N.U., on behalf of, M.U. v. Board of Education of the Town of Mansfield, Burlington County, 10/9/2020, (#231-20R)

231-20R
New Jersey Commissioner of Education
Final Decision
N.U. on behalf of minor child, M.U.,
Petitioner,
v.
Board of Education of the Town of Mansfield,
Burlington County,
Respondent.
Synopsis
Petitioner challenged the respondent Board’s determination that M.U. committed an act of harassment,
intimidation and bullying (HIB) in violation of New Jersey’s Anti-Bullying Bill of Rights Act (Act),
N.J.S.A. 18A:37-13 et seq., when he told a fellow sixth grader who had just gotten a haircut that he looked
like Donald Trump. 	The classmate took offense to the comment, and an HIB investigation ensued,
resulting in a finding that M.U.’s conduct constituted HIB. The petitioner alleged that there was no HIB,
and that the Board’s investigation was incomplete and improperly conducted. 	A hearing in the matter
was conducted at the Office of Administrative Law (OAL) in March 2020.
The ALJ found, inter alia, that: the Commissioner will not overturn a decision of a local board of
education unless it is determined that the action taken was arbitrary, capricious or reasonable; and the Act
defines HIB as any gesture, written, verbal or physical act, or electronic communication that is reasonably
perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion,
ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical
or sensory disability, or by any other distinguishing characteristic. The ALJ concluded that the petitioner
did not meet her burden of proof that the Board acted in an arbitrary, capricious or unreasonable manner
in concluding that M.U.’s actions constituted HIB under the Act. Accordingly, the ALJ ordered that the
petition be dismissed. By a decision dated April 24, 2020, the Commissioner remanded this matter to the
OAL, finding that the current record is not an adequate basis upon which to determine whether the
Board’s actions were arbitrary, capricious or unreasonable. On remand, the ALJ dismissed the matter as
abandoned, based on petitioner’s failure to participate in a scheduled telephone prehearing conference on
August 26, 2020.
Upon review on remand, the Commissioner found that petitioner did not abandon this matter, as she
offered a reason why she failed to appear for the August 26, 2020 telephone prehearing conference and
has otherwise continued to participate in this matter since it was filed in 2018. 	Accordingly, the
Commissioner remanded the matter to the OAL for proceedings necessary to reach a determination on the
merits.
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.
October 9, 2020

OAL Dkt. No. EDU 04896-20
(EDU 16045-18 On Remand)
Agency Dkt. No. 253-9/18
New Jersey Commissioner of Education
Decision
N.U., on behalf of minor child, M.U,
Petitioner,
v.
Board of Education of the Town of Mansfield,
Burlington County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed, as have the exceptions filed by petitioner pursuant to
N.J.A.C. 1:1-18.4. The Board did not file a reply.
This matter stems from the Board’s finding that M.U. committed an act of
harassment, 	intimidation, 	and 	bullying 	(HIB). 	On 	April 	24, 	2020, 	the 	ALJ 	issued 	an
Initial Decision finding that the Board was not arbitrary, capricious, or unreasonable in making
its HIB determination. 	Upon review, the Commissioner remanded the matter because the
Initial Decision only addressed one element of the HIB test set forth at N.J.S.A. 18A:37-14. On
remand, the ALJ advised the parties of a telephone prehearing conference scheduled for
August 26, 2020. 	Petitioner did not participate in the telephone prehearing conference, so the
ALJ dismissed the matter based on petitioner’s abandonment of this matter.
In her exceptions, petitioner argues that her due process rights were violated when
her matter was dismissed. Petitioner explained that the email notice of the telephone prehearing

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conference was sent to her junk mail folder, and the ALJ did not send the notice in another
method that would have ensured she received it, nor did anyone attempt to call her when she did
not call in for the conference. Petitioner points out that the Board’s attorney did not appear for a
prior conference, and the ALJ did not dismiss the case even after he called the attorney’s office
and could not reach anyone. 	Furthermore, petitioner maintains that she did not abandon her
appeal as she had recently submitted a written response following the Commissioner’s remand of
this matter. 	Accordingly, petitioner urges the Commissioner to reject the Initial Decision and
determine that the Board’s HIB determination was arbitrary and capricious.
Upon review, the Commissioner finds that petitioner did not abandon this matter.
Petitioner offered a reason why she failed to appear for the August 26, 2020 telephone
prehearing conference, namely that the email notice was filtered to her junk mail folder rather
than her email inbox. Additionally, despite her failure to participate in the telephone conference,
petitioner has otherwise continued to participate in this matter since it was filed in 2018.
Accordingly, 	this 	matter 	is 	remanded 	to 	the OAL for 	further 	proceedings
necessary to reach a determination on the merits.
IT IS SO ORDERED.
INTERIM COMMISSIONER OF EDUCATION
Date of Decision: 	October 9, 2020
Date of Mailing: 	October 9, 2020

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 16045-18
AGENCY DKT. NO. 253-9/18
N.U. ON BEHALF OF M.U.,
Petitioner,
v.
BOARD OF EDUCATION OF
THE TOWN OF MANSFIELD,
BURLINGTON COUNTY,
Respondent.
Megan A. Oduyela, Esq. appearing for petitioner
Marc G. Mucciolo, Esq. appearing for respondent, (Methfessel & Werbel, P.C.
attorneys)
Record Closed: March 3, 2020 	Decided: March 10, 2020
BEFORE JEFFREY R. WILSON, ALJ:
STATEMENT OF THE CASE

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Petitioner, N.U. on behalf of her minor child, M.U., challenges respondent’s,
Board of Education of the Town of Mansfield, Burlington County (Board) Harassment
Intimidation and Bullying (HIB) determination relative to M.U.
PROCEDURAL HISTORY
The petitioner filed a challenge of the Board’s HIB determination and requested a
hearing before the Office of Administrative Law (OAL). 	The matter was transmitted to
the OAL on November 2, 2018, where it was filed on November 5, 2018, as a contested
case. 	N.J.S.A. 52:14B-1 to 15 and N.J.S.A. 52:14F-1 to 13. 	The petitioner filed an
amended petition with the OAL on February 21, 2019. The Board filed its answer to the
amended petition on March 11, 2019. 	The fair hearing was conducted on March 3,
2020. 	At the close of the petitioner’s case, counsel for the respondent made an oral
motion to dismiss the petition.
FACTUAL DISCUSSION AND FINDINGS
The following facts of this case are not in dispute; therefore, I FIND as FACT that
on December 11, 2017, M.U. was eleven years old and in the sixth grade. On that date,
he approached a fellow classmate who had just gotten a haircut and said that he looked
like Donald Trump. 	The classmate took offense to the comment and the incident was
reported. 	A HIB investigation was conducted at it was determined that M.U.’s conduct
towards his classmate constituted HIB.
LEGAL ANALYSIS AND CONCLUSION
The Administrative Code does not provide guidelines for a motion to dismiss.
However, 	pursuant 	to 	N.J.A.C. 	1:1-1.3, 	in 	the 	absence 	of 	a 	specific 	rule, 	an
administrative law judge may proceed in accordance with the New Jersey Court Rules,
provided that the rules are compatible with the matter at hand.

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Pursuant to N.J. Ct. R. 4:37-2(b), the test on a motion for involuntary dismissal
has been characterized as follows: whether the evidence and legitimate inferences
therefrom could sustain a judgment in favor of the claimant, that is, whether reasonable
minds could differ on the evidence. 	If so, the motion must be denied. 	Dolson v.
Anastasia, 55 N.J. 2, 258 A.2d 706 (1969).
A motion for involuntary dismissal under N.J. Ct. R. 4:37-2(b) is also comparable
to a motion for directed verdict or judgment of acquittal under N.J. Ct. R. 3:18-1, and the
standard for deciding both motions is the same. Accepting as true all the evidence that
supports the position of the claimant and affording the benefit of all inferences that can
be deduced therefrom, if reasonable minds could differ the motion must be denied.
Pursuant to N.J. Ct. R. 3:18-1, at the close of the State's case or after the
evidence of all parties has been closed, the court shall, on defendant's motion or its own
initiative, order the entry of a judgment of acquittal of one or more offenses charged in
the indictment or accusation if the evidence is insufficient to warrant a conviction. As to
the standard to be applied in determining such a motion, the following classic statement
found in State v. Reyes, 50 N.J. 454 (1967) remains fully viable:
. . . the question the trial judge must determine is whether,
viewing the State’s evidence in its entirety, be that evidence
direct or circumstantial, and giving the State the benefit of all
its 	favorable 	testimony 	as 	well 	as 	all 	of 	the 	favorable
inferences which reasonably could be drawn therefrom, a
reasonable jury could find guilt of the charge. . . .
Petitioner challenges the determination of the Board that M.U.’s conduct towards
his classmate constituted HIB.
New Jersey enacted the Anti-Bullying Bill of Rights Act (Act) to “strengthen the
standards and procedures for preventing, reporting, investigating, and responding to
incidents of harassment, intimidation, and bullying” occurring both on and off of school
grounds. 	N.J.S.A. 18A:37-13.1(f). 	Definitions relative to adoption of harassment and
bullying prevention policies are found in N.J.S.A. 18A:37-14, which states in part:

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“Harassment, intimidation or bullying” means any gesture,
any 	written, 	verbal 	or 	physical 	act, 	or 	any 	electronic
communication, whether it be a single incident or a series of
incidents, that is reasonably perceived as being motivated
either by any actual or perceived characteristic, such as
race, color, religion, ancestry, national origin, gender, sexual
orientation, gender identity and expression, or a mental,
physical or sensory disability, or by any other distinguishing
characteristic, that takes place on school property, at any
school-sponsored function, on a school bus, or off school
grounds as provided for in section 16 of P.L.2010, c.122
(C.18A:37-15.3), that substantially disrupts or interferes with
the orderly operation of the school or the rights of other
students and that:
(a) 	a reasonable person should know, under
the 	circumstances, 	will 	have 	the 	effect 	of
physically or emotionally harming a student or
damaging the 	student’s 	property, 	or 	placing a
student 	in 	reasonable 	fear 	of 	physical 	or
emotional harm to his person or damage to his
property;
(b) 	has the effect of insulting or demeaning
any student or group of students; or
(c) 	creates a hostile educational environment
for 	the 	student 	by 	interfering 	with 	a 	student’s
education or by severely or pervasively causing
physical or emotional harm to the student.
Petitioner alleges that the HIB investigation was conducted improperly and was
incomplete. Petitioner urges this tribunal to conclude that there was no HIB and that the
HIB 	investigation 	was 	conducted 	improperly 	and 	was 	incomplete 	therefore 	the
determination should be reversed.
The Board urges this tribunal to conclude that the Board was not arbitrary,
capricious or unreasonable in its determination that the HIB investigation was conducted
properly and that M.U.’s conduct did constitute HIB.

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The Commissioner of Education will not overturn the decision of a local board in
the absence of a finding that the action below was arbitrary, capricious or unreasonable.
T.B.M. v. Moorestown Bd. of Educ., EDU 2780-07, Initial Decision (February 6, 2008)
(citing Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965),
aff’d, 	46 	N.J. 	581(1966), 	adopted, 	Comm’r 	(April 	7, 	2008),
<http://njlaw.rutgers.edu/collections/oal/>. 	Further, the Commissioner will not substitute
his judgment for that of the board of education, whose exercise of its discretion may not
be disturbed unless shown to be “patently arbitrary, without rational basis or induced by
improper motives.” 	Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App.
Div. 1960). 	New Jersey courts have held that “[w]here 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 Sewage Co. v. Dep’t of Envtl. Prot., 122 N.J. Super. 184, 199–200
(Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). Thus, in order to prevail, the
petitioner must demonstrate that the Board acted in bad faith, or in utter disregard of the
circumstances before it.
Based on the whole of the credible evidence presented, I CONCLUDE that
petitioner has not met her burden of proof that the Board acted in an arbitrary,
capricious 	or 	unreasonable 	manner 	in 	concluding 	that 	M.U.’s 	actions 	constituted
harassment, intimidation or bullying under the Act. Furthermore, I CONCLUDE that the
petitioner failed to demonstrate that the Board acted in bad faith, or in utter disregard of
the circumstances before it.
ORDER
Based on the foregoing, I ORDER that the petition be DISMISSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.

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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.
March 10, 2020
DATE 	JEFFREY R. WILSON, ALJ
Date Received at Agency:
Date Mailed to Parties:
JRW/tat

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APPENDIX
WITNESSES
For Petitioner:
N.U.
For Respondent:
None
EXHIBITS
For Petitioner:
None
For Respondent:
None