DOLORES I. RABENOU V. BOARD OF EDUCATION OF THE BOROUGH OF CLIFFSIDE PARK, BERGEN COUNTY, 11/29/04 (#475-04)

475-04
OAL DKT. NO. EDU 1911-04 (http://lawlibrary.rutgers.edu/oal/html/initial/edu01911-04_1.html)
AGENCY DKT. NO. 22-1/04
DOLORES I. RABENOU, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF 	: 	DECISION
THE BOROUGH OF CLIFFSIDE
PARK, BERGEN COUNTY, 	:
RESPONDENT. 	:
:
The record of this matter and the Initial Decision of the Office of
Administrative Law (OAL) have been reviewed. 	Petitioner filed timely exceptions
pursuant to the provisions of
N.J.A.C. 1:1-18.4, to which the Board of Education (Board)
duly replied. 	Petitioner’s further submission in response to the Board’s reply is not
considered herein, since applicable rules make no provision for such submissions.
In her exceptions, Petitioner points to the finding of the Administrative
Law Judge (ALJ), in the Initial Decision at 2, that petitioner requested a leave of absence
for 	maternity 	purposes, 	and, 	from 	this, 	concludes 	that 	this 	“factual
determination***resolves the matter in favor of the Petitioner.***Upon reaching this
conclusion as a finding of fact, the Petitioner is now entitled to apply to the TPAF
[Teachers’ Pension and Annuity Fund] to purchase credit***for purposes of her pension.
In effect there need be no further proceedings since the Petitioner is now entitled to apply
directly to the TPAF for the relief which she has requested. 	This was a finding of fact
which was questioned by the TPAF and is now resolved.” (Petitioner’s Exceptions at 1-
2, quotation at 2) 	Petitioner further opines that the above-noted finding renders moot
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the subsequent conclusion that Petitioner’s appeal was untimely filed, but in the
alternative, reiterates her argument before the ALJ that the 90-day limitation period did
not begin until October 28, 2003, when the Board denied petitioner’s request to amend its
minutes. 	Petitioner states that she “followed a logical course of action by requesting the
local district to amend its erroneous conclusion which the [ALJ] has now determined to
be inconsistent with the facts in this matter.***Petitioner was pursuing an administrative
remedy by requesting the local district to amend its minutes as requested by the TPAF
which had denied the Petitioner’s request to purchase credits because***[the Board]
would not correct their mistake in the minutes.***Therefore an exception to the [ALJ’s]
decision is in order as the Petitioner was in the process of attempting to comply with the
TPAF request to seek the amendment of the local district’s minutes.” (
Id. at 3-4)
In reply, the Board argues that petitioner is fixing on one finding, i.e., that
she
requested a leave (Finding No. 1), while ignoring another, i.e., that the Board
granted
a resignation (Finding No. 3). 	The Board notes that petitioner’s request for a leave is
undisputed; the issue of concern to TPAF was not what she requested, but rather what the
Board granted. Moreover, the Board observes, the Initial Decision does not even address
the merits of petitioner’s claim, having been decided solely on the issue of untimely
filing; therefore, petitioner cannot claim the ALJ’s “conclusions” on the merits render the
untimeliness issue moot. 	(Board’s Reply at 2-3) 	In this latter regard, the Board
reiterates its argument, made before the ALJ, to the effect that petitioner’s cause of action
is not the Board’s refusal to amend its minutes, but rather the error they purportedly
reflect. (
Id. at 3-5)
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Upon consideration of the record and the parties’ arguments on exception,
the Commissioner concurs with the ALJ that the instant matter must be dismissed as
untimely filed. Although petitioner couches her complaint as an appeal from the Board’s
refusal to amend the minutes of its March 13, 1969 meeting, what petitioner is actually
appealing, as recognized by the ALJ, is the district’s underlying determination to deem
her to have
resigned by letter of that same date, and not, as she contends, merely to have
arranged for a leave of absence which ultimately extended until September 30, 1971,
although she did not return to the district thereafter. Clearly, petitioner had notice of the
district’s official characterization of her status by June or July 2003 at the latest; what she
is attempting to overcome by identifying her cause of action as the Board’s subsequent
refusal to amend its minutes is the unfortunate fact that she did not move to dispute such
characterization until she realized its impact on her ability to purchase pension credit, and
then waited to file her appeal with the Commissioner until she failed in her attempts to
negotiate with the Board. 	That such attempts do not toll the statute of limitations is by
now well established. 	See,
Kaprow, supra; also,
Riely v. Hunterdon Central Bd. of
Educ., 173
N.J. Super. 109, 413
A.2d 628 (App. Div. 1980).1
f
	r
1 The undisputed documentary record in this matter clearly demonstrates that: petitioner was provided with
a copy of her district personnel record by memo from the payroll department dated May 28, 2003; in her
response to Interrogatory No. 14, petitioner states that she became aware of the district’s “error” on
June 15, 2003; a letter from the TPAF dated June 16, 2004 clearly advised that the records provided to the
TPAF indicated that petitioner was not employed during the period in question; and petitioner by her own
admission received a copy of the Board minutes on July 22, 2003.
Additionally, attempting to plead this matter solely as a challenge to the Board’s refusal to amend its
meeting minutes would appear to raise a question of jurisdiction, since the Commissioner may hear claims
arising under the Open Public Meetings Act only when they are ancillary to a primary school law dispute.
Sukin v. North ield Boa d of Education, 171
N.J. Super. 184 (App. Div. 1979),
Jenkins v. Newark Board of
Education, 166
N.J. Super. 357 (Law Div. 1979), aff’d. 166
N.J. Super. 300 (App. Div. 1979) However,
that consideration was neither pled nor briefed herein, and need not be addressed given the Commissioner’s
holding on the timeliness of the Petition.
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Additionally, 	in 	view 	of 	petitioner’s 	statements 	on 	exception, 	the
Commissioner stresses that no determination is made herein, or in the Initial Decision,
regarding the merits of petitioner’s underlying claim; indeed, the ALJ expressly states
that her findings of fact are for purposes of deciding the Board’s motion to dismiss on
grounds of untimely filing, and the Board itself does not dispute petitioner’s contention
that, by her letter of March 13, 1969, her
intent was to request a leave of absence,
although that is not what the Board granted.
Accordingly, for the reasons expressed therein and above, the Initial
Decision of the OAL dismissing the Petition of Appeal is adopted as the final decision in
this matter.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	November 29, 2004
Date of Mailing: 	November 30, 2004
2 This decision may be appealed to the State Board of Education pursuant to
N.J.S.A. 18A:6-27
et seq. and
N.J.A.C. 6A:4-1.1
et seq.
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