Board of Education of the Township of Ocean, Monmouth County v. Board of Education of the Village of Loch Arbour, Monmouth County, Dr. Lester Richens, and David Joye, 1/25/19, (#28-19)

28-19
Board of Education of the Township of Ocean, 	:
Monmouth County,
:
Petitioner,
: 	Commissioner of Education
V.
: 	Decision
Board of Education of the Village of Loch Arbour,
Monmouth County, Dr. Lester Richens, and 	:
David Joye,
:
Respondents.
:
Synopsis
This matter arose following the establishment in 2017 of the Loch Arbour School District (Loch Arbour), a
non-operating district. The Commissioner approved the application of the Loch Arbour Township Board of
Education to withdraw from the Ocean Township School District (OTSD) in December 2016. After the new
school district was formed, OTSD challenged, inter alia, the methods by which Loch Arbour adopted its
annual budget and performed required criminal background checks of board members, as well as its alleged
failure to adopt bylaws. The within action was filed during the pendency of Ocean Township’s appeal of the
dismissal of its challenge in Superior Court to the Commissioner’s approval of the new Loch Arbour district.
The matter was transmitted to the Office of Administrative Law (OAL) for a hearing. OTSD filed a motion
to amend its petition, which was opposed by the respondent; 	Loch Arbour filed a motion for summary
decision.
The ALJ found, inter alia, that: 	given the circumstances of this matter, Loch Arbour timely adopted its
school budget following the April 2017 referendum vote to establish the new district; the actions taken by
the new board of education were valid despite the Board members’ failure to complete their criminal history
background checks prior to the Board’s initial meeting; there was no violation of N.J.S.A. 18A:12-1.2
because Loch Arbour requested background checks for the newly appointed Board members within the
required 30-day timeframe; further, the new appointees submitted affidavits, per guidance from the
Department, stating that they had not been convicted of a disqualifying crime; and Loch Arbour properly
acted as a school board without first adopting bylaws because N.J.S.A. 18A:11-1 does not require a board to
adopt its own rules and bylaws, especially not prior to making decisions as a board. Accordingly, the ALJ
denied OTSD’s motion to amend its petition, and granted Loch Arbour’s motion for summary decision. The
petition was dismissed.
The Commissioner found, inter alia, that summary decision was properly granted to Loch Arbour, and he
adopted the Initial Decision of the OAL with modification regarding the ALJ’s finding that school boards do
not need to adopt their own rules, bylaws, and policies. The Commissioner noted that N.J.S.A. 18A:11-1 is
abundantly clear that a board of education must make, amend and repeal rules for its governance; however,
nothing in the statute requires that such rule making must be a board’s first order of business, nor that board
actions taken prior to the adoption of such rules are invalid. Accordingly, the Commissioner granted
summary decision to Loch Arbour, and dismissed the petition with prejudice.
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.
January 25, 2019

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OAL Dkt. No. EDU 16799-17
Agency Dkt. No. 213-9/17
Board of Education of the Township of Ocean, 	:
Monmouth County,
:
Petitioner,
: 	Commissioner of Education
V.
: 	Decision
Board of Education of the Village of Loch Arbour,
Monmouth County, Dr. Lester Richens, and 	:
David Joye,
:
Respondents.
:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The Commissioner has also considered petitioner’s exceptions,
and respondent Loch Arbour Board of Education’s (Loch Arbour) reply thereto, filed pursuant to
N.J.A.C. 1:1-18.4.1 In this matter, petitioner filed a petition of appeal alleging various violations
of the school laws of the State, including statutes governing board of education budgets, actions,
and operations.2 Specifically, in Count I, petitioner argues that respondent Loch Arbour violated
N.J.S.A. 18A:7F-5, 7F-6, and N.J.S.A. 18A:22-32, by failing to timely adopt its preliminary and
final 	budgets. Petitioner 	further 	argues 	that 	the 	New 	Jersey 	Department 	of 	Education
(Department) violated said statutes by approving Loch Arbour’s budget. In Count II, petitioner
alleges that prior to assuming their roles and taking board action, Loch Arbour board members
failed to complete their criminal history background checks in violation of N.J.S.A. 18A:12-1 et
1 The Commissioner will not reiterate the procedural and factual history of the case, as the relevant facts and
procedural history is set forth in the Initial Decision and supported by the ample record in this matter.
2 The Commissioner notes that the petition of appeal also included allegations implicating the Open Public Meetings
Act (OPMA), which is indisputably beyond the Commissioner’s purview.

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seq. In Count III, petitioner alleges that the Loch Arbour board members failed to adopt bylaws,
policies and regulations before taking action as a board, and therefore violated N.J.S.A. 18A:11-
1. In Count IV, petitioner argues that the Department approved budgets for petitioner and
Loch Arbour with conflicting tax levies, and therefore Loch Arbour is required to pay its share of
school taxes to petitioner for the 2017-2018 school year.
The ALJ found that Loch Arbour timely adopted its school budget in compliance
with Title 18A. 	The ALJ reasoned that Loch Arbour would not have been able to meet the
March 20, 2017 deadline –pursuant to N.J.S.A. 18A:7F-5– for adopting and submitting its budget
to the Commissioner for approval since it did not become an independent, non-operating school
district until after the April 4, 2017 referendum vote. The ALJ explained that Loch Arbour
adopted its preliminary budget on May 1, 2017, and submitted it to the Department for approval
on May 2, 2017, which was approved on May 4, 2017; subsequently, Loch Arbour adopted its
final budget at a board meeting on May 8, 2017, prior to the May 14 deadline set forth in
N.J.S.A. 18A:22-32.3
The ALJ further found that Loch Arbour validly operated as a board despite the
new Board members’ failure to complete their criminal history background checks prior to its
initial meeting. The ALJ reasoned that Loch Arbour did not violate N.J.S.A. 18A:12-1.2 because
it requested background checks for its newly appointed Board members within the 30-day time
frame and, based upon guidance from the Department, the newly appointed Board members
submitted affidavits stating that they had not been convicted of a disqualifying crime. The ALJ
held that board members are not required to complete a background check prior to assuming
3 The ALJ noted that the budget submission deadline is “tentative” as evidenced by petitioner’s untimely submission
and adoption of its own budget.

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office because N.J.S.A. 18A:12-2.1 only requires that board members – before entering upon the
duties of their office – take an oath that they are not disqualified from serving in the role.
Lastly, the ALJ found that Loch Arbour properly acted as a school board without
first adopting bylaws because N.J.S.A. 18A:11-1 does not require a board to adopt its own rules
and bylaws, especially not prior to making decisions as a board.
In its exceptions, petitioner sets forth the following as errors of fact: 1) The ALJ’s
finding that the Commissioner “changed the budgetary due date” for Loch Arbour; 2) The ALJ’s
note that even though the May 2017 board meetings were in violation of OPMA, the Superior
Court determined that Loch Arbour corrected its mistake at its June 19, 2017 public meeting
when it retroactively ratified both the initial and final budgets; 3) The ALJ’s reliance on an
undated New Jersey School Boards Association press release and an unauthenticated statement
of a Department employee that board members were permitted to submit affidavits and take oath
of office pending the background checks; and 4) the ALJ’s failure to making findings of fact
pertaining to Count IV. 	Petitioner set forth the following as errors of law: 1) The ALJ’s
interpretation of N.J.S.A. 18A:11-1; and 2) The ALJ’s granting of summary decision in favor of
respondents when there are material facts in dispute and fact-finding has not been completed.
As a preliminary matter, the Commissioner finds that although the ALJ did not
address Count IV in the Initial Decision, further fact-finding is unnecessary as the Commissioner
is without jurisdiction to grant the relief sought by petitioner in Count IV. The Commissioner
further finds that summary decision was properly granted because the material facts relating to
Counts I through III are not in dispute, and the issues raised can be decided as a matter of law.
The ALJ’s remaining factual “errors” have no impact on the outcome of this
matter. 	First, the Commissioner clarifies that implicit in the Department’s acceptance and

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approval of Loch Arbour’s submission of its budget is the fact that the Commissioner extended
the deadline for Loch Arbour under the circumstances of the case. 	Therefore, the ALJ’s
characterization of the Department allowing Loch Arbour to submit its budget outside of the
deadline as “chang[ing] the budgetary due date for [Loch Arbour],” is not an error of fact.
Notably, N.J.S.A. 18A:7F-5 allows the Commissioner to adjust the date for the submission of
district budgets. In this case – where the district’s budget would not have been available by the
March 20, 2017 deadline – the Department’s acceptance and approval of the budget in May
2017, was proper pursuant to N.J.S.A. 18A:7F-5.
Second, the ALJ’s finding that the Superior Court determined that Loch Arbour
corrected its mistake at its June 19, 2017, public meeting when it retroactively ratified both the
initial and final budget, is not an “error”. The Commissioner clarifies that the Superior Court
found that the June 19, 2017 meeting could satisfy the curative provision of OPMA, but opined
that the Commissioner has the ultimate authority to accept the June 19, 2017 action or hold Loch
Arbour to the “May 20th ” [sic] deadline. In other words, the Superior Court’s determination is
that the June 19, 2017 meeting cures the OPMA violations if the Commissioner waived the
May 14, 2017 deadline and accepted Loch Arbour’s board action on June 19, 2017. Based on
the facts and circumstances of this case and Loch Arbour’s curative action, the Commissioner
accepts the June 19, 2017 board action.
Third, the ALJ’s reliance on alleged unauthenticated documents and statements
has no impact on the outcome of this case because the plain language of N.J.S.A. 18A:12-1.2 and
2.1, read in conjunction with N.J.S.A.18A:10-3, demonstrates that petitioner’s narrow reading of
N.J.S.A. 18A:12-1 –that board members must complete a criminal history background check
before taking the oath of office and conducting board business– is incorrect. N.J.S.A. 18A:12-

5
1.2(a) provides in relevant part that within 30 days of election or appointment, each board
member “shall undergo a criminal history background investigation for the purpose of ensuring
that the member is not disqualified. . .” Nothing in the statute requires that the board members
complete the criminal history background check prior to being sworn in; the statute merely
requires that the board member submit to a criminal history background check within 30 days of
election or appointment. Significantly, N.J.S.A. 18A:10-3 – which sets forth the requirements for
annual reorganization of the boards – requires that the reorganization meeting take place “on any
day of the first or second week following the April school election.” Therefore, it is not feasible
for board members elected or appointed in April to complete background checks within 30 days
of being sworn in and conducting the organization meeting. 	In this matter, the board members
submitted background checks within 30 days of appointment and prior to the first Board
meeting, and further submitted affidavits to the Department – consistent with the Department’s
policy and past practice – certifying that they were not convicted of any of the disqualifying
crimes enumerated in N.J.S.A. 18A:12-1.4
Petitioner’s remaining “error” of law pertains to N.J.S.A. 18A:11-1. 	Petitioner
argues that a board of education must adopt bylaws before it can validly act as a board.
N.J.S.A. 18A:11-1(c) provides in pertinent part that a board of education shall “make, amend
and repeal rules, not inconsistent with this title or with the rules of the state board, for its
own government and the transaction of its business and for the government and management of
4 Submission of affidavits pending the criminal history background check for board members is Department practice
and policy for April elections or appointments. This policy was temporarily extended to apply to officials elected in
November 2016 for the January 2017 reorganization meeting due to reports of vendor delays in processing the
background checks. The temporary application of the policy to the November 2016 election was then rescinded in
March 2017 since the delay and the timeframe no longer applied. 	The Department did not rescind the policy
allowing submission of affidavits for April elections/appointments. Petitioner improperly relies on the March 2017
rescission of the temporary application of the policy to the November 2016 elections to argue that the rescission
included April, when there is no evidence that the Department changed its policy regarding the April elections.

6
the public schools . . .” The ALJ has interpreted this to mean that a school board is not required
to adopt its own rules, and certainly not prior to making decisions as a board. The Commissioner
disagrees with the ALJ to the extent that the ALJ held that school boards do not need to adopt
their own rules, bylaws and policies. The statute is abundantly clear that the board of education
needs to make, amend and repeal rules for governance; however, nothing in the statute requires
that making and adopting rules, bylaws and/or policies is the first order of business and that the
board cannot act validly without first having done so. It is also simply not logical or reasonable
to expect a board of education to refrain from taking any action during its first or second meeting
because it has not adopted rules. This does not mean that a board of education should indefinitely
operate without rules. In this case, it was necessary for Loch Arbour to take certain actions, i.e.,
adopt its budget, which could not be delayed. Therefore, while the board of education does not
need to adopt rules as its first act of business, as a matter of practice, the board should adopt
rules early in its organization and must not operate indefinitely without adopting rules, policies
and bylaws.
Accordingly, the Commissioner adopts the Initial Decision – as modified herein –
and the petition of appeal is hereby dismissed with prejudice.
IT IS SO ORDERED.5
COMMISSIONER OF EDUCATION
Date of Decision: 	January 25, 2019
Date of Mailing: 	January 25, 2019
5 Pursuant to P.L. 2008, c 36 (N.J.S.A. 18A:6-9.1), Commissioner decisions are appealable to the Superior Court,
Appellate Division.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION GRANTING
RESPONDENT’S 	MOTION
FOR 	SUMMARY 	DECISION
AND DENYING PETITIONER’S
MOTION 	TO 	AMEND 	ITS
PETITION
OAL DKT. NO.: EDU 16799-17
AGENCY NO.: 213-9/17
BOARD OF EDUCATION OF THE TOWNSHIP OF OCEAN,
Petitioner,
v.
BOARD OF EDUCATION OF THE VILLAGE OF LOCH
ARBOUR, DR. LESTER RICHENS, ECS, AND DAVID
JOYE, ECBA,
Respondent.
_____________________________________
Michael Gross, Esq., for petitioner Ocean Township Board of Education (Kenny,
Gross, Kovats and Parton, attorneys)
James M. Hirshorn, Esq., for respondent Loch Arbour Board of Education (Sills
Cummis & Gross, P.C., attorneys)
Record Closed: August 16, 2018 	Decision: October 29, 2018
BEFORE SARAH G. CROWLEY, ALJ:

OAL DKT. NO. EDU 16799-17
2
PROCEDURAL HISTORY
The 	Commissioner 	of 	Education 	approved 	the 	application 	of 	Loch 	Arbour
Township Board of Education (LABOE) to withdrawal from the Ocean Township School
District OTSD in December 2016. 	After the new school district was set up, OTSD filed
the instant petition with the Department of Education challenging LABOE’s budgetary
re-adoption, 	non-completion 	of 	criminal 	background 	checks, 	and 	failure 	to 	adopt
bylaws.6 	The Department transmitted the matter to the Office of Administrative Law
(OAL) as a contested case. OTSD filed a motion to amend it petition, and LABOE filed a
cross motion for summary decision and opposition to the motion to amend the petition.
Oral Argument was heard by the parties on August 16, 2018, and the record closed at
that time.
FACTUAL BACKGROUND AND SUMMARY OF CASE
This case arises out of the LABOE’s petition to the Commissioner of Education to
withdraw from Ocean Township School District, and its subsequent withdrawal from
OTSD. 	On June 1, 2016, LABOE petitioned the Commissioner to submit to the voters
of Loch Arbour the issue of withdrawing from Ocean Township School District. 	The
Commissioner granted the petition on December 22, 2016. 	OTSD requested a stay in
Superior Court, but the request was denied. 	On March 8, 2017, OTSD filed an
emergent motion with the Appellate Division to stay the Commissioner’s December
2016 decision, citing irreparable harm concerning the OTSD 2017-2018, budget and
students being placed in send/receive relationships with other districts. This motion was
also denied.
On April 4, 2017, Loch Arbour residents voted to approve the withdrawal from
OTSD. 	April 10, 2017, a new LABOE was appointed by the Mayor of Loch Arbour.
Loch Arbour board members submitted background check applications on April 26,
2017. 	The New Jersey Department of Education permitted school board members
appointed in April to take office on May 1, prior to completing criminal history checks.
6 The Commissioner approval was challenged in the Superior Court and the dismissal of that action is currently on
appeal.

OAL DKT. NO. EDU 16799-17
3
Investigator 	James 	Scarangelli 	of 	the 	Department’s 	Criminal 	History 	Review 	Unit
informed Loch Arbour Mayor, Paul Fernicola, that members could be sworn into office if
each submitted an affidavit stating he/she had not been convicted of 	any crime
enumerated in N.J.S.A. 18A:12-1. Paul Fernicola Cert., ¶ 6. All five members submitted
an affidavit, and were sworn in as board members Simons Cert., ¶ 6.
On May 1, 2018, LABOE had its first organizational meeting, during which official
positions were appointed, send/receive relationships with West Long Branch and Shore
Regional 	school 	districts 	were 	discussed, 	and 	a 	tentative 	budget 	was 	approved.
LABOE did not adopt bylaws, rules, or regulations at this initial meeting. 	On May 8,
2018, LABOE held a special meeting to finalize the budget. 	Notice for both meetings
was provided to Coaster and Asbury Park Press via e-mail from the board’s clerk,
Marilyn Simons, stating notice was sent only for informational purposes and was not to
be published.
On 	May 	30, 	2017, 	OTSD 	filed 	a 	complaint 	in 	Superior 	Court 	challenging
LABOE’s budgetary actions at the two May meetings on the basis that these meetings
violated the Open Public Meetings Act (OPMA) because adequate notice was not
provided. 	On June 19, 2017, while the Superior Court case was pending, the LABOE
held another meeting to readopt its tentative and final budgets. 	Notice for this meeting
was provided to and published by Asbury Park Press and the Coaster, in compliance
with the OPMA. 	On August 7, 2017, Superior Court Judge Lisa Thorton dismissed
OTSD’s complaint ruling that LABOE corrected its OPMA violations at the June 19,
2017, meeting when the board retroactively adopted its budgets. 	Judge Thorton
dismissed the remaining counts two-five of the complaint, those dealing with various
violations of Title 18A and demanding judgment against the Department of Education,
due to lack of jurisdiction.
The above FACTS are undisputed and are FOUND as FACTS.

OAL DKT. NO. EDU 16799-17
4
LEGAL ANALYSIS
Summary decision is the administrative counterpart to summary judgment in the
judicial arena. 	N.J.A.C. 1:1-12.5 provides that summary decision should 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. 	To defeat a summary decision
motion, the adverse party must respond by affidavits setting forth specific facts showing
that there is a genuine issue which can only be determined in an evidentiary hearing.
Use of the summary procedure is aimed at the swift uncovering of the merits and either
their effective disposition or their advancement toward a prompt resolution by trial.
Judson v. Peoples Bank and Trust Co. of Wesfield, 17 N.J. 67, 74 (1954).
The New Jersey Supreme Court encouraged trial-level courts not to refrain from
granting summary judgment when the proper circumstances present themselves. 	Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541 (1995). 	While cautioning that a
judge should not weigh the truth of the evidence or resolve factual disputes at this early
stage of the proceedings, the Court clarified that when the evidence is so one-sided that
one party must prevail as a matter of law, the trial court should not hesitate to grant
summary judgment. 	Id. at 540. 	Appellate courts recognize that “[a]n evidentiary
hearing is mandated only when the proposed administrative action is based on disputed
adjudicatory facts.” 	Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 120 (App.
Div. 1995), certif. denied, 145 N.J. 372 (1996).
OTSD alleges that LABOE failed to comply with the Department of Education’s
budget submission deadline pursuant to N.J.S.A. 18A:7F-5(c), which states that each
district board of education shall adopt a tentative budget on or before March 4 or March
20, depending on when school elections take place, to submit to the Commissioner for
approval. However, the statute further states, “the commissioner may adjust the date for
the submission of district budgets if the commissioner determines that the availability of
preliminary aid numbers for the subsequent school year warrants such adjustment.”
Thus, 	if 	school 	aid 	data 	is 	unavailable 	before 	tentative 	budgets 	are 	due, 	the
commissioner may change the date of submission to conform with the specific situation.

OAL DKT. NO. EDU 16799-17
5
Ibid.; See, e.g. Abbott v. Burke, 206 N.J. 332, 418 (the Comm’r of Education adjusted
budgetary due dates because of the governor’s late budget press conference release).
The submission of a tentative budget is the first step in the school budgetary
process. The proposed budget is reviewed by the Executive County Superintendent
and, if approved, is sent back to the board for final adoption. Abbott, 206 N.J. at 417.
Furthermore, N.J.S.A. 18A:22-32(b) permits a type II district that has “no board of
school estimate” to determine its school budget by May 14 by a majority vote of its full
board membership.7
LABOE timely adopted its 2017-2018 school budget by readopting its actions at
the 	June 	19, 	2017, 	meeting. 	As 	stated 	above, 	N.J.S.A. 	18A:7F-5(c) 	allows 	the
Commissioner 	to 	adjust 	budget 	deadlines 	when 	preliminary 	aid 	numbers 	are
unavailable. 	In this instance, LABOE formed its board of education after the March 20
tentative 	deadline. 	The 	vote 	regarding 	whether 	Loch 	Arbour 	should 	form 	an
independent district was not even decided until April 4, 2017, well after the March
budgets were due. 	Therefore, LABOE could not have submitted a tentative budget in
compliance with the N.J.S.A. 18A:7F-5 deadlines. 	Moreover, the tentative budget
submission date is not a firm date, as evidenced by the fact that OTSD failed to submit
its budget on time and adopted its budget one day after the statutory due date. Here,
the Commissioner utilized her power under N.J.S.A. 18A:7F-5(c) and changed the
budgetary due date for LABOE, and ultimately approved the board’s budget on May 4,
2017.
In accordance with N.J.S.A. 18A:22-32(b), LABOE submitted its initial budget to
the Executive County Superintendent on May 2, 2017, and he approved the budget on
May 4, 2017. 	LABOE then held a special meeting on May 8, 2017 to adopt its final
7 Type II districts are classified as a school district “in a municipality other than a city, every consolidated
local school district, and every regional school district, pursuant to N.J.S.A. 18A: 9-3, where board
member are elected or appointed by the municipality, as applicable, and where in a school district without
a board of school estimate the district board of education issues school bonds for school district capital
projects, pursuant to N.J.S.A. 18A:24-12. N.J.A.C. 6A: 26-1.2. Loch Arbour qualifies as a type II district
because it is considered a village, rather than a city, and its school board was appointed by the
municipality. LABOE was without a board of school estimate until its first meeting on May 1, 2017, after
the April tentative budgets were due.

OAL DKT. NO. EDU 16799-17
6
budget before the May 14 deadline. The Loch Arbour school board retroactively ratified
both the initial and final budget on June 19, 2017. Thus, LABOE fully complied with the
statutory deadline of May 14, 2017.
OTSD also argues that LABOE improperly adopted its school budgets because
the May 1 and 8, 2017 meetings violated the OPMA, and therefore any actions taken at
the 	meetings 	are 	void. 	Although 	the 	May 	meetings 	violated 	the 	OPMA 	because
adequate notice was not provided to the public, the Superior Court determined that
LABOE properly corrected its mistakes at a June 19, 2017 meeting by reviewing at
ratifying its prior actions de novo. 	Thus, the Court determined that the May 1 and May
8, 2017 dates stand as when the initial and final budgets were adopted. As noted
above, it was the decision of the Department to approve or reject LABOE’s initial budget
and the Department approved it. 	OTSD argues that LABOE did not properly establish
its school board because members failed to have completed background checks prior to
holding 	its 	first 	meeting 	on 	May 	1, 	2017. 	N.J.S.A. 	18A:12-1 	disqualifies 	from
membership on school boards individuals who have committed any crime enumerated
in the statute. N.J.S.A. 18A:12-1.2(a) specifically requires newly appointed members to
undergo a criminal history background check within thirty days of their election or
appointment. 	However, the statute does not require completion of a background check
prior to acting as a school board. Rather, the statute simply requires that new members
submit to a background check within thirty days of appointment. The legislature’s
comment to N.J.S.A. 18A:12-1.2 supports this view. 	The comment states that a school
board member’s only requirement prior to assuming office is to take an oath swearing
he/she is not disqualified due to a conviction of a disqualifying crime. N.J. Senate
Education Comm. Statement to S. 295 (Oct. 14, 2010), emphasis added. The comment
further explains that each member must “within 30 days of election or appointment. . .
undergo a criminal background check for the purpose of ensuring that member is not
disqualified from membership due to a conviction of one of the specified crimes or
offenses.” Ibid., emphasis added. The legislature clearly differentiated between what is
required prior to taking office and what must be completed within a particular time frame
after assuming office. Nowhere in the statute nor in the Senate’s commentary does it

OAL DKT. NO. EDU 16799-17
7
specify that completion of a criminal background check is required prior to taking action
as a board member.
The Loch Arbour board was appointed on April 10, 2017. 	LABOE requested
background checks on April 26, 2017 for its newly appointed members. 	This request
was made within thirty days of the Board’s appointment and satisfies N.J.S.A. 18A:12-
1.2(a). 	Additionally, each of the five board members submitted affidavits before the
initial meeting, certifying that they had not been convicted of any of 	the crimes
enumerated in N.J.S.A. 18A:12-1. 	Background checks were completed on May 10,
2017 and confirmed the members’ affidavits stating that none had been convicted of a
disqualifying crime. 	Each LABOE member substantially complied with both N.J.S.A.
18A:12-1.2(a) and the legislature’s purpose for requesting criminal background checks.
In addition to complying with the statute, LABOE acted in accordance with the
Department of Education’s instructions. On April 28, 2017, James Scarangelli of the
Department’s 	Criminal 	History 	Review 	Unit 	advised 	the 	board 	that 	certifications
affirming members had not been convicted of a disqualifying crime were sufficient for
members to hold a meeting on May 1, 2017, prior to background checks being
completed. 	Paul Fernicola Cert. ¶ 6. The New Jersey School Board Association also
reported the Department’s position, releasing a statement which said,
School board members elected to office for the first time on
April 25 will have thirty days from the certification of election
results (May 1) to complete criminal background checks.
However, 	they may be 	sworn 	into office at the board’s
organization 	meeting, 	even 	if 	their 	criminal 	background
checks are not completed, according to the New Jersey
Department of Education’s Criminal History Review Unit.
Paul Fernicola Cert., Exh. 4.
LABOE 	properly 	followed 	the 	Department’s 	instructions 	regarding 	criminal 	history
checks.
The requirement for a properly constituted Board of Education are set forth in
N.J.S.A. 18A:11-1, which provides as follows:
The board shall——

OAL DKT. NO. EDU 16799-17
8
a. Adopt an official seal;
b. Enforce the rules of the state board;
c. Make, amend and repeal rules, not inconsistent with this
title 	or 	with 	the 	rules 	of 	the 	state 	board, 	for 	its 	own
government and the transaction of its business and for the
government and management of the public schools and
public school property of the district and for the employment,
regulation 	of 	conduct 	and 	discharge 	of 	its 	employees,
subject, where applicable, to the provisions of Title 11, Civil
Service, of the Revised Statutes; and
d. Perform all acts and do all things, consistent with law and
the rules of the state board, necessary for the lawful and
proper conduct, equipment and maintenance of the public
schools of the district.
OTSD argues that N.J.S.A. 18A:11-1(c) requires school boards to adopt bylaws,
and a board cannot validly act until it has done so. 	LABOE argues that N.J.S.A.
18A:11-1(c) does not require a board to adopt bylaws, but rather, permits a board to
adopt its own rules not inconsistent with the rules of the state board. 	The plain
language of the statute does not provide sufficient information to determine its exact
meaning, rather its ambiguous wording allows N.J.S.A. 18A:11-1(c) to be susceptible to
dual meanings – either that a board must adopt its own rules that do not conflict with
state regulations or if a board chooses to adopt rules, those rules must not conflict with
state regulations. Despite this ambiguity, nowhere in the statutory language of N.J.S.A.
18A:11-1 does it say nor imply that the first thing a school board must do is adopt
bylaws.
Both the agency and the legislature have been silent on this particular issue and
therefore, provide little guidance as to which interpretation correctly corresponds with
the law. 	Nor has a court specifically addressed whether N.J.S.A. 18A:11-1(c) requires
boards to adopt rules or bylaws prior to taking any official action, however, the decisions
that are available support local school boards’ broad authority to carry out their
responsibilities so long as their actions are not inconsistent with statute or state
regulations. 	See e.g. Board of Education v. Union City, 112 N.J. Super. 493 (Law Div.
1970), 	aff'd, 	118 	N.J. 	Super. 	435 	(App. 	Div. 	1972) 	(“Board 	of 	education 	is 	an
independent corporate 	entity which 	manages 	the operation of 	the school 	system
substantially free of control by the local governing body pursuant to N.J. Stat. Ann. §§

OAL DKT. NO. EDU 16799-17
9
18A:10-1 and 18A:11-1 et seq.”); Porcelli v. Titus, 108 N.J. Super. 301 (App. Div. 1969),
certif. denied, 55 N.J. 310 (1970) (“the broad discretionary powers vested in such
boards with respect to the day-to-day functioning of the schools within their jurisdiction
as provided for at N.J. Stat. Ann. § 18A:11-1”).
Though the goal of interpreting statutes is to identify the intent of the legislature,
rules of statutory construction are subordinate to the proposition that interpretation of a
statute should not lead to absurd results. State v. Provenzano, 34 N.J. 318, 322 (1961).
The interpretation argued by OTSD would lead to an absurd result. If a school board
cannot take any action without first creating bylaws, then it cannot act in accordance
with the other provisions of N.J.S.A. 18A: 11-1. 	Importantly, a board would not be able
to “Perform all acts and do all things, consistent with law and the rules of the state
board, necessary for the lawful and proper conduct, equipment and maintenance of the
public schools of the district”, including adopt a budget within statutory deadlines.
N.J.S.A. 18A: 11-1(d). There are such situations, as here, where a school board may
need to act in a short amount of time due to late elections and instituting its own bylaws
prior to taking any other official action does not allow a board to do that. 	Taken as a
whole, the statute supports the view that school boards must comply with the existing
state board rules.
LABOE’s interpretation of N.J.S.A. 18A:11-1 is consistent with the language in
the statute. As Union City and Porcelli convey, boards have broad discretion to manage
school affairs consistent with other state law.8 Union City, 112 N.J. Super. 493; Porcelli,
108 N.J. Super. 301. 	These cases show that the most important aspect of bylaws is
creating regulations consistent with existing laws. 	While it may be common practice
among school boards to adopt its own bylaws, as OTSD asserts, LABOE is correct in
stating that adoption of its own rules is not required and is certainly not required prior to
making decisions as a board. LABOE’s interpretation allows for school boards to obey
all sections of N.J.S.A. 18A:11-1 and does not lead to an absurd result.
8 Other case law addressing issues with N.J.S.A. 18A:11-1 state that once a school board has adopted
bylaws, it must adhere to said rules until a quorum has voted to change the bylaws. See e.g., Matawan
Regional Teachers Ass'n v. Matawan-Aberdeen Regional School Dist. Bd. of Educ., 223 N.J. Super. 504
(App. Div. 1988). However, that is not the issue in this case, as LABOE has not adopted any bylaws,
rules or regulations.

OAL DKT. NO. EDU 16799-17
10
CONCLUSION
Accordingly, I CONCLUDE that the that LABOE timely adopted its school budget
in compliance with Title 18A, validly operated as a board despite incomplete criminal
background checks prior to its initial meeting, and properly acted as a school board
without first adopting bylaws. 	Therefore, I hereby deny OTSD’s motion to amend its
petition and grant LABOE’s motion for summary decision.
ORDER
I 	hereby 	ORDER 	that 	LABOE’s 	Motion 	for 	Summary 	Decision 	is 	hereby
GRANTED and the Petition is hereby DISMISSED. I further ORDER that the motion to
amend the petition is DENIED.
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.

OAL DKT. NO. EDU 16799-17
11
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.
October 29, 2018
DATE 	SARAH G. CROWLEY, ALJ
Date Received at Agency: 	October 29, 2018 (emailed)
Date Mailed to Parties:
SGC/mel