Alvin Herron v. New Jersey Department of Education, Board of Examiners, 10/6/2023, (#304-23)

304-23
New Jersey Commissioner of Education
Final Decision
Alvin Herron,
Petitioner,
v.
New Jersey Department of Education, State Board of
Examiners,
Respondent.
Synopsis
Pro-se petitioner appealed the determination of the respondent New Jersey State Board of Examiners (SBE)
that he had not met the requirements for issuance of a standard administrative certificate with a supervisor
endorsement pursuant to N.J.A.C. 6A:9B-12.6(a)(3). Petitioner holds a standard certificate with a military
science endorsement issued pursuant to N.J.A.C. 6A:9B-11.8. 	On March 4, 2022, the Board denied
petitioner’s application for a standard supervisor certificate. Petitioner filed this appeal on June 28, 2022,
after which the SBE filed a motion for summary decision in lieu of an answer.
The ALJ found, inter alia, that: there are no material facts at issue in this matter, and the case is ripe for
summary decision; the SBE rejected petitioner’s application for a standard supervisor certificate after
denying his request to substitute his military science endorsement and teaching experience completed
under that endorsement for his licensure deficiencies under N.J.A.C. 6A:9B-12.6(a)(3); in so doing, the SBE
cited N.J.A.C. 6A:9B-11.8(c), which states that holders of a military science endorsement may not to use it
as the basis for obtaining additional endorsements. The ALJ concluded that the petitioner failed to
establish, by a preponderance of evidence, that he currently satisfies the requirements for issuance of a
standard administrative certificate with a supervisor endorsement, set forth at N.J.A.C. 6A:9B-12.6(a)(3).
Accordingly, the ALJ granted summary decision to the respondent and dismissed petitioner’s appeal.
Upon review, the Commissioner concurred with the ALJ that petitioner failed to establish that he currently
satisfies the requirements for issuance of the standard administrative certificate with a supervisor
endorsement. Accordingly, the Initial Decision of the OAL was adopted as the final decision in this matter
and 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.

OAL Dkt. No. EDU 05966-22
Agency Dkt. No. 162-6/22
New Jersey Commissioner of Education
Final Decision
Alvin Herron,
Petitioner,
v.
New Jersey Department of Education, State Board
of Examiners,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner adopts the Initial Decision as the Final Decision in this matter.
The Commissioner concurs with the Administrative Law Judge (ALJ) that petitioner has failed to
establish, by a preponderance of evidence, that he currently satisfies the requirements for issuance of a
standard administrative certificate with a supervisor endorsement, set forth at N.J.A.C. 6A:9B-12.6(a)(3).
Petitioner holds a standard certificate with a military science endorsement issued pursuant to
N.J.A.C. 6A:9B-11.8. In connection with his application for a standard administrative certificate with a
supervisor endorsement, he sought to rely upon teaching experience completed under his military
science endorsement. However, N.J.A.C. 6A:9B-11.8(c) states that holders of the military science
endorsement “shall not use it as the basis for obtaining additional endorsements” and must instead
“obtain additional endorsements by meeting applicable requirements outlined in [Chapter 9B].” Citing
N.J.A.C. 6A:9B-11.8(c), respondent denied petitioner’s application for issuance of a standard
304-23

2
administrative certificate with a supervisor endorsement. In the Matter of the Application of
Alvin Herron, State Board of Examiners Decision, at 1 (March 4, 2022).
The Commissioner has previously held that respondent is not at liberty to waive applicable
regulatory requirements when deciding whether to issue certificates and endorsements. Hutchinson v.
New Jersey State Board of Examiners, OAL Dkt. No EDU 16373-12, Initial Decision (April 5, 2013),
adopted, Commissioner Decision No. 177-13 (May 15, 2013). Because petitioner has not satisfied the
regulatory requirements for issuance of a standard administrative certificate with a supervisor
endorsement, set forth at N.J.A.C. 6A:9B-12.6(a)(3), the Commissioner holds that respondent’s denial of
petitioner’s application was reasonable and appropriate.
Accordingly, respondent’s motion for summary decision is granted, and the petition of appeal is
hereby dismissed.1
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 Moreover, the Commissioner finds that the instant petition was untimely filed and is subject to dismissal on that
basis alone. Pursuant to N.J.A.C. 6A:3-1.3(i), petitions must be filed “no later than the 90th day from the date of
receipt of the notice of a final order, ruling, or other action.” The State Board of Examiners’ decision from which
petitioner sought relief was emailed to him on March 4, 2022. He filed his petition on June 28, 2022—116 days
after he was served with the decision at issue. The record does not contain any basis upon which to conclude that
a failure to relax the ninety-day deadline would be inappropriate or result in an injustice.
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
October 13, 2023
October 18, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING MOTION FOR
SUMMARY DECISION
OAL DKT. NO. EDU 05966-22
AGENCY DKT. NO. 162-6/22
ALVIN HERRON,
Petitioner,
v.
NEW JERSEY DEPARTMENT OF
EDUCATION, BOARD OF EXAMINERS,
Respondent.
Alvin R. Herron, petitioner, pro se
David L. Kalisky, Deputy Attorney General, for respondent (Matthew J. Platkin,
Attorney General of New Jersey, attorney)
Record Closed: December 28, 2022 	Decided: September 8, 2023
BEFORE JEFFREY N. RABIN, ALJ:
STATEMENT OF THE CASE
Petitioner, Alvin Herron, appealed the denial of his application for a Standard
Supervisor Certificate (“SSC”), by respondent, the New Jersey Department of Education,

OAL DKT. NO. EDU 05966-22
2
Board of Examiners (respondent or Board). Respondent’s Answer to petitioner’s appeal
contained a motion to dismiss, which is treated herein as a motion for summary decision.
PROCEDURAL HISTORY
On March 4, 2022, the Board issued its decision denying petitioner’s application
for an SSC. 	Petitioner filed an appeal on June 28, 2022, which was transmitted to the
Office of Administrative Law (OAL) and filed on July 20, 2022, as a contested case.
N.J.S.A. 52:14B-1 to N.J.S.A. 52:14B-15; N.J.S.A. 52:14F-1 to N.J.S.A. 52:14F-13.
In lieu of an Answer, respondent filed the within motion for summary decision with
accompanying brief, on or about July 18, 2022. Petitioner filed a brief on December 13,
2022, and respondent submitted a reply brief on December 28, 2022.
FACTUAL DISCUSSION AND FINDINGS OF FACT
Based upon the parties’ moving papers and briefs, and for the purpose of deciding
this motion for summary decision, I FIND the following:
1. 	Petitioner teaches in New Jersey under an instructional certificate with a
military science endorsement, and does not hold a standard New Jersey
instructional 	or 	educational 	services 	certificate, 	or 	its 	out-of-state
equivalent. His teaching experiences at the Department of Corrections and
the Juvenile Justice Commission were completed under petitioner’s military
science endorsement. He sought an SSC in order to become a supervisor
of Correctional Educational Services.
LEGAL ANALYSIS AND CONCLUSION OF LAW
The issue is whether the Board is entitled to a summary decision in the within
matter, or whether a full hearing should be held.

OAL DKT. NO. EDU 05966-22
3
Summary decision may be granted when the papers and discovery that have been
filed show that there is no genuine issue as to any material fact challenged and the
moving party is entitled to prevail as a matter of law. N.J.A.C. 1:1-12.5(b). No evidentiary
hearing needs to be held if there are no disputed issues of material fact. 	Frank v. Ivy
Club, 120 N.J. 73, 98, cert. denied, 498 U.S. 1073 (1991). 	“When the evidence is so
one-sided that one party must prevail as a matter of law, the [tribunal] should not hesitate
to grant summary [decision].” Della Vella v. Bureau of Homeowner Protection, OAL Dkt.
No. CAF 17020-13, 2014 WL 1383908 (N.J. Adm. 2014) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 529 (1995)).
Further, 	the 	non-moving 	party 	has 	the 	burden 	“to 	make 	an 	affirmative
demonstration . . . that the facts are not as the movant alleges.” 	Spiotta v. William H.
Wilson, Inc., 72 N.J. Super. 572, 581 (App.Div. 1962). This requirement, however, does
not relieve the moving party from having to initially establish in its moving papers that
there was no genuine issue of fact and that they were entitled to prevail as a matter of
law. 	It is the “movant’s burden to exclude any reasonable doubt as to the existence of
any genuine issue of fact.” Conti v. Board of Education, 286 N.J. Super. 106 (App. Div.
1995) (quoting Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 74
(1954)).
For an adverse party to a motion for summary decision to prevail they must, by
responding affidavit, set forth specific facts showing that there was a genuine issue which
could only be addressed in an evidentiary proceeding. N.J.A.C. 1:1-12.5(b).
On March 4, 2022, the Board denied petitioner’s application for an SSC, by
denying petitioner’s request to substitute his licensure deficiencies under N.J.A.C. 6A:9B-
12.6(a)(3), with his military science endorsement and teaching experience that was
completed under that endorsement, based on N.J.A.C. 6A:9B-11.8(c), which stated that
holders of a military science endorsement were not to use it as the basis for obtaining
additional endorsements.
In support of his appeal, petitioner requested that the Board accept his standard
instructional certificate with a military science endorsement, as well as his teaching

OAL DKT. NO. EDU 05966-22
4
experiences at the Department of Corrections and the Juvenile Justice Commission,
which were completed under his military science endorsement, as experience equivalent
to the requirements in N.J.A.C. 6A:9B-12.6(a)(3). In denying petitioner’s application for
an SSC, respondent advised petitioner that candidates for the SSC needed to “hold a
standard New Jersey instructional or educational services certificate, or its out-of-state
equivalent.” N.J.A.C. 6A:9B-12.6(a)(3), and that petitioner did not meet that requirement.
Additionally, respondent found that petitioner also failed to meet the requirement under
N.J.A.C. 6A:9B-12.6(a)(3) that candidates “complete three years of successful, full-time
teaching 	and/or 	educational 	services 	experience,” 	because 	petitioner’s 	teaching
experience was not completed under an appropriate New Jersey certificate.
In his brief responding to respondent’s motion, petitioner failed to argue that there
were genuine issues of fact in dispute that required a full due process hearing, and failed
to argue that respondent was not entitled to a summary decision in this matter. Petitioner
provided no affidavit setting forth specific facts showing that there was a genuine issue
which could only be addressed in an evidentiary proceeding, as required by N.J.A.C. 1:1-
12.5(b).
There appears to be no factual questions in this case. 	Petitioner disagreed with
respondent’s interpretation of the law, which would make this case ripe for a summary
decision motion.
In respondent’s motion and briefs, they correctly argued that it was reasonable for
the Board to deny petitioner’s application for an SSC because he failed to meet those
aforementioned regulatory requirements under N.J.A.C. 6A:9B-12.6(a)(3). 	It is true,
however, that an applicant who is deficient in the certification requirements may provide
the Board with evidence of “alternative education and/or experience that the applicant
believes is equivalent to the areas of deficiency.” N.J.A.C. 6A:9B-4.12(b). Respondent
submitted that while the Board did not waive requirements for certification, under N.J.A.C.
6A:9B-4.12(b) the Board is given the discretionary authority to accept alternate education
and/or experience if it is equivalent to the requirement.

OAL DKT. NO. EDU 05966-22
5
Yet respondent is also correct in asserting that the burden would be on the
applicant to present, by a preponderance of the evidence, such information necessary to
establish the “one-to-one correspondence” of alternate education or experience to the
regulatory requirements that were deemed deficient. 	See Hutchinson v. N.J. Dept. of
Educ., State Bd. Of Exam’rs, EDU 16373-12, Initial Decision (Apr. 5, 2013), adopted,
(May 15, 2013); McQuilken v. N.J. St. Bd. of Exam’rs, OAL Dkt. No. EDU 8375-11, Initial
Decision 	(Dec. 	13, 	2011), 	http://njlaw.rutgers.edu/collections/oal, 	adopted 	Comm’r
(January 27, 2012) (citing Farrar v. St. Bd. of Exam’rs, OAL Dkt. No. EDU 13768-08,
Initial 	Decision 	(Sept. 	9, 	2009), 	adopted, 	Comm’r 	(July 	26, 	2010),
http://njlaw.rutgers.edu/collections/oal/).
Petitioner failed to meet his burden of proving that he had sufficient alternate
education or experience to substitute for the necessary certification. Petitioner asked the
respondent to consider his military science endorsement and his professional teaching
experience, namely his teaching experiences at the Department of Corrections and the
Juvenile Justice Commission, as substitutes for the requirements of N.J.A.C. 6A:9B-
12.6(a)(3). But the Board found that petitioner’s teaching experiences at the Department
of Corrections and the Juvenile Justice Commission were completed under his military
science endorsement and concluded that N.J.A.C. 6A:9B-11.8(c) prohibited holders of
the military science endorsement from “us[ing] it as the basis for obtaining additional
endorsements.” 	As a result, the Board held that it was “constrained from accepting
[petitioner’s] 	military 	science 	endorsement 	in 	order 	to 	meet 	the 	requirements 	for
certification as a supervisor” set out in N.J.A.C. 6A:9B-12.6(a)(3).
N.J.A.C. 6A:9B-12.6(a)(3) requires that all applicants for the SSC must “[h]old a
standard New Jersey instructional or educational services certificate, or its out-of-State
equivalent, and complete three years of successful, full-time teaching and/or educational
services experience.” 	N.J.A.C. 6A:9B-12.6(a)(3) also requires that any applicant who
has completed three years of full-time teaching experience in New Jersey must also be
able to demonstrate that their experience was completed “under an appropriate New
Jersey certificate.” 	Petitioner failed to prove that he met the “appropriate New Jersey
certificate” requirement; his teaching experience took place pursuant to a military science
endorsement, and N.J.A.C. 6A:9B-11.8(c) prohibited holders of the military science

OAL DKT. NO. EDU 05966-22
6
endorsement 	from 	using 	that 	endorsement 	as 	the 	basis 	for 	obtaining 	further
endorsements. 	The Board argued that it had no discretion or authority to waive the
requirements of N.J.A.C. 6A:9B-12.6(a)(3), and petitioner failed to argue or prove that
respondent had such authority.
Petitioner offered no additional information or facts in dispute which might be
considered by respondent, and failed to argue that there were any genuine issues in
dispute for which a full due process hearing was warranted. 	Petitioner, as the non-
moving party, had the burden to make an affirmative demonstration that the facts were
not as the movant alleges, per Spiotta, 72 N.J. Super. at 581, but petitioner failed to do
so.
I CONCLUDE that petitioner did not comply with the requirements of N.J.A.C.
6A:9B-12.6(a)(3) that all applicants for the SSC must hold a standard New Jersey
instructional or educational services certificate, or its out-of-State equivalent, and
complete three years of successful, full-time teaching and/or educational services
experience under an appropriate New Jersey certificate.
Rather than argue the merits of respondent’s motion for summary decision,
petitioner’s 	argument 	was 	that 	respondent’s 	reliance on 	N.J.A.C. 6A:9B-ll.8(c)
violated the Uniformed Services Employment and Reemployment Rights Act, 38
U.S.C. § 4301 et seq. (“USERRA”). 	38 U.S.C. § 43ll(a) states:
[a] person who is a member of, applies to be a member of,
performs, 	has 	performed, 	applies 	to perform, 	or has an
obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention
in employment, promotion, or any benefit of employment by
an employer on the basis of that membership, application
for membership, performance of service, application for
service, or obligation.
However, petitioner was not denied a promotion because he was in the military.
He was denied a certificate which would have allowed a promotion because he chose to
teach pursuant to a military endorsement. 	Petitioner’s military background in no way

OAL DKT. NO. EDU 05966-22
7
precluded him from complying with the standards set forth for obtaining an SSC.
Petitioner could have taken steps to obtain a standard New Jersey instructional or
educational services certificate, or its out-of-state equivalent, but instead hoped to use
his military endorsement as the means for circumventing the regulatory requirements for
procuring an SSC.
I FIND that respondent did not deny petitioner’s application for an SSC due to his
military service, and further FIND that petitioner failed to prove that USERRA was violated
in the within matter. In that USERRA had not been violated by respondent, petitioner’s
argument that USERRA superseded New Jersey law was moot.
Similarly, because respondent did not deny petitioner’s application for an SSC due
to his military service, petitioner’s arguments that respondent violated the New Jersey
Law Against Discrimination (LAD) and N.J.S.A. 10:5-12(a) were moot. 	Regardless,
whether a New Jersey regulation or statute is violative of another New Jersey regulation
or statute, or violative of a Federal regulation or statute, is not a matter properly before
this court; a challenge to New Jersey law must be filed in the Appellate Division.
Accordingly, I FIND that there are no genuine issues of fact which would require
a full due process evidentiary hearing and CONCLUDE that this matter is ripe for a
summary decision. I CONCLUDE that the respondent’s motion for summary decision is
GRANTED.
ORDER
I hereby ORDER that the respondent’s motion for summary decision is GRANTED
and the within appeal 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

OAL DKT. NO. EDU 05966-22
8
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, 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.
September 8, 2023
DATE 	JEFFREY N. RABIN, ALJ
Date Received at Agency:
Date Mailed to Parties:
JNR/jm

OAL DKT. NO. EDU 05966-22
9
APPENDIX
BRIEFS
For petitioner
Brief, dated December 13, 2022
For respondent
Motion For Summary Decision with accompanying brief, dated July 18, 2022
Reply brief, dated December 28, 2022