                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3847-16T3


IN THE   MATTER OF THE SUSPENSION
OF THE   CERTIFICATE(S) OF CHAE HYUK IM,
SCHOOL   DISTRICT OF THE TOWNSHIP OF
WAYNE,   PASSAIC COUNTY.


           Argued July 2, 2018 – Decided July 20, 2018

           Before Judges Carroll and Rose.

           On appeal from the Commissioner of Education,
           Docket No. 357-12/14.

           Louis P. Bucceri argued the cause for
           appellant Chae Hyuk Im (Bucceri & Pincus,
           attorneys; Louis P. Bucceri, of counsel and
           on the briefs).

           John G. Geppert, Jr., argued the cause for
           respondent Wayne Township Board of Education
           (Scarinci Hollenbeck, LLC, attorneys; John G.
           Geppert, Jr., of counsel; Shana T. Don and
           Craig A. Long, on the brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent Commissioner of Education (Joan
           M. Scatton, Deputy Attorney General, on the
           statement in lieu of brief).

PER CURIAM
       Appellant   Chae    Hyuk     Im   appeals    the   final    administrative

decision    of     the    Commissioner        of    Education      (Commissioner)

suspending his teaching certificates for one year.                 The suspension

was based on the Commissioner's determination that Im was guilty

of    unprofessional      conduct    pursuant      to   N.J.S.A.    18A:28-8   for

failing to provide the requisite sixty-day notice before resigning

his teaching position with the Wayne Township Board of Education

(BOE).    We affirm.

       Im began his employment with the BOE as a chemistry teacher

in September 2005, and became tenured in September 2008.                 In 2011,

while still employed by the BOE, Im applied for a position with

the   Federal    Bureau    of   Investigation        (FBI).     The   application

remained inactive for several years due to a federal hiring freeze.

       On May 15, 2014, Im received a letter from the BOE listing

his salary for the 2014-2015 school year.               In that letter, the BOE

also advised Im that if he should have reason to believe he would

be unable to serve for that school year he should inform the Wayne

school district (District) immediately.

       Among other things, the FBI application process required Im

to undergo a background investigation and a physical fitness test

(PFT).    In May 2014, FBI agents contacted the BOE as part of Im's

background check.        In July 2014, Im was told he was listed for a

September 2014 training start date.                In anticipation of entering

                                          2                               A-3847-16T3
the FBI Academy in September, Im wrote a letter to the BOE on July

23, 2014, requesting a one-year leave of absence.     The BOE agreed

to grant the leave, if it was needed.

     On August 7, 2014, Im failed his PFT, and he was removed from

the September training start date.   Consequently, Im advised the

BOE's administration that he would be starting the 2014–2015 school

year as usual.

     Im decided not to retake the PFT in September 2014, because

he did not have time to sufficiently train for it.      Instead, he

opted to take the PFT again on October 9, 2014, and was told he

passed it.   Im again requested a leave of absence, but the BOE

denied the request at its October 16, 2014 meeting.    The next day,

Im resigned from his teaching position to accept employment with

the FBI, where he presently works as a Special Agent.

     At the time of his resignation, Im was teaching four sections

of high school chemistry, and he was unaware which teachers would

take over his classes.   He arranged to leave binders of documents

he had prepared for use by whoever was assigned to replace him.

Four teachers who were currently teaching in the District's science

department and a per diem substitute were paid to cover Im's

classes until the District hired a replacement teacher in January

2015.   The parties stipulated that the costs expended by the BOE

to replace Im during the sixty-day notice period were less than

                                 3                           A-3847-16T3
the cost of the salary and benefits the BOE would have paid Im had

he worked during that same period.

     On    December   1,   2014,     at       the   request    of   the   BOE,    the

Commissioner entered an order directing Im to show cause why his

teaching certificate should not be suspended for unprofessional

conduct pursuant to N.J.S.A. 18A:28-8, which provides:

            Any teaching staff member, under tenure of
            service, desiring to relinquish his position
            shall give the employing board of education
            at least [sixty] days written notice of his
            intention, unless the board shall approve of
            a release on shorter notice and if he fails
            to give such notice he shall be deemed guilty
            of    unprofessional    conduct     and    the
            [C]ommissioner may suspend his certificate for
            not more than one year.

Im filed an answer, and the Commissioner subsequently transferred

the matter to the Office of Administrative Law as a contested

case.

     On August 13, 2015, the BOE filed a motion for summary

decision.       On May 18, 2016, an administrative law judge (ALJ)

found there were no material disputed facts and the matter was

"ripe     for   partial    summary    decision         as     to    the   issue    of

'unprofessional conduct.'"         The ALJ noted the central purpose of

N.J.S.A. 18A:28-8 is "to provide notice to the school so that a

suitable replacement can be hired without adversely impacting

students."      Looking to the language of the statute, the ALJ found


                                          4                                 A-3847-16T3
it    "quite    clear"    that     an     employee     who   fails       to    provide   the

requisite       notice    "shall        be    deemed      guilty    of    unprofessional

conduct."       The ALJ reserved the issue of an appropriate sanction

and consideration of any appropriate mitigating factors for a

future hearing.

       On June 30, 2016, the Commissioner adopted the ALJ's partial

initial decision.             The Commissioner agreed with the ALJ that the

language of N.J.S.A. 18A:28-8 was mandatory.                            Specifically, an

employee who fails to give a board of education sixty days' notice

of his or her intention to resign "shall" be deemed guilty of

unprofessional conduct.

       The     Commissioner       rejected         Im's    argument       that    the    ALJ

erroneously prevented him from presenting evidence at a hearing

regarding the impact of a finding of "unprofessional conduct" on

his    FBI     employment.         The       Commissioner      found      this     argument

"misguided because there is no genuine issue of fact as to [Im's]

failure to provide the [BOE] with the requisite notice; the

material       facts     in     dispute      only    pertain       to    the     mitigating

circumstances that could impact the potential suspension of his

[teaching] certificate."            The Commissioner concluded:

               Notwithstanding the finding of unprofessional
               conduct, [Im] will be afforded a hearing to
               determine whether a certificate suspension is
               appropriate in this case. To that end, [Im]
               will be given a full opportunity to present

                                               5                                    A-3847-16T3
           evidence of mitigation, including the fact
           that he left his teaching post to take a job
           with the FBI.

     A hearing on the appropriate penalty followed.         Two witnesses

testified for the BOE, including the Wayne superintendent of

schools and the high school principal.           Im testified and also

presented the testimony of a chemistry teacher who served as one

of his replacements after he resigned.

     The ALJ recounted the testimony and evidence presented at the

hearing and made detailed findings of fact and conclusions of law

in her comprehensive twenty-seven-page initial decision.           At Im's

request, the ALJ agreed to consider the "Giglio Policy," an FBI

policy   "Regarding   the   Disclosure   to   Prosecutors   of   Potential

Impeachment   Information      Concerning     Law   Enforcement     Agency

Witnesses."    Ultimately, however, the ALJ accorded the policy

little weight because Im "failed to introduce any additional

evidence to buttress his assertion that the imposition of a one-

year penalty will have any different effect on his ability to

testify or perform his [FBI] job [duties] than a shorter suspension

period."

     Additionally, the ALJ found:

                It was clear from the testimony of the
           District's    witnesses that,   while    the
           disruption to Mr. Im's students was not
           catastrophic,     there   were    definitely
           consequences to his leaving early.     While

                                   6                               A-3847-16T3
           permanent teachers took on all but one of Mr.
           Im's classes, because of scheduling difficulty
           for labs, each student had three to four
           teachers from September until January. While
           it is true, as [Im] argued, that there would
           have been a disruption no matter when Im left,
           the District would have had more time to try
           to find a replacement for Im and some of the
           disruption could have been alleviated had he
           waited the sixty days. In addition, at least
           one parent complained that the quality of the
           teaching of the substitute teacher was not up
           to the standards of the permanent teachers,
           and the principal had to talk to the
           substitute about the quality of his teaching.
           . . . The principal of the school, . . . who
           was sympathetic toward Im, acknowledged that
           Im did not find a replacement for himself, nor
           did he recall Im offering to do so.          A
           replacement was found because a newly hired
           teacher had a friend who decided to apply for
           the opening. [The principal] also testified
           that at the time Im left, he was not aware
           that [Im] had left his materials for the
           replacement teachers.    Nor did [Im] talk to
           the principal about the students and any
           special needs.

           [(Footnote omitted).]

"Weighing all of the mitigating factors," the ALJ recommended a

six-month suspension of Im's teaching certificates.

     The Commissioner rejected the ALJ's recommendation in her

final agency decision issued on April 6, 2017.          The Commissioner

instead   determined   that    Im's   teaching   certificates   should    be

suspended for one year.       Citing numerous administrative decisions

that addressed the issue, the Commissioner explained:



                                      7                            A-3847-16T3
               The decision to suspend a teaching
          certificate pursuant to N.J.S.A. 18A:28-8 is
          discretionary   and   the   Commissioner   has
          historically    evaluated     all    attendant
          circumstances on a case-by-case basis. As a
          general rule, however, given the underlying
          purpose of the statute, teachers who have
          been found guilty of unprofessional conduct
          for failing to provide the requisite [sixty]-
          day notice receive a one-year certificate
          suspension.    The one year suspension is
          routinely issued where the facts demonstrate
          that individuals have violated the [sixty]-
          day notice requirement for strictly personal
          reasons, putting their own self-interest above
          the   interests   of    students   and   their
          professional obligation to provide adequate
          notice to the board.

               Despite the general rule of a one-year
          suspension, there are rare instances where the
          Commissioner has found justification for a
          lesser penalty in cases where compelling
          mitigating circumstances exist for the lack
          of the requisite notice. A common theme in
          many of these cases was the existence of a
          suitable alternative who was available to
          replace   the   resigning   teacher,   thereby
          minimizing the impact on the students. . . .

               Unlike these cases - which have justified
          an exception to the customary one-year
          suspension - the facts in this matter are
          neither exceptional nor do they warrant the
          exercise of the Commissioner's discretion.
          Rather, in the instant matter, [Im's] desire
          for the early release from his professional


 The Commissioner recognized, as the ALJ did previously, that
"[t]he obvious purpose of N.J.S.A. 18A:26-10 [and N.J.S.A. 18A:28-
8] is to provide notice to the school so that a suitable
replacement can be hired without adversely impacting students."
(citing Penns Grove-Carneys Point Bd. of Educ. v. Regina Leinen,
94 N.J.A.R.2d 405, 407 (EDU)).

                                8                          A-3847-16T3
obligations was based solely on       personal
motives and his own convenience.

     . . . .

     The Commissioner recognizes [Im's] goal
of becoming an FBI agent and his concern that
if he did not begin training in October 2014,
he may have missed out on his opportunity.
However, there is no question that [Im]
violated the statute, and his departure
resulted in a disruption to his classes -
which is the very consequence that the statute
seeks to minimize when a teacher resigns from
the school district.       Nor should it be
overlooked that the [BOE] originally granted
[Im] a one-year leave of absence when he made
the request prior to the start of the 2014-
2015 school year; it was only because of
[Im's] own actions, i.e. failing the August
2014 [PFT] and deciding not to take the test
again in September 2014, that [Im] declined
the proffered leave of absence and began
teaching at the beginning of the 2014–2015
school year. Further, the circumstances here
are not analogous to several cases where a
lesser penalty was imposed, because in this
case there was not a replacement teacher
available to ensure a smooth transition and
to   minimize    the   impact    on   students.
Additionally, resigning without providing the
requisite notice to seek an alternate career
is not akin to resigning without the requisite
notice because of a debilitating health issue.
Despite the fact that [Im] provided teaching
materials for his successor's use when he
resigned,   his   untimely    resignation   had
significant consequences: it left four high
school chemistry classes without a permanent
teacher until January 2015; the [BOE] had to
scramble to find a suitable replacement on
short notice; and the quick departure resulted
in an increased workload for co-workers, who
had to cover [Im's] classes between October
2014 and January 2015.

                      9                           A-3847-16T3
              [Im] maintains that he should not receive
         a   license   suspension   because   it   will
         significantly impact his ability to function
         as an FBI agent and that impact far exceeds
         anything allegedly suffered by the District.
         [Im] stresses that the damage to his career
         as an FBI agent that would occur if his
         certificates are suspended is illustrated by
         the Department of Justice's stated policy of
         disclosure   to   prosecutors   of   potential
         impeachment information. [Im] maintains that
         the Giglio Policy requires the disclosure of
         all instances where an agent's reputation has
         been impugned; thus, any reputational defect
         - not just those related to veracity - must
         be disclosed and may lead to a preclusion of
         the agent's ability to function as a witness.
         The Commissioner fully accepts [Im's] argument
         that he will have to disclose to the
         prosecutor in the case where he is a potential
         witness that he was found to be guilty of
         unprofessional conduct pursuant to N.J.S.A.
         18A:28-8. The fact that [Im] will likely have
         to disclose that his certificates were
         suspended because of his unprofessional
         conduct is not a compelling mitigating
         circumstance, especially coupled with the fact
         that his unprofessional conduct was self-
         serving and adversely impacted his students.
         Therefore, the Commissioner is not compelled
         to exercise her discretion by ordering an
         exception    to   the    customary    one-year
         suspension.

         [(Citations and footnotes omitted).]

    On appeal, Im challenges the Commissioner's decisions finding

him guilty of unprofessional conduct and suspending his teaching

certificates for one year.   He argues the decisions are incorrect

as a matter of law, and they deprived him of his constitutional

right to a hearing prior to finding him guilty of unprofessional

                                10                         A-3847-16T3
conduct.    Im further contends the one-year penalty imposed by the

Commissioner is arbitrary and capricious and is not based on

substantial evidence in the record.      We disagree.

     "[T]he Commissioner of Education has primary jurisdiction to

hear and determine all controversies arising under the school

laws."     Bower v. Bd. of Educ. of E. Orange, 149 N.J. 416, 420

(1997).    As a result, her "statutory interpretation is entitled

to considerable weight, where not inconsistent with the statute

and in harmony with the statutory purpose."          Kletzkin v. Bd. of

Educ. of Spotswood, 136 N.J. 275, 278 (1994).        We will ordinarily

uphold the Commissioner's determination unless it is "arbitrary,

capricious, or unreasonable or is not supported by substantial

credible evidence in the record as a whole."          G.D.M. v. Bd. of

Educ. of the Ramapo Indian Hills Reg'l High Sch. Dist., 427 N.J.

Super. 246, 259 (App. Div. 2012) (quoting Dennery v. Bd. of Educ.

of Passaic Cty. Reg'l High Sch. Dist. # 1, 131 N.J. 626, 641

(1993)).

     The deferential standard to which we adhere "applies to the

review of disciplinary sanctions as well."          In re Herrmann, 192

N.J. 19, 28 (2007) (citing Knoble v. Waterfront Comm'n of N.Y.

Harbor, 67 N.J. 427, 431-32 (1975)).         The test for reviewing an

administrative    sanction   is   "whether   such   punishment   is   'so

disproportionate to the offense, in light of all the circumstances,

                                   11                            A-3847-16T3
as to be shocking to one's sense of fairness.'"                    In re Polk, 90

N.J. 550, 578 (1982) (citation omitted).

     We have considered Im's arguments in light of the applicable

standard of review and the facts developed in the record.                         We

affirm substantially for the reasons expressed by the Commissioner

in   her    June    30,    2016,    and      April    6,    2017   administrative

determinations,      which    are    supported        by    sufficient    credible

evidence.    R. 2:11-3(e)(1)(D).

     Nor     does    the     one-year        suspension      of    Im's   teaching

certificates shock our sense of fairness.                  The result we reach is

not intended in any way to be critical of Im's laudatory goal of

serving his country as an FBI agent.                 Nonetheless, we recognize,

as did the ALJ, that "[w]hile being an FBI agent may be more

important to [Im] than being a teacher, that is a personal choice"

and "it is a dangerous path to start deciding what jobs are more

important and therefore worthy of more consideration."

     To the extent that we have not specifically addressed Im's

remaining arguments, we conclude they lack sufficient merit to

warrant discussion in a written decision.                  R. 2:11-3(e)(1)(E).

     Affirmed.




                                        12                                 A-3847-16T3
