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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2292-14T4

IN THE MATTER OF THE
REVOCATION OF THE
CERTIFICATE OF
MICHAEL BONSU BY THE
STATE BOARD OF EXAMINERS.

__________________________

           Argued January 10, 2017 – Decided           August 7, 2017

           Before Judges Rothstadt and Sumners.

           On appeal from the New Jersey Department of
           Education, State Board of Examiners, Docket
           No. 4-2/14A.

           Randy P. Davenport argued             the   cause    for
           appellant Michael Bonsu.

           Melissa Dutton Schaffer, Assistant Attorney
           General, argued the cause for respondent New
           Jersey Department of Education (Christopher S.
           Porrino, Attorney General, attorney; Ms.
           Schaffer, of counsel; Lauren A. Jensen, Deputy
           Attorney General, on the brief).


PER CURIAM

     Michael Bonsu appeals from the final decision of the Acting

Commissioner of Education (Commissioner) upholding the decision

of the State Board of Examiners (State Board) to revoke his Teacher
of the Handicapped (TOH) certificate.              The State Board took its

action based on the factual findings and recommendation by an

Administrative    Law   Judge    (ALJ)     who   conducted     an   evidentiary

hearing.   The ALJ found that Bonsu submitted a forged supervisor

certificate as part of his application for a supervisory position

and recommended that his teaching certificate be revoked.

      In this appeal, Bonsu argues that the Commissioner's reliance

upon the ALJ's recommendation was misplaced because the ALJ’s

factual-findings     were    arbitrary       and     capricious,      the     ALJ

erroneously admitted Bonsu's answer to the order to show cause to

determine he was not credible, and the ALJ erroneously barred

certified statements by Bonsu's co-workers as unsupported by the

residuum rule.     Alternatively, Bonsu contends the revocation of

his teaching certificate was an unduly harsh punishment.                 Having

reviewed the record and based upon our standard of review, we

affirm.

      The evidentiary hearing record reveals the following.                 Since

2010, Bonsu, the holder of a TOH certificate, had been employed

as an inclusion teacher and a member of the discipline team at

Barringer High School in the State-Operated School District of the

City of Newark.    As a result of Bonsu's involvement with improving

the   overall   discipline      of   Barringer     students,    the    school's

principal decided to recommend him for promotion to a newly created

                                       2                                A-2292-14T4
supervisory position for the 2011-2012 school year.                    The promotion

was conditioned upon budget approval and required that Bonsu

possess a supervisor certificate.

      On January 9, 2012, Bonsu met with a personnel technician in

the   district's    human    resources         department       (HR)   to    sign    an

employment    contract      for    the   new    supervisor       position.          The

technician testified that she advised Bonsu that there was no

supervisor certificate in his personnel file and asked him if he

had a copy.    She also indicated her review of the Department of

Education's website did not indicate that he possessed a supervisor

certificate.       Bonsu    then   handed      her   a   copy    of    a   supervisor

certificate, purportedly in his name.                Noticing some discrepancy

in the font size and typing of Bonsu's name on the certificate

from other supervisor certificates that she had seen, the personnel

technician asked him if he had an original certificate.                     According

to her, Bonsu said he did not.

      Bonsu, however, testified that the personnel technician did

not ask for a copy of his supervisor certificate, and he did not

tell her that he possessed a supervisor certificate.                        He stated

that he did not look at the document he gave her, thinking he was

handing her a copy of his teaching certificate.                        He knew that

despite fulfilling all the requirements necessary to obtain a

supervisor certificate, he did not possess one at that time because

                                         3                                    A-2292-14T4
he   had   not    submitted       his     application       to    the    Department     of

Education.

       In the meantime, after the personnel technician's concerns

were   reported        to   the   State    Board,      it   was    revealed    that   the

certificate number of the supervisor certificate presented by

Bonsu belonged to someone else and that the certificate had been

forged to reflect Bonsu's name.

       In response to the State Board's order to show cause why

Bonsu's teacher certificate should not be revoked, Bonsu's counsel

prepared an answer stating that the fake supervisor certificate

was created by a co-worker and placed with Bonsu's supervisor

credentials records, without Bonsu's knowledge, and that Bonsu

accidently submitted it to the school district. At the evidentiary

hearing,       Bonsu's      objection      to    the    ALJ's      consideration      and

admission of the answer was overruled. The ALJ ruled that although

the statement was not signed by Bonsu, it "certainly represents .

. . an understanding by his [c]ounsel as to what [Bonsu's] position

[is] . . . in relation to the allegations."

       Bonsu     did    not   provide      the   testimony        of    his   co-workers

regarding the fake supervisor certificate.                        Instead, he offered

into evidence, under the residuum rule, certified statements by

three co-workers, that, without Bonsu's knowledge, they created

the fake supervisor certificate as a prank and placed it in a

                                            4                                    A-2292-14T4
folder on Bonsu's desk, which contained his records for the

supervisor certificate.   The ALJ barred the admissibility of the

statements on the basis that they were hearsay unsupported by a

residuum of competent evidence.

     In his initial decision, the ALJ found that Bonsu's submission

of a fake supervisor certificate was unbecoming conduct.            He

concluded the personnel technician's testimony was credible and

did not believe Bonsu's testimony that he was unaware that he

submitted a fake supervisor certificate.   The ALJ stated:

          [Bonsu] claims that he never looked in his
          folder between November 2011 and January 2012
          and never looked at the folder on January 9
          because he was rushed and never looked at the
          document as he handed it to [the HR
          technician], coupled with the notion that his
          friends would have initiated a practical joke
          without his knowledge but then fail to make
          any inquiries of him about the joke, is a story
          that simply does not hang together.

The ALJ additionally pointed out that Bonsu was unable to produce

the alleged pranksters to testify in support of his account of the

events.   The ALJ also pointed to inconsistencies, noting the

proffered hearsay statement by one of Bonsu’s co-workers that he

put a sticky note on the fake certification and placed it in

Bonsu's folder, was not reflected in Bonsu's testimony that he

handed the document to the personnel technician thinking it was

his teacher of the handicapped certification.


                                  5                          A-2292-14T4
      The   ALJ   was   mindful    of    Bonsu's    "laudatory      service"    in

instilling a climate of discipline, but recommended revocation of

his   teacher     certificate.          Relying    upon   other    Commissioner

decisions, the ALJ reasoned that Bonsu's dishonest behavior set a

poor example for students, the gravity of which was worsened by

his duties at the school as disciplinary officer.

      The    State      Board     adopted     the     ALJ's       findings     and

recommendations and issued an order of revocation.                  Bonsu filed

exceptions with the Acting Commissioner.             The Acting Commissioner

issued a decision affirming the decision of the Board.                 He found

that "the record adequately supports the Board's determination

that [Bonsu] engaged in unbecoming conduct and that the revocation

of [his teacher c]ertificate was the appropriate penalty."                      We

agree.

      Our review of the decision of the Commissioner is limited to

determining:

            (1) whether the agency's action violated the
            legislative policies expressed or implied in
            the act governing the agency; (2) whether the
            evidence in the record substantially supports
            the findings on which the agency's actions
            were premised; and (3) "whether in applying
            the legislative policies to the facts, the
            agency clearly erred in reaching a conclusion
            that could not reasonably have been made on a
            showing of the relevant factors."




                                         6                               A-2292-14T4
               [Barrick v. State, Dep't of Treasury, 218 N.J.
               247, 260 (2014) (quoting In re Carter, 191
               N.J. 474, 482 (2007)).]

       Here, the Commissioner's decision is well supported by the

evidence developed before the ALJ.                And, while Bonsu may have

performed       his   duties     admirably      and   had        satisfied   all      the

requirements necessary to obtain a supervisor certificate, we

discern no legal basis to overturn or modify the disciplinary

sanction to revoke his teacher certificate.

       We find no merit to Bonsu's argument that the ALJ committed

reversible error in admitting his answer to the order to show

cause   to     show   Bonsu    made    inconsistent      statements        and    lacked

credibility. In his answer, Bonsu contended that he "accidentally"

included the fake certificate in the folder with his application

credentials.      Bonsu argues that his use of the word "accidentally"

was not meant to connote a knowing act.                  We discern no error in

the    ALJ's    finding   that     the   term   "accidentally"           implies     some

knowledge about the certificate, the existence of which conflicts

with    Bonsu's       testimony,      casting    doubt      on     his   credibility.

Additionally, we view consideration of Bonsu's answer as harmless.

The ALJ did not rely solely on the answer to find that Bonsu was

not credible.          More importantly, he found that the personnel

technician's testimony was credible and rebutted Bonsu's account



                                          7                                      A-2292-14T4
that she did not ask him for a copy of his supervisor certificate

when he gave her a copy of the fake supervisor certificate.

        Finally, we reject Bonsu's argument that his co-workers'

statements should have been admitted by the ALJ under the residuum

rule.     Subject to the judge's discretion, N.J.A.C. 1:1-15.5(a)

provides hearsay is 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." N.J.A.C. 1:1-15.5(b).                   "Under the

residuum rule, N.J.A.C. 1:1-15.5(b), hearsay is admissible in

administrative     hearings      to     corroborate       other,    non-hearsay

evidence."    Hemsey v. Bd. of Trs., Police & Firemen's Retirement

Sys., 393 N.J. Super. 524, 534 (App. Div. 2007), rev'd in part on

other grounds, 198 N.J. 215 (2009)).

     In    this    proceeding,        the   co-workers'      statements       that

unbeknownst to Bonsu they pulled a prank on him by creating and

placing a fake supervisor certificate in a folder with his other

credentials, were not supported by legally competent evidence.

There was no first-hand witness testimony, or any other admissible

evidence, that substantiated the statements.               Thus, the ALJ did

not abuse his discretion in declining to admit the co-workers'

statements.

                                        8                                 A-2292-14T4
Affirmed.




            9   A-2292-14T4
