Michael Conway v. New Jersey Department of Education, State Board of Examiners, 9/16/21, (#193-21)

New Jersey Commissioner of Education
Final Decision
Michael Conway,
Petitioner,
v.
New Jersey State Board of Examiners,
Respondent.
Synopsis
Petitioner appealed the determination of the respondent State Board of Examiners (SBE), denying his
application for teacher and principal certificates based upon Conway’s alleged conduct unbecoming a
teacher. Petitioner maintains that the SBE’s decision was arbitrary, capricious and unreasonable. The parties
filed cross motions for summary decision.
The ALJ found, inter alia, that: there are no issues of material fact in this case; the petitioner’s professional
conduct assessment and explanations for his unbecoming conduct which were sent subsequent to the SBE’s
decision are irrelevant here as that information was not before the SBE to consider at the time of its decision,
and there is no evidence that the petitioner availed himself of potential opportunities to present that
information via a motion for reconsideration before the SBE; further, there is no impediment to petitioner
reapplying for the certificates he seeks, at which time he could present mitigating evidence explaining the
conduct at issue and his subsequent job performance; however, based on the present record, the matter is
ripe for summary decision; pursuant to N.J.A.C. 6A:9B-4.1, the SBE may refuse to issue an applicant’s
certificate for conduct unbecoming – notwithstanding that a candidate may meet all requirements for
certification – if it determines based on the record before it that the candidate is not suitable for employment
as a teaching staff member for reasons set forth in N.J.A.C. 6A:9B-4.4; it is well settled that teachers are
held to a high standard of conduct because of the influence they exercise over students; teachers and
principals are professional employees entrusted with the care of school children, and this duty requires a high
degree of self-restraint and controlled behavior not always required in other types of employment; in this
case, petitioner has not met his burden to prove by a preponderance of credible evidence that the SBE’s
denial of teaching and principal certificates to him was arbitrary, capricious, or contrary to law; and
petitioner’s conduct was sufficiently flagrant to warrant the denial of teaching and principal certificates based
upon his alleged conduct unbecoming. Accordingly, the ALJ granted summary decision in favor of the SBE,
and the petition was dismissed.
The Commissioner concurred with the findings and determination of the ALJ as comprehensively detailed in
the Initial Decision. 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.
193-21

OAL Dkt. No. EDU 08054-20
Agency Dkt. No. 184-8/20
New Jersey Commissioner of Education
Final Decision
Michael Conway,
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
have been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge, for the
reasons set forth in detail in the Initial Decision, that petitioner has failed to meet his burden of
demonstrating that the Board of Examiners’ decision denying petitioner’s application for teaching and
principal certifications was arbitrary, capricious, or unreasonable.
Accordingly, the Board of Examiners’ motion for summary decision is granted, and the
petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 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.
193-21
September 16, 2021
September 16, 2021

New Jersey is an Equal Opportunity Employer
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 08054-20
AGENCY DKT. NO. 184-8/20
MICHAEL CONWAY,
Petitioner,
v.
NEW JERSEY STATE DEPARTMENT
OF EDUCATION, STATE BOARD OF
EXAMINERS,
Respondent.
______________________________________
Corinne M. Mullen, Esq., for petitioner (The Mullen Law Firm, attorneys)
Sydney Finkelstein, Deputy Attorney General, for respondent (Andrew J. Bruck,
Acting Attorney General of New Jersey, attorney)
Record Closed: July 20, 2021 Decided: August 5, 2021
BEFORE SARAH H. SURGENT, ALJ:
STATEMENT OF THE CASE
Petitioner Michael Conway (Conway) appeals from respondent New Jersey State
Department of Education (NJDOE), State Board of Examiners’ (Board) denial of his

OAL DKT. NO. EDU 08054-20
2
application for teacher and principal certificates based upon Conway’s alleged conduct
unbecoming a teacher. He maintains that the Board’s decision was arbitrary, capricious,
and unlawful, which the Board denies.
PROCEDURAL HISTORY
On or about May 12, 2020, Conway submitted his application for teacher and
principal certificates to the NJDOE. By letter dated August 11, 2020, the Board denied
Conway’s application. On August 26, 2020, Conway timely filed a pro se petition of
appeal, and subsequently retained private counsel. On August 28, 2020, the Department
of Education, Office of Controversies and Disputes, transmitted this case to the Office of
Administrative Law (OAL) for hearing as a contested case pursuant to N.J.S.A. 52:14B-1
to -15 and N.J.S.A. 52:14F-1 to -23, and resolution of Conway’s motion for emergent
relief, (R-A).
On September 4, 2020, a telephonic status conference was conducted with the
parties, and a briefing schedule was set, with an emergent hearing to be held on
September 9, 2020. At the request of both parties, the emergent hearing was adjourned
to September 24, 2020. On September 24, 2020, oral arguments on the emergent motion
were heard remotely via videoconference due to the COVID-19 pandemic (pandemic),
and the record closed. On September 28, 2020, I denied Conway’s motion for emergent
relief, (R-C), which I incorporate herein by reference. After four telephone conferences
concerning protracted discovery production delays, the matter was scheduled for remote
oral arguments on the parties’ cross-motions for summary decision. Oral arguments were
heard via videoconference on July 20, 2021, and the record closed.
FACTUAL DISCUSSION AND FINDINGS
These salient points are not in dispute. I therefore FIND the following FACTS.
Conway was a teacher for approximately twenty-four years in Arizona, before
relocating to New Jersey in 2020 to become a teacher at the Beloved Community Charter

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3
School (Beloved) in Jersey City. (P-B; R-F). He has been employed by Beloved as a
teacher’s assistant since the fall of 2020. (P-B; R-F). His contract has been renewed for
the 2021-2022 school year, (P-A), and he is said to be doing very well, (P-E), teaching
eighth-grade students both in person and remotely, due to the pandemic, (P-B; P-C; R-
H).
While still residing in Arizona, Conway was instructed by the Board to submit his
New Jersey teaching and principal certificate applications electronically due to the
pandemic. (P-B; R-G). In his emailed submissions to the Board, Conway included his
photographs of a requisite criminal/offense information form dated May 12, 2020, which
plainly depict his legs and lap, clothed only in underwear, and containing outlines of his
genitalia. (P-B; P-D; R-I).
Conway has poor eyesight, is not “tech-savvy,” and did not realize that the
photographs he sent contained inappropriate content, as he only checked the
“thumbnails” of his photographs before he submitted them. (P-B; P-D; P-G; P-H; R-F; R-
G). He was busy preparing and packing for his transition from Arizona to New Jersey,
his house was in disarray, and there were boxes “everywhere.” (P-B). He and his partner
agreed that they would disrobe upon entering their home due to the pandemic and his
partner’s asthma. Ibid. He chose to take the photographs on his lap because the kitchen
table was “filled with boxes.” Ibid. He takes full responsibility for his “error.” (R-A).
By letter dated August 11, 2020, the Board denied Conway’s applications, stating,
in relevant part:
The photograph[s] of the criminal history information
form you submitted to the Board via email contained
inappropriate content. Specifically, the image[s] contained
male anatomy in underwear. Upon receipt of the image[s],
the Board sent an email permitting you to provide an
explanation. Your response to the request was that you were
“sorry the emailed version has inappropriate content.” There
was no explanation for the content or how the image[s] [were]
sent with the content.

OAL DKT. NO. EDU 08054-20
4
Pursuant to N.J.A.C. 6A:9B-4.2, “Notwithstanding that
a candidate may meet all requirements for certification, the
Board of Examiners may refuse to issue a certificate to that
candidate if, based on the record before it, the Board of
Examiners determines that, for reasons set forth in N.J.A.C.
6A:9B-4.5, the candidate is not suitable for employment as a
teaching staff member in the public schools.” One of the
reasons stated in N.J.A.C. 6A:9B-4.5 for the revocation of a
teaching certificate, or, in this case, the refusal to issue one,
is “conduct unbecoming a teacher.”
In reviewing your application, the Board considered,
among other factors, your lack of judgment and/or
carelessness in submitting an image with such content. Such
poor judgment and/or carelessness is conduct unbecoming
an educator. Accordingly, the Board finds that the level and
nature of your conduct provide sufficient reason to block your
application for certification. Thus, at its July 30, 2020 meeting
the Board of Examiners voted to block your application for a
Teacher of Social Studies and Principal certificate.
[(R-B).]
Conway maintains that when the Board asked him via email about the
inappropriate content of his emailed photographs, he did not understand what the Board
was referring to, and assumed that it must have been a reference to a 2011 driving under
the influence conviction. (P-B; R-A; R-I). He only understood the issue at hand after he
received the Board’s denial letter and checked the actual photographs which he had
emailed to the Board. (P-B).
LEGAL ANALYSIS AND CONCLUSIONS
The Board argues that its motion for summary decision should be granted because
it is undisputed that Conway submitted inappropriate images to the Board with his
applications for certifications, that the conduct was unbecoming a teacher or principal,
whether intentional or not, and that granting him the certificates would not be in the best
interests of students or the public. It also argues that Conway’s subsequent “excuses”
and a subsequent recommendation by a teacher at Beloved do not mitigate Conway’s
admitted conduct and are not genuine issues of material fact with respect to the Board’s
decision at the time it was made.

OAL DKT. NO. EDU 08054-20
5
Conway argues that his cross-motion for summary decision should be granted,
and the Board’s motion denied, because the Board’s decision was arbitrary, capricious,
and “prudish[ly] unlawful[],” and because Beloved “strongly [disagrees] with the knee-jerk
reaction to deny a competent teacher employment based on an innocent mistake
committed during a world-wide pandemic.” Conway maintains that the Board’s failure to
consider the circumstances underlying his conduct, whether his conduct was intentional,
and his subsequent successful conduct at Beloved, was “prudish, ill-informed, and
completely unexamined.” Alternatively, Conway argues that “[a]s a result of the arbitrary,
capricious, and unlawful manner in which the Board has chosen to interpret . . . Conway’s
unintended and entirely accidental actions, the material facts and substantive issues
surrounding this case are indeed a matter of great dispute. As such, the motion[s] for
summary decision should be denied,” and the matter should be set down for a plenary
hearing.
I.
A summary decision “may be rendered if the papers and discovery which have
been filed, together with the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to prevail as a matter of
law.” N.J.A.C. 1:1-12.5(b). That rule is substantially similar to the summary judgment
rule embodied in the New Jersey Court Rules. See R. 4:46-2; Judson v. Peoples Bank &
Trust Co. of Westfield, 17 N.J. 67, 74 (1954).
In Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995), the New Jersey Supreme
Court addressed the appropriate test to be employed in determining the motion:
[A] determination whether there exists a “genuine issue” of
material fact that precludes summary judgment requires the
motion judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable
to the non-moving party, are sufficient to permit a rational fact
finder to resolve the alleged disputed issue in favor of the non-
moving party. The “judge’s function is not . . . to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”

OAL DKT. NO. EDU 08054-20
6
[Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986)).]
In evaluating the merits of the motion, “[a]ll inferences of doubt are drawn against
the movant and in favor of the opponent of the motion.” Judson, 17 N.J. at 75. However,
“[w]hen a motion for summary decision is made and supported, an adverse party in order
to prevail must by responding affidavit set forth specific facts showing that there is a
genuine issue which can only be determined in an evidentiary proceeding.” N.J.A.C. 1:1-
12.5(b).
Having reviewed the parties’ submissions and heard their oral arguments, I
CONCLUDE that no genuine issues of material fact exist which require a plenary hearing
to determine whether the photographs which Conway admittedly took and sent were
inappropriate and conduct unbecoming, and if so, whether the Board’s July 30, 2020
decision to deny him teaching and principal certificates was arbitrary, capricious, or
contrary to law. I further CONCLUDE that Conway’s professional conduct assessment
and explanations for the photographs which were sent subsequent to the Board’s decision
are entirely irrelevant—that information was not before the Board to consider at the time
of its decision, and there is no evidence that Conway availed himself of any potential
opportunities to present that information by filing a motion for reconsideration before the
Board. See, e.g., N.J.A.C. 6A:9B-4.15.
The Board and I are unaware of any impediment to Conway reapplying for the
certificates, at which time he might present mitigating evidence explaining his conduct at
issue and his subsequent job performance, but on the issues presently before me, I
cannot consider it. This matter is therefore ripe for summary decision.
II.
The Board of Examiners is entrusted with the issuance and revocation of
certificates to teach pupils and to serve as principals in public schools. N.J.S.A. 18A:6-
38. N.J.A.C. 6A:9B-4.1 governs the Board’s authority to refuse to issue certificates, and
provides:

OAL DKT. NO. EDU 08054-20
7
Notwithstanding that a candidate may meet all requirements
for certification, the Board of Examiners may refuse to issue a
certificate to the candidate if it determines based on the record
before it that the candidate is not suitable for employment as
a teaching staff member in the public schools for reasons set
forth in N.J.A.C. 6A:9B-4.4.
[N.J.A.C. 6A:9B-4.1 (emphasis added).]
Thus, the Board may refuse to issue an applicant’s certificate for “conduct
unbecoming.” N.J.A.C. 6A:9B-4.4. Conduct unbecoming includes a broad range of
behavior that impacts an applicant’s ability to perform their duties or otherwise renders
them unfit to have the responsibility for the care of children. See State Bd. of Exam'rs v.
Charlton, 96 N.J.A.R.2d (EDE) 18; In re Certificate of Fargo, 91 N.J.A.R.2d (EDE) 1.
Although “conduct unbecoming” a teacher, principal, or other public employee is not
defined by statute or regulation, it has been described as an “elastic” phrase that includes
“conduct which adversely affects the morale or efficiency” of the public entity or “which
has a tendency to destroy public respect for . . . [public] employees and confidence in the
operation of [public] services.” In re Emmons, 63 N.J. Super. 136, 140 (App. Div.
1960) (internal quotation marks omitted). The touchstone of the charge is an applicant’s
fitness to discharge the duties and functions of their position. See Laba v. Newark Bd. of
Educ., 23 N.J. 364, 385-88 (1957).
“That the school authorities have the right and the duty to screen the officials,
teachers, and employees as to their fitness to maintain the integrity of the schools as a
part of ordered society, cannot be doubted.” In re Grossman, 127 N.J. Super. 13,
30 (App. Div. 1974) (internal quotation marks omitted). Unfitness to hold a position in a
school system may be demonstrated by a series of incidents or a single incident, if
sufficiently flagrant. Redcay v. State Bd. of Educ., 130 N.J.L. 369, 371 (Sup. Ct.
1943), aff'd, 131 N.J.L. 326 (E. & A. 1944).
It is well settled that “teachers are held to a high standard of conduct because of
the influence they exercise over the students.” Charlton, 96 N.J.A.R.2d (EDE) 18,
21. Teachers “hold positions demanding public trust, and in such positions they teach,
inform, and mold habits and attitudes, and influence the opinions of their pupils.” In re

OAL DKT. NO. EDU 08054-20
8
Tenure Hearing of Tordo, 1974 S.L.D. 97, 98-99. They “are professional employees to
whom the people have entrusted the care and custody of . . . school children,” and “[t]his
heavy duty requires a degree of self-restraint and controlled behavior rarely requisite to
other types of employment.” In re Tenure of Sammons, 1972 S.L.D. 302, 321. Those
principles apply with as much if not more force to school principals, who are high-ranking
administrators entrusted with providing educational leadership, directing and supervising
all school operations, and evaluating staff, including teachers. N.J.A.C. 6A:9B-12.3(b).
Pursuant to N.J.A.C. 6A:4-4.1:
(a) In determining appeals from decisions of the State
Board of Examiners . . . , the Commissioner shall
ascertain whether the decision is supported by
sufficient credible evidence in the record and shall not
disturb the decision unless the appellant has
demonstrated the State Board of Examiners . . . acted
in a manner that was arbitrary, capricious, or contrary
to law.
[N.J.A.C. 6A:4-4.1(a).]
Arbitrary and capricious action of administrative bodies
means willful and unreasoning action, without consideration
and in disregard of circumstances. Where there is room for
two opinions, action is not arbitrary or capricious when
exercised honestly and upon due consideration, even though
it may be believed that an erroneous conclusion has been
reached.
[Bayshore Sewerage Co. v. Dep’t of Envtl. Prot., 122 N.J.
Super. 184, 199 (Ch. Div. 1973).]
In this case, Conway has not met his burden to prove by a preponderance of
credible evidence that the Board’s denial of teaching and principal certificates was
arbitrary, capricious, or contrary to law. There is no evidence of any “willful and
unreasoning action, without consideration and in disregard of circumstances.” Indeed,
the Board gave Conway the opportunity to explain the inappropriate content of his
photographs, and without bothering to ascertain what that content was and offer his
explanations and the circumstances under which the photographs were taken and
submitted, Conway merely replied that he was “sorry the emailed version has
inappropriate content.”

OAL DKT. NO. EDU 08054-20
9
Conway’s failure to investigate and appropriately respond to the Board’s inquiry,
in addition to his “poor judgment and/or carelessness” in photographing and submitting
the admittedly “inappropriate content,” merely bespeaks of further poor judgment and
carelessness on Conway’s part. Moreover, Conway’s choice to point his camera at his
scantily clad lap while taking photographs to be submitted to the Board is the epitome of
poor judgment and carelessness. Surely, he could have chosen to put on pants, or to
photograph his criminal history form on the top of a moving box, or even on the floor, but
he chose not to do so. “While teachers are sensitive to the same emotional stresses as
all other persons, their particular relationship to children imposes upon them a special
responsibility for exemplary restraint and mature self-control.” In re the Tenure Hearing
of Ostergren, 1966 S.L.D. 185, 186 (internal quotation marks omitted). Conway’s conduct
fell far short of the mark, even in the midst of our global pandemic.
Under these facts and circumstances, I CONCLUDE that Conway has not met his
burden to prove that the Board’s decision was arbitrary, capricious, or contrary to law. I
CONCLUDE that the totality of Conway’s conduct was alarming conduct unbecoming
which raised grave doubt about Conway’s fitness to discharge the duties and functions of
teaching and principal positions. I further CONCLUDE that Conway’s subsequent
explanations to this Tribunal that he was busy, is not “tech-savvy,” and has poor eyesight
mitigate against him, as he is still teaching remotely, and another episode of such poor
judgment and carelessness could have grave social and psychological consequences for
the pupils in his virtual classroom, as well as undermine the public’s trust and confidence
in him and in the school. I therefore CONCLUDE that Conway’s conduct was sufficiently
flagrant to warrant the Board’s denial of teaching and principal certificates based upon
his conduct unbecoming.
ORDER
It is therefore ORDERED that the Board’s motion for summary decision is hereby
GRANTED and its denial of teaching and principal certificates is hereby AFFIRMED; and
it is further

OAL DKT. NO. EDU 08054-20
10
ORDERED that Conway’s motion for summary decision or a plenary hearing in the
alternative is hereby DENIED; and it is further
ORDERED that Conway’s petition is hereby 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, 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.
August 5, 2021
DATE SARAH H. SURGENT, ALJ
Date Received at Agency: August 5, 2021 (emailed)
Date Mailed to Parties:
SHS/mel

OAL DKT. NO. EDU 08054-20
11
APPENDIX
EXHIBITS
For Petitioner:
P-A Conway’s 2021-2022 employment contract with Beloved dated May 19,
2021
P-B Conway’s responses to Board’s first set of interrogatories and request for
production of documents dated November 23, 2020
P-C Conway’s responses to Board’s supplemental interrogatories and request
for production of documents dated May 14, 2021
P-D Conway’s answers to Board’s requests for admission dated November 14,
2020
P-E Undated letter of recommendation by Shanay Walker, teacher at Beloved
P-F Letter of Recommendation for Conway by Susan O’Brien, Arizona school
Principal, dated April 14, 2020
P-G Thumbnail images of application documents from Conway’s cell phone
P-H Thumbnail images of application documents from Conway’s cell phone
P-I Affidavit of Conway dated July 7, 2021
For Respondent:
R-A Conway’s Pro Se Petition of Appeal and letter of “Specific Allegations” dated
August 26, 2020
R-B Board’s letter of denial of teaching and principal certificates dated August
11, 2020
R-C Order denying emergent relief dated September 28, 2020
R-D Certification of Rani Singh dated September 21, 2020
R-E Duplicate of P-B
R-F Board’s first request for admissions and Conway’s answers dated
November 11, 2020
R-G Undated unsigned certification of Conway

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R-H Duplicate of P-C
R-I Two color photographs of Conway’s criminal history form depicting his
underwear, lap, legs, and outline of male genitalia
R-J Certification of Sydney Finkelstein, DAG, dated June 11, 2021