Michael Ettz v. New Jersey Department of Education, Office of Student Protection , 1/14/2020, (#17-20)

New Jersey Commissioner of Education
Final Decision
Michael Ettz,
Petitioner,
v.
New Jersey Department of Education, Office of
Student Protection,
Respondent.
Synopsis
On June 24, 2019, petitioner appealed the determination of the respondent, New Jersey Department of
Education, Office of Student Protection (OSP), that he is permanently disqualified from public school
employment. 	Petitioner was disqualified as the result of a guilty plea in 2017 to a charge of third
degree assault by auto, in violation of N.J.S.A. 2C:12-1(c)(2). Respondent filed a motion to dismiss
the petition.
The ALJ found, inter alia, that: N.J.A.C. 6A:3-1.1 et seq. sets forth the rules of procedure for the filing
of petitions with the Commissioner of Education to hear and decide controversies and disputes arising
under school laws in accordance with N.J.S.A. 18A:6-9; in the instant matter, petitioner pled guilty to
a third-degree assault by auto on September 22, 2017; 	petitioner was notified by letter from the
respondent on March 2, 2018 that based on his guilty plea, he was permanently disqualified from
employment in any educational institution under the supervision of the Department of Education; the
March 2, 2018 letter further notified petitioner of the timeline for challenging the accuracy of his
criminal history record; petitioner’s attorney at the time confirmed receipt of the March 2, 2018 letter
in a writing dated March 15, 2018, and indicated that petitioner challenged his disqualification;
respondent replied to petitioner’s attorney on March 16, 2018 by letter which included instructions on
how to file a formal appeal with the Commissioner of Education pursuant to N.J.A.C. 6A:3; petitioner
failed to file such formal appeal until June 24, 2019. The ALJ concluded that petitioner’s appeal is
time barred under N.J.A.C. 6A:3-1.16; further, petitioner’s related but separate matter regarding an
Order to Show Cause from the State Board of Examiners did not toll the running of the ninety-day
limitations period for the filing of a petition of appeal. Accordingly, the ALJ granted the respondent’s
motion to dismiss.
Upon review, the Commissioner concurred with the findings of the ALJ and adopted the Initial
Decision of the OAL 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.
January 14, 2020
17-20

OAL Dkt. No. EDU 11396-19
Agency Dkt. No. 148-6/19
New Jersey Commissioner of Education
Final Decision
Michael Ettz,
Petitioner,
v.
New Jersey Department of Education, Office of
Student Protection,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
have been reviewed. The parties did not file exceptions to the Initial Decision.
Upon such review, the Commissioner concurs with the Administrative Law Judge’s
determination that the petition of appeal was time-barred under N.J.A.C. 6A:3-1.3(i). 	Additionally,
the petitioner has failed to present any exceptional circumstances that might justify a finding that
strictly adhering to the 90-day rule would result in injustice. Kaprow v. Board of Education of Berkeley
Tp., 131 N.J. 572, 590 (1993); N.J.A.C. 6A:3-1.16. Accordingly, the Initial Decision is adopted as the
final decision in this matter and the petition of appeal is dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	January 14, 2020
Date of Mailing: 	January 14, 2020
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 11396-19
AGENCY DKT. NO. 148-6/19
MICHAEL ETTZ,
Petitioner,
v.
NEW JERSEY DEPARTMENT OF EDUCATION,
OFFICE OF STUDENT PROTECTION,
Respondent.
_______________________________________
Edward W. Cillick, Esq., for petitioner (Cillick & Smith, attorneys)
Jaclyn M. Frey, Deputy Attorney General, for respondent (Gurbir S. Grewal,
Attorney General of New Jersey, attorney)
Record Closed: October 22, 2019 	Decided: December 16, 2019
BEFORE KELLY J. KIRK, ALJ:
STATEMENT OF THE CASE
Petitioner Michael Ettz, a teacher, appeals the determination of respondent, New
Jersey 	Department 	of 	Education, 	Office 	of 	Student 	Protection 	(OSP), 	that 	he 	is
disqualified from public school employment.

OAL DKT. NO. EDU 11396-19
2
PROCEDURAL HISTORY
On June 24, 2019, petitioner filed a Verified Petition with the Commissioner of
Education, with a copy to the OSP2 and the Attorney General of New Jersey. 	On July
12, 2019, respondent requested an extension of time to respond to the Verified Petition.
On August 5, 2019, the respondent filed a Motion to Dismiss with the Bureau of
Controversies and Disputes (Bureau) of the Department of Education (Department).
The Department transmitted the contested case to the Office of Administrative Law
(OAL), where it was filed on August 16, 2019. Review of the file revealed that petitioner
had not filed a response to the respondent’s Motion to Dismiss. 	A telephone 	conference
was held on September 6, 2019, and petitioner was given until October 7, 2019,
to file opposition to the motion to dismiss, and respondent was given until October
21, 2019, to file a reply. 	Petitioner filed opposition on October 8, 2019, and respondent
filed a reply on October 21, 2019.
FACTUAL DISCUSSION AND FINDINGS OF FACT
The documents attached to the transmittal, including the Verified Petition, and
Motion to Dismiss reflect the following:
On September 22, 2017, petitioner pled guilty to third-degree assault by auto in
violation of N.J.S.A. 2C:12-1(c)(2) in Bergen County Superior Court. 	By letter dated
March 2, 2018, the Department’s Criminal History Review Unit (CHRU)3 notified petitioner
that it had received information concerning a conviction or charge pending for a
disqualifying crime or offense documented on his criminal history record, and attached
the record as “Addendum: 	A.” 	The March 2, 2018, letter also stated, in pertinent part,
the following:
Pursuant to state statutes, you are permanently disqualified
or ineligible for employment or service as a school board
member/trustee 	in 	any 	position 	with 	a 	school 	or 	other
educational 	institution 	under 	the 	supervision 	of 	the
2 Formerly known as the Criminal History Review Unit (CHRU).
3 Now known as the Office of Student Protection (OSP).

OAL DKT. NO. EDU 11396-19
3
Department of Education or with a contracted service provider
under contract with said school or educational facility. 	You
have 14 days from the date of this written notice to challenge
the accuracy of your criminal history record. You must submit
documentation from the respective courts to support your
claim of an error in the criminal record. If the crime or offense
can be expunged and the period of time required by statute
has passed, you may re-apply for school employment upon
completion of that process.
. . .
NOTE: 	IF 	YOUR 	CRIMINAL 	HISTORY 	RECORD 	IS
ACCURATE OR YOU DO NOT FILE A CHALLENGE OF
YOUR DISQUALIFICATION OR INELIGIBILITY AND YOU
HOLD 	A 	TEACHING 	CERTIFICATE, 	THE 	OFFICE 	OF
LICENSURE 	& 	ACADEMIC 	CREDENTIALS 	WILL 	BE
NOTIFIED. 	THE 	NOTICE 	OF 	DISQUALIFICATION 	OR
INELIGIBILITY 	WILL 	BE 	REVIEWED 	BY 	THE 	STATE
BOARD 	OF 	EXAMINERS 	AND 	MAY 	RESULT 	IN
PROCEEDINGS AGAINST YOUR CERTIFICATION.
By letter dated March 15, 2018, petitioner’s attorney, Jill Horowitz, Esq, of Cillick
& Smith, confirmed petitioner’s receipt of the March 2, 2018, letter. 	Petitioner was
incarcerated at that time. The March 15, 2018, letter also stated, in pertinent part:
On behalf of Mr. Ettz, we are contesting the accuracy of the
criminal history information set forth in Addendum A to your
letter. 	Specifically, the employment information is incorrect
and the accurate conviction is set forth in the Judgement of
Conviction attached hereto.
Please be advised that we specifically challenge Mr. Ettz’s
disqualification and/or ineligibility.
The attached Judgement of Conviction & Order for Commitment reflected the final
charge as “ASSAULT BY AUTO/VESSEL SBI VIOL 39:4-50 OR 4-50.4A,” statute “2C:12-
1C(2),” third degree, and a sentence of New Jersey State Prison for four years.
By letter dated March 16, 2018, the Department’s CHRU notified petitioner’s
attorney, Jill Horowitz, Esq. of Cillick & Smith, as follows:

OAL DKT. NO. EDU 11396-19
4
I am acknowledging receipt of your correspondence of March
15, 2018 regarding an appeal of Mr. Ettz’s ineligibility for
public school employment. 	To file a formal appeal with the
Commissioner of Education pursuant to N.J.A.C. 6A:3, you
must also copy the Bureau of Controversies and Disputes at
the Department of Education and the Office of the Attorney
General. 	A copy of these rules may be requested from the
Bureau of Controversies and Disputes at (609) 376-9079, or
accessed 	on 	the 	Department 	of 	Education 	website 	at
http://www.state.nj.us./education/code/current/title6a/chap3.
pdf.
By letter dated August 9, 2018, the Department’s Office of Controversies and
Disputes notified petitioner’s attorney, Jill Horowitz, Esq. of Cillick & Smith, as follows:
We are in receipt of your letter dated March 15, 2018 that was
just forwarded to our office from the Department of Education,
Criminal History Review Unit, in which it appears that you
challenge 	Michael 	Ettz’s 	disqualification 	from 	public
employment.
In order to initiate a contested case before the Commissioner,
a petitioner must comply with the rules set forth in N.J.A.C.
6A:3-1.1 et seq. These rules require submission of a petition
in the form as described at N.J.A.C. 6A:3-1.4:
• 	Name, address, telephone number and, if available,
fax number of petitioner and respondent;
• 	The specific allegation(s), and the facts supporting
them, which constitute the basis of the controversy;
• 	A statement of the relief which the petitioner is seeking;
and
• 	Signature 	of 	petitioner, 	or 	his/her 	attorney, 	if
applicable.
Additionally, the petitioner must write or type the statement
contained in N.J.A.C. 6A:3-1.4 attesting to the truthfulness of
the allegations set forth in the Petition of Appeal. 	The
statement must be signed by the petitioner and notarized.
Finally, the petitioner must serve a copy of the petition on each
respondent and must submit to the Office of Controversies
and Disputes, with the Petition of Appeal, proof that each
respondent was served. Please be advised that, in the case
of 	a 	State 	respondent, 	such 	as 	the 	New 	Jersey
Department of Education, Criminal History Review Unit,
N.J.A.C. 6A:3-1.3(j) requires service of the petitioner on

OAL DKT. NO. EDU 11396-19
5
the 	Attorney 	General 	of 	the 	State 	of 	New 	Jersey,
Department of Law and Public Safety, Division of Law,
P.O. 	Box 	112, 	Trenton, 	NJ 	08625-0112, 	Attention:
Education Section. 	That proof may be in any one of the
following forms:
. . .
Papers 	are 	to 	be 	submitted 	to 	the 	following 	address:
Commissioner 	of 	Education, 	c/o 	Director 	of 	Office 	of
Controversies and Disputes, New Jersey State Department of
Education, P.O. Box 500, Trenton, NJ 08625. With the prior
permission of the Office of Controversies and Disputes and
up to a limit of 10 pages, a petition may also be faxed to (609)
292-4333, with the hard copy to follow by mail.
For further information, including sample forms, you may wish
to 	visit 	the 	Department 	of 	Education 	website 	at
www.state.nj.us/education. At the top of the page, click on the
grey letter “C,” and then click on the “Controversies and
Disputes” link. If you have procedural questions after visiting
the site, you may contact the Office of Controversies and
Disputes at (609) 376-9079.
The CHRU was copied on the August 9, 2018, letter.
On June 24, 2019, petitioner’s attorney, Edward W. Cillick, Esq. of Cillick & Smith,
filed the “Verified Petition from Adverse Underlying Action by The Criminal History Review
Unit (CHRU) Of The Department of Education.” Thereafter, the OSP filed the Motion to
Dismiss in lieu of an answer.
LEGAL ANALYSIS AND CONCLUSION
N.J.A.C. 6A:3-1.1 et seq. sets forth the rules of procedure for the filing of petitions
with the Commissioner of Education to hear and decide controversies and disputes
arising under school laws in accordance with N.J.S.A. 18A:6-9. 	N.J.A.C. 6A:3-1.1(a).
N.J.A.C. 6A:3-1.1 et seq. does not apply to appeals of decisions or interlocutory decisions
of 	the State Board of 	Examiners 	suspending or 	revoking teaching certificates or
interlocutory decisions of the State Board of Examiners, which appeals and requests must
be made pursuant to the provisions of N.J.A.C. 6A:4. N.J.A.C. 6A:3-1.1(d).

OAL DKT. NO. EDU 11396-19
6
To initiate a contested case for the Commissioner’s determination of a controversy
or dispute arising under the school laws, a petitioner must prepare a petition of appeal
conforming to the requirements of N.J.A.C. 6A:3-1.4 and serve such petition upon each
respondent, together with any supporting papers the petitioner may include with the
petition. N.J.A.C. 6A:3-1.3(a). The petitioner then must file, in accordance with N.J.A.C.
6A:3-1.3(h), proof of service on each respondent, the telephone numbers (and fax
numbers and e-mail addresses where available) of the petitioner and each respondent,
and the original petition and supporting materials, if any, with the Commissioner c/o the
Director, Office of Controversies and Disputes, New Jersey Department of Education, 100
River View Plaza, P.O. Box 500, Trenton, New Jersey 08625-0500. N.J.A.C. 6A:3-1.3(a).
A respondent must serve an answer upon the petitioner within twenty days after
receipt of the petition, unless a shorter period is required by statute, regulation, or court
order, or directed by the Commissioner due to the emergent nature of a matter. N.J.A.C.
6A:3-1.5(a). However, respondent is not precluded from filing a motion to dismiss in lieu
of an answer to a petition, provided that such motion is filed within the time allotted for the
filing of an answer. N.J.A.C. 6A:3-1.5(g).
The OSP filed a motion to dismiss and argues that the petitioner’s appeal is time-
barred and should be dismissed pursuant to N.J.A.C. 6A:3-1.3(i), which states:
The petitioner shall file a petition no later than the 90th day
from the date of receipt of the notice of a final order, ruling or
other action by the district board of education, individual party,
or agency, which is the subject of the requested contested
case hearing. 	This rule shall not apply in instances where a
specific statute, regulation or court order provides for a period
of limitation shorter than 90 days for the filing of a particular
type of appeal.
In Kaprow v. Board of Education, 131 N.J. 572, 583 (1991), the New Jersey
Supreme Court discussed the ninety-day limitation period, and determined that such
period “represents a reasonable procedural requirement,” provides “finality in education
matters,” and has withstood tangential review. Additionally, the court opined:

OAL DKT. NO. EDU 11396-19
7
Adequate notice must be sufficient to inform an individual of
some fact that he or she has a right to know and that the
communicating party has a duty to communicate. Moreover,
adequate notice under the regulation must be sufficient to
further the purpose of the ninety-day limitations period. 	A
limitations period has two purposes. 	The first is to stimulate
litigants to pursue a right of action within a reasonable time so
that the opposing party may have a fair opportunity to defend,
thus preventing the litigation of stale claims. 	The second
purpose is “‘to penalize dilatoriness and serve as a measure
of repose’” by giving security and stability to human affairs.
[Kaprow, 131 N.J. at 587 (citations omitted).]
In Kaprow, the petitioner attempted to resolve his claim through negotiations with
the Board. However, the Supreme Court found that such attempt did not negate that he
had received adequate notice on a date certain, nor did it toll the running of the limitations
period. Similarly, in the present matter, petitioner contends that after receipt of the March
2, 2018, letter from the CHRU and after his attorney’s March 15, 2018, letter, petitioner
was served on or about April 8, 2018, with an Order to Show Cause by the Board of
Examiners seeking to revoke his teaching certificate. 	Petitioner also contends that he
properly responded to the Order to Show Cause and admitted that he pleaded guilty to
assault by auto, but denied that he was disqualified from public employment. Petitioner
further contends that the Board of Examiners entered an Order, dated May 17, 2019,
revoking petitioner’s teaching certificates, and “indicated it was compelled to treat his
conviction as a disqualifying offense because there was no record that he challenged the
findings of the CHRU based on the finding of disqualification and the additional
circumstances.” Accepting petitioner’s representation as to the contents of the Board of
Examiners’ Order, the Board of Examiners correctly pointed out that there was no record
that petitioner had challenged the findings of the CHRU. 	Petitioner omits from his
opposition any mention of the March 16, 2018, letter from the CHRU to petitioner’s
attorney, which letter referenced N.J.A.C. 6A:3, which regulations detail the rules of
procedure for an appeal and limit the time to file an appeal to ninety days. 	Instead,
petitioner states only that “counsel never received a letter dated August 9, 2018 as
referenced by the [respondent]” and “[i]n fact, the letter was addressed to Jill Horowitz
who had left our office earlier in the year.” 	While the August 9, 2018, letter may have
been addressed to Jill Horowitz, Esq., it was addressed to her at Cillick & Smith, at the

OAL DKT. NO. EDU 11396-19
8
office’s current address, and there was no explanation provided for why the mail would
not have been opened by Cillick & Smith if the attorney was no longer with the office.
Nevertheless, even if petitioner’s attorney had never received the August 9, 2018, letter,
there was no explanation as to why an appeal was not filed in accordance with the March
16, 2018, letter, and even absent any letter, the petitioner still has an obligation to comply
with applicable regulations.
Petitioner also argues that respondent is mistaken in its belief that the appeal was
not properly filed within ninety days. In support of its argument that the appeal was timely
filed petitioner relies upon the March 15, 2018, “challenge to the disqualification” having
been filed thirteen days after the March 2, 2018, letter. However, petitioner’s March 15,
2018, letter did not comply with the requirements set forth in the applicable regulations,
and there were multiple subsequent letters notifying petitioner that the March 15, 2018,
letter was not a proper appeal. Yet, a proper appeal of the CHRU determination still was
not filed. In further support of the argument that petitioner properly appealed the CHRU
determination, petitioner improperly relies upon arguments alleged to have been made to
the Board of 	Examiners in connection with its revocation of petitioner’s teaching
certificates – an entirely separate action.
Notwithstanding the foregoing, petitioner also argues that if it is determined that
there was not strict compliance with the ninety-day time period that N.J.A.C. 6A:3-1.16
should allow for relaxation of the rules. Specifically, N.J.A.C. 6A:3-1.16 states:
The rules in this chapter shall be considered general rules of
practice to govern, expedite and effectuate the procedure
before, and the actions of the Commissioner in connection
with, the determination of controversies and disputes under
the school laws. 	Where such rules do not reflect a specific
statutory requirement or an underlying rule of the OAL, they
may be relaxed or dispensed with by the Commissioner, in the
Commissioner’s 	discretion, 	in 	any 	case 	where 	a 	strict
adherence 	thereto 	may 	be 	deemed 	inappropriate 	or
unnecessary or may result in injustice.
The circumstances herein provide no basis to dispense with the ninety-day time
period. 	The CHRU—not the Board of Examiners—sent petitioner a letter on March 2,

OAL DKT. NO. EDU 11396-19
9
2018, 	and 	sent 	petitioner’s 	attorney 	a 	letter 	on 	March 	16, 	2018, 	regarding 	the
disqualification. Petitioner was on notice of the action being taken by the CHRU and after
it appeared that petitioner intended to appeal, the CHRU’s March 16, 2018, letter stated
that to file a formal appeal pursuant to N.J.A.C. 6A:3, petitioner must also copy the Bureau
of Controversies and Disputes and the Attorney General of New Jersey. 	Yet, petitioner
has no documentation that even a copy of the March 15, 2018, letter, much less a formal
appeal, was ever filed with the Bureau of Controversies and Disputes or the Attorney
General of New Jersey. Additionally, the Bureau of Controversies and Disputes’ August
9, 2018, letter stated that to initiate a contested case before the Commissioner, petitioner
would have to comply with the rules at N.J.A.C. 6A:3-1.1 et seq. and a copy of the petition
would have to be served on the Attorney General of New Jersey. 	Yet, petitioner again
has no documentation that a formal appeal was ever served on the Attorney General, for
the respondent CHRU, within ninety days. 	Instead, the within appeal was not filed until
June 24, 2019. 	The related but separate matter of the Order to Show Cause from the
Board of Examiners did not toll the running of the ninety-day limitations period within
which petitioner was to file a petition of appeal relative to the March 2, 2018, letter, and
there is no basis to disregard “a reasonable procedural requirement,” more than a year
after petitioner was put on notice of the adverse action and further put on notice that a
formal petition had to be filed in accordance with the regulations.
Based upon the foregoing, I CONCLUDE that Ettz’s Verified Petition is time-barred
and should be dismissed.4
4 Since the appeal is time-barred, the OSP’s additional argument as to an alleged failure to advance a cause of action
is not addressed herein.

OAL DKT. NO. EDU 11396-19
10
ORDER
It is hereby ORDERED that respondent’s Motion to Dismiss be GRANTED, and that
Ettz’s Verified Petition be 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.
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, P.O. 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.
_December 16, 2019__________ 	_______________________________
DATE 	KELLY J. KIRK, ALJ
Date Received at Agency: 	December 16, 2019
Date Mailed to Parties:
mm