In the Matter of the Certificates of Rita O’Malley, State Board of Examiners, New Jersey Department of Education, 8/12/21, (#162-21)

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State Board of Examiners Dkt No. 1516-178
OAL Dkt. No. EDE 10769-16
Agency Dkt. No. 3-2/21A
New Jersey Commissioner of Education
Final Decision
In the Matter of the Certificates of
Rita O’Malley, State Board of Examiners,
New Jersey Department of Education.
Order of Revocation by the State Board of Examiners, December 10, 2020
For the Respondent-Appellant, Victoria A. Lucido, Esq.
For the Petitioner-Respondent, State Board of Examiners, Amna Toor,
Deputy Attorney General (Andrew J. Bruck, Acting Attorney General of New Jersey)
The Commissioner has reviewed the record and the papers filed in connection
with appellant Rita O’Malley’s appeal of the Order of the State Board of Examiners (Board),
dated December 10, 2020, revoking her Teacher of Social Studies, Teacher of the Handicapped,
and Learning Disabilities Teacher-Consultant (LDTC) certificates. Following the issuance of an
Order to Show Cause by the Board and a hearing at the Office of Administrative Law (OAL), the
Administrative Law Judge (ALJ) found that appellant’s conduct was neglectful and evidenced
incompetence, and imposed a three-year suspension, with a requirement that appellant complete
an educational program on testing procedures and educational evaluations to be approved by the
Board.1 The ALJ reasoned that revocation was not the appropriate penalty because appellant had
1 In its exceptions to the Initial Decision, the Board argued that it does not have the authority to require this type of
remedial program. This issue was not addressed in the Order of Revocation, presumably because the Board altered
the penalty from a suspension to revocation, making the issue moot. As the Commissioner herein affirms the Order
of Revocation, the question of a remedial program remains moot. Nonetheless, the Commissioner notes that
N.J.A.C. 6A:8B-4.5 does not include a provision whereby the Board may order the completion of a remedial
program as a requirement for reinstatement following a suspension.
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already been sanctioned for her conduct through the loss of her tenure and her former teaching
position, and her previous record was clear. Thereafter, the Board adopted the Initial Decision
but modified the penalty to revocation of appellant’s certificates.
On appeal, appellant argues that the Board acted in an arbitrary, capricious, and
unreasonable manner when it modified the three-year suspension recommended by the ALJ to a
penalty of revocation. According to appellant, the Board improperly relied on evidence
regarding allegedly fraudulent mileage reimbursement vouchers that the ALJ determined to be
unsubstantiated.2 Appellant also contends that the cases relied on by the Board to support the
penalty of revocation all involved willful conduct, which are distinguishable because the ALJ
found that appellant’s conduct was neglectful and evidenced incompetence, not that appellant’s
faults constituted conduct unbecoming a teacher. Appellant urges the Commissioner to adopt the
Initial Decision and the ALJ’s recommendation of a three-year suspension, based on the fact that
appellant’s record prior to this matter was clear and she has already been sanctioned through the
loss of her tenure.
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). With regard to reviewing a
sanction imposed by the Board, the Appellate Division has defined the standard as determining
whether the “punishment is so disproportionate to the offense, in light of all the circumstances,
2 Appellant requests that, if the mileage submissions continue to be used by the Board to support a harsher penalty
than that imposed by the ALJ, appellant be permitted to introduce evidence from a handwriting expert to rebut that
evidence. As detailed herein, the Board did not rely on evidence of alleged fraud to support its decision, and the
Commissioner accepts the ALJ’s finding that appellant did not submit fraudulent mileage reimbursements.
Therefore, the Commissioner finds it unnecessary to reopen the record to receive additional evidence on this topic.

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as to be shocking to one’s sense of fairness.” In re Certificates of Benjamin Norton, 2016 N.J.
Super. Unpub. LEXIS 2291, *6-7 (internal citations and quotations omitted).
The Commissioner first notes that the Board’s decision does not modify any
findings of fact or legal conclusions of the Initial Decision. Additionally, appellant does not
contest those findings or conclusions on appeal, and, in fact, urges the Commissioner to adopt
the Initial Decision. Accordingly, the Commissioner accepts the findings and conclusions
reached by the ALJ in the Initial Decision. Specifically, the Commissioner finds that appellant
failed to administer tests, incorrectly scored tests, and incorrectly reported test results, as
thoroughly detailed in the Initial Decision. Appellant’s failures involved eleven students, a
number of whom experienced more than one issue. Additionally, the Commissioner accepts the
ALJ’s finding that appellant’s supervisor was credible regarding the tests that should have been
administered, and that appellant was less credible regarding this topic. The Commissioner
further finds that the record as a whole does not show that appellant submitted false mileage
reimbursement requests, that appellant was credible that she did not hold herself out as having a
doctorate, that the evidence did not prove a pattern of tardiness to warrant a negative finding, and
that appellant’s request to use vacation time instead of personal days was inadvertent. Finally,
the Commissioner concludes that appellant’s conduct was neglectful and evidenced
incompetence.
The question of the appropriate penalty is the only area in which the Board
differed from the ALJ, and the only one that appellant seeks to overturn on appeal. While
appellant argues that the Board improperly relied on evidence of allegedly fraudulent mileage
reimbursements that the ALJ found to be unsubstantiated, the Commissioner’s review of the
Board’s decision demonstrates that it was not based on any evidence of fraud. Appellant seems

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to be confusing arguments made by the Deputy Attorney General during the proceedings at the
OAL and in exceptions to the Initial Decision – which are summarized in the Order of
Revocation, along with arguments made by appellant – with the basis for the Board’s decision.
Contrary to appellant’s arguments, the Board did not rely on evidence of fraud in assessing the
penalty. In fact, the Board specifically noted that the Board found appellant’s conduct was
“egregious and careless, if not intentionally fraudulent.” This statement, combined with the
Board’s acceptance of the ALJ’s findings of fact and legal conclusion, and the Board’s multiple
references throughout the section of the decision analyzing the appropriate penalty for
appellant’s “errors” and “failures” – rather than fraud – clearly demonstrate that the Board did
not find appellant’s conduct to be fraudulent or base its decision on alleged fraud. Therefore, the
Commissioner finds appellant’s argument unavailing.
Appellant also argues that revocation is not warranted because her conduct was
not willful. However, the Commissioner concurs with the Board that, even if not willful,
appellant’s errors were so significant and pervasive, demonstrating a pattern of conduct that the
Board found to be egregious and careless, that revocation of her certifications is appropriate.
The ALJ noted that appellant’s “conduct was not an isolated incident but rather a pattern of
significant errors in the performance of her duties as an LDTC.” As the ALJ noted, the testing
and evaluation done by an LDTC are critical to determining whether a student receives special
education services, as well as the nature, frequency, duration, and other specifics related to the
delivery of those services. It was not arbitrary, capricious, or unreasonable for the Board to
conclude that appellant’s repeated failures to live up to these critical responsibilities warranted
revocation of her certificates, nor does the Commissioner find that this penalty shocks one’s
sense of fairness.

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Finally, appellant argues that her loss of tenure and previous good record should
mitigate her penalty. The Commissioner notes that N.J.A.C. 6A:9B-4.5(a) specifically
contemplates that, following a teacher’s loss of tenure or employment, the Board may initiate
proceedings to suspend or revoke the teacher’s certificates. Accordingly, the possible
consequences of incompetence or unbecoming conduct may be both loss of tenure/employment
and revocation of certificates, and the former does not mitigate the latter. Furthermore, while the
Commissioner acknowledges appellant’s prior good record, that alone does not suffice to
mitigate a pattern of conduct that involved multiple errors, omissions, and failures relating to
eleven different students.
Accordingly, the decision of the State Board of Examiners is affirmed. Appellant’s
Teacher of Social Studies, Teacher of the Handicapped, and Learning Disabilities Teacher-
Consultant certificates are hereby revoked.3
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
3 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.
August 12, 2021
August 12, 2021