Lisa Cerchio v. Board of Education of the Scotch Plains-Fanwood Regional School District, Union County, 3/15/2024, (#137-24)

137-24
New Jersey Commissioner of Education
Final Decision
Lisa Cerchio,
Petitioner,
v.
Board 	of 	Education 	of 	the 	Scotch 	Plains-Fanwood
Regional School District, Union County,
Respondent.
Synopsis
In this matter, petitioner – a high school gymnastics coach formerly employed by the respondent, Board of
Education of the Scotch Plains-Fanwood Regional School District (Board) – challenged the determination of the
Board that she had committed an act of harassment, intimidation and bullying (HIB) when – during an awards
banquet – petitioner singled out A.J., a tenth-grade member of the gymnastics practice team, for not returning
her gymnastics leotard in a timely fashion. The matter was the subject of a contested hearing at the Office of
Administrative Law (OAL), after which the Administrative Law Judge (ALJ) made findings of fact and legal
conclusions and issued an Initial Decision.
The ALJ found, inter alia, that: the statutory elements of a HIB violation are set forth in the Anti-Bullying Bill of
Rights Act, at N.J.S.A. 18A:37-14; the testimony of Board administration and staff members who conducted
the HIB investigation in this matter was based on “hearsay” evidence, to such a degree that the Board’s entire
case was built solely on hearsay evidence; hearsay statements collected during the Board’s HIB investigation
cannot serve as the basis upon which to decide any “finding of ultimate fact in this matter”; furthermore, the
Board’s HIB team asked irrelevant questions and failed to thoroughly interview petitioner about details of how
she transferred the leotard to A.J. at the awards banquet; the HIB team should not have considered general
derogatory comments from those interviewed about petitioner’s personality, coaching style, and character
because those comments were not relevant to the HIB allegation and “tainted the decision-making process”;
further, such comments provided “a compelling reason to reverse the substantiation of the HIB charge”; and
the undisputed testimony and evidence presented by the petitioner was highly credible. Accordingly, the ALJ
held that petitioner’s conduct did not meet the statutory definition of HIB and recommended that the petition
of appeal be granted.
Upon review, the Commissioner adopted the Initial Decision of the OAL with modification. The Commissioner,
inter alia, rejected the ALJ’s criticism of the Board’s HIB investigation, finding that it was thorough and properly
included eyewitness accounts of what occurred at the awards banquet. 	However, because the record is
devoid of evidence to establish that petitioner’s conduct substantially disrupted or interfered with the orderly
operation of the school or the rights of other students, as required by N.J.S.A. 18A:37-14, the Commissioner
found that the Board’s HIB determination was arbitrary, capricious, and unreasonable. Accordingly, the
Initial Decision was adopted as modified herein, and the petition was granted.
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.

137-24
OAL Dkt. No. EDU 05472-20
Agency Dkt. No. 111-5/20
New Jersey Commissioner of Education
Final Decision
Lisa Cerchio,
Petitioner,
v.
Board of Education of the Scotch Plains-
Fanwood Regional School District, Union
County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
and the exceptions filed by the respondent Board pursuant to N.J.A.C. 1:1-18.4, have been
reviewed and considered. Petitioner did not file a reply.
This matter involves the Board’s determination that petitioner, a high school gymnastics
coach formerly employed by the Board, committed an act of harassment, intimidation, or
bullying (HIB) when she singled out A.J., a tenth-grade member of the gymnastics practice
team, during an awards banquet for not returning her gymnastics leotard in a timely fashion.
Initial Decision at 28. Following a contested hearing at the OAL, the Administrative Law Judge
(ALJ) rendered findings of fact and legal conclusions. After discrediting both the Board’s HIB
investigation and the testimony of Board witnesses regarding the investigation, the ALJ held
that hearsay statements obtained during the Board’s HIB investigation from A.J., petitioner, and

2
other witnesses could not be used “to decide any finding of ultimate fact in this matter.” Id. at
50. Relying solely on testimony and evidence presented by petitioner, the ALJ held that
petitioner’s conduct did not meet the statutory definition of HIB and recommended that her
petition of appeal be granted. Id. at 50-51.
When a local board of education acts within its discretionary authority, its decision is
entitled to a presumption of correctness and will not be disturbed unless there is an affirmative
showing that the decision was “patently arbitrary, without rational basis or induced by
improper motives.” Kopera v. Bd. of Educ. of W. Orange, 60 N.J. Super. 288, 294 (App. Div.
1960). Furthermore, “where there is room for two opinions, action is not arbitrary or
capricious when exercised honestly and upon due consideration[,]” and the Commissioner will
not substitute his judgment for that of the board. Bayshore Sewerage Co. v. Dep’t of Env’t
Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974).
Regarding HIB determinations, this standard has been explained as requiring a petitioner to
“demonstrate that the Board acted in bad faith, or in utter disregard of the circumstances
before it.” G.H. and E.H. o/b/o K.H. v. Bd. of Educ. of Borough of Franklin Lakes, Bergen Cty.,
EDU 13204-13 (Initial Decision Feb. 24, 2014), adopted Commissioner Decision No. 157-14 (Apr.
10, 2014).
In its exceptions, the Board asserts that the ALJ erred when he found that petitioner did
not commit an act of HIB because he failed to apply the applicable legal standard for
adjudication of HIB matters or even cite the appropriate standard of review in the
Initial Decision. Additionally, the Board argues that the ALJ inappropriately applied the hearsay
and residuum rules to analyze and discredit the Board’s HIB investigation. The Board maintains

3
that there is nothing improper about the Board’s consideration of hearsay during its HIB
investigation. Furthermore, the Board emphasizes that the ALJ substituted his own judgment
for that of the Board in contravention of law, as evidenced by his criticism of how the Board
conducted its investigation and questioned witnesses.
Upon careful review of the record in its entirety, the Commissioner adopts the
Initial Decision, with modification. As will be explained herein, the Commissioner concurs with
the Board that the ALJ inappropriately discredited the Board’s investigation and the testimony
of its witnesses and substituted his judgment for that of the Board. The Commissioner agrees
with the Board that there is nothing improper about the Board’s consideration of hearsay
during its HIB investigation. Nevertheless, the Commissioner holds that it was arbitrary,
capricious, and unreasonable for the Board to have concluded that petitioner committed an act
of HIB because the evidence in the record fails to establish that petitioner’s conduct—even
assuming it occurred exactly as determined by the Board—substantially disrupted or interfered
with the rights of other students or the orderly operation of the school as is required by N.J.S.A.
18A:37-14.1
The 16-page HIB Incident Report reflects that during its investigation, the Board
interviewed A.J., petitioner, four gymnastics team members, and Assistant Gymnastics Coach
Tara Bozetarnik—all of whom witnessed the incident at the awards banquet. A.J. said that
petitioner “went on and on about the leos” and how they were supposed to be dropped off at
her house and that “one student did not” follow instructions. Exhibit R-1, at 3. Then, according
to A.J., petitioner stated: “…that being said, A.J. come get your leo.” Ibid. A.J. said that the
1 The ALJ did not address this statutory factor in the Initial Decision.

4
incident regarding the leotard was “very uncomfortable for [her] and [her teammates]” and
that her reaction was, “Oh my god, I can’t believe [petitioner] did that.” Ibid. Four other team
members confirmed that petitioner “called out” A.J. “in front of everyone” regarding the
leotard and agreed that it was an embarrassing moment. Id. at 5, 7-9. Bozetarnik said that
petitioner took the leotard out “and threw it” at A.J. “in the middle of [petitioner’s] speech.”
Id. at 11.
A.J. also disclosed to investigators how petitioner reassigned her, and a few other
athletes, from the junior varsity team to the practice team that season. Id. at 3. A.J. disagreed
with her placement on the practice team; petitioner claimed that A.J. had “more to work on”
but did not provide her with specifics. Ibid. A.J. expressed her belief that petitioner is “rude”
and “not nice” and “picks favorites” among the athletes, particularly those who train at a
certain private gymnastics facility. Ibid. Four other team members, plus Bozetarnik, said that
petitioner favored certain gymnasts, including the varsity gymnasts as well as those who
trained at a certain private gymnastics facility. Id. at 5, 7-11. A.J. acknowledged that during the
awards banquet, petitioner gave her a certificate. Id. at 4. A.J. added that she “was going to
quit [the team] anyway” before the leotard incident because she “didn’t like the team
environment.” Ibid.
During her interview, petitioner explained that one gymnast, A.J., did not follow
protocol regarding the return of the leotards at the end of the season. Id. at 12. Petitioner said
that A.J. “had over two weeks” to return her leotard to a box on petitioner’s front porch. Ibid.
From there, petitioner planned to return the leotards to the high school athletic director, who
had advised her that he needed them by a certain date. Ibid. The day after petitioner had

5
returned the leotards to the high school, A.J.’s leotard was belatedly dropped off at petitioner’s
front porch. Ibid. Petitioner sent A.J. text messages asking her to pick it up and bring it to the
high school herself. Ibid. Since A.J. did not retrieve the leotard from her porch, petitioner
brought it to the awards banquet. Ibid. Per petitioner, at the end of the banquet when
everyone was leaving and getting their jackets, she walked over to where A.J. was seated, gave
her the leotard, and told her to bring it to the athletic office. Ibid.
At the contested case hearing, the following witnesses testified: petitioner;
Megan Whitney, an acquaintance of petitioner; Superintendent Dr. Joan Mast;
Assistant Principal Brooke Esposito; and Assistant Principal and Athletic Director Ryan Miller.2
The ALJ found that petitioner testified credibly. According to the Initial Decision,
petitioner explained that Scotch Plains-Fanwood High School has one of the largest high school
gymnastics programs in the state. She testified that she, Bozetarnik, and Miller divided the
twenty-eight gymnasts into three levels: varsity, junior varsity, and practice teams. They
utilized the New Jersey State Interscholastic Athletics Association (NJSIAA) Handbook to
compose a rubric of objective criteria to rank each gymnast and considered the points earned
by each gymnast during competitions. Petitioner added that gymnasts on the practice team
were given multiple opportunities to compete at the junior varsity level during the 2019 season.
Per petitioner, A.J. was afforded eight opportunities to compete at the junior varsity level but
only availed herself of two of these opportunities.
Regarding the awards banquet, petitioner testified that she called each gymnast up to
the front of the room and presented her with a certificate or award. She stated that when she
2 The parties did not provide the Commissioner with transcripts of the hearing testimony.

6
called A.J. up to receive her certificate, they hugged, and she “praised A.J. for working hard
during the season, for doing work with her peers to make them better gymnasts, and for being
a good gymnastic dancer.” Initial Decision at 29. Petitioner acknowledged that A.J. was the
only person to whom she returned a leotard at the banquet. Whitney, whom the ALJ found to
be credible, corroborated petitioner’s version of events. She testified that after petitioner’s
remarks had concluded and the guests were getting up to leave, petitioner picked up a leotard
and said to one of the gymnasts: “Oh, by the way, you need to return this to the school or to
the athletic office.” Id. at 31. According to Whitney, petitioner handed the leotard to the
gymnast, who was seated.
Mast, Esposito, and Miller testified on behalf of the Board. None of them attended the
awards banquet. However, Mast completed the HIB Incident Report upon learning of the HIB
allegations from A.J.’s mother, and Esposito and Ryan conducted the interviews during the HIB
investigation. Mast testified that when she initially completed the HIB Incident Report, the
distinguishing characteristic that motivated the act of HIB was listed as “not determined.” Id. at
27. Mast assigned Esposito and Miller to conduct the HIB investigation and ultimately adopted
their factual findings and conclusions. She explained that, at the conclusion of their
investigation, Esposito and Miller changed the distinguishing characteristic from “not
determined” to “lack of athletic ability.” Ibid.
During her testimony, Esposito summarized the content of the interviews that she
documented in the HIB Incident Report. Miller testified that he agreed with Esposito’s
summaries of each interview. He explained that he told petitioner that he needed the leotards
returned by a certain date to send them to a vendor for refurbishing. He further testified that

7
he believed petitioner’s conduct regarding the return of the leotard to A.J. at the awards
banquet was motivated by A.J.’s “lack of athletic ability.” Id. at 26. He explained that after
conducting the interviews of A.J. and other gymnasts, he “ascertained ‘a very strong divide’
between who was perceived as better, Varsity, and who was perceived [as] lower, JV and
Practice Squad.” Ibid. He testified that he identified “an issue within the program of treating
athletes who had more athletic skill differently than athletes who did not.” Id. at 26-27.
The ALJ discredited the testimony of Mast, Esposito and Miller regarding the interviews
conducted during the HIB investigation as “hearsay” and determined that the Board’s “case is
built only on hearsay evidence.” Id. at 36-37, 50. Significantly, the ALJ held that “the hearsay
statements” collected during the Board’s HIB investigation “cannot be used to decide any
finding of ultimate fact in this matter.” Id. at 50.
On the other hand, the ALJ found petitioner’s account of the leotard exchange
(corroborated by Whitney) to be credible, i.e., that “after the banquet guests’ attention was no
longer on [petitioner], she approached A.J. with the leotard in her hand, leaned over a few
seated students, told A.J. to . . . bring the leotard to Mr. Miller’s office, and handed the leotard
to A.J., who took it from [her] hand.” Id. at 35. The ALJ found as fact that petitioner spoke to
A.J. “in a normal conversational voice, not in a raised voice” and that “the manner in which
[petitioner] returned the leotard to A.J. was not in a way (in terms of volume or sight) that
could have attracted the attention of people who were more than an arm’s length distance
away.” Ibid. Citing petitioner’s “unrefuted” testimony, the ALJ disagreed that A.J. was “singled
out” by petitioner to humiliate or intimidate her. Id. at 36. The ALJ further found that
petitioner publicly recognized A.J.’s “gymnastic prowess” at the awards banquet, thereby

8
negating any possibility that petitioner’s conduct was motivated by A.J.’s lack of athletic ability.
Ibid.
Furthermore, the ALJ criticized various aspects of the Board’s HIB investigation, finding
that Esposito and Miller asked irrelevant questions and failed to thoroughly interview petitioner
about the manner of the leotard transfer. Id. at 32-39. The ALJ also faulted Esposito and Miller
for considering general derogatory comments from those interviewed about petitioner’s
personality, coaching style, and character because those comments were not relevant to the
HIB allegation. Ibid. Moreover, the ALJ reasoned that their consideration of these comments
“tainted the decision-making process” and provided “a compelling reason to reverse the
substantiation of the HIB charge.” Id. at 48.
In the end, the ALJ concluded that petitioner’s conduct did not satisfy the statutory
definition of HIB set forth at N.J.S.A. 18A:37-14. Specifically, the ALJ determined that the
evidence failed to establish that petitioner’s conduct: (1) could have been reasonably
perceived as being motivated by any distinguishing characteristic possessed by A.J., including an
alleged lack of gymnastics ability; or that (2) a reasonable person would have known or should
have known that the conduct would have the effect of physically or emotionally harming a
student, insulting or demeaning a student, or creating a hostile educational environment for
the student. Id. at 49-50.
At the outset, the Commissioner holds that the ALJ’s discrediting of the Board’s
investigation, including the witness statements it obtained via interviews, and the testimony of
Mast, Esposito, and Ryan based upon hearsay concerns, was erroneous. The Commissioner
therefore declines to adopt the ALJ’s findings and conclusions in that regard, which appear on

9
pages 32 through 34, 36 through 39, and 47 through 50 of the Initial Decision. The ALJ
improperly substituted his own judgment for that of the Board when he scrutinized the
procedures used by district staff during the investigation and discredited relevant evidence
presented by the Board.
The Act neither instructs boards how they must question those interviewed during HIB
investigations nor defines acceptable sources of information for boards to consider when
investigating HIB allegations. Specifically, the Act does not prohibit board reliance upon
hearsay evidence. See L.K. and T.K., on behalf of minor child, A.K. v. Board of Education of the
Township of Mansfield, Burlington County, Commissioner Decision No. 318-21 (Dec. 9, 2021) at
5, aff’d, 2023 N.J. Super. Unpub. LEXIS 1788 (App. Div. Oct. 17. 2023). Moreover, the ALJ’s
finding that the board’s investigation was somehow tainted by its consideration of negative
comments made by those interviewed about petitioner is speculative and has no basis in law.
In this case, district staff conducted a thorough HIB investigation and interviewed A.J.,
petitioner, and several eyewitnesses. All individuals interviewed had firsthand knowledge of
the leotard incident as they were present at the awards banquet when it occurred. It was
entirely reasonable for the Board to consider and evaluate these eyewitness accounts of what
happened, alongside the statements from A.J. and petitioner, in rendering a HIB determination.
By concluding that the district’s investigation was flawed, the ALJ wrote requirements into the
Act that the Legislature did not include and erroneously allowed that conclusion to influence
the outcome of this matter. For these reasons, the Commissioner rejects the ALJ’s finding on
page 50 of the Initial Decision that petitioner’s testimony and evidence was “unrefuted.” See
Hayes v. Gulli, 175 N.J. Super. 294, 301 (Ch. Div. 1980) (holding that an ALJ’s “recommended

10
findings of fact and conclusions of law must be based upon a complete and fair review of all the
relevant evidence”).
That said, because the record is devoid of evidence to establish that petitioner’s
conduct—even assuming it occurred exactly as the Board determined it to have occurred—
substantially disrupted or interfered with the orderly operation of the school or the rights of
other students as is required by N.J.S.A. 18A:37-14, the Commissioner holds that the Board’s
HIB determination is arbitrary, capricious, and unreasonable. Thus, the Commissioner agrees
with the ALJ’s recommendation to grant the petition of appeal, but for reasons other than
those expressed in the Initial Decision.
The Act defines HIB as:
[A]ny 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

11
student by interfering with a student's education or by severely
or pervasively causing physical or emotional harm to the student.
[N.J.S.A. 18A:37-14.]
In sum, a finding of HIB requires three elements under the Act. First, the conduct must
be reasonably perceived as being motivated by any actual or perceived characteristic expressly
identified in the statute, or by any other distinguishing characteristic. Second, the conduct
must substantially disrupt or interfere with the rights of other students or the orderly operation
of the school. Third, one of the three conditions set forth in subsections (a), (b), and (c) must
be satisfied. Wehbeh v. Bd. of Educ. of the Twp. of Verona, Essex Cnty., Commissioner Decision
No. 510-20 (Feb. 4, 2020).
The Board made no findings in its HIB Incident Report regarding the second element,
i.e., a substantial disruption or interference with the rights of other students or the orderly
operation of the school. Yet, in its exceptions, the Board claims that petitioner’s actions
regarding the leotard at the awards banquet caused A.J. to suffer emotional harm which
“substantially interfered with A.J.’s rights to safely and comfortably attend school, focus on
learning, and participate in school activities and events with her peers, receiving the
educational, social, and emotional benefits offered by the District’s programs unobstructed by
the emotional impact and distraction of acts of HIB committed by her gymnastics coach.”
Exceptions, at 13. However, the record fails to support this conclusory assertion.
Even assuming that the first element under the Act is satisfied, the Commissioner finds
that nothing in the record indicates that A.J. was unable to comfortably attend school, focus on
learning, and participate in school activities and events with her peers following the incident
regarding the leotard. While A.J. was understandably embarrassed by what occurred, no

12
substantial disruption or interference with her rights, the rights of other students, or the
orderly operation of the school followed. There is no evidence in the record to suggest that the
isolated incident involving the leotard carried over to subsequent school days or team events.
In conclusion, because the record fails to establish that petitioner’s conduct as alleged
by A.J. substantially disrupted or interfered with the rights of other students or the orderly
operation of the school, the second element under the Act is not satisfied. Therefore, the
Commissioner holds that petitioner’s actions at the awards banquet regarding the leotard—
while clearly inappropriate and unprofessional—did not constitute a HIB violation under the
Act.3 Consequently, it is unnecessary to analyze whether one of the three conditions set forth
in subsections (a), (b), and (c) of N.J.S.A. 18A:37-14 was satisfied.
Accordingly, the petition of appeal is hereby granted. The Board is directed to remove
any references to the HIB investigation and findings from petitioner’s personnel file.4
IT IS SO ORDERED.5
ACTING COMMISSIONER OF EDUCATION
Date of Decision: March 15, 2024
Date of Mailing: March 20, 2024
3 The Commissioner in no way condones petitioner’s conduct or minimizes A.J.’s feelings regarding the incident.
Petitioner demonstrated poor judgment in bringing the leotard to the awards banquet and singling out A.J. to
make a point in front of others on an evening meant to celebrate the athletes.
4 If the incident is included in petitioner’s personnel file for other reasons, such as violations of Board policies other
than its HIB policy, this decision does not extend to those references. The only issue before the Commissioner is
the HIB finding.
5 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.

New Jersey Is An Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DOCKET NO. EDU 05472-20
AGENCY REF. NO. 111-5/20
LISA CERCHIO,
Petitioner,
v.
SCOTCH PLAINS-FANWOOD
REGIONAL SCHOOL DISTRICT
BOARD OF EDUCATION,
UNION COUNTY,
Respondent.
Richard J. Kaplow, Esq. , for petitioner
Douglas M. Silvestro, Esq., for respondent (The Busch Law Group, LLC, a
attorneys)
Record Closed: December 26, 2023 	Decided: December 29, 2023
BEFORE: JOHN P. SCOLLO, ALJ:
STATEMENT OF THE CASE
This matter arises out of allegations brought under N.J.S.A. 18A: 37-14, the “Anti-
Bullying Bill of Rights Act” (hereinafter, the “statute”). Appellant, Lisa Cerchio (hereinafter

OAL Dkt. No.: EDU 05472-20
2
“Cerchio”), filed for a Fair Hearing seeking to reverse the Scotch Plains-Fanwood Board
of Education’s affirmance of the School Superintendent’s determination that Cerchio
engaged in an act of HIB on December 16, 2019. The Respondent-BOE seeks an
affirmance of the HIB determination.
PROCEDURAL HISTORY
The determination of the HIB investigators and Superintendent Joan Mast, Ph.D.
(Dr. Mast) was delivered to the BOE on January 23, 2020. In that determination, Dr. Mast
concluded that Lisa Cerchio engaged in a single act of HIB against A.J., a female student
athlete, on December 16, 2019 at a school-related athetic Awards Banquet. The BOE
held a hearing on February 20, 2020 and on that same date voted to affirm its prior action,
i.e., affirming Superintendent Mast’s determination. The Appellant filed her Petition of
Appeal 	to 	the Commissioner 	of 	Education on May 19, 2020. The 	Commissioner
transmitted the matter to the Office of Administrative Law on June 10, 2020, where it was
filed on June 17, 2020 as a contested case pursuant to N.J.S.A. 52:14B-1, et seq. and
N.J.S.A. 52:14F-1 et seq.
An initial telephone conference was held on August 20, 2020 and a Pre-Hearing
Order was issued on August 20, 2020. In that Order the parties were directed to conduct
discovery and to engage in telephone status conferences. On April 14, 2021, Attorney
Silvestro filed a Motion for Summary Decision in favor of his client, the Scotch Plains-
Fanwood Board of Education; and on the same date, Attorney Kaplow filed a Cross-
Motion for Summary Decision in favor of his client, Lisa Cerchio. Additional papers were
filed on May 4, 2021. The Tribunal denied both motions on September 9, 2021.
In the months following the September 9, 2021 Order Denying Summary
Decision, 	the 	hearing 	dates 	were 	established 	and 	settlement 	talks 	took 	place,
specifically following a Tribunal-sponsored Zoom conference on February 7, 2022. On
February 7, 2022, the parties agreed to submit new Summary Decision Motions focusing
on 	the 	following 	issues: 	(1) 	whether 	“lack 	of 	athletic 	ability” 	is 	a 	distinguishing

OAL Dkt. No.: EDU 05472-20
3
characteristic under the Anti-Bullying Statute; (2) whether “[Student’s] lack of ability (or
lesser ability to her peers)” is a distinguishing characteristic under the Anti-Bullying
Statute; and (3) whether the response “Not Determined” on the initial HIB Incident Report
form dated December 18, 2019 is a significant factor in establishing or not establishing
the charge of HIB. Appellant Cerchio filed her Motion for Summary Decision on February
7, 2022 and the Respondent BOE filed its Cross-Motion for Summary Decision on the
same date. Both sides filed Opposition papers on March 9, 2022. The Respondent filed
a Reply on March 14, 2022. The Petitioner did not file a Reply but filed a Sur-Reply on
March 16, 2022. On March 18, 2022, the Respondent filed its own Sur-Reply.
Since the parties did not adequately address certain questions posed by the
Tribunal in its February 8, 2022 correspondence (regarding the identification of certain
documents), the Tribunal subsequently asked both counsel on April 1, 2022 to clarify
matters by answering said questions. 	On April 1 and 4, 2022 both counsel submitted
their responses to the Tribunal’s questions.
The Motion and Cross-Motion were supported by Certifications and attachments.
Both sides submitted their arguments regarding legal principles in light of the evidence
and their interpretations of the existing case law.
The Tribunal asked both counsel to address the following legal issues: (A)
whether “lack of athletic ability” is a distinguishing characteristic under the Anti-Bullying
Statute; 	(B) 	whether “[Student’s] lack of ability (or lesser ability to her peers)” 	is a
distinguishing characteristic under the Anti-Bullying Statute; and 	(C) 	whether the
response “Not Determined” on a certain document (i.e., (page 2 of the Incident Report
Form signed by Dr. Mast on December 18, 2019) was a significant factor in establishing
or not establishing the charge of HIB.
The Tribunal asked counsel, for purposes of this set of motions, to refrain from
arguing facts and to solely address the legal issues set forth above. While the attorneys
did argue their interpretations of existing case law regarding these legal issues, their

OAL Dkt. No.: EDU 05472-20
4
arguments involved factual distinctions between the cited cases and the case at bar, and
they also argued facts peculiar to the case at bar.
The BOE maintained that the HIB investigation, the determination of the School
Superintendent and the subsequent February 20, 2020 BOE hearing were conducted in
accordance with the procedures set forth in the statute. Having examined the factual
evidence derived from witnesses and documents and having demonstrated that the
existing case law encompasses “lack of athletic ability” and “[Student’s] lack of ability (or
lesser ability to her peers)” as distinguishing characteristics cognizable under the statute,
the BOE reached a determination that Cerchio engaged in an act of HIB. (This argument
assumed that the BOE heard all relevant testimony, which presented a fact question.)
The BOE maintained that whether the categories of “lack of athletic ability” and
“[Student’s] lack of ability (or lesser ability to her peers)” were no longer issues, Cerchio’s
only recourse was to bear her burden to somehow demonstrate that the BOE’s decision
was arbitrary and capricious.
Cerchio 	argued 	that 	the 	statute 	recognizes 	several 	traditional 	suspect
classifications as distinguishing characteristics (e.g. race, religion, gender, etcetera) and
recognizes that the statute is to be interpreted broadly. 	Despite the BOE’s citation of
C.C. o/b/o S.C. v. Jefferson Twp. Bd. of Educ., EDU-10872-2014, Initial Decision (April
6, 2015), adopted, Comm’r (May 12, 2015), where Judge Jesse Strauss, A.L.J. found
“sports proficiency” to be within the meaning of the statute, Cerchio argued that there is
no basis for including “lack of athletic ability” or “lesser ability” than one’s peers to be a
valid 	categorization 	of 	distinguishing 	characteristics 	under 	the 	statute. 	Moreover,
Cerchio pointed to what she claimed was a total lack of any evidence that she ever
stated or categorized A.J. as a person who was “lacking athletic ability” or as a person
who had “less ability” than her peers. (This latter point, of course, was a fact question.)
Cerchio noted that on December 18, 2009 (one day after the first phone call from
A.J.’s mother (M.J.) complaining that A.J. was a victim of HIB), in the section of the
Incident Report Form where the actual or perceived characteristics were to be identified,

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Dr. Mast checked a blank box on the Incident Report Form and wrote “Not Determined”.
Cerchio argued that when Dr. Mast checked this box and typed-in the words “Not
Determined”, it could only be interpreted as an admission that the School District had no
idea of how or why Cerchio could have violated the HIB statute. The BOE’s position was
that the entry of “Not Determined” simply reflected that the matter was still under
consideration. (This presented questions of fact and of law.) Ryan Miller and Brooke
Esposito (the HIB Investigators) amended the Incident Report Form by adding the words
“lack of athletic ability” to the category “Other Distinguishing Characteristic”. The final
version of the Incident Report Form was signed by Ryan Miller and Brooke Esposito (the
HIB Investigator) and by Dr. David Heisey (School Principal) on January 13, 2020. 	It
was signed by Dr. Mast (Superintendent) on January 23, 2020, the date on which she
submitted the final version of the Incident Report Form to the BOE.
Cerchio argued that on the day (February 20, 2020) of its vote to affirm Dr. Mast’s
January 23, 2020 determination that Cerchio engaged in an act of HIB, the BOE refused
to hear the testimony of witnesses who would have testified favorably on her behalf and
that this worked against her interests. (This presented fact questions.)
I found that there were unresolved issues of material fact, and therefore, on April
19, 2022, I denied both the motion and the cross-motion for summary decision.
The matter was heard on the following dates: 	October 7, 12, 13, 14, and 17,
2022.
This writing is the undersigned’s Initial Decision.
ANALYSIS OF FACTUAL ISSUES
The following is not intended to be a verbatim recitation of the content of
documents, the testimony of witnesses, or of the arguments presented. Rather it is a
summary of the contents of documents which I found particularly relevant, a summary

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of the testimony of witnesses, and a summary of allegations and facts used to support
arguments, which I found significant and helpful to my understanding of the matter.
Summary and Analysis of the Exhibits Presented by Respondent and Appellant
Respondent’s Exhibits
R-1
The following is taken from the summary of the testimony of Dr. Joan Mast, infra.
and an examination of R-1 itself. The HIB Incident Report Form dated 12/18/2019
contains the initial information reported on December 17, 2019 by M.J. (A.J.’s mother) to
Superintendent Dr. Joan Mast. On December 18, 2019, Dr. Mast, as the person who first
learned of the alleged incident of HIB from A.J.’s mother (M.J.), wrote an Incident Report
Form and submitted it to High School Principal David Heisey on December 19, 2019.
There is no indication on the form or in any of the testimony that Dr. Mast verbally reported
the alleged December 16, 2019 incident of HIB to the principal on December 17 or 18,
2019. Dr. Mast stated in the Incident Report Form that the perceived characteristic that
motivated the act of HIB was “Not Determined”. 	The HIB Incident Report Form was
subsequently amended by the HIB investigators, Athletic Director Ryan Miller (“Miller”)
and Assistant Principal Brooke Esposito (Esposito”) on 1/13/2020.
According to her testimony, on December 18, 2019, Dr. Mast spoke with Assistant
Principal Brooke Esposito and Athletic Director Ryan Miller and assigned them to conduct
an HIB Investigation. According to the Incident Report Form (R-1), on December 19,
2019, Principal Heisey assigned a case number and asked the Anti-Bullying Specialists
to start an HIB investigation.
Dr. Mast testified that Mr. Miller and Ms. Esposito decided to interview the following
people: A.J. (the alleged victim of HIB); K.P.; K.G.; T.S.; E.G.; Tara Bozetarnik; and Lisa
Cerchio. These people were interviewed between December 18, 2019 and December 20,
2019, except for Lisa Cerchio, who was interviewed on January 13, 2020. They did not
interview anyone else. The HIB Incident Report Form was subsequently amended by the

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HIB investigators, Athletic Director Ryan Miller (“Miller”) and Assistant Principal Brooke
Esposito (Esposito”) on January 13, 2020. Besides adding additional information from the
interviews, 	Miller 	and 	Esposito, 	on 	January 	13, 	2020, 	changed 	the 	“perceived
characteristic” box from “Not Determined” to “lack of athletic ability”.
A summary of each interview conducted by Brooke Esposito and Ryan Miller
follows:
Interview of A.J. (a Tenth Grader)
A.J.’s interview consisted of eight paragraphs. A.J. mentions the leotard in the
second, third and eighth paragraphs. 	A.J. claimed that at the Awards Banquet Cerchio
“went ‘on and on’ about the leotards”; that “everyone had to return the leotards to
Cerchio’s house, but one student did not”; that Cerchio “went on about that”; and that
Cerchio said, “That being said, A.J., come get your leotard.” A.J.’s interview contains her
statement, “After I took the leotard, I was like, ‘Oh my god, I can’t believe she did that.’”
A.J. further stated that her friend, S.K., and S.K.’s mother also said that they couldn’t
believe that Cerchio “did that”. (Neither S.K. nor S.K.’s mother were interviewed.) A.J.
further stated that Tara Bozetarnik (Assistant Coach) also said that it was inappropriate.
A.J. stated that Cerchio gave her the leotard and told her to bring it back to the high
school.
In the first paragraph of her interview, A.J. complained that in October, 2018,
“some girls” started a rumor about her (i.e., A.J.). A.J. went on to say that Cerchio “didn’t
try to quiet it, but instead talked to all of the team members and asked them about it.” A.J.
went on to say that Cerchio “didn’t listen to my side of the story”; and “didn’t listen to
anything I said”; and that Cerchio “interviewed everyone and then believed the other girl
(T.S.).” A.J. stated that because of this incident she “felt very targeted.”
A.J. mentioned the Awards Banquet in the second and seventh paragraphs of her
interview. The content of the second paragraph has been set forth above. In the seventh
paragraph, A.J. stated that Cerchio called A.J. up to accept a certificate, which was

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something that surprised A.J. Then A.J. went on to say that when Cerchio called her up
to receive her certificate, Cerchio “didn’t say anything bad about me.”
A.J. stated that Cerchio was “harassing the team captains” because she emailed
them saying that “someone” had left a leotard. A.J. noted that the leotard had her name
on it and so Cerchio should have known to whom it belonged. A.J. claimed that she was
not included on an email sent by Cerchio instructing the team members that if they
returned their leotards late, they would have to bring them to Ryan Miller’s office.
In the fourth, fifth and sixth paragraphs of A.J.’s interview, A.J. complained that
Cerchio “picks favorites” (i.e., she favors certain members of the team whom she likes)
and is mean to those whom she does not like (like team members K.P. and K.G.). A.J.
stated that Cerchio likes team members who work-out at a gym called Sergeants and
dislikes those who work-out at the YMCA. In the sixth paragraph, apparently in response
to a question about Cerchio texting team members, A.J. specifically stated, “It is common
for coaches to text individuals” and explained that Cerchio does so because she does not
work at the school.
In the fifth paragraph of A.J.’s interview, A.J. complained that Cerchio “never gave
me the chance to compete”. A.J. stated that after she was moved down from the Junior
Varsity Team to the Practice Team, she met with Cerchio to say that she did not agree
with Cerchio’s decision. 	A.J. recalled that Cerchio’s explanation was “I think you have
more to work on”, but A.J.’s statement gave no further specifics about their conversation.
A.J. admitted that there were several people besides her who had been moved down
from Junior Varsity to the Practice Team. A.J. stated that she suffered a back injury and
went on to complain that Cerchio “wasn’t understanding” about it.
Interview of K.P. (a Twelfth Grader)
K.P.’s interview consists of four paragraphs. K.P. mentions the banquet, the
leotard, and Cerchio’s statements about the return of the leotards in the first paragraph

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of her interview; and she briefly mentions her account of reactions to Cerchio’s statement
in the second paragraph of her interview.
In the first paragraph, K.P. says that Cerchio stated that all but one of the team
members returned their leotards. K.P. claims that “she” (presumably she means A.J.) was
“called-out” in front of “everyone”. K.P. does not state that Cerchio identified A.J. as the
person who did not return her leotard. K.P.’s statement also does not reference the timing
of Cerchio’s statement (during her address to the assembled parents while the banquet
was ongoing, or at the end of the banquet while people were getting ready to leave).
In the second paragraph, K.P. immediately stated her own unequivocal dislike of
Cerchio. K.P. stated that she did not get along with Cerchio. She gave her opinion that
Cerchio is “mean” and that “everything out of her mouth is mean.” 	K.P. re-focused her
interview on her own subjective experiences with Cerchio, accusing Cerchio of calling her
and K.G. “cancer to the team” and accusing Cerchio of encouraging her and K.G. to quit
the team.
In the third paragraph (the longest in the notes of her interview), K.P. says nothing
about A.J., the banquet, the return of the leotard, or Cerchio’s conduct. 	Instead, she
focuses on Cerchio’s supposed unexplainable dislike of K.P. and K.G. (despite K.P.’s
claim that they were “two of the best people on the team”). K.P. stated that because she
and K.G. did not like Cerchio, they quit the team during their 11 th grade, but nonetheless
returned in their 12th grade. K.P. stated that everyone complained about Cerchio to the
Assistant Coach (Tara Bozetarnik), whom she described as “great”.
The Fourth paragraph seems to be a quotation, but it is not attributed to anyone.
It is simply impossible to understand or interpret.
Interview of K.G. (a Twelfth Grader)
K.G.’s interview consists of five paragraphs. K.G. mentioned the Awards Banquet

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only in the first and second paragraphs and mentioned the process for returning the
leotards only in the second paragraph. The third, fourth and fifth paragraphs contain no
information about the dinner or the return of the leotards.
In the first paragraph, K.G. recounted how Cerchio called each team member’s
name one at a time for each of them to come forward while she recognized each of them
for what each girl had brought to the team.
In the second paragraph, K.G. stated her recollection of the return of the leotards.
K.G. recalled that, while thanking the parents (apparently at the end of the evening),
Cerchio “… said loudly, ‘A.J., here is your leotard. I’ve been waiting for you to come and
get it and bring it to Mr. Miller’”. K.G. also stated in paragraph two that Cerchio texted the
team captains asking them to send a group chat out advising that someone brought her
leotard late and needed to get it and bring it (to the school) herself.
In the third paragraph, K.G. described her relationship with Cerchio and her
interactions with her since 9th grade. 	In regard to the frequency of competing in meets,
K.G. stated that in 9th grade and 10 th grade Cerchio gave her a lot of opportunities to
compete. K.G. did not mention how often she competed in 11th grade and 12th grade, but
indicated that because the team had numerous “good” freshman members, she did not
compete as much in her 12th grade as she did previously.
In the third paragraph, K.G. also spoke about the relationship and interactions that
she and her mother had with Cerchio. 	K.G. plainly stated, “I strongly dislike her (i.e.,
Cerchio).” 	She stated that she and her mother avoid Cerchio and only speak with Tara
Bozetarnik, the Assistant Coach. 	K.G. explained that she believes that Cerchio is
“condescending” and “thinks that she is above everyone”. K.G. stated that in her
sophomore year (10 th grade), “I gave her (Cerchio) attitude and a hard time.”
In the fourth paragraph, K.G. spoke about her belief that Cerchio treats people
differently based on their level of talent or experience. (This was apparently in response

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to a question about favoritism and the creation of three levels of teams, Varsity, Junior
Varsity, and Practice.) 	K.G. stated, “It’s me and K.P. she (Cerchio) doesn’t really like.”
K.G. then expressed her opinion that Cerchio treated the Varsity, Junior Varsity, and
Practice people “like separate teams” and that Cerchio left the Junior Varsity and Practice
team members to be handled by Tara Bozetarnik. 	In regard to differential treatment by
Cerchio of girls who were members of the Sergeants versus the YMCA (two outside
gymnastics clubs), K.G. explained, “It’s not true that she (Cerchio) makes them go to
Sergeants.” K.G. further explained that girls who attended Sergeants (herself included)
had more fun. However, K.G. expressed her opinion that “[t]hey (the girls who attended
the YMCA) may have been treated differently, but not as good.”
In the fifth paragraph, K.G. gave her opinion about Assistant Coach, Tara
Bozetarnik. 	K.G. said that she would have quit the team if she were not the Assistant
Coach. 	K.G. described Bozetarnik as “a genuinely nice person” and “a good addition”,
who on one occasion “did a compliment circle” during which she and team members
recognized girls who don’t usually get recognition. The last statement attributed to K.G.
on the interview form concerned her account of an event where the Town’s mayor planned
to recognize the gymnastics team. 	K.G. explained that she heard from two team
members that Tara Bozetarnik had told them that Cerchio, before the event, texted her
telling her not to attend the event.
Interview of T.S. (a Tenth Grader)
The interview of T.S. contains four paragraphs. The first and second paragraphs
contain general information, including T.S’s. information about the Awards Banquet and
the return of the leotards. 	The first and third paragraphs contain information from T.S.
about her interactions with Cerchio. The fourth paragraph contains T.S’s. opinion about
favoritism.
In the first paragraph T.S. stated that she was nervous about what Cerchio was
going to say about her at the Awards Banquet. 	T.S. gives no indication about why she

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was anxious. She does not indicate whether she was concerned about being recognized
for her good performances or whether she was concerned that Cerchio might say
something derogatory about her. Her statement is simply not clear on this point. In the
first paragraph, T.S. spoke about “the way things ended” at the close of her freshman
year (ninth grade). 	(Apparently, T.S. was referring either to Cerchio’s investigation of
whether A.J. body-shamed T.S. or she was referring to an event when Cerchio counselled
her for having performed an unauthorized and dangerous gymnastic move.) 	In the
second paragraph of her interview, T.S. stated that Cerchio was talking to the dinner
attendees about the fact that the team members had been given a certain amount of time
to return their leotards and mentioned that she (Cerchio) had made telephone calls at
night concerning the return of the leotards. T.S. stated that during this portion of her
speech, Cerchio asked A.J. to come get her leotard.
In the first and third paragraphs of her interview, T.S. explained more about the
unauthorized gymnastic move she had performed, which Cerchio had discouraged her
from performing. T.S. also said that she is more comfortable dealing with Tara
Bozetarnik than Lia Cerchio. T.S. also said that as a freshman she won the MVP plaque,
that she loved gymnastics, and that she loved being with her teammates.
In the fourth paragraph of her interview, T.S. expressed her opinion (apparently in
response to a question about favoritism) that there is some favoritism, but she never felt
it. 	Finally, T.S. said that someone named S.__. won the MVP. However, T.S. expressed
her opinion that another team member named C.__. also received votes for the MVP
award. 	When Cerchio announced that S.__. had won the MVP award by a unanimous
vote, T.S. disagreed and told the interviewer that this was not the truth.
Interview of E.G. (a twelfth grader)
The interview of E.G. consists of nine paragraphs. The only information provided
by E.G. about the Awards Banquet is in the first paragraph. The only information about
Cerchio’s return of the leotard to A.J. is in the second paragraph. Paragraphs three

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through nine contain information and opinions not relevant to the issue of the time, place
or manner of the return of A.J.’s leotard.
In the first paragraph of her interview, E.G. says that Cerchio called upon each
and every girl on the team to come forward to receive recognition and that she said nice
things about each of them.
In the second paragraph, E.G. says that when the seniors or the captains were
standing, Cerchio reached into her bag and said to A.J., “[T]his is for you”, and threw the
leotard at A.J. (apparently in front of everyone at the Awards Banquet). E.G. also said
that there had been “bad blood” between Cerchio and A.J. in the past.
In paragraphs three through nine, E.G. mentioned: that Tara Bozetarnik told the
team members that Cerchio had told her that she was excluded from a town meeting
(apparently the day of the Mayor’s recognition of the team); 	that there was an incident
during A.J.’s freshman year (Ninth Grade) involving A.J. and T.S., which E.G. believed
was mishandled by Cerchio; 	that K.P. and K.G. intentionally did things to get Cerchio
mad and that Cerchio seemingly retaliated by placing them on the Junior Varsity team
when they were seniors; that Cerchio made J.V. and Practice Squad members observe
the Varsity practice, but only worked with the Varsity; that Cerchio excluded the Practice
Squad from attending non-home (i.e., “away”) meets claiming falsely that there was no
room for them on the team bus; 	and, that Cerchio was spiteful to the J.V. and Practice
Squad members by giving team tee-shirts only to the Varsity.
Interview of Tara Bozetarnik (Assistant Coach)
The interview of Tara Bozetarnik consists of five paragraphs. Tara Bozetarnik
mentions the Awards Banquet and the return of the leotard in paragraphs one and three
of her interview. In the first paragraph, Bozetarnik said that during the Awards Banquet
Cerchio was making a speech about the members of the team, but then shifted to the
topic of the return of the leotards. 	Cerchio asked a rhetorical question to the parents

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(banquet guests) about the number of times that she emailed them about the return of
the leotards. 	Bozetarnik then said that Cerchio took the leotard out and threw it at A.J.
Bozetarnik said that she looked at A.J.’s face after this happened and felt terrible for her.
Bozetarnik related how she later called A.J. and offered her kind words. Bozetarnik said
that this was Cerchio’s personality and offered her opinion that she did not believe that
Cerchio did it with any premeditation. 	In the third paragraph, Bozetarnik stated that
Cerchio “put me down at the banquet”. She did not specify what Cerchio said or did that
constituted “putting her down”. Bozetarnik added that she considered that part of her job
was “to pick up the underdogs, the kids who were labelled”. She did not specify what she
meant by “underdogs” or identify which kids had been “labelled” or by whom they had
been “labelled”. Bozetarnik said that A.J. was “an underdog”.
In the second paragraph, Bozetarnik said that Cerchio “told me not to go [to the
Town Mayor’s recognition]”and “that I didn’t need to be there.” 	Bozetarnik stated that
team members had texted her asking why she was not present at the Town’s Mayor’s
recognition event and she felt bad because she was not there. Bozetarnik stated that
Cerchio referred to the Town recognition event in her speech at the Awards Banquet.
In the fourth and fifth paragraphs, Bozetarnik said that Cerchio “has favorites”,
namely those athletes who perform well and are “at the top”. Bozetarnik stated that
Cerchio “parents” (i.e., raises her own children) the same way, saying, “Her kids have to
be the best.”
Interview of Lisa Cerchio (The alleged perpetrator of HIB)
Lisa Cerchio’s interview consists of four paragraphs. In paragraphs one, two and
three Cerchio mentions the banquet, the process for the return of the leotards, and A.J.
In the fourth paragraph, apparently in response to a questions inquiring why she
(Cerchio) did not return the leotard to the school, she simply responded that, “It wasn’t
a matter of “utmost importance” and “[A.J.] did not follow the right protocol for returning
[the leotard]”.

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In paragraphs one, two, and three, Cerchio recounted the evening of the
December 16, 2019 Awards Banquet for the interviewers. Apparently in response to the
questions she was asked, she focused particularly on the issue of the returning of the
leotard. 	Cerchio explained that Ryan Miller, the Athletic Director, had told her that the
leotards had to be returned by a certain date. (During her testimony, Cerchio explained
that Miller needed to send the leotards for re-furbishing by a certain upcoming date and
needed them soon.) Cerchio stated that her job made it inconvenient for the girls to drop
the leotards off at her home after the end of her workday. Cerchio explained that she
sent group texts to the team captains for them to tell the team members to drop off their
leotards in a box on the porch of her house. She explained that the girls had over two
weeks to comply with the drop-off request. In her last group text, she told the girls that
9:00 a.m. on Wednesday was the last time for dropping the leotards to her house and
that if the leotards were not there by 9:00 a.m. on Wednesday, then the girls would have
to drop the leotards off at the school. Cerchio said that she took the leotards she had
and dropped them off at the school at 3:00 p.m. on Wednesday. However, A.J. or her
mother returned her leotard after she had already dropped off the leotards at the school.
Therefore, Cerchio sent two messages to A.J. instructing her to come to her house, pick
up the leotard, and deliver it to Mr. Miller. Since neither A.J. nor her mother picked up
the leotard, Cerchio brought it to the banquet. (Cerchio’s in-court testimony was that Mr.
Miller told her to bring the leotard to the Awards Banquet to give it to A.J.)
In the second paragraph of her interview, Cerchio stated that she brought the
leotard to the Awards Banquet. 	By 6:30 p.m. Cerchio had not seen A.J. 	Cerchio said
that she spoke from 7:00 p.m. to 8:30 p.m. talking about the season and recognizing all
the student athletes. She recalled that she spoke the highest she could about anyone
on the team. At the end of her speech, Cerchio recalled that she had forgotten to thank
the parents. She thanked the parents and apologized to anyone whom she had to text
about returning leotards on short notice. She added that the girls had had a lot of notice
about returning the leotards. Her speech was finished and the parents were already in
the process of getting up to leave. She then remembered that she had the leotard in her

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coaching bag. She told the interviewer that she took the leotard out of her coaching bag
and walked it over to where A.J. was sitting with fellow team members and told her to
bring it to the Athletic Office. (During her testimony, Cerchio stated that the location
where she had been speaking to the parents was in the front of the room and was about
six to ten feet from where A.J. was sitting with her friends. She testified that there was
no raised platform or “stage”. Cerchio testified that when she spoke to the gathering of
parents, she had to speak in a higher voice to address the entire room. However, when
she walked over to A.J. and told her to bring the leotard to Mr. Miller’s office, she did so
in a normal conversational voice, (i.e., a lower volume than when she spoke to the
assembled parents) since she was only an arm’s length away from A.J.)
According to the interviewer (Bates Stamp R0012 and R0013) Cerchio said that
her intent was to give A.J. the leotard, not to harass her. (During her in-court testimony,
Cerchio stated that she leaned-over several students and handed the leotard to A.J.
instructing her to bring it to Mr. Miller’s office. She also mentioned that Ryan Miller told
her to bring the remaining leotard to the Awards Banquet.)
R-2 & 3
These are the Interrogatories sent to Cerchio by the Respondent and Cerchio’s
answers to same. 	The notable responses made by Cerchio include the following
information:
(1) 	In response to Interrogatory Questions 3, 4 and 5, Cerchio denied that she
ever harassed or otherwise bullied A.J. in any way at any time. Cerchio added
that she walked over to A.J., leaned over several seated girls and handed the
leotard to A.J. while instructing her to return the leotard to the office of Mr. Ryan
Miller (the Athletic Director), who would be expecting it.
(2) 	In response to Interrogatory Question 6, inquiring about what evidence or
facts 	the 	BOE 	failed 	to 	investigate 	or 	failed 	to 	consider 	during 	the 	HIB
investigation, Cerchio responded that the BOE did not give certain persons who

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were present at the BOE’s meeting the opportunity to provide factual information
to the BOE, which would have demonstrated that Cerchio was not guilty of an HIB
violation.
Moreover, Cerchio claimed that Athletic Director Ryan Miller knew that there were
witnesses who were biased against her, yet he hand-picked these witnesses to
be interviewed by the HIB investigators. The nature of the bias was that these
witnesses had previously been disciplined by Cerchio. 	Cerchio had disciplined
one of these people arising out of a prior incident wherein A.J. had allegedly body-
shamed an African-American student. Cerchio claimed that and that the report of
same was in Miller’s possession, yet he never mentioned the report to the HIB
investigators. Cerchio claims that the report would have revealed to the HIB
investigators the bias that some of these witnesses had against her. 	Cerchio
explained the counselling of T.S. for performing a dangerous move.
Moreover, Cerchio claimed that the husband of Assistant Coach Tara Bozetarnak
told Mr. Cerchio that Tara Bozetarnak claimed that she had been mis-quoted in
her statement to the BOE’s Investigators and that Tara Bozetarnik wanted to
withdraw or correct that statement.
(3) 	In response to Interrogatory Question 7, inquiring into whether the BOE
violated any procedural requirements of the Anti-Bullying Bill of Rights Act,
Cerchio responded that she was not formally notified of the HIB allegations
(arising out of the December 16, 2019 Awards Banquet) against her until January
7, 2020, which violated the time deadlines provided in the Act.
(4) 	In 	response 	to 	Interrogatory 	Question 	8, 	inquiring 	into 	what 	“close
relationships’ existed between the “HIB accuser” and certain BOE members and
/ or Administrators, Cerchio responded in several ways. Cerchio stated that during
the investigation, while she was being interviewed by Esposito and Miller, she
asked about the specific acts of HIB of which she was being accused. Cerchio

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stated that Esposito responded with a litany of facts (including allegations that
Cerchio threw the leotard at A.J. while they were on a stage in front of the parents
and that Cerchio continually berated A.J. in front of everyone for not returning her
leotard as directed). Cerchio noted that there was no stage and that these facts
as recited by Esposito were not true and, more importantly, were not noted in any
of the interviews of the witnesses. Cerchio noted that this means that Esposito
must have learned of these allegations outside of the investigative process.
Esposito is an Assistant Principal and HIB Specialist (an Investigator of the HIB
alleged to have occurred herein). Cerchio alleges that Esposito’s secretary is
named Jill Rebuth and that Ms. Rebuth is the Aunt and Godmother of A.J. It
appears that Cerchio believes that this close working relationship between
Esposito and Rebuth may have been an improper source of information, which
may have improperly affected the investigation process.
Cerchio alleges that Ryan Miller, should have, but never did reveal to his fellow
HIB Investigator that he ordered Cerchio to return the leotard to A.J. at the Awards
Banquet.
Cerchio alleges that Tanya Williams was present during the HIB investigation and
took part in discussions related to the charge of HIB. Mandy (A.J.’s mother)
initiated the HIB charges when she called Principal Joan Mast on December 18,
2019. Cerchio believes that Tanya Williams should have recused herself from any
participation in the HIB process because she is a close personal friend of Mandy
(A.J.’s mother).
(5) 	In response to Interrogatory Question 9, inquiring into what contacts Ms.
Cerchio, her husband or her attorney had with any witnesses who were interviewed
during or after the HIB investigation was conducted, Cerchio responded with the
names of people who were present at the Awards Banquet and who saw what
transpired at the Awards Banquet, but who were never interviewed by the HIB

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19
Investigators. Cerchio alleges that if these witnesses had been interviewed by the
HIB Investigators, each of these witnesses would have exonerated her.
R-6
R-6 begins with an email dated December 19,2019 at 11:06:58 p.m. sent by the
Team Parent, Ellen Zimmerman to Lisa Cerchio. The email contains the draft of a letter,
which Zimmerman intended to send to Athletic Director Ryan Miller as a testimonial to
Lisa Cerchio. Zimmerman later sent the letter to Miller. The details of the letter are
discussed in the summary of Lisa Cerchip’s testimony, particularly in the discussion of
Attorney Silvestro’s cross-examination of Lisa Cerchio. 	The remainer of R-6 is a series
of emails transmitting a copy of the December 19, 2019 email among several people on
October 12, 2022, on October 13, 2022, and on October 14, 2022.
Petitioner’s Exhibits
P-6 & P-7
These are correspondences between counsel. They do not contain information
or evidence that is necessary to the outcome of this matter.
P-8
This is a cover letter dated February 13, 2020 from Douglas M. Silvestro, Esq., the
BOE’s attorney, to Cerchio’s former attorney, A. John Blake, Esq. enclosing redacted
copies of the HIB Investigators’ Interviews of seven people.
P-9
This is a letter dated February 24, 2020 from Attorney Silvestro to Attorney Blake.
It does not contain information or evidence that is necessary to the outcome of this

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20
matter.
P-11
A set of Requests for Admissions propounded by the BOE’s attorney with
responses made by Petitioner, Lisa Cerchio. These contain only routine information.
P-15
A set of text messages between A.J. and Lisa Cerchio, regarding the return of
A.J.’s uniform.
P-17
A five-page set of texts between Lisa Cerchio and four team captains about
“clean-up”, uniforms, and leotards.
P-20
A list of the 2019 Varsity, J.V. and Practice Squad Gymnastic Team members
and a three-page evaluation of Coach Lisa Cerchio.
The December 16, 2019 Awards Banquet Video
The video was not marked and was not used by either party.
Joint Stipulation of Facts
Routine information from the stipulated facts has already been adequately
addressed herein.

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21
Summary and Analysis of the Testimony of the Various Witnesses at the Hearing
Summary of the Testimony of Brooke Esposito
Assistant Principal Brook Esposito (Esposito) was one of two people chosen by
Superintendent Joan Mast on December 18, 2019 to serve as an HIB Investigator in the
matter of Lisa Cerchio. 	She stated that she had conducted approximately 100 HIB
investigations before conducting the Cerchio investigation.
Esposito and Athletic Director Ryan Miller conducted interviews of A.J., K.P., K.G.
T.S., E.G., Tara Bozetarnik (Assistant Gymnastics Coach) and Lisa Cerchio (Gymnastic
Coach and the Target of the HIB Investigation). 	Each interviewee was questioned
separately and Esposito wrote a separate report for each of them. Esposito stated that
her method was to pose a general question to the interviewee that did not direct the
interviewee’s attention to any one topic. Each initial question was something like “Did
anything unusual occur during the season?” 	Esposito stated that as she and Miller
questioned the interviewees, she rapidly typed what they stated, trying to obtain their
exact responses, but admitted that she had to “go back and clean it up”.
The first interview conducted was that of the alleged victim, A.J. Esposito stated
that when conducting an HIB investigation, she always starts with an interview of the
alleged victim. When asked the initial general question, A.J. immediately started talking
about the December 16, 2019 Awards Banquet, particularly focusing on the end of
Cerchio’s speech to the assembled banquet guests. A.J. focused on Cerchio going ‘on
and on’ about the fact that some girls returned their leotards in a timely manner, but one
girl did not. She went on to say that Cerchio then looked at her and said, “A.J., here is
your leotard”, in front of everyone, which made A.J. feel embarrassed. A.J. went on to
tell Esposito that Cerchio “picks favorites” and “didn’t give her a chance to compete”.
Esposito stated that A.J. mentioned a few names of gymnasts, and that she and Miller
decided to interview these people.

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The second interview was that of K.P. 	Esposito stated that she wanted to
interview K.P. because A.J. indicated that K.P.’s experiences with Cerchio were similar
to hers. Starting again with a general question, K.P. responded by saying that Cerchio
spoke to the assembled guests at the banquet about how all the team members returned
their leotards except one girl. 	K.P. stated that Cerchio immediately called for A.J. to
come forward to receive her leotard. 	K.P. then offered her personal opinions about
Cerchio, which included her statement that she did not get along with Cerchio; that
everything that comes out of Cerchio’s mouth was mean; that Cerchio continually asked
her if she was quitting the team; and that Cerchio called her a “cancer” to the team.
Esposito testified that A.J.’s and K.P.’s information was important because it indicated
that Cerchio’s behavior made these girls feel that they were not part of the team.
The third interview was that of K.G. 	Esposito stated that K.G. was interviewed
because she was mentioned by A.J. and K.P. 	Starting with the same type of general
question, K.G. responded by focusing on Cerchio’s texting the team captains regarding
the return of the leotards warning that if they were brought to her late the girl would have
to return them to the school themselves. K.G. said that at the Awards Banquet Cerchio
said in front of everyone in a loud voice to A.J., “Here’s your leo. I’ve been waiting for you
to come get it and bring it to Mr. Miller.” In response to a question from the BOE’s counsel,
Mr. Silvestro about whether Esposito thought A.J., K.P. ad K.G. were being truthful to her,
Esposito responded that she had no reason to suspect that they were being less than
honest and she also stated that their accounts of the evening of December 16 th were the
same (i.e., consistent).
Esposito quoted K.G. as saying, “It’s me and K.P. she (Cerchio) doesn’t like.”
Esposito also quoted K.G. as saying, “She (Cerchio) doesn’t pay attention [to the] J.V. or
Practice [teams]” and “She treated us like a separate team.” 	Esposito testified that “it
wasn’t until this student [K.G.] that I realized that there was such a staunch difference
between JV and Varsity.” She added, “[T]his student spoke to how there was the group
that got all the attention … but then the JV kids were kind of left to Tara.”

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The fourth interview was that of T.S. 	Esposito stated that T.S. was interviewed
because A.J. referenced her as the person with whom she had a conflict during the 2018
season. Esposito reasoned that T.S. should be interviewed because she was not one of
A.J.’s friends and because A.J. felt that the incident between her and T.S. may have been
part of the origins of A.J.’s difficulties with Cerchio.
Starting with the same type of general question, T.S. responded by talking about
her attendance at the Awards Banquet. T.S. said that she was nervous about attending
the banquet because Cerchio was going to speak. T.S. then shifted her testimony to talk
about Cerchio’s alleged favoritism towards the girls who attended the gym named
Sargent’s over those who attended the YMCA. 	However, T.S. concluded that although
there may have been favoritism, she never experienced it.
The fifth interview was that of E.G., a team captain. 	Esposito stated that she
wanted to interview a captain since captains were selected by Cerchio and because she
believed that a captain would be unbiased. Starting with the same type of general
question (whether there was anything out of the ordinary during the 2019 season)
Esposito reported that E.G. went directly to the topic of the return of the leotards and
how Cerchio took the leotard out of her bag and threw it at A.J. Esposito followed-up by
relating that E.G. said the Cerchio “holds grudges”; that she thinks that Cerchio, as an
adult leader, had acted inappropriately; that Cerchio segregated the teams more than
necessary; and that at practices Cerchio only paid attention to the Varsity, leaving the
J.V. and Practice Team members to think that they didn’t belong there.
The sixth interview was that of Tara Bozetarnik. In this interview, Esposito did not
start with a general question, but rather questioned Bozetarnik about what she heard
and saw at the Awards Banuet. Esposito reported that Bozetarnik responded by saying
that Cerchio was talking about individual kids, but then shifted her speech to the subject
of the return of the leotards. Esposito reported that Bozetarnik related that a girl returned
her leotard late leaving, it on her porch; that Cerchio texted the girl several times; and
then Cerchio asked the assembled parents, “How many times did I email you?”, after

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which Cerchio picked up the leotard and threw it at A.J. 	Bozetarnik told Esposito that
A.J. was embarrassed by what Cerchio did and that Bozetarnik, feeling sorry for A.J.,
told A.J. afterwards that she was “beautiful” and that she “mattered”. Esposito reported
that Bozetarnik commented that this event was due to Cerchio’s personality, but she did
not think the throwing of the leotard was premeditated. Esposito reported that Bozetarnik
also explained that Cerchio’s personality was such that she favors those at the top and
that “winning is everything”. Esposito reported that gave an example of favoritism was
when Cerchio would let T.S. get away with bad conduct because T.S. was a very good
gymnast and was Cerchio’s favorite for a time. Esposito reported that Bozetarnik also
volunteered information about how Cerchio raises her children saying, “Her (Cerchio’s)
kids have to be the best.” 	Esposito reported that Bozetarnik claimed that Cerchio “put
me down at the banquet” (but did not say what, in particular, Cerchio had said or done
to diminish Bozetarnik). Esposito reported that Bozetarnik believed her role with the team
was “to pick up the underdogs, the kids who were labelled” and she described A.J. as
“an underdog”.
The seventh interview was that of Lisa Cerchio, the person accused of the HIB
violation. Esposito’s report starts with Cerchio stating that there was a gymnast who had
not returned her leotard for two weeks. Esposito reported that Cerchio explained that
Mr. Miller had set a due date for the return of the leotards, which she tried to implement
by sending texts to the girls through the captains and by her own efforts. Esposito
reported that Cerchio said that when the girl’s mother returned it, she returned it after
the deadline. Despite additional texts to the girl, the girl still failed to pick it up and bring
it to the Athletic Office. Espositio reported that Cerchio brought the leotard to the Awards
Banquet.
Esposito’s report then shifts to Cerchio’s account of the Awards Banquet. She
reports that Cerchio described how she spoke to the assembled parents from 7:00 p.m.
to 8:30 p.m., calling upon each girl on the team to be recognized and praising the
achievements of each girl. Esposito then reported that Cerchio stated that at the end of
her speech, as people were getting up from their seats ready to leave, she realized that

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she had not thanked the parents for their help during the season., So Cerchio began
speaking again giving her thanks to the parents and also apologizing for the fact that
she had sent them so many emails about the need to return the leotards. She added
that the girls had a lot of notice about the need to return the leotards. Esposito reported
that in Cerchio’s account of the return of the leotard to A.J., Cerchio said, “I walked over
to where the gymnast was sitting and told her to bring it to the Athletic Office” and that
Cerchio told her. “My intent was to get her the leotard – not to harass her.” In addition,
Esposito reported that Cerchio described the circumstances of the venue at the time she
transferred the leotard to A.J. as, “People were moving and getting their jackets.” The
last entry of Esposito’s report is where Esposito reported that she asked Cerchio why
she did not return the leotard to the high school herself. Esposito reported that Cerchio’s
response was that the return of the leotard was not of utmost importance and also that
A.J. had not followed the right protocol for returning it.
Summary of the Testimony of Ryan Miller
Ryan Miller testified that he is an Assistant Principal and the high school’s Athletic
Director, and he has supervisory responsibilities over the school’s coaches. He testified
that 	he, 	along 	with 	Assistant 	Principal 	Brooke 	Esposito, 	were 	assigned 	by
Superintendent Joan Mast to conduct the HIB investigation of Lisa Cerchio regarding
the occurrence at the December 16, 2023 Awards Banquet. He testified that neither he
nor Ms. Esposito attended the Awards Banquet.
Miller testified that Esposito wrote the Interview Report Summaries for each
interviewee and then he reviewed and signed them agreeing with their content. Miller
signed them on January 13, 2020 and testified that between January 13, 2020 and the
day of his court testimony he did not acquire any knowledge that would change his belief
regarding the accuracy of the interviewees’ statements.
Among the statements of the interviewees that Miller agreed with were the
following:

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E.G.’s statement that Cerchio made the teams (Varsity, Junior Varsity and
Practice) “more segregated” than they needed to be during practices and concerning
bus rides to “away” meets. 	In regard to the accusation that Cerchio held back the
distribution of team tank tops from the J.V. and Practice teams and only gave them to
the Varsity, Miller clarified that it was he, not Cerchio, who had ordered fewer tank tops
than required. Miller admitted that that he told Cerchio to only distribute the tank tops to
the Varsity. He confirmed that afterwards, additional tank tops arrived. When asked if he
had any knowledge about whether Cerchio distributed the later-acquired tank tops, he
responded that he did not know the answer to that question. 	On cross-examination,
Miller stated that he never discussed the subject of the tank tops with Cerchio when she
was interviewed.
Another 	statement 	of 	an 	interviewees 	that 	Miller 	agreed 	with 	was 	Tara
Bozetarnik’s statement that Cerchio told her not to attend an event where part of the
festivities included recognition of the SP-F High School gymnastics team by the Mayor
and Town Council. On cross-examination, Miller stated that he never discussed this
accusation with Cerchio.
Miller 	made 	another 	statement 	wherein 	he 	stated 	that 	he 	considered 	it
intimidating for a coach (Cerchio) to ask her team members to return their leotards to
her front porch and to later text them, when all leotards had not yet been returned, to
return them as requested. 	Miller admitted that he told Cerchio that he needed the
leotards by a certain date in order to send them to a vendor for re-furbishing.
During his direct testimony, Miller testified that he believed that Cerchio’s conduct
regarding her public return of the leotard to A.J. (which he emphasized was “a single
incident”) was motivated by A.J.’s “lack of athletic ability”. He explained that after hearing
the interviewees, he ascertained “a very strong divide between who was perceived as
better, Varsity, and who was perceived [as] lower, JV and Practice Squad.” 	He added,
“[I]t became very apparent that there was an issue within the program of treating athletes

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who had more athletic skill differently than athletes who did not.” 	Miller admitted that
neither he nor Esposito bothered to question Cerchio on the issue of whether A.J. “lacked”
athletic ability. They did not question Cerchio about their perception of a “strong divide”
among the teams, about favoritism, and about how the division of the team into three
levels (which Miller, Bozetarnik and Cerchio all previously agreed was the right thing to
do) might have had unintended results.
During his re-cross-examination testimony, Ryan Miller stated that A.J. suggested
that K.P. and K.G. had relevant information about the alleged HIB, and so, he and
Esposito decided to interview them.
Summary of the Testimony of Dr. Joan Mast
Dr. Joan Mast, Superintendent of Schools, testified as follows. She filled-out an
HIB Incident Report Form dated December 18,2019. It includes the initial information
reported to her on December 17, 2019 by M.J. (A.J.’s mother) regarding her allegations
of HIB that occurred at the Awards Banquet of December 16, 2019. 	On December 18,
2019, Dr. Mast, as the person who first learned of the alleged incident of HIB from A.J.’s
mother (M.J.), wrote an Incident Report Form and submitted it to High School Principal
David Heisey on December 19, 2019. There is no indication on the form or in any of the
testimony that Dr. Mast verbally reported the alleged December 16, 2019 incident of HIB
to the principal on December 17 or 18, 2019. Dr. Mast stated in the Incident Report Form
that the perceived characteristic that motivated the act of HIB was “Not Determined”.
Dr. Mast testified that on December 18, 2019, she spoke with Assistant Principal
Brooke Esposito and Athletic Director Ryan Miller and assigned them to conduct an HIB
Investigation. According to the Incident Report Form (R-1), on December 19, 2019,
Principal Heisey assigned a case number and asked the Anti-Bullying Specialists to start
an HIB investigation. The HIB investigators made findings of fact after they interviewed
several people and they changed the distinguishing characteristic from “not determined”
to “lack of athletic ability”.

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Based only upon her reading of the content of the interviews conducted by Mr.
Miller and Ms. Esposito, Dr. Mast adopted the factual findings and conclusions made by
Mr. Miller and Ms. Esposito. Those findings of fact and conclusions included the following:
(1) 	that 	Cerchio 	held 	onto 	A.J.’s 	leotard for three 	weeks 	and 	used 	the
opportunity of the banquet to single-out A.J. in front of all the people present to publicly
intimidate and humiliate her for not returning her team leotard in a timely fashion;
(2) 	that Cerchio “dropped” the leotard “at” A.J.;
(3) 	that A.J. reasonably perceived that Cerchio’s motivation for doing so was to
highlight a distinguishing characteristic of A.J, namely her “lack of athletic ability”;
(4) 	that Cerchio sent “harassing” texts to A.J.;
(5) 	that Cerchio knew or should have known that by publicly calling attention to
A.J.’s failure to return her leotard she would emotionally harm (i.e., embarrass) A.J.; and
(6) 	that the best description of the HIB behavior was that it was “Intimidating
Conduct”.
Summary of the Testimony of Lisa Cerchio
During Cerchio’s testimony, Cerchio testified that Scotch Plains-Fanwood High
School has one of the largest gymnastics programs in New Jersey and that it was one
of the first programs to have a Junior Varsity Team in addition to the Varsity team. This
contributed to the decision by her, Assistant Coach Boztarnik, and Athletic Director Ryan
Miller to break the 28 girls down to three levels, Varsity, Junior Varsity and Practice
Teams. 	Cerchio testified that she and Tara Bozetarnik used the NJSIAA Handbook to
come up with objective criteria (and composed a rubric) to rank each girl involved with
Gymnastics for the purpose of placing them on the Varsity, Junior Varsity and Practice
Teams. The gymnasts themselves filled-out paperwork using the rubric that was based
on NJSIAA criteria. The coaches also totalled the points which each girl earned during
competitions. 	The coaches decided the team on which each girl would be placed and

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met with each girl to explain the placements. Cerchio testified that A.J. came to her to
question why she went down from the Junior Varsity Team to the Practice Team. They
discussed the rubric and A.J. said, “Okay”. 	Cerchio testified that during the course of
the 2019 season, girls on the Practice Team were given the opportunity to compete on
the Junior Varsity level. 	Cerchio testified that A.J. was afforded eight opportunities to
compete on the Junior Varsity level, but A.J. decided to avail herself of only two of these
Junior Varsity opportunities.
During her testimony, Cerchio described the events of the Awards Banquet. She
called each athlete up to the front of the room where she was standing and she told the
guests about each girl’s accomplishments during the just-concluded season. Cerchio
then presented each girl with a certificate or an award. 	In response to particular
questioning about A.J., Cerchio recalled that when A.J. came forward to the front of the
room, they hugged. Cerchio praised A.J. for working hard during the season, for doing
work with her peers to make them better gymnasts, and for being a good gymnastic
dancer. She then presented A.J. with her certificate.
Cerchio testified that Ryan Miller told her that there was a deadline for return of
the leotards because they had to be refurbished. Cerchio discussed with Miller the fact
that A.J. had not responded to her communications to come to her house to retrieve her
leotard and to bring it to Miller’s office herself. Around November 27, 2019, Miller told
Cerchio to bring the leotard to the Awards Banquet and to give it to A.J. there. Cerchio
testified that she followed Miller’s directive to bring the leotard to the banquet. 	During
her testimony, Cerchio agreed that Miller did not tell her to give the leotard to A.J. in front
of the banquet guests, but only to return it to her at the banquet.
Cerchio testified that’s she received a telephone call from Miller on December 19,
during which he generally stated that a parent had called the school complaining about
the return of a leotard at the December 16, 2019 Awards Banquet, but he did not say
anything about the filing of an HIB complaint or that Cerchio was the target of an HIB
complaint. Cerchio testified that when Miller told her that she was entitled to have a union

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representative 	present, she wondered whether an HIB charge might be possible.
Cerchio testified that she suspected that the complaint involved A.J. because A.J. was
the only person to whom she returned a leotard at the banquet.
Cerchio testified that after speaking with Mr. Miller, she placed a telephone call to
the Team Parent, Ellen Zimmerman, asking her if she noticed anything unusual occurring
on the evening of the Awards Banquet as it was coming to a close. Cerchio testified that
Zimmerman said that she did not notice anything unusual. As they discussed Miller’s call,
they suspected that M.J. and A.J. might be upset about the return of the leotard at the
banquet. Cerchio testified that Ellen Zimmerman drafted a letter to Miller praising Cerchio
for the successful gymnastics season and expressing concern that someone was upset
about the return of a leotard at the Awards Banquet. 	Upon Attorney Silvestro’s cross-
examination, Cerchio, at first, denied that she had seen such a letter. 	However, during
the cross-examination process it was convincingly demonstrated that Ellen Zimmerman
sent a draft of the letter to Cerchio late on the evening of December 19, 2019. Cerchio
was forced to admit that she had indeed seen the letter, but she explained that she had
forgotten that she had seen it.
Summary of the Testimony of Megan Whitney
Attorney Kaplow called Megan Whitney (Whitney) to the stand to testify on behalf
of Lisa Cerchio in regard to the HIB charge brought against her. Whitney testified that
she is an acquaintance of Lisa Cerchio and that this came about because her daughter
was a part of the Scotch Plains-Fanwood High School gymnastics team three years
earlier, when she was a freshman. 	Whitney testified that she attended the December
16, 2019 Awards Banquet at the Darby Road Restaurant and was present throughout
the entire event. She received emails from a man named Frank Manilla and also spoke
with Cerchio about showing support for her. She learned that bullying charges had been
brought against Cerchio arising out of the banquet and, wanting to show support for
Cerchio, she attended the February 20, 2020 BOE meeting along with about half a dozen
other parents. She recalled that after the definition of HIB was presented to the parents,

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a group statement was made from the parents to the BOE which was favorable to
Cerchio. At that meeting, she stated that she had not seen any actions by Cerchio that
would be considered bullying under the definition.
Whitney testified that on the evening of December 16, 2019, she saw and heard
Cerchio speak about the gymnasts individually and saw her make presentations to them
for their accomplishments during the season. She testified that Cerchio spoke positively
about each girl, that the girls presented her with flowers, and that she did not hear or
see anything negative that evening. Specifically, she recalled that after Cerchio’s
remarks were concluded and the attendees were getting up to leave, she heard and saw
Cerchio put down her flowers and picked up a leotard. Cerchio said. “Oh, by the way
you need to return this to the school or to the athletic office” to one of the gymnasts.
Upon questioning from the judge, Whitney described what she saw and heard in finer
detail, saying that she recalled that the girls were taking photographs of themselves, that
she was in the process of standing up and that she saw Cerchio lean over and hand the
leotard to a girl who was seated. The girl accepted it from Cerchio’s hand. Whitney did
not know the identity of the girl who received the leotard. Whitney indicated that she was
in close enough proximity to see and hear the entire transfer. That was all that Whitney
recalled about the subject of leotards. On cross-examination, the only probing question
was about whether or not Whitney had ever received formal training on the subject of
the HIB Statute, to which she replied that she had not.
FINDINGS OF FACT
A.J.’s statement that “it is common for coaches to text individuals”, is in contrast
to 	Brook Esposito’s statement that it is against Board Policy for school staff to text
individual students. A.J.’s statement indicates, and I so FIND, that the Board should have
been aware of the fact that it was a common practice for coaches and students to be
texting one another about the athletic programs of the school. I FIND that the texting by
Cerchio (who did not work at the high school aside from her coaching duties) to the team
members about the return of the leotards, was in furtherance of the deadline for the return

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32
of the leotards set by Athletic Director Ryan Miller.
In her statement to the interviewers, A.J. complained about (1) how Cerchio “picks
favorites” and “likes” the girls who attend the Sergeant’s gym and “dislikes” those who
attend the YMCA (i.e., that Cerchio shows favoritism); (2) how Cerchio “never gave me
a chance to compete” and (3) that Cerchio unfairly moved her down from the Junior
Varsity Team to the Practice Team. 	Cerchio addressed these accusations during her
testimony. I FIND that A.J. was afforded eight opportunities during the 2019 season to
compete on the Junior Varsity level, but decided to avail herself of only two of these eight
opportunities.
In regard to A.J.’s complaint about being treated unfairly by Cerchio in regard to
the October, 2018 investigation of the “body-shaming incident between A.J. and T.S.,
A.J. accused Cerchio of “not listening to her side of the story”, of ultimately “believing the
other girl (T.S.)”, and of feeling “very targeted”. Cerchio addressed this during her
testimony. During Cerchio’s testimony, Cerchio testified that she investigated a body-
shaming incident during which A.J. allegedly targeted the team’s only African-American
member, T.S., and that she questioned all team members in order to arrive at the truth
about the incident. Cerchio testified that ultimately there were no HIB charges filed
against A.J. and that Athletic Director Ryan Miller ended the incident by “sweeping it
under the rug.” 	I FIND that the alleged October, 2018 body-shaming incident and
investigation of same by Cerchio provides background information about Cerchio’s
awareness 	of, 	and 	handling 	of, 	possible 	HIB 	matters 	and 	provides 	background
information indicating that A.J. had a retaliatory motive to accuse Cerchio of an HIB
offense. However, I FIND that the October, 2018 incident does not directly provide
information about whether Cerchio committed an act of HIB on December 16, 2019.
I FIND that most of the statements made by A.J. during her interview were general
complaints. The only statement made by A.J. during her interview which was relevant to
the HIB charge are found in the second paragraph of her interview. In essence, A.J.
accused Cerchio of publicly calling upon her to take her leotard and return it to Mr. Miller

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in order to embarrass her.
I FIND that in K.P.’s interview does not sound like a personal account of what she
perceived with her own senses. K.P. report that A.”. was “called out”, but does not state
by whom, or in what manner; nor does she state any of the words used against A.J.
Moreover, K.P.’s statements lack time references. I FIND that K.P. gives no information
about the transfer of the leotard or about Cerchio’s actions at the Awards Banquet that
can be useful in determining whether an act of HIB occurred. I FIND that most of the
content of K.P.’s statement to the interviewers is vitriol against Cerchio.
K.G. stated her feelings about Cerchio when she, in no uncertain terms, told the
interviewer, “I really strongly dislike her”. 	K.G. admitted that she intentionally sought to
annoy Cerchio starting in the tenth grade saying, “I gave her attitude and a hard time.”
K.G.’s feelings about Cerchio apparently still persist since she stated to the interviewer
in the present tense, “I have a problem respecting someone who doesn’t respect me”
and that she and her mother only talk to Tara Bozetarnik, not Cerchio. K.G. also accused
Cerchio of intentionally excluding Tara Bozetarnik from a Town recognition event based
solely on a hearsay accusation whereby Bozetarnick allegedly told E.G. and __.D. that
Cerchio texted Bozetarnik instructing her not to attend the Town recognition event. 	I
FIND, aside from her statement that Cerchio threw the leotard at A.J. in front of people,
K.G.’s interview did not contain information that is relevant to the inquiry about the
pending HIB charges against Cerchio. Instead, K.G.’s interview revealed that she
strongly dislikes Cerchio and believes that Cerchio dislikes her and K.P. I FIND that the
interview of K.G. demonstrated that she is prejudiced against Cerchio and therefore her
testimony about Cerchio should have been evaluated in light of that prejudice. However,
I FIND that Esposito accepted K.G.’s testimony without question and I FIND that this
biased testimony affected Esposito’s determination of an ultimate issue of fact.
I FIND that the only statement made by T.S. regarding the time, place and manner
of Cerchio’s return of the leotard to A.J. is found in the second paragraph, where she
states that Cerchio, while speaking to the banquet guests, told A.J. to “come get your

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leotard”. 	I FIND that all the other information from T.S. refers to topics not at issue in
this matter. 	Her information and / or opinions deal with topics not relevant to the
disposition of this matter. 	The inclusion of such irrelevant matter in the interview is not
improper, but I FIND that it indicates that Miller and Esposito asked questions about
irrelevant topics and I FIND that the witness was concerned with expressing her own
feelings about general matters rather than with focusing on supplying information relevant
to the issue of whether Cerchio bullied A.J. when the leotard was returned.
I FIND that Paragraphs three through nine contain no information that is relevant
to the time, place, or manner of Cerchio’s return of the leotard to A.J.
I FIND that E.G.’s information and opinions expressed in paragraphs three to nine
are irrelevant to the HIB charge under consideration. The inclusion of such irrelevant
matter in the interview is not improper, but I FIND that it indicates that Miller and Esposito
asked questions about irrelevant topics and I FIND that the witness was concerned with
expressing her own feelings about general matters rather than with focusing on supplying
information relevant to the issue of whether Cerchio bullied A.J. when the leotard was
returned.
I FIND that Paragraph One is relevant because there, Bozetarnik unequivocally
states that Cerchio took the leotard and threw it at A.J. in front of the dinner guests.
I FIND that Paragraphs two, four and five contain no information that is relevant to
the time, place, or manner of Cerchio’s return of the leotard to A.J.
I FIND that Bozetarnik’s information and opinions expressed in paragraphs two,
four, and five are irrelevant to the HIB charge under consideration. The inclusion of such
irrelevant matter in the interview is not improper, but I FIND it indicates that Miller and
Esposito asked questions about irrelevant topics and I FIND that the witness was
concerned with expressing her own feelings about general matters rather than with
focusing on supplying information relevant to the issue of whether Cerchio bullied A.J.

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when the leotard was returned.
Even considering the hearsay accounts of the interviewees (as well as Cerchio’s
testimony), I FIND that Cerchio’s mentioning of the overall return of the leotards by the
team members to the banquet guests was brief and that she did not, as A.J. characterized
it, “go on and on”. I FIND that Mr. Miller had a time limit for returning the leotards (which
he had to send for re-furbishing by a certain date) and that he informed Cerchio about
the importance of the time limit. I FIND that A.J. did not take responsibility for her failure
to follow instructions regarding the time limit for returning her leotard. I FIND that A.J. did
not return Cerchio’s phone calls regarding her late return of the leotard. I FIND that A.J.
knew that her leotard was returned late, but made no effort to retrieve it and take it to the
high school Athletic Office (Mr. Miller’s Office) herself. 	I FIND that A.J. made a false
statement when she accused Cerchio of “harassing the team captains” about the need
to return the leotards. I FIND that A.J. made a false statement when she accused Cerchio
of leaving her name off an email that informed the girls that if their leotards were dropped
off at her house late, the girls would have to retrieve them and bring the leotards to the
school.
I FIND that when Cerchio spoke to the banquet attendees, she spoke in a raised
voice (a higher volume than normal, conversations, person-to-person volume). 	I FIND
that after Cerchio finished addressing the gathering of banquet attendees, the attendees’
attention shifted to their preparations for leaving the event. I FIND that after the banquet
guests’ attention was no longer on Cerchio, she approached A.J. with the leotard in her
hand, leaned over a few seated students, told A.J. to give bring the leotard to Mr. Miller’s
office, and handed the leotard to A.J., who took it from Cerchio’s hand. I FIND that when
Cerchio spoke to A.J., she did so in a normal conversational voice, not in a raised voice.
I FIND that the manner in which Cerchio returned the leotard to A.J. was not public, but
rather was semi-private, that is to say, personally and at arm’s length. 	I FIND that the
manner in which Cerchio returned the leotard to A.J. was not in a way (in terms of volume
or sight) that could have attracted the attention of people who were more than an arm’s
length distance away. I FIND, from the sum total of the statements in the interviews, from

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the documents submitted in discovery, and from all of the testimony given at the hearing,
that the most complete, consistent and credible evidence demonstrates nothing that
leads me to believe that Cerchio publicly “singled-out” A.J. at the Awards Banquet in
order to humiliate her or to intimidate her, or to diminish her, or to harm her in any way.
I FIND that the opposite is true because the unrefuted testimony of Cerchio is that she
called A.J. to the front of the room (as she had done with other student gymnasts) to
recognize her good work, to praise her, and to give her a certificate; they even hugged.
I FIND that Cerchio returned the leotard to A.J. after the conclusion of the event in the
least public way possible. I FIND that Cerchio’s public recognition of A.J.’s gymnastic
prowess 	and 	her 	praise 	for 	A.J.’s 	work 	with 	less 	experienced 	team 	members
demonstrates that Cerchio did not consider A.J. as “lacking in athletic ability” or as
“having less athletic ability than her peers”.
I FIND that, in ascertaining matters of fact and in making their conclusions, the
HIB interviewers (Brooke Esposito and Ryan Miller), and Dr. Mast relied heavily on the
unverified, not-subject-to-cross-examination, statements of A.J., K.P., K.G., T.S., E.G.,
Tara Bozetarnik, (and M.J., to the extent that Dr. Mast received information from A.J.’s
mother). None of the BOE’s testifying witnesses, Esposito, Miller, or Mast, were present
at the Awards Banquet, where the HIB allegedly took place. The testimony presented to
this Tribunal by Esposito, Miller, and Mast regarding the gestures, words, or actions of
Cerchio, which supposedly constituted HIB, came not from their own perceptions, but
entirely from the accounts related to them by A.J., K.P., K.G., T.S., E.G., Tara Bozetarnik,
and Lisa Cerchio. 	I FIND that the testimony of Esposito, Miller, and Mast about the
interviewees’ accounts of the process of the return of the leotards before and including
the December 16, 2019 Awards Banquet was hearsay. While the testimony of Esposito
or Miller, regarding their interviewing of Cerchio, is arguably within the “admission”
hearsay exception, I FIND that none of the testimony of Esposito or of Miller concerning
their interview of Cerchio contains evidence of a violation of the Anti-Bullying Statute by
Cerchio in relation to the return of the leotards before or at the December 16, 2019
Awards Banquet. I FIND that the testimony of Esposito, Miller, or Mast and the documents
received in discovery (i.e., those in evidence) do not contain competent evidence that

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could support the hearsay statements offered by the BOE to make findings of ultimate
facts. I FIND that the BOE’s case is built only on hearsay evidence.
I FIND that from her interviews of A.J., K.P,. and K.G., regarding their personal
interactions with Cerchio long before the “leotards issue” arose and long before the
12/16/2019 Awards Banquet took place, Esposito decided as a matter of fact that
Cerchio’s personality, attitudes, and actions made these girls feel that “they were not part
of the team”.
I FIND that Esposito decided as a matter of fact that Cerchio wrongly “segregated”
the athletes and wrongfully paid more attention to some while paying less or no attention
to others. I FIND that none of the testimony of AJ., K.P., or K.G. regarding “segregating”
the team into Varsity, Junior Varsity, or Practice Teams, or whether Cerchio paid more
attention or less attention to these teams proves that Cerchio decided that anyone
“lacked athletic ability” and bullied anyone on account of a “lack of athletic ability”. When
Cerchio and her Assistant Coach (Tara Bozetarnik) made decisions to place various girls
on the three levels of teams, they did so using standardized criteria, supplemented by
information from the girls themselves, and using the girls’ point totals earned from prior
competitions, I FIND that none of the girl’s testimonies prove that Cerchio considered
anyone as “having less athletic ability than her peers” and then bullied 	anyone on
account of “having less athletic ability than one’s peers”.
Regarding the issue of whether or not Cerchio violated the Anti-Bullying Statute at
or before the December 16, 2019 Awards Banquet, I FIND that Brooke Esposito relied
heavily on the statements of A.J., K.P., K.G., T.S., E.G., and Tara Bozetarnik and then
presented her testimony, which is hearsay, in court.
I FIND that when Miller admitted that he was responsible for ordering fewer tank
tops, that he told Cerchio to give the tank tops to the Varsity first, and that did not know
if Cerchio distributed the later-acquired tank tops to the J.V. and Practice teams, it
demonstrated that he was responsible for the distribution of the tank tops and that the

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accusation against Cerchio (that she deliberately withheld the tank tops in order to
segregate the teams or for some discriminatory motive) was unsupported and false.
I FIND that it is contradictory for Miller to urge Cerchio to tell the girls to return their
leotards by a certain date and then, after she takes steps to collect the leotards for him,
to accuse Cerchio of intimidating the girls when she was carrying-out his request.
Miller and Esposito failed to question Cerchio about statements and accusations
made by the interviewees, such as the accusations of discrimination related to the
distribution of the tank tops, the accusation that Cerchio intentionally excluded Bozetarnik
from the Town Council’s recognition event, an accusation stated by several interviewees
that that Cerchio treated groups of athletes differently because she considered some
athletes as “lacking” in athletic ability, and an accusation that Cerchio showed “favoritism”
to certain athletes. Moreover, after hearing K.G. openly state that she “really disliked”
Cerchio, Esposito and Miller failed to question Cerchio about whether she had any
recollection of problems with K.G. 	Had they done so, they might have uncovered
information that might possibly reveal K.G.’s bias and perhaps lead them to question
K.G.’s veracity. Esposito and Miller testified that the issue of whether Cerchio “threw”,
“tossed” or “handed” the leotard to A.J. was of secondary importance and they therefore
did not question Cerchio about it. They testified that the fact that Cerchio transferred the
leotard to A.J. publicly was the primary issue. I FIND that a thorough interview of Cerchio
should have included questions about both the manner of the transfer (handing the
leotard over, tossing it or throwing it, or throwing it at someone) and whether the transfer
was made in public, in semi-public, or in private circumstances. According to Cerchio’s
testimony, she walked six to ten feet in A.J.’s direction to where she was sitting and in a
normal speaking (i.e., not as one would speak before an audience) told her to bring the
leotard to Mr. Miller’s office as she handed it to her at close range. I FIND that Esposito
and Miller would have acquired crucial information about the nature of the transfer, i.e.,
a friendly hand-off of the leotard versus a rude throwing of the leotard at someone). 	I
FIND that Esposito and Miller would have acquired crucial information about the public /
non-public nature of the transfer and of the manner of the transfer had they properly and

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thoroughly questioned Cerchio. 	I FIND, from Miller’s own testimony during questioning
by the Tribunal, that he admitted that he was speculating about Cerchio being “caught up
in the moment” and about the manner of how she transferred the leotard. 	I also FIND
that Esposito’s and Miller’s failure to pose the above-mentioned 	questions to Cerchio
demonstrates that they did not perform their investigation thoroughly. 	I FIND that the
failure to question Cerchio about the interviewees’ statements and accusations deprived
Cerchio of the opportunity to give her side of the story. I also FIND that Esposito’s and
Miller’s failure to pose these questions to Cerchio strongly indicates that they, with only
partial evidence, formed the belief that Cechio created a hostile environment and that this
belief led them to reach a hasty conclusion that Cerchio was guilty of the specific HIB
accusation made against her regarding the events leading up to and at the Awards
Banquet.
I FIND that most of the statements and accusations related by the interviewees to
Esposito and Miller were general in nature and did not relate to the specific issue of
whether the facts surrounding Cerchio’s return of the leotard to A.J. on December 16,
2019 was in any way violative of the Anti-Bullying Statute.
I FIND that Attorney Silvestro’s cross-examination exposed that Cerchio knew
about Zimmerman’s letter on December 19, 2019. 	I FIND that Zimmerman, with
Cerchio’s knowledge and consent, were attempting to engaging in pre-emptive damage
control in case M.J.’s and A.J.’s grievance were to develop into something more than an
angry telephone call to the school’s officials. However, it must be remembered that Miller
testified that during his December 19th telephone call to Cerchio, he merely told Cerchio
that someone had complained about the return of a leotard at the Awards Banquet; and
that during that same phone call, he did not mention anything to Cerchio about the filing
of an HIB charge against her or about his selection as a member of the HIB investigation
panel. Upon hearing Miller mention her right to consult her union representative, Cerchio
wondered whether she might be facing an HIB charge, but I FIND that in this regard she
only had a mere suspicion and I FIND that Miller did not explicitly say to Cerchio that she
could be facing an HIB charge. When Zimmerman sent the aforementioned “damage

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control letter”, Cerchio was had not been explicitly or formally told that she was facing
possible or actual HIB charges, and so, I FIND that Cerchio’s knowledge of the contents
of the letter does not constitute an explicit or implicit admission of having committed an
HIB offense. I also FIND that Cerchio’s knowledge of the contents of the letter does not
suggest in any way that she was on notice that HIB charges were about to be levelled
against her based on Miller’s limited conversation with her about a telephone call to the
school about the return of a leotard and based on her own reasoning that, since A.J. was
the only person who received a leotard at the dinner, it must have something to do with
her. I FIND that Attorney Silvestro’s October 14, 2022 impeachment of Cerchio in regard
to her knowledge of Ellen Zimmerman’s letter dated December 19, 2019 does not affect
the issue of whether Cerchio did or did not commit an act of HIB on December 16, 2019.
I FIND that had Miller told Cerchio on December 19,2019 that he had been
selected to take part in an HIB investigation, she would have had the ability to attempt to
retrieve the video from the Arby Road Restaurant (which was taped-over every two
weeks) to use in her defense.
APPLICABLE LAW
In 2002 the New Jersey Legislature enacted L. 2002, c. 83, this State’s first
harassment, intimidation and bullying (HIB) law. 	In 2007 the Legislature amended the
law L. 2007, c. 129, to cover cyber-bullying. 	In 2010 the Legislature enacted the Anti-
Bullying Bill of Rights Act, L. 2010, c. 122, which revised and supplemented the prior laws
chiefly to cover incidents that occur off school grounds under special circumstances. The
legislature also enacted L. 2012, c.1 which permits a school district to implement bullying
prevention and training programs.
Definition of Harassment, Intimidation and Bullying (H.I.B.)
The 2010 law refined the definition of H.I.B. to include [bracketed numbers added]:
“[A]ny gesture, any written, verbal or physical act, or any

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electronic communication, whether it be a single incident or a
series of incidents, that is [1] 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, [2] that takes place on school
property, at any school-sponsored function, on a school bus,
or takes place off school grounds as provided for in N.J.S.A.
18A:37-15.3, [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 a 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 be severely or
pervasively 	causing 	physical 	or 	emotional 	harm 	to 	the
student.” [N.J.S.A. 18A:37-14 (emphasis added).]
Comprehensive regulations promulgated by the Department of Education further
assist districts in complying with these statutory requirements. N.J.A.C. 6A:16-7.9. Local
Control of Policy and Required Contents of H.I.B. Policy The anti-bullying law provides
that “[e]ach school district shall adopt a policy prohibiting harassment, intimidation and
bullying on school property, at a school-sponsored function or on a school bus.” N.J.S.A.
18A:37-15(a). Pursuant to N.J.S.A. 18A:37-15(b) each school district has “local control
over the content of the policy” but the policy must include twelve enumerated components
including a definition of harassment, intimidation, and bullying at least as inclusive as the
one provided (see above) in N.J.S.A. 18A:37-14. The twelve required components of the
policy are set forth in N.J.S.A. 18A:37-15 and are summarized below.
The twelve required components of a policy prohibiting H.I.B. are:
(1) a statement prohibiting H.I.B. of a student;

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(2) a definition of H.I.B. no less inclusive than that set forth in N.J.S.A. 18A:37-13;
(3) a description of the type of behavior expected from each student;
(4) consequences and appropriate remedial action for a person who commits an
act of HIB;
(5) a procedure for reporting an act of H.I.B., including a provision that permits a
person to report an act of H.I.B. anonymously;
(6) 	a procedure for prompt investigation of violations and complaints, which
procedure shall at a minimum provide that
[(a) the investigation be initiated within one school day of the report and be
completed within ten days of receipt of the written report,
(b) the results of the investigation be reported to the superintendent within two
days of completion,
(c) the investigation and reports be reported to the board of education no later than
the date of the next board of education meeting,
(d) the parents or guardians of the students who are parties to the investigation be
entitled to receive certain information and request a hearing within five days after
the results of the investigation are reported to the board,
(e) the board must issue a written decision affirming, rejecting or modifying the
superintendent’s decision, 	which 	can be appealed to the Commissioner of
Education, and
(f) a complaint can be filed with the Division on Civil Rights within 180 days of an
incident of H.I.B. based on membership in a protected group.][;]
(7) the range of ways in which a school will respond once an incident of H.I.B. is
identified, which shall be defined by the principal in conjunction with the school
anti-bullying specialist, but shall include an appropriate combination of services
that are available within the district such as counselling, support services,
intervention services and other programs, as defined by the commissioner. In the
event that the necessary programs and services are not available within the
district, the district may apply to the Department of Education for a grant from the

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“Bullying 	Prevention Fund” 	established 	pursuant 	to 	[N.J.S.A. 	18A:37-28] 	to
support the provision of out-of-district programs and services;
(8) a statement that prohibits reprisal or retaliation against any person who reports
an act of H.I.B. and the consequence and appropriate remedial action for a person
who engages in reprisal or retaliation;
(9) 	consequences and appropriate remedial action for a person found to have
falsely accused another as a means of retaliation or as a means of H.I.B.;
(10) a statement of how the policy is to be publicized, including notice that the
policy applies to participation in school-sponsored functions;
(11) a requirement that a link to the policy be prominently posted on the home
page of the school district’s website and distributed annually to parents and
guardians who have children enrolled in a school in the school district; and
(12) a requirement that the name, school phone number, school address and
school email address of the district anti-bullying coordinator be listed on the home
page of the school district’s website; and that on the home page of each school’s
website the name, school phone number, school address and school email
address 	of 	the 	school 	anti-bullying 	specialist 	and 	the 	district 	anti-bullying
coordinator 	be 	listed. 	The 	information 	concerning 	the 	district 	anti-bullying
coordinator and the school anti-bullying specialists shall also be maintained on the
department’s website. [N.J.S.A. 18A:37-15(b).]
H.I.B. on School Grounds versus Off School Grounds
In regard to the location of acts of H.I.B. (on school grounds versus off school
grounds), the enactment of the Anti-Bullying Bill of Rights Act now requires that each
school district’s policy “include provisions for appropriate responses to harassment,
intimidation or bullying … that occurs off school grounds, in cases where a school
employee is made aware of such actions.” N.J.S.A. 18A:37-15.3. 	A school district’s
responses to harassment, Intimidation or bullying occurring off school grounds must “be
consistent with the board of education’s code of student conduct or other provisions of

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the 	board’s 	policy 	on 	harassment, 	intimidation, 	or 	bullying. 	N.J.S.A. 	18A:37-15.3.
Pursuant to the rules [N.J.A.C. 6A:16-7.5] governing a board of education’s code of
student conduct, N.J.A.C. 6A:16-7.5 (a) states:
“School authorities have the right to impose a consequence
on a student for conduct away from school grounds that is
consistent with the district board of education’s code of
student conduct, pursuant to N.J.A.C. 6A:16-7.1.
1. This authority shall be exercised only when it is reasonably
necessary for the student’s physical or emotional safety,
security and well-being or for reasons relating to the safety,
security and well-being of other students, staff or school
grounds, pursuant to N.J.S.A. 18A:25-2 and 18A:37-2.
2. 	This authority shall be exercised only when the conduct
which is the subject of the proposed consequence materially
and 	substantially 	interferes 	with 	the 	requirements 	of
appropriate discipline in the operation of the school.
3. The consequence pursuant to (a) above shall be handled
in accordance with the district board of education’s approved
code of student conduct, pursuant to N.J.A.C. 6A:16-7.1, and
as appropriate, in accordance with N.J.A.C. 6A:16-7.2, 7.3, or
7.4.
(b) 	School 	authorities 	shall 	respond 	to 	harassment,
intimidation,
or 	bullying 	that 	occurs 	off 	school 	grounds, 	pursuant 	to
N.J.S.A.
18A:37-14 and 15.3 and N.J.A.C. 6A:16-1.3, 7.1, and 7.7.”
Reporting of H.I.B.
In regard to the reporting of alleged H.I.B. incidents and the investigation of same,
N.J.S.A. 18A:37-16 (a) forbids a member of a board of education, a school employee, a
student or a volunteer from engaging in acts of reprisal, retaliation or false accusation
against a victim of H.I.B. or a witness who reports acts of H.I.B.
N.J.S.A. 18A:37-16 (b) requires that acts of H.I.B. must be reported and states:

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“A 	member 	of 	a 	board 	of 	education, 	school 	employee,
Contracted service provider, student or volunteer who has
witnessed, or has reliable information that a student has been
subject to, harassment, intimidation, or bullying shall report
the incident to the appropriate school official designated by
the school district’s policy, or to any school administrator or
safe schools resource officer, who shall immediately initiate
the school district’s procedures concerning school bullying.”
N.J.S.A. 18A:37-16 (c) provides that any school official who promptly complies with
the reporting requirement of the law is immune from a cause of action for damages arising
from any failure to remedy the reported incident.
N.J.S.A. 18A:37-16(d) provides that a school administrator who fails to investigate
the allegation of H.I.B. or fails to take sufficient action to minimize or eliminate the HIB
may be subject to disciplinary action.
H.I.B. Prevention
Pursuant to N.J.S.A. 18A:37-17(a) schools and school districts are required to
annually assess their HIB prevention programs, or approaches and other initiatives so as
to create school-wide conditions to prevent and address H.I.B. Grants are available from
the Department of Education if needed.
N.J.S.A. 18A-37 (b) obligates school, districts to provide training related to the
district’s H.I.B. policies to its employees and volunteers emphasizing the importance of
the definition of H.I.B. and of the protected categories found in N.J.S.A. 18A:37-14.
N.J.S.A. 18A-37-17 (c) obligates individual schools to include the school district’s
policies against H.I.B. in its employee training, including full and part-time employees,
volunteers and anyone who may have significant contact with students.
Comprehensive regulations promulgated by the Department of Education further
assist districts in complying with these statutory requirements. N.J.A.C. 6A:16-7.7.

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The Residuum Rule
N.J.A.C. 1:1-15.1 contains the General Rules of Evidence Rules of the OAL.
N.J.A.C. 1:1-15.1(c) provides:
All 	relevant 	evidence 	is 	admissible 	except 	as 	otherwise
provided herein. A judge may, at his or her discretion, exclude
any evidence if its probative value is substantially outweighed
by the risk that its admission will either:
(1) Necessitate undue consumption of time: or
(2) Create substantial danger of undue prejudice or
confusion.
N.J.A.C. 1:1-15.5 governs the use of hearsay evidence and states the OAL’s “residuum
rule”. N.J.A.C. 1:1-15.5(a) allows the admission of hearsay and provides as follows:
Subject to the judge’s discretion to exclude evidence under
N.J.A.C. 1:1-15.1(c) or a valid claim of privilege, hearsay
evidence shall be admissible in the trial of contested cases.
Hearsay 	evidence 	which 	is 	admitted 	shall 	be 	accorded
whatever weight the judge deems appropriate taking into
account the nature, character and scope of the evidence, the
circumstances of its creation and production, and, generally,
its reliability. [Italics supplied.]
N.J.A.C. 1:1-15.5(b) provides, however, that hearsay may not be the sole basis for any
ultimate finding of fact. N.J.A.C. 1:1-15.5(b) provides:
Notwithstanding the admissibility of hearsay evidence, 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.
The text of N.J.A.C. 1:1-15.5(b) prohibits the judge from making an ultimate finding of
fact that is based solely on hearsay evidence. 	To make an ultimate finding of fact, the

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judge must base that finding of fact on “some legally competent evidence”. In the Matter
of Tanelli, 194 N.J. Super. 492 (App. Div. 1984), certification denied 99 N.J. 181 (1984).
Once some legally competent evidence is presented as the basis for a judge’s ultimate
finding of fact, then and only then may hearsay evidence be used to support that ultimate
finding of fact. In re Villano, OAL Dkt. No. TYP-11482-08, 2010 N.J. AGEN LEXIS 765,
Final Decision,(January 25, 2010) ; In re Pagano, OAL Dkt. No. TYPPE-03404-2006N,
2007 N.J. AGEN LEXIS 83,Final Decision (February 23, 2007) ; N.J. Dep’t of Health &
Senior Services v. Turner, OAL Dkt. No. HLT-02091-06, 2006 N.J. AGEN LEXIS 872,
Final Decision (September 20, 2006).
CONCLUSIONS
I have found that the October, 2018 body shaming incident does not provide
information about whether Cerchio committed an act of HIB on December 16, 2019. To
the extent that the HIB investigators relied upon A.J.’s and any other interviewees’
statements and accusations against Cerchio referencing the October, 2018 body-
shaming incident in connection with Cerchio’s supposed disparate treatment of A.J. in
2019, I CONCLUDE that there should have been no reliance on such statements and
accusations because they are irrelevant to the question of whether Cerchio committed an
act of HIB on December 16, 2019.
I have found that the testimonies of various interviewees disclosed general,
personal accusations against Cerchio. Among such generalized accusations against
Cerchio were that Cerchio was “mean”, showed “favoritism”, neglected the J.V. and
Practice teams members, excluded Bozetarnik from a Town-sponsored recognition
event, and that she demanded high standards of performance from her own children. I
have found that these generalized and personal allegations do not indicate whether or
not Cerchio committed an act of HIB on December 16, 2019. 	To the extent that such
allegations were entertained by the HIB investigators, and were considered by the HIB
investigators in their determination that Cerchio committed an act of HIB on December
16, 2019, I CONCLUDE that reliance on such evidence is inherently suspect, is irrelevant

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to the question of whether Cerchio committed an act of HIB on December 16, 2019, and
should not have been considered in the investigators’ and the BOE’s sustaining of the
HIB charge. I CONCLUDE that the HIB investigators should not have utilized any such
statements or accusations in their decision-making process regarding the HIB charges
brought against Cerchio because they are general derogatory comments about Cercho’s
personality, coaching style, and character; because the purpose of these comments is
not directed to the gathering of information about the pending HIB charge; and because
the comments are not relevant to determining whether there is competent evidence which
supports or casts doubt upon the veracity of the HIB charge against Cerchio in the
pending case. I further CONCLUDE, that based upon the testimony of the BOE’s own
witnesses, the statements and accusations referenced above were considered by the HIB
investigators and did indeed affect their decision-making process. I further CONCLUDE
that the inclusion of the aforementioned statements and accusations tainted the decision-
making process, unduly affected the fairness of the decision-making process, and
provides not only good cause, but a compelling reason to reverse the substantiation of
the HIB charge.
Having found that A.J. availed herself of only two of eight opportunities to compete
on the Junior Varsity level during the 2019 season, I CONCLUDE that A.J.’s statement
that Cerchio did not give her the chance to compete is not true and I CONCLUDE that
her statement that Cerchio’s decision-making was based on her having “favorites” is also
untrue. 	I CONCLUDE that Cerchio and Bozetarnik made their decisions regarding the
placement of the girls on the Varsity, Junior Varsity or Practice Team levels were made
on the basis of accepted standards and objective criteria. 	I CONCLUDE that A.J. was
given a fair opportunity to question her placement on the Practice Team and that
Cerchio’s response that she needed to do more work reflected a fair evaluation of her
skills and was not affected by any bias. I CONCLUDE A.J.’s accusation that Cerchio
treated her unfairly was unwarranted.
Having found that the manner of Cerchio’s transfer of the leotard to A.J. (including
the content of the words stated, the normal volume of her voice, and the handing of the

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leotard to A.J.) was not public and was not such that it could have attracted undue
attention from bystanders, as well as having found many facts that refute the versions of
the facts and that refute the accusations presented by the interviewees and the BOE’s
witnesses, I CONCLUDE that the BOE has failed to present a preponderance of evidence
that supports its contention that Cerchio singled-out A.J. in public, humiliated A.J., held
A.J. up to ridicule and scorn due to her supposed “lack of athletic ability”, or committed
any other acts of HIB against A.J. 	I CONCLUDE that Cerchio’s public recognition of
A.J.’s athletic prowess, especially her dancing prowess, absolutely refutes the allegation
that Cerchio believed that A.J. was “lacking in athletic ability”.
I CONCLUDE that there is no evidence in this matter that supports the idea that
A.J. lacked athletic ability or that Cerchio believed that A.J. lacked athletic ability. 	I
CONCLUDE that Cerchio and her Assistant Coach, Tara Bozetarnick, with the full
knowledge of Ryan Miller, ranked all of the gymnasts in an objective way using the
standards set forth in the NJSIAA and with information submitted by the gymnasts
themselves. 	I CONCLUDE that Cerchio and Bozetarnik believed that certain team
members had more or less developed athletic ability (as opposed to raw, not-yet
developed ability) than others, and fairly assigned them to the Varsity Team, the Junior
Varsity Team and the Practice Team. 	I CONCLUDE that there is no evidence that
supports the idea that Cerchio, given the results of the ranking system, used it in a way
to improperly decide that A.J. had less raw athletic ability than her peers or less developed
athletic ability than her peers. I CONCLUDE that the BOE has failed to present any
evidence to demonstrate that the ranking system developed by Cerchio and Bozetarnik
was unfair or that it was in any way prejudicial to A.J. 	I CONCLUDE that there is no
evidence that the ranking system that Cerchio and Bozetarnik developed was used by
anyone in a way that could possibly be violative of the New Jersey Anti-Bullying Bill of
Rights Act. I CONCLUDE that it is necessary for a coach to fairly assess the talent of his
or her athletes and to rank them accordingly based on objective criteria as was done in
the matter at hand. I CONCLUDE that the facts, as determined by this Tribunal, do not
support the proposition that A.J. reasonably perceived Cerchio’s words, gestures, verbal
or physical acts, were motivated by any distinguishing characteristic possessed by A.J.

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Having considered all of the evidence presented in this matter, and weighing it
objectively and carefully, I CONCLUDE that there was nothing in Cerchio’s public speech
at 	the 	Awards 	Banquet 	or 	in 	her 	after-banquet 	private 	(or 	at 	most 	semi-public)
conversation with A.J. at the table where she was sitting at the time of the transfer of the
leotard that a reasonable person knew or should have known would have the effect of
physically or emotionally harming a student; or that that conversation could have the
effect of insulting or demeaning a student; or that the conversation could create a hostile
educational environment.
Having searched for competent evidence to serve as a basis for considering the
hearsay statements offered as evidence to support the BOE’s case, I have found no such
competent evidence and I therefore must CONCLUDE that the hearsay statements
cannot be used to decide any finding of ultimate fact in this matter. Having found that the
testimony of Assistant Principal Brook Esposito, the testimony of Athletic Director Ryan
Miller, and the testimony of Superintendent Dr. Joan Mast all rely on hearsay evidence, I
CONCLUDE that their testimony is insufficient to sustain the substantiation of the HIB
charges against Cerchio. Having considered the testimony of Lisa Cerchio and of Megan
Whitney as well as the documents submitted in discovery (i.e., those marked in evidence),
having found that said testimony has been comprehensive, coherent, and unrefuted and
that said evidence is credible, I CONCLUDE that the Petitioner, Lisa Cerchio has
presented sufficient evidence and compelling reasons for this Tribunal to reverse the
substantiation of the HIB charges brought against her.
I CONCLUDE that the substantiation of the HIB charge against Lisa Cerchio must
be, and hereby is, REVERSED.
ORDER
This matter having been considered by the Tribunal, and the Tribunal having
considered the testimony of the witnesses, the exhibits in evidence, and having read the

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arguments of counsel, and for good cause:
It is on this Twenty-Ninth (29th) day of December, 2023,
ORDERED that the substantiation of the HIB charge brought against Lisa Cerchio
by the Scotch Plains-Fanwood Board of Education is hereby REVERSED. It is further
ORDERED that any reference to the substantiation of said HIB charge in the records of
the Scotch Plains-Fanwood School District shall be stricken. And it is further ORDERED
that a copy of this Initial Decision shall be immediately sent to the New Jersey Department
of Education and to each of the parties herein. And it is further ORDERED that upon
receipt of this Initial Decision, counsel for the parties shall acknowledge receipt thereof
by email to this Tribunal.
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.

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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.
December 29, 2023
DATE 	JOHN P. SCOLLO, ALJ
Date Received at Agency:
Date Mailed to Parties:

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APPENDIX
List of Witnesses
For Petitioner:
Lisa Cerchio, petitioner
Megan Whitney, Acquaintance of Lisa Cerchio
For Respondent:
Brooke Esposito, Assistant Principal
Ryan Miller, Athletic Director
Dr. Joan Mast, Superintendent
List of Exhibits
For Petitioner:
P-6 	Correspondences between counsel.
P-7 	Correspondences between counsel.
P-8 	A cover letter dated February 13, 2020 from Douglas M. Silvestro, Esq., the
BOE’s attorney, to Cerchio’s former attorney, A. John Blake, Esq.
P-9 	This is a letter dated February 24, 2020 from Attorney Silvestro to Attorney Blake.
P-11 	A set of Requests for Admissions propounded by the BOE’s attorney with
responses made by Petitioner, Lisa Cerchio.
P-15 	A set of text messages between A.J. and Lisa Cerchio.
P-17 	A five-page set of texts between Lisa Cerchio and four team captains.
P-20 	A list of the 2019 Varsity, J.V. and Practice Squad Gymnastic Team members
and a three-page evaluation of Coach Lisa Cerchio.

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For Respondent:
R-1 	The HIB Incident Report Form dated 12/18/2019.
R-2 	Interrogatories sent to Cerchio by the Respondent and Cerchio’s answers to
same.
R-3 	Interrogatories sent to Cerchio by the Respondent and Cerchio’s answers to
same.
R-6 	Email dated December 19,2019 at 11:06:58 p.m. sent by the Team Parent, Ellen
Zimmerman to Lisa Cerchio.