION, CRIMINAL HISTORY
REVIEW UNIT, AND BOARD OF
EDUCATION OF THE TOWNSHIP OF
LAWRENCE, MERCER COUNTY,
Respondents.
______________________________
Edward Cridge, Esq., for petitioner (Mellk O’Neill, attorneys)
Joan Scatton, Deputy Attorney General, for respondent New Jersey Department
of Education (Gurbir S. Grewal, Attorney General of New Jersey, attorney)
Casey P. Acker, Esq., for respondent Board of Education of the Township of
Lawrence (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey,
attorneys)
Record Closed: October 26, 2018 	Decided: November 16, 2018

OAL DKT. NO. EDU 12761-15
2
BEFORE JEFF S. MASIN, ALJ (Ret., on recall):
David Kelly was employed by the Lawrence Township School District as a
tenured music teacher. On February 3, 2012, the Criminal History Review Unit (CHRU)
of the New Jersey Department of Education notified the superintendent of the Lawrence
Township Board of Education that Mr. Kelly had been convicted of a “disqualifying crime
or offense” for which he had been arrested on August 22, 2011, and convicted on
January 24, 2012, in Bucks County [Pennsylvania] Court of Common Pleas after a trial
by jury. 	As such, Kelly was “permanently disqualified or ineligible for employment . . .
with any school or educational facility under the supervision of the Department of
Education.” 	The letter did not identify the statutory basis for the disqualification arising
from this conviction: that provision is N.J.S.A. 18A:6-7.1. The letter does not specify the
statutory violations of Pennsylvania law of which Mr. Kelly was convicted. 	Following its
receipt of the letter, the Board’s director of personnel notified Kelly by letter dated
February 9, 2012, that he was to be terminated as of February 3, 2012. Kelly ultimately
filed an appeal of his disqualification with the Department of Education, Bureau of
Controversies and Disputes. 	Following the CHRU’s filing of an answer, the contested
case was transferred to the Office of Administrative Law.
While Mr. Kelly was also convicted of other offenses, the CHRU identified the
convictions which it relied upon for the decision that Mr. Kelly was disqualified from
employment as his convictions for possession of instruments of crime, in violation of 18
Pa. Con. Stat. §907(a) and for recklessly endangering another person, in violation of 18
Pa. Con. Stat. §2705.
After a motion for summary decision was filed, Administrative Law Judge Pat
Kerins issued a decision, Kelly v. New Jersey State Department of Education, Criminal
History Review Unit and Board of Education of Lawrence, EDU 5753-12, Initial Decision
(May 23, 2014), http://njlaw.rutgers.edu/collections/oal/, determining that the statutory
disqualification did not apply, finding that the convictions of Pennsylvania law were not
for offenses “substantially similar” to offenses identified as disqualifying under N.J.S.A.
18A:6-7.1. 	The 	Commissioner 	of 	Education 	reviewed 	the 	judge’s 	decision 	and
disagreed, determining that Mr. Kelly’s conviction in violation of 18 Pa. Con. Stat. §2705

OAL DKT. NO. EDU 12761-15
3
was for a crime involving the use or threat of force upon another person, and since that
conviction was for an offense enumerated in N.J.S.A. 18A:6-7.1, Kelly was properly
disqualified from teaching. 	The Commissioner declined to determine if Kelly was also
disqualified from teaching as a result of his conviction for possessing an instrument of
crime. 	Kelly’s appeal was dismissed. 	Kelly, EDU 5753-12, Comm’r (August 21, 2014),
http://njlaw.rutgers.edu/collections/oal/.
Both the judge and commissioner’s decisions were based upon information
gathered from the Affidavit of Probable Cause that was filed in connection with the
Pennsylvania investigation. 	On appeal, the Appellate Division did not agree with the
Commissioner’s decision, instead remanding the case to the Commissioner for further
proceedings. Kelly v. N.J. Dep’t of Educ., Criminal History Review Unit and Bd of Educ.
of 	Lawrence, 	No. 	A-0679-14T4 	(June 	29, 	2016),
https://njlaw.rutgers.edu/collections/courts/. 	As will be discussed, Mr. Kelly contends
that the remand was limited to one issue, while the respondents disagree with that
assessment. Thus, it is necessary to examine the court’s decision.
Based upon the Appellate Division’s discussion, the Affidavit of Probable Cause
described an incident in which it had been reported that one of two teenaged victims
alleged shots had been fired at them as they walked through property later determined
to be that of Mr. Kelly. 	The victims claimed that a white male who appeared to be
intoxicated screamed at them, told them that he had guns, and told them where they
were allowed to walk. 	While exiting the property, they heard gunshots and noticed that
the man had a rifle. 	According to the officer reporting to the affiant, the victims later
identified Kelly as the person who had “shot at them.” 	The Appellate Division, for
reasons to be discussed further below, determined that the Affidavit did not provide the
basis for concluding that Kelly had used or threatened to use force when he committed
the crime of recklessly endangering another person. The court found the record before
the Commissioner could not justify disqualification from teaching under the New Jersey
prohibition for this conviction. 	Additionally, the court noted that the Commissioner had
not considered the judge’s decision that Kelly’s conviction for possessing instruments of
crime was not substantially equivalent to one of the enumerated offenses in N.J.S.A.
18A:6-7.1.

OAL DKT. NO. EDU 12761-15
4
The 	Commissioner, 	determining 	that 	additional 	fact-finding 	was 	required,
transferred the case back to the Office of Administrative Law. Following that transfer, in
early September 2018, both the CHRU and the Lawrence Board of Education moved for
summary decision, as permitted by N.J.A.C. 1:1-12.5. 	On September 21, 2018, due to
Judge Kerins’ voluminous calendar, the case was transferred to this administrative law
judge, retired on recall. 	Mr. Kelly responded to the motions on October 10, 2018.
Replies were then submitted by the Board and the CHRU and the motion record closed
on October 26, 2018.
The Scope of the Remand
In its decision, the Appellate Division, citing N.J.A.C. 1:1-15.5(b), determined that
while 	hearsay 	evidence 	is 	generally 	admissible 	in 	administrative 	proceedings,
nevertheless, “‘some legally competent evidence must exist to support each ultimate
finding of fact to an extent sufficient to provide assurances of reliability and to avoid the
fact or appearance of arbitrariness.’ 	The court found that the contents of the affidavit
were not supported by legally competent evidence in the proceeding before the ALJ.”
Kelly, No. A-0679-14T4, https://njlaw.rutgers.edu/collections/courts/ (citations omitted).
More importantly in the court’s view, neither the ALJ nor the Commissioner considered
the evidence that was actually presented to the jury in the four-day trial that Mr. Kelly
underwent in Pennsylvania in January 2012. 	That evidence, which may or may not
have included the “alleged facts in the affidavit”, was not part of the record.
Consequently, 	based 	on 	this 	record, 	Kelly 	cannot 	be
disqualified 	from 	teaching 	under 	N.J.S.A. 	18A:6-7.1(c)(1)
because of this particular conviction.
As the commissioner did not consider the ALJ’s decision that
Kelly’s conviction for possessing instruments of crime was
not 	substantially 	equivalent 	to 	one 	of 	the 	enumerated
offenses in N.J.S.A. 18A:6.7.1, we remand this matter to the
commissioner for consideration of this remaining issue.
Mr. Kelly understands the Appellate Division to have only remanded to the
Commissioner the issue of his possible disqualification based upon the conviction for

OAL DKT. NO. EDU 12761-15
5
possessing instruments of crime, described in the court’s opinion as the “remaining
issue.” 	However, while surely it was the manifest intention of the court that the remand
address that issue, it is also quite reasonable to understand the decision as not
precluding the Commissioner’s consideration of a more complete record regarding the
issue of possible disqualification due to the conviction for recklessly endangering
another. 	The court identified the flaw in the Commissioner’s analysis as regards that
question to have been that the Commissioner did not “ascertain if the jury had found
Kelly used or threatened to use force”, a question for which the court said the Affidavit,
with 	its 	double 	hearsay 	and 	factual 	inconsistencies, 	did 	not 	“provide 	a 	basis 	to
conclude” whether “Kelly used or threatened to use . . . when he committed the crime of
recklessly endangering another.” 	However, the present record on remand, upon which
these 	motions 	are 	to 	be 	decided, 	includes 	the 	transcript 	of 	the 	Pennsylvania
proceedings, including the charge to the jury by Honorable Diane E. Gibbons, Judge of
the Court of Common Pleas, Seventh Judicial District, Bucks County, who presided at
the trial and sentenced Kelly after the jury returned its verdict on January 27, 2012, as
well as the Bucks County Criminal Court Sheets and Bill of Information, part of the
Bucks County Criminal Case File for Commonwealth of Pennsylvania v. David Kelly,
Case No.: CP-09CR-0006418-2011. 	Thus, the information that the court determined to
be missing from the record when the ALJ and Commissioner first considered the case is
now before me. 	As for the reference to the “remaining issue,” that may be understood
to address the fact that while the ALJ had ruled on the disqualification for the conviction
of possessing instruments of crime, the Commissioner had not, and thus, the question
of a disqualification on that ground still awaited a final decision by the Commissioner,
one that, once issued, if unfavorable to Kelly, might then be the subject of a further
appeal from that final agency action. 	Considering that the court’s criticism on the first
issue, the only one the Commissioner ruled on, was aimed at the lack of a sufficient
record to properly decide the question, and given the important public interest involved
in regard to the authorization of the certificated individual to teach in the public schools,
I CONCLUDE that the Appellate decision did not intend to foreclose consideration of a
more complete record as to both potential grounds for disqualification.
Summary Decision

OAL DKT. NO. EDU 12761-15
6
Summary decision motions are permitted by N.J.A.C. 1:1-12.5. The standard for
determining such motions was established by the New Jersey Supreme Court, first in
Judson v. People's Bank and Trust Co. of Westfield, 17 N.J 67, 74-75 (1954), and later
refined in Brill v. The Guardian Life Insurance Company of America, et al., 142 N.J. 520
(1995). 	Under the Brill standard, a motion for summary decision may only be granted
where there are no “genuine disputes” of “material fact.” Here, the record of the criminal
trial in Pennsylvania, including the testimony, jury charge and verdict, establish the
factual grounds for the contention that, as a result of the convictions, Mr. Kelly is
statutorily disqualified. 	The jury’s verdict in a trial held before a competent court of a
sister state must of course be accepted. 	I CONCLUDE that determination of the legal
arguments surrounding the issue of substantial equivalency between New Jersey and
Pennsylvania criminal statutes does not require any additional fact finding, except as to
the determinations which the jury reached and the directions that were provided to them
as the law that they had to apply in determining the issues before them. 	These facts
are spelled out in the trial record and are not in dispute, except as to their legal
consequences. Summary decision is the appropriate means for resolving this case
Are the Convictions for Crimes “substantially equivalent” to New Jersey Crimes?
N.J.S.A. 18A:6-7.1 provides
An individual, except as provided in subsection g. of this
section, shall be permanently disqualified from employment
or service under this act if the individual’s criminal history
record check reveals a record of conviction for any crime of
the first or second degree; or . . .
c.
(1) 	A crime involving the use of force or the threat
of force to or upon a person or property including, but
not limited to, robbery, aggravated assault, stalking,
kidnapping, arson, manslaughter and murder; or
(2) 	A crime as set forth in chapter 39 of Title 2C of
the New Jersey Statutes, a third degree crime as set
forth in chapter 20 of Title 2C of the New Jersey
Statutes, or a crime as listed below:
. . . .

OAL DKT. NO. EDU 12761-15
7
Recklessly endangering another person N.J.S. 2C:12-
2
d. 	For the purposes of this section, a conviction exists if
the individual has at any time been convicted under the laws
of this State or under any similar statutes of the United
States or any other state for a substantially equivalent crime
or other offense.
As the convictions at issue here occurred in Pennsylvania, any disqualification
that Mr. Kelly may suffer must result from a determination that one or both of the crimes
of which he was convicted of is “substantially equivalent” to those referred to in N.J.S.A.
18A:6-7.1. 	Mr. Kelly was convicted on two counts of simple assault, 18 Pa. Con. Stat.
§2701(a)(3); one count of possessing an instrument of crime, 18 Pa. Con. Stat. §907(a);
two counts of recklessly endangering another person, 18 Pa. Con. Stat. §2705; and one
count of disorderly conduct, 18 Pa. Con. Stat. §5503(a)(4). 	As has been noted, the
convictions upon which the CHRU determined Mr. Kelly’s disqualification were for
reckless endangering another person and possessing an instrument of crime. 	The
convictions for simple assault and disorderly conduct were not deemed disqualifying.
18 Pa. Con Stat. §907(a) provides, “A person commits a misdemeanor of the first
degree if he possesses any instrument of crime with intent to employ it criminally.” And
18 Pa. Con. Stat. §2705, reads, “A person commits a misdemeanor of the second
degree if he recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.”
During his trial in Pennsylvania, Mr. Kelly was confronted with evidence from the
two teenagers that he had yelled and cursed at them for being on his property and
screamed that he had “guns.” Shortly after this, one of the boys saw him with a gun and
a shot was fired. Kelly later admitted to a police officer that he did possess a .22 rifle
and that he had fired it after being advised that two individuals, referred by Kelly as
teenagers, were on his property. 	Kelly told the officer that the teenagers said that they
were going to fish (they testified that they had fishing poles with them) and he had
directed them to a path that was apparently not on his property. However, they crossed

OAL DKT. NO. EDU 12761-15
8
back on to his property and, at that time, he fired the rifle, hitting a saw horse that was
about fifteen to twenty feet from the house.3
Judge Gibbons instructed the jury on the elements of simple assault under
Pennsylvania law. While the CHRU did not identify conviction for assault as grounds for
disqualification, nevertheless, as will be seen, the jury’s verdict on this charge provides
some context for 	understanding the 	import 	of 	other 	charges of 	which 	Kelly was
convicted. Judge Gibbons stated,
Simple 	assault. 	It’s 	actually 	called 	simple 	assault 	by
physical menace. 	A defendant is guilty of simple assault by
physical menace when he attempts, tries, to put another in
fear of imminent serious bodily injury by engaging in conduct
that is physically menacing or frightening . . . The defendant
attempts, meaning he has the specific intent, and takes a
substantial step towards putting another person in fear of
imminent serious bodily injury . . . The defendant is guilty of
simple assault would have to attempt, which means he has a
specific 	intent 	to 	put 	another 	person 	in 	fear, 	takes 	a
substantial step towards causing that or trying to cause that
fear, and the fear he is attempting to cause Is put them in
fear of imminent serious bodily injury. Serious bodily injury is
defined as an injury which would create a substantial risk of
death or an injury which could cause serious permanent
disfigurement, or an injury which would cause a protracted
loss of a bodily member or organ. And the Commonwealth's
evidence—what the Commonwealth argued to you was that
the defendant created a risk—wanted to put them in fear of
serious bodily injury, meaning that they would be shot. That's
what 	their argument was. 	. 	. 	. You 	could find 	that the
defendant 	attempted 	to 	put 	another 	person 	in 	fear 	of
imminent 	serious 	bodily 	injury 	by 	engaging 	in 	conduct,
specifically he shot—he intentionally shot the weapon in the
direction of the two teenagers. If you find that the defendant
did not engage in that conduct, there could be a second
mechanism or means by which you could find him guilty of
simple 	assault; And that 	would 	be 	that 	he 	handled the
weapon, displayed the weapons, brandished the weapon in
such a fashion, specifically showing teenagers the weapon
in such a manner that was the physically-menacing behavior
that he utilized in order to frighten the teenagers. So it could
3 According to the police witness, he first denied having fired the rifle, but then admitted to having done so
after the officer explained to him that Kelly’s wife had said that she heard the weapon fired. According to
the witness, she heard a loud bang.

OAL DKT. NO. EDU 12761-15
9
be either one or both. You may find that he did both, or you
may find that he did neither.
[Tr., January 27, 2012, at 575:5 to 577:15.]
On the charge of simple assault, the jury found the defendant guilty. 	However, the jury
did not “find that the defendant intentionally discharged his rifle in the direction of the
victims.” Id. at 586:3-9. Judge Gibbons had specifically tailored the jury sheet to obtain
the jury’s position on this issue, as she felt that if there was conviction for any of the
charges, the answer would be a factor in determining the sentence.
Possessing Instruments of Crime
The CHRU argues that Mr. Kelly’s conviction for possessing instruments of
crime, 18 Pa. Con. Stat. §907(a) is similar to N.J.S.A. 2C:39-4, which reads
a. 	Firearms.
(1) Any person who has in his possession any firearm with a
purpose to use it unlawfully against the person or property of
another is guilty of a crime of the second degree.
In State v. Banko, 182 N.J. 44, 56–57 (2004), Justice LaVecchia speaking for the Court,
defined the “four elements to this offense”
(1) 	the 	object 	possessed 	was 	a 	firearm; 	(2) 	defendant
possessed it; (3) the purpose of the possession was to use
the 	firearm 	against 	another's 	property 	or 	person; 	and
(4) defendant 	intended 	to 	use 	it 	in 	a 	manner 	that 	was
unlawful.
In State v. Williams, 168 N.J. 323 (2001), the Court explained that the fourth
element “is pivotal.” It requires a finding that a defendant armed himself “with the actual
purpose of using the weapon in a criminal manner . . . The focus is on the subjective
attitude of the accused. The State must prove that the accused intended to use the
weapon unlawfully.”

OAL DKT. NO. EDU 12761-15
10
Judge Gibbons charged the Pennsylvania jury regarding the elements of the
crime of possessing an instrument of crime, 18 Pa. Con Stat. §907(a).
In order to find the defendant guilty of that crime, you must
find that the defendant possessed an instrument of crime
with the intent, purpose, to employ it criminally. 	And in this
case to employ it criminally means to commit the crimes of
simple assault, terroristic threats, disorderly conduct. 	So in
order 	to 	find 	the 	defendant 	guilty 	of 	possessing 	an
instrument 	of 	crime, 	you 	must 	find 	they 	possessed 	the
weapon with the intent to employ it criminally, meaning he
intended to commit one of the crimes that commonwealth
has 	argued: 	Terroristic 	threats, 	and 	simple 	assault, 	or
disorderly 	conduct. 	In 	this 	case 	the 	possession—The
Commonwealth has argued that he was actually in physical
possession 	of 	the 	weapon. 	An 	instrument 	of 	crime 	is
anything made—specifically made for criminal use or any
ordinary item that is used for criminal purposes that—so it's
being used for a crime, and it’s not being used for something
that would normally, manifestly be appropriate in terms of its
lawful uses. 	In this particular case the Commonwealth has
argued that the criminal instrument was a gun.
[Emphasis added.]
Noting that the defendant had claimed justification, the judge advised the jury
that
If you find the defendant shot at the two victims, intentionally
discharging his rifle in the direction of the victims there can
be no defensive justification. The law does not allow the use
of deadly force to prevent an individual from a mere trespass
or—onto land. 	So if you find that the defendant intentionally
discharged his rifle in the direction of the victims, that is the
use of deadly force; and there—and deadly force cannot be
used in order to prevent or terminate a mere trespass onto
land.
[Id. at 547:3-548:20.]
As noted, the jury did not find that Kelly had intentionally discharged the weapon in the
direction of the victims. 	That said, the jury found that Kelly was guilty of “possessing
instruments of crime.” 	Id. at 586:17-19. 	They thus found that he did possess a gun, in
this case a .22 rifle, that is, an instrument of crime, that is, at minimum an “ordinary item
that is used for criminal purposes.” 	However, as the Pennsylvania Supreme Court

OAL DKT. NO. EDU 12761-15
11
explained, in Commonwealth v. Hardick, 380 A.2d 1235 (1977), a case in which Hardick
was found in a commercial district at night, in possession in his automobile of a suction
device, known as a tin-plate, known especially as a tool used for safe cracking, as well
as other items useful for such purpose, mere possession of such instruments is not
enough to sustain a conviction.
Section 907 of the Crimes Code provides in relevant part:
(a) Criminal instruments generally. -- A person commits a
misdemeanor 	of 	the 	first 	degree 	if 	he 	possesses 	any
instrument of crime with intent to employ it criminally.
(c) Definitions. -- As used in this section the following words
and phrases shall have the meanings given to them in this
subsection:
“Instrument of crime.”
(1) 	Anything 	specially 	made 	or 	specially 	adapted 	for
criminal use; or
(2) 	anything commonly used for criminal purposes and
possessed by the actor under circumstances not manifestly
appropriate for lawful uses it may have.
It is clear from this statutory language that two requirements
must be met before one can be convicted under this section:
(1) possession of criminal instruments by the defendant; and
(2) an intent to use the tools for some criminal purpose. The
Crimes Code provision is simply a recodification in general
terms of 	the former 	crime 	of 	possessing burglary tools,
defined in some detail by the Penal Code of 1939 	Thus as
appellant correctly asserts, intent to use the instruments in a
criminal manner is an independent element of the offense
which the Commonwealth must prove. 	As in any criminal
offense, however, intent need not be directly proved, but
may be inferred from the circumstances surrounding the
incident out of which the charges arise. 	See e.g., . . .
Commonwealth v. Dionisio, 178 Pa.Super. 330, 116 A.2d
109 	(1955). 	In 	Commonwealth 	v. 	Dionisio, 	supra, 	the
Superior Court stated:
The third element, possession with the intent to use the tools
for any of the felonious purposes set forth in the act, cannot
be inferred from the mere possession of the tools. 	The
Legislature, in enacting section 904 of the Act of June 24,

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12
1939, P.L. 872, 18 P.S. § 4904, omitted that part of the Act
of March 14, 1905, P.L. 38, § 1, which provided that the jury
could infer such intent from the mere possession of the tools.
Such omission by the Legislature is significant and must be
construed to indicate that proof of intent requires more than
possession. 	Statutory Construction Act of May 28, 1937,
P.L. 1019, Art. IV, § 51, 46 P.S. § 551. 	However, proof of a
general intent is sufficient. 	It is not necessary to allege or
prove an intent to use the tools in a particular place, for a
special purpose or in any particular manner. 	Such general
intent need not be proved by direct evidence, but may be
indicated by the circumstances surrounding the possession.
[Commonwealth v. Hardick, 380 A.2d at (citations omitted)].4
In Kelly’s case, in determining to convict Kelly on this charge, the jury not only
determined that he possessed the instrument of crime, but also that he did so with the
“intent, purpose, to employ it criminally.” 	According to the instructions provided by the
Judge, using the weapon criminally meant “to commit one of the crimes that the
Commonwealth 	has 	argued: 	‘terroristic 	threats, 	and 	simple 	assault, 	or 	disorderly
conduct.’” 	And the jury did convict Kelly of simple assault and of disorderly conduct.
Thus, as the jury necessarily found, Mr. Kelly possessed a firearm and intended,
purposely, to employ it in a manner that involved the commission of a crime under
Pennsylvania law. And, while the conviction for simple assault is not itself disqualifying,
it can hardly be argued that a simple assault is an action that is not directed “against the
person.” 	Thus, while, as Kelly emphasizes in his arguments, conviction under the New
Jersey offense requires, as Williams explained, not only possession but that the
possession be for an unlawful purpose, the act of which Kelly was convicted under
Pennsylvania law was, in the language of the New Jersey statute, possession “of any
firearm with a purpose to use it unlawfully against the person . . . of another.” Although
the jury found that Kelly had not discharged the weapon “in the direction” of the victims,
this finding does not lessen the fact that the weapon was possessed and that it was
possessed 	for 	an 	“unlawful 	purpose” 	or, 	as 	the 	Pennsylvania 	statute 	terms 	it,
“unlawfully,” that is, to commit crimes, and that it was, as an essential element of the
4 Hardick was convicted based upon the totality of circumstances surrounding the possession, for as the
Court observed, the tools were all of the type used for breaking safes, they were in a car rather than a
home or a shop, the area was commercial, the time of evening was when the businesses were for the
most part closed, and the particular nature of one of the tools, that the specialized nature of the tin-plate
that was well-known as an uniquely designed tool for such illegal activity.

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13
Pennsylvania as well as the New Jersey offense, used with intent and purpose and that
it was so used, “against the person of another,” for as Judge Gibbons explained to the
jury, even if they found that he did not discharge it in the direction of the teenagers,
there could be a second mechanism or means by which you
could find him guilty of simple assault; and that would be that
he handled the weapon, displayed the weapons, brandished
the 	weapon 	in 	such 	a 	fashion, 	specifically 	showing
teenagers 	the 	weapon 	in 	such 	a 	manner 	that 	was 	the
physically-menacing behavior that he utilized in order to
frighten the teenagers.
Counsel for Mr. Kelly argues that Hardick requires only a “general intent” for
conviction of §907. 	In contrast, he claims that the New Jersey statute requires
“purpose.” 	This 	alleged 	distinction 	does 	not 	shelter 	Mr. 	Kelly. 	In 	Hardick, 	the
Pennsylvania Supreme Court explained that if the defendant was alleged to have
possessed the tools “with the intent to use the tools for any of the felonious purposes
set forth in the act,” that intent could not be inferred merely by possession alone.
Hardick, at 475 Pa. 479. 	The proof of such intent did not have to be specific as to the
place, time, exact purpose or manner of that intended use. But the “circumstances
surrounding the possession” could themselves provide the evidence that the possession
was accompanied by the intent for felonious use. In Kelly’s case, the verbal statements
made by Kelly, the presence of the boys on his property without permission, his order
for them to get off of the property and his eventual firing of the weapon, albeit not
directly at the teenagers, demonstrated the felonious use for which the jury found Kelly
possessed the gun. 	There can be no valid claim that the jury verdict did not determine
that Kelly’s possession was, in the words of the New Jersey statute, “with a purpose to
use it unlawfully.”
I 	CONCLUDE 	that 	Mr. 	Kelly 	was 	convicted 	of 	a 	crime 	in 	Pennsylvania,
possessing instruments of crime, in violation of 18 Pa. Con Stat. §907(a), which is a
crime “substantially equivalent” to N.J.S.A. 2C:39-4(a)(a). 	As a result, by the terms of
N.J.S.A. 18A:6-7.1(d), he is disqualified from employment or service as a teacher in
New Jersey.

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14
Recklessly Endangering Another Person
Mr. Kelly’s disqualification from employment is established by his conviction for
possessing an instrument of crime. 	Thus, this decision could end at this point.
However, N.J.S.A. 18A:6-7.1(c)2 also specifically requires disqualification if one has
been convicted of a violation of N.J.S.A. 2C:12-2. 	The original decisions by Judge
Kerins and the Commissioner addressed this possible basis for disqualification as well.
As the Appellate decision noted that that decision was made without the benefit of the
trial record, examination of that record, now available, allows a determination as to
whether the conduct for which Kelly was convicted of “recklessly endangering another
person” matches “substantially” with the conduct addressed in N.J.S.A. 2C:12-2. While
that statutory provision was repealed effective January 1, 2016, L.2015, c. 186, it was
effective at the time of Mr. Kelly’s conviction and thus if he was convicted in 2012 of a
Pennsylvania crime “substantially equivalent” to the then existing New Jersey offense
disqualification would be required. 	At the time, N.J.S.A. 2C:12-2 addressed acts
performed “knowingly or purposely” that resulted in loss or destruction of a vessel; or
the manufacture of golf balls containing acid or a corrosive fluid substance, or other
actions that, I FIND, are positively not of the sort that the evidence demonstrated to the
jury Mr. Kelly performed. 	I CONCLUDE that the Pennsylvania crime of “recklessly
endangering another person” is not “substantially equivalent” to the then effective
N.J.S.A. 2C:12-2. 	However, there is another portion of N.J.S.A. 18A:6-7.1 that the
conduct of which Kelly was convicted of “recklessly endangering another person” might
match.
Judge Gibbons charged the jury on the elements of “recklessly endangering
another person.”
Recklessly endangering another person is committed when
you recklessly engage in conduct that places or may place
another person in danger of death or serious bodily injury.
Again, recklessly endangering another person is you engage
in—you recklessly engage in conduct that places—actually
places somebody in danger of death or serious bodily injury,
or that may place somebody in danger of death or serious

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15
bodily injury . . . Reckless conduct, what it means to act
recklessly is that you consciously disregard a substantial and
unjustifiable risk that you could cause that injury. Doesn't
have to be caused; but there’s a risk that somebody could be
seriously 	injured 	as 	a 	result 	of 	your 	conduct; 	and 	you
consciously disregard 	that risk, 	and 	you engage 	in 	that
conduct anyway. That's what recklessness means. 	And the
recklessness 	can't 	be 	merely 	negligence. 	It's 	got 	to 	be
something that shows you that the person that—It was a
gross deviation from the conduct a reasonable person would
engaging under the circumstances.
[Id. at 577:16 to 578:15.]
The jury found that Kelly had recklessly endangered another person. 	Id. at 586:10–13.
Thus, the jury necessarily found that Mr. Kelly’s conduct, involving, as the evidence
offered at trial demonstrated, the discharge of his weapon out towards the portion of his
property away from his house and at least generally towards where the teenagers were
or had been, as opposed to firing more directly in the actual direction of the teenagers at
the moment he shot, did “consciously disregard a substantial and unjustifiable risk that
[he] could cause,” “death or serious bodily injury.” 	While such conduct clearly does not
match up with the language of N.J.S.A. 2C:12-2, nevertheless, the conduct does fit
within the description of conduct in N.J.S.A. 18A:6-7.1 “(1) A crime involving the use of
force or the threat of force to or upon a person or property including, but not limited to,
robbery, aggravated assault.” 	The conduct, as established by testimony at the trial,
involved the threat of force towards the teenagers, a threat that, in a context involving
the teenagers apparently encroaching upon Mr. Kelly’s property, was first at least
implied by the shouted reference to having guns, but more directly in regard to this
provision, was then backed up by the discharge of a rifle, a discharge that was not
merely up into the air or into the ground, but directed out away from the house and
which sent a .22 bullet at least 15–20 feet away from the spot where Kelly stood. 	At
that point the implied threat, not in and of itself a crime, turned into one. 	While the
conduct did not involve such dire matters as robbery or an assault of such severity as to
rise to the level of aggravated assault, nevertheless, the discharge of the weapon after
the threat was voiced so vigorously, a discharge involving an action that involved “a
gross 	deviation 	from 	the 	conduct 	a 	reasonable 	person 	would 	engage 	under 	the
circumstances,” does bring his conduct within the scope of this provision. As for the fact

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that the jury acquitted Kelly of Terroristic Threats with Intent to Terrorize Another, 18 Pa.
Con. 	St. 	§2706, 	which 	Kelly 	notes 	in 	quoting 	Judge 	Gibbons’ 	comments 	about
continuing bail after the verdict, clearly the judge did not think immediate incarceration
was necessary given that Kelly had not shot “at the two children.” She certainly felt that
had the jury found that he had shot directly at them, that bail would not have been
appropriate following conviction. 	However, that she did not deem it necessary to place
him in jail immediately does not detract from the fact that he was convicted of crimes
that were, as analyzed above “substantially similar” to New Jersey crimes.
I CONCLUDE that Mr. Kelly is also disqualified by N.J.S.A. 18A:6-7(1) due to his
conviction for recklessly endangering another person.5
ORDER
Based upon the above analysis, summary decision is GRANTED to the moving
parties. As Mr. Kelly is disqualified, it is hereby ORDERED that his appeal from
disqualification is DISMISSED.
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.
5 Counsel for Kelly contends that “a show of force is not concomitant with a threat of force,” and refers to
naval exercises in the South China Sea that do not “mean that the Navy is actually threatening to attack
China.” Without attempting to analyze either the military or diplomatic aspects of such exercises, suffice it
to say that such an attempted analogy with the circumstances herein, involving the presence of the
teenagers on or just off of Kelly’s property, his shouting and announcement that he had “guns”, his orders
and commands and his eventual discharge of the .22 is completely unpersuasive. 	The fact that the
weapon was not fired directly at the teenagers did not negate his guilt of the Pennsylvania crime and it
does not demonstrate any grounds for determining that the Pennsylvania statute under which he was
convicted and the New Jersey statute are not “substantially equivalent.”

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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 16, 2018
DATE 	JEFF S. MASIN, ALJ (Ret., on recall)
Date Received at Agency:
Date Mailed to Parties:
mph

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18
EXHIBITS:
For petitioner David Kelly:
None
For respondent N.J. Department of Education, CHRU:
CHRU-1 	Certification of Joan M. Scatton, Deputy Attorney General, dated
September 7, 2018 with attachments as follows:
Exhibit A 	Letter dated July 13, 2016, from Jennifer Kilough Herrera, Acting
Director, Bureau of Controversies and Disputes
Exhibit B 	Letter dated August 19, 2016, from Jennifer Kilough Herrera
Exhibit C 	Letter dated November 15, 2016, from Kelly Pierce, Deputy
Clerk of Courts-Criminal, Court of Common Pleas of Bucks
County, with attached Bucks County Criminal Court Sheet
(4 pages); Information Commonwealth of Pennsylvania v. David M.
Kelly, Docket No: CP-09-CR-0006418-2011.
Exhibit D 	Transcripts of proceedings in the case of Commonwealth v. David
Kelly, January 24, 25, 26 and 27, 2012, Court of Common Pleas of
the Seventh Judicial District, Bucks County, Pennsylvania.
For respondent Board of Education of Lawrence Township:
BOE-1 	Certification of Casey P. Acker, Esq., dated September 10, 2018,
with attachments as follows:
Exhibit A 	Letter from Jennifer Kilough Herrera, dated August 19, 2016
Exhibit B 	Appellate decision in David v. Kelly v. New Jersey
Department of Education, Criminal History Review Unit and
Board of Education of the Township of Lawrence, Mercer

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19
County, June 29, 2016
Exhibit C 	Transcript of trial proceedings in Commonwealth v. David
Kelly, January 27, 2012, pages 514, 547, 586, 593
Exhibit D 	Letter from Rebecca Gold, Director of Personnel, to David
Kelly, dated February 9, 2012 and Letter from Carl H. Carabelli,
Manager,CHRU to Dr. Crystal Lovell, Lawrence Township Board of
Education