R.H. on behalf of minor child v. Board of Education of the Town of Hackettstown, Warren County, 5/19/2022, (#102-22)

102-22
New Jersey Commissioner of Education
Final Decision
R.H., on behalf of minor child,
Petitioner,
v.
Board of Education of the Town of
Hackettstown, Warren County,
Respondent.
Synopsis
Petitioner challenged the determination of the respondent Board that his minor child is not
entitled to bus transportation because their home it is located less than two miles from the
school his child attends. Following a Board hearing on April 21, 2021, the Board issued a final
determination – via email dated April 22, 2021 – that petitioner’s home was not “remote”
pursuant to N.J.A.C. 6A:27-1.3(a)(1)(i). Despite multiple notifications that petitioner could
appeal the final determination to the Commissioner of Education, the within appeal was not
filed until October 25, 2021. The Board filed a motion to dismiss in lieu of an answer,
contending that petitioner’s appeal was untimely.
The ALJ found, inter alia, that: pursuant to N.J.A.C. 6A:3-1.3(i), petitioners must file a petition
no later than the 90th day from the date of receipt of the notice of a final order, ruling or other
action by the district board of education, individual Party, or agency, which is the subject of the
requested contested case hearing; here, the petitioner received notice of the Board’s final
decision to deny his request for busing on April 22, 2021, but failed to perfect his appeal until
October 25, 2021 – well beyond the 90 day limitations period set forth in N.J.A.C. 6A:3-1.3.
Accordingly, the ALJ granted the Board’s motion to dismiss the petition.
Upon a comprehensive review, the Commissioner concurred with the ALJ that this matter is
time-barred by the 90-day limitations period set forth in N.J.A.C. 6A:3-1.3(i). Accordingly, the
Initial Decision of the OAL was adopted as the final decision in this matter and the petition was
dismissed as untimely.
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.

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OAL Dkt. No. EDU 09183-21
Agency Dkt. No. 202-10/21
New Jersey Commissioner of Education
Final Decision
R.H., on behalf of minor child,
Petitioner,
v.
Board of Education of the Town of
Hackettstown, Warren County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed, along with petitioner’s exceptions – filed pursuant to N.J.A.C. 1:1-
18.4 – and the Board’s reply thereto.
In this matter, petitioner challenges the Board’s determination that his second-grade
child is not entitled to bus transportation from their home to the Willow Grove Elementary
School because they live under two miles from the school. Pursuant to N.J.A.C. 6A:27-1.3(a),
districts must provide transportation to students who live remote from school, which means
beyond two miles for students in grades preschool through eight and two and one-half miles
for high school students. Such distance is measured using the shortest route along public
roadways between the entrance to the student’s home and the closest public entrance to the
school. N.J.A.C. 6A:27-1.3(a)(1)(ii).
102-22

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Petitioner contends that his home is between 1.95 – 2.00 miles from the school, which
would round up to two miles, and requires that his child receive transportation. The Board
argues that the same route is 1.93 miles, resulting in its determination that the child is ineligible
for busing. Petitioner raised this issue with the Board on or about April 10, 2021 and the matter
was addressed at a Board hearing on April 21, 2021. The following day, April 22, 2021, the
Board informed petitioner via email that it had not overturned its determination that his home
was not eligible for transportation services. Nevertheless, the Board indicated that petitioner
would be permitted to submit his measurements along the route in question so that the
Transportation Specialist could confirm the determination. The Board further explained that if
petitioner did not provide the supplemental information, it would consider the April 22, 2021
email to be the Board’s final decision on the matter and that petitioner could appeal to the
Commissioner of Education through the Office of Controversies and Disputes (Controversies
and Disputes). Thereafter, petitioner sent follow-up communications, and the Board informed
petitioner on April 27, 2021 that, upon review, it had confirmed that his home is ineligible for
transportation and that the April 22, 2021 email constituted the final decision on the matter.
Again, the Board informed petitioner that he could file an appeal with the Controversies and
Disputes and provided a link to its website.
Thereafter, petitioner continued to send correspondence to various school officials, as
well as the Executive County Superintendent, who informed him numerous times that the next
step would be to file an appeal with the Commissioner. Petitioner maintained that he was
waiting for information regarding the Board’s distance calculations in order to appeal to the
Commissioner, but on May 4, 2021, the Board Secretary recommended that he forward all of

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his emails, information and attachments to Controversies and Disputes, and that if additional
information was required for his appeal, he would be informed of such.
On May 14 and 18, 2021, an attorney representing petitioner sent correspondence to
multiple parties seeking clarity on the busing dispute, and also acknowledged that she may
need to appeal this to the Commissioner. Thereafter, on May 19, 2021, the Board’s attorney
sent petitioner’s counsel a letter, informing her of the many communications that had already
occurred on this matter; that petitioner’s dispute had been heard and rejected by the Board;
and that petitioner could appeal to the Commissioner.
Petitioner did not file an appeal, and on July 31, 2021, petitioner sent an email to
multiple school officials indicating that he had obtained a professional survey, the results of
which he attached to the email. The information was reviewed at the Board’s August 11, 2021
committee meeting, and on August 13, 2021, the Board Secretary informed petitioner that he
had previously been informed of his right to file an appeal, but that given the amount of time
that had elapsed, the Board would submit the matter to the Department of Education for a
decision. Thereafter, the Board sent a letter to the Office of School Finance summarizing the
dispute and indicating that petitioner had not filed an appeal with the Commissioner.
Ultimately, petitioner filed his appeal with the Commissioner on October 25, 2021.
The Administrative Law Judge (ALJ) found that the appeal was filed outside of the
90-day limitations period set forth in N.J.A.C. 6A:3-1.3. The ALJ found that petitioner had
received notice of the Board’s final decision to deny his request for busing on April 22, 2021 and
failed to demonstrate that the rule should be relaxed. As such, the ALJ granted the Board’s
motion to dismiss the petition.

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In his exceptions, petitioner argues that the Board never gave him the information he
requested so that he could file a petition. Petitioner also argues that the Board indicated that it
would be submitting the matter to the Commissioner on his behalf after he provided his
certified land survey, but the Board’s statement was misleading because it sent the information
to the Office of School Finance instead. Petitioner maintains that he did not realize until a
month later that the matter had not been filed with Controversies and Disputes. As such,
petitioner requests that the Initial Decision be rejected.
In reply, the Board maintains that petitioner had all the information he needed to file an
appeal, specifically the April 22, 2021 final determination. The Board contends that petitioner
failed to file an appeal despite consistent advisement that he should do so. Additionally, the
Board argues that petitioner’s attempt to continue communications after the final decision did
not invalidate that decision, and there is no support for recalculating the 90-day deadline based
on the Board’s communication to the Office of School Finance. The Board maintains that the
ALJ appropriately weighed the timeline of communications and determined that the matter was
out of time. As such, the Board urges the Commissioner to adopt the Initial Decision.
Upon review, the Commissioner agrees with the ALJ that this matter is time barred by
the 90-day limitations period set forth in N.J.A.C. 6A:3-1.3(i). At the latest, petitioner was
informed on April 27, 2021 of the Board’s final decision. The Board’s April 22, 2021
communication provided a caveat that petitioner could submit additional information, but that
otherwise it would be the final decision. After petitioner submitted additional correspondence,
the Board informed him on April 27, 2021 that it had reviewed his additional submissions and
confirmed that his home is ineligible for transportation. As such, the Board indicated that the

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April 22, 2021 email constituted the final decision on the matter and that he could file an
appeal of the determination with the Commissioner. There is no question that as of
April 27, 2021, petitioner had been informed of a final decision of the Board, as well as his
appeal rights, but he did not file an appeal until October 25, 2021 – almost six months later.
While petitioner attempted to engage the Board in further communications, he was informed
numerous times that his next recourse would be to file an appeal with the Commissioner.
When petitioner maintained that he needed certain information to file an appeal, he was
advised to submit all of his current documents and communications to Controversies and
Disputes and he would be informed if anything else was needed. Furthermore, it appears that
petitioner obtained the services of an attorney, who sent correspondence on his behalf and
acknowledged that petitioner may need to file an appeal. In response, the Board attorney
reiterated that the Board had already heard and rejected petitioner’s argument, and that the
attorney could file an appeal. As such, it is clear that petitioner had been informed many times
of his appeal rights, had obtained an attorney who was also aware of his appeal rights, but yet
chose not to timely file the appeal.
The Commissioner does not find petitioner’s exceptions to be persuasive. N.J.A.C. 6A:3-
1.3 and N.J.A.C. 6A:3-1.4 do not require that petitioner obtain records from the Board prior to
filing a petition. Even if petitioner was not aware of what is required to initiate an appeal, he
obtained an attorney who should have advised him, and he was also informed by the Board
Secretary on May 4, 2021 that he should file an appeal with the communications and
documents in his possession. Additionally, the Commissioner is not convinced by petitioner’s
argument that he was misled because the Board Secretary indicated he would submit the

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matter to the Commissioner through Controversies and Disputes for a decision after petitioner
provided a certified land survey, but instead sent it to the Office of School Finance. The
Commissioner notes that 90 days from April 27, 2021 is July 26, 2021. Petitioner did not submit
his land survey to the Board until July 31, 2021, after the filing deadline had already passed. As
such, any purportedly misleading statement by the Board Secretary did not cause petitioner to
miss the opportunity to file a timely appeal because he had already sat on his rights.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter
and the petition is hereby dismissed as out of time.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 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.
May 19, 2022
May 19, 2022

New Jersey is an Equal Opportunity Employer
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 09183-2021
AGENCY DKT. NO. 202-10/21
R.H., on behalf of minor child
Petitioner,
v.
Board of Education of the Town of
Hackettstown, Warren County,
Respondent.
R.H., pro se, petitioner
Raina M. Pitts, Esq. for respondent (Methfessel & Werbel, attorneys)
Record Closed: January 24, 2022 	Decided: February 17, 2022
BEFORE: MATTHEW G. MILLER, ALJ
STATEMENT OF THE CASE
Petitioner, R.H., the parent of minor child M.C.1, has challenged the determination made
by the respondent, Board of Education of the Town of Hackettstown, Warren County (Respondent
1 Minor Child. There is no dispute that the child in question is currently attending the 2 nd grade at Willow Grove
Elementary School in Hackettstown, N.J.

OAL DKT. NO. EDU 09183-21
2
or Board), that M.C. is not entitled to bus transportation from their home at Address “A”2 to the
Willow Grove Elementary School, located at 601 Willow Grove Street, per N.J.S.A. 18A:39-1 et
seq.3
PROCEDURAL HISTORY
On April 10, 20214, Petitioner contacted Respondent about bus transportation for his child,
M.C., from her home to the Willow Grove Elementary School. On April 13, Respondent notified
Petitioner that M.C. was ineligible for bus transportation, since it had been determined that their
residence was at least 2 miles from the school. 	The day after an April 21 Board of Education
meeting, Petitioner was advised that no action to overturn the initial decision. 	On August 17,
Respondent wrote to the Department of Education’s Office of School Finance, asking it “to
consider the matter”. 	On September 29, Petitioner forwarded an e-mail to the Department of
Education’s Office of Controversies and Disputes and on October 25, Petitioner filed a Petition
for Appeal and Motion for Emergent Relief with the Department of Education and the Department
transmitted this matter to the Office of Administrative Law (OAL) on November 1, 2021, for a
hearing as a contested case. N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.
On November 9, 2021, Respondent filed a Cross Motion to Dismiss in Lieu of Answer and
hearing on the Motion for Emergent Relief was scheduled for November 10, 2021. 	An initial
conference was held on November 10, 2021 at which time it was stipulated by Petitioner that this
matter was not emergent in nature.
Additional conferences were thereafter held on November 24, 2021, December 8, 2021
and January 18, 2022 and oral argument on the motion was conducted on January 21, 2022.
Following oral argument, the record was held open briefly for the supplying of additional
documentation and it was ultimately closed on January 24, 2022.
2 Redacted. There is no dispute as to Petitioner’s address.
3 All addresses are located in Hackettstown.
4 Unless specified, all dates are 2021

OAL DKT. NO. EDU 09183-21
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Factual Background
The basic facts and nature of the case are not in dispute. Petitioner and M.C. (along with
Petitioner’s wife and another minor child) live at Address “A” in Hackettstown, which is located 2
miles, give or take, from Willow Grove Elementary School, where M.C. attends classes. It is that
“give or take” which is at the core of the dispute.
The parties agree that per N.J.S.A. 18A:39-1 et seq. and N.J.A.C. 6A:27-1.3 et seq.
Respondent is required to provide transportation to M.C. from her home to Willow Grove if she is
determined to “reside remote from (her) school of attendance”. N.J.A.C. 6A:27-1.3(a). For the
purposes of eligibility for transportation;
i. "Remote" shall mean beyond two and one-half miles for high school
students (grades nine through 12) and beyond two miles for elementary
school students (preschool through grade eight).
N.J.A.C. 6A:27-1.3(a)(1)(i).
The parties further agree on how that distance should be measured;
ii. Distance shall be measured using the shortest route along public
roadways or public walkways between the entrance of the student's
residence nearest the public roadway or public walkway and the nearest
public entrance of the school the student attends.
N.J.A.C. 6A:27-1.3(a)(1)(i).
Finally, the parties also agree that the measurement should be rounded to the
nearest 1/10 of a mile per the Manual for Completion of 2021-2022 District Report of
Transported Resident Students (DRTRS), published by the New Jersey Department of
Education, Office of School Finance, Student Transportation Unit;
4. One-Way Home to School Miles
Enter the shortest one-way distance between the student’s home and the
school.

OAL DKT. NO. EDU 09183-21
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Mileage must be between 0.1 and 99.9 miles (round to the nearest tenth of
a mile).
NOTE: The home to school mileage reported for each student shall be
measured by the shortest route along public roadways or walkways
between the entrance of the student's home nearest such public roadway
or walkway and the nearest public entrance of the school which the student
attends (NJAC 6A:27-l.2).
(Exhibit R-DRTRS 27)
The dispute arises over how that distance was measured. Petitioner argues that he
has produced sufficient evidence, including a report from a licensed surveyor, demonstrating
that the family home, using the “door-to-door” prescribed distance, is somewhere between
1.95 – 2.00 miles from the entrance to the school.
Respondent’s position is that the vendor it utilized to determine transportation status
for its students uses Google Distance Matrix API, Google Geocoding and Directions APIs to
calculate mileage and that it has measured the same route at 1.93 miles, which giving the
rounding directive noted above, would make M.C. ineligible for busing. (Exhibit R-HBOE
13).
For all practical purposes the dispute ranges, depending on the measurement, from
105.6 feet to 369.6 feet.5
MOTION
The subject matter of the motion before the court, while obviously intertwined with the
factual dispute between the parties, is, in reality, independent of it. 	Respondent argues
simply that Petitioner failed to comply with the ninety-day time limit encoded in N.J.A.C. 6A:3-
1.3(i) to appeal its denial of his request for busing.
If Respondent prevails on this motion, it is argued that the merits of the case are
never reached and that the appeal must be dismissed.
5 105.6 feet is the difference between 1.93 and 1.95 miles, while 369.6 feet is the difference between 1.93 and 2.00
miles.

OAL DKT. NO. EDU 09183-21
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Petitioner opposes the motion for reasons that will be set forth below and argues that
its appeal was timely served.
I emphasize that the decision on this motion should in no way be interpreted as a
reflection that any conclusions have been reached concerning the underlying merit of
Petitioner’s claims.
LEGAL ARGUMENT
Petitioner
Petitioner argues, in essence, that the actions of Respondent were never “final” and that
they were misled into sleeping on his rights. Even then, he argues that an appeal was timely filed.
More specifically, he argues that a May 19, 2021 letter from Respondent’s attorney may
potentially be considered a final order. It was also argued that besides that letter, Respondent
acted with “question(able) motives”, since they were not “told there was an actual ticking clock
against us”, pointing in particular to the August 17, 2021 letter from the BOE Business
Administrator to the Director of School Finance when combined with and August 13, 2021 e-mail
advising that the BOE would “take…action on your behalf."
It was further argued that the “90 day timeline” should be reset by the “ ‘action’ of bringing
a new measurement” and that there were “constant ‘actions’ taking place”.
During oral argument, R.H. emphasized that he felt misled and confused by Respondent’s
continued engagement after the April 21, 2021 Board meeting and that he was never made aware
of any deadline to appeal, only the avenue to do so.
Respondent
Respondent argues that Petitioner failed to comply with the with the ninety-day time
limit encoded in N.J.A.C. 6A:3-1.3(i) to appeal its denial of his request for busing.

OAL DKT. NO. EDU 09183-21
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More specifically, it was argued that it is clear the final order was communicated to
Petitioner on April 22, 2021 (as a result of the April 21, 2021 school board meeting) and that
R.H. had ninety-days from then to file the appeal. 	It was also argued that Petitioner
acknowledged that order/ruling/action on multiple occasions and failed to take any timely
action.
Respondent also argued that despite continued interactions with Petitioner, including
an August 17 letter to the Director of New Jersey Department of Education’s Office of School
Finance in which it requested that his office consider the dispute, the ninety-day deadline
should be enforced and the appeal dismissed.
Key Participants
Given the multitude of communications in this case, at the onset it would be helpful to
identify the key participants. Many of the e-mails were forwarded or copied to other parties, but
the below is a roster of the persons who were by far the most involved in the process.
RH – Petitioner
BOE – Hackettstown Board of Education
HPS – Hackettstown Public Schools
Mango – David C. Mango, Superintendent, HPS
Havlusch – Timothy Havlusch, Business Administrator/Board Secretary, HPS
Peck – Mark R. Peck, Esq. of Steinhardt Cappelli Tipton & Taylor, L.L.C., attorney for the “Town
of Hackettstown”
Lamonte – Rosalie S. Lamonte, Ph.D., Interim Executive Warren County Superintendent
Herbst – Mike Herbst, President, Hackettstown BOE
Stewart – Raechel Stewart, Esq., attorney for RH
Toscano – Mark G. Toscano, Esq. of Comegno Law Group, P.C., attorney for the Hackettstown
BOE
OCD - Department of Education’s Office of Controversies and Disputes
Commissioner – Commissioner of the Department of Education

OAL DKT. NO. EDU 09183-21
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Logic 54 – Respondent’s busing vendor
Charles J. Kelly – Logic 54 representative
Timeline
Perhaps the best way to understand the issues raised by this motion is to create a detailed
timeline from the onset of the dispute on April 10, 2021 through the time of the filing of appeal
with OCD.
Please note that this timeline does not include each and every e-mail involving the parties,
but only the ones relevant to the ninety-day appellate argument proffered by Respondent.
Further, some of the times on the e-mails may not be 100% accurate, since some were forwarded
and/or were parts of e-mail chains, which make it difficult to determine at exactly what time they
were sent. The dates and order of receipt are, however, accurate.
Please note that only the portions of the e-mails reproduced/summarized below are those
which concern the notice/appellate deadline issue.
April
04/10/21 – First e-mail sent by RH about transportation. (Exhibit P-1)
04/13/21 (4:04 p.m.) – e-mail from Mango to RH - “At this time, both Mr. Havlusch and my office
have provided adequate responses by way of email to your inquiry. As stated, there exists, no
eligibility for transportation at your home address and location.” (Exhibit R-HBOE 1-2)
04/15/21 (11:35 a.m.) – e-mail from Havlusch to RH – “After another review of the facts…13
Arthur Terrace is ineligible for transportation…” It was recommended that RH appear at the
next scheduled BOE meeting on April 21. (Exhibit R-HBOE 6)
04/21/21 – BOE meeting involving RH.
04/22/21 (11:02 a.m.) – e-mail from Havlusch to RH saying the “the Board took no action to
overturn the determination that your home is not eligible to receive transportation services, the
Board was willing to have its Transportation Specialist review this issue one more time in order to
verify that its calculations were accurate and to take into account the information you shared with
us last night.” (Exhibit R-HBOE 32)
04/27/21 (3:56 p.m.) – e-mail from Havlusch to RH saying that “the 4/22/21 email constitutes the
Board’s final decision on this matter, which you can appeal to the Commissioner of Education

OAL DKT. NO. EDU 09183-21
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through the Department of Education’s Office of Controversies and Disputes, which can be found
here https://www.nj.gov/education/cd/.”’ (Exhibit R-HBOE 39)
04/27/21 (5:54 p.m.) – e-mail from Mango to RH – “So, in your right to due process, I encourage
you to contact the Commissioner of Education’s Office of Controversies and Disputes.” (Exhibit
R-HBOE 40)
04/27/21 (6:14 p.m.) – e-mail from RH to Mango – “For me to properly address the Commissioner
of Controversies and Disputes, which I will assuredly do…” (Exhibit R-HBOE 42)
04/27/21(8:44 p.m.) – e-mail from Mango to RH – “I am encouraging you to appeal to
the Commissioner, as did Mr. Havlusch.” (Exhibit R-HBOE 45)
04/28/21 (3:14 p.m.) – e-mail from Lamonte to RH – “your next step, should you choose to take
it, is to file a petition with the NJ Department of Education’s Office of Controversies & Disputes.
There is information about this process at this link: https://www.nj.gov/education/cd/ (Exhibit R-
HBOE 67)
04/28/21 (3:43 p.m.) – e-mail from RH to Lamonte – “I am no lawyer by any means but I did find
this to be the route I must go first.” (Exhibit R-HBOE 77)
04/28/21 (4:03 pm.) – e-mail from Lamonte to RH – “an appeal to Controversies & Disputes would
be your next step.” (Exhibit R-HBOE 76a)
04/28/21 (4:17 p.m.) – e-mail from RH to Havlusch – “I fully intend in going to the Commissioner
and county…” (Exhibit R-HBOE 137)
04/28/21 (7:01 p.m.) – e-mail from Lamonte to RH – “The correct next step is through
Controversies and Disputes.” (Exhibit R-HBOE 76b)
04/30/21 (8:56 a.m.) – e-mail from RH to Havlusch – “I can not approach a Commissioner with
information that doesn’t specifically provide what is said to be true.” (Exhibit R-HBOE 140)
04/30/21 (4:26 p.m.) – e-mail from RH to Havlusch – “How am I to go about speaking with the
Commissioner and debate my situation where there is no proof against our mileage?” (Exhibit
R-HBOE 136)
04/30/21 (8:07 p.m.) – e-mail from Herbst to RH. “The District has rendered a decision and that
decision is supported by the Board. You have also been provided an avenue to lodge a protest
if you wish.” (Exhibit R-HBOE 134)
May
05/03/21 (4:28 p.m.) – e-mail from RH to Havlusch – “Still currently awaiting the information asked
for to approach the Commissioner.” (Exhibit R-HBOE 143-144)

OAL DKT. NO. EDU 09183-21
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05/04/21 (9:44 a.m.) – e-mail from Havlusch to RH – My recommendation at this time is to forward
all of the prior e-mails, information and attachments that you have been sent to date on this matter
to the Department of Education’s Office of Controversies & Disputes, which can be found here
https://www.nj.gov/education/cd/...I would suggest that the sooner this information nis provided to
them, the sooner an opinion can be determined by the Office of Controversies and Disputes…
(Exhibit R-HBOE 143)
05/04/21 (12:08 p.m.) – e-mail from Havlusch to RH – “All on this e-mail have implored you to
continue your path of due process. In a prior e-mail, the Board President informed you that the
district had exhausted all options based on evidence and that the Board rendered a final decision.
So please, I ask that you move forward to the offices in Trenton if you believe strongly enough to
do so. (Exhibit R-HBOE 147-148)
05/05/21 – LF6 Peck to RH advising that the “town is not responsible for the transportation of your
child”. (Exhibit R-OPP 1)
05/14/21 – LF Stewart to Logic 54 seeking information and noting that; “We may need to appeal
this to NJ Disputes and Controversies but we would like to resolve this issue at the local level if
possible.” (Exhibit R-HBOE 154)
05/18/21 (12:32 p.m.) – e-mail from Stewart to multiple parties (but not OCD) – requesting clarity
about the situation. (Exhibit R-HBOE 153)
05/19/21 – LF Toscano to multiple, including Stewart – “your client’s position and appeal has been
heard and rejected by the Board. As advised by both the Board and the Warren County Office of
Education, your client has the ability and can appeal that determination to the New Jersey
Commissioner of Education, through the Department of Education’s Office of Controversies and
Disputes.” (Exhibit R-HBOE 156-157)
June
None
July
07/19/21 – 90 days from April 22, 2021
07/31/21 (10:33 a.m.) – e-mail from RH to multiple covering a survey from Joseph Messina, P.L.S.
and asking that it be reviewed as well as noting that they would be “more than willing to bring our
certified documentation of our findings to the courts if need be.” (Exhibit R-HBOE 158)
August
08/03/21 (11:38 a.m.) – e-mail from RH to multiple – follow-up (Exhibit R-HBOE Reply 1)
6 Letter from

OAL DKT. NO. EDU 09183-21
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08/03/21 (12:24 p.m.) – e-mail from Mango to RH advising that the BOE had received his
documentation and that it would be reviewed “at our August 11 committee meetings”. (Exhibit R-
HBOE Reply 1-2)
08/11/21 (10:08 a.m.) – e-mail from RH – committee meeting (Exhibit R-HBOE Reply 1a)
08/11/21 – Board of Education committee meetings
08/12/21 (12:03 p.m.) – e-mail from RH – committee meeting (Exhibit R-HBOE Reply 1b)
08/13/21 (10:35 a.m.) – e-mail from Havlusch to R.H. quoting the appeal language of the 5/19/21
letter from Toscano. 	The e-mail also noted that Respondent “will be submitting all of the
information pertaining to this matter to the Office of Controversies and Disputes so as to render a
decision.” 	It was further noted that the Board would abide by this decision. 	(Exhibit R-HBOE
Reply 1c)
08/13/21 (11:08 a.m.) – e-mail from R.H. to Havlusch responding to the 10:35 a.m. e-mail and
stating; “We understand your point of reference to the attorneys letter and the time that has
passed. However finding a professional representative who was willing to look into our situation
and have the time to take an actual measurement has been a time consuming and costly process.”
He also asked what need to be done “on our part if the district is taking this to the Disputes and
Controversies?” (Exhibit R-HBOE Reply 4)
08/17/21 – 90 days from May 19, 2021
08/17/21 – LF Havlusch to Director, Office of School Finance, New Jersey Department of
Education explaining the dispute, that RH had yet to file an Appeal through Controversies and
Disputes and requesting that his office “consider this matter and let us know if there is any
additional action or other avenue that (RH) and/or the Board can take at this point.” 	(cc. RH,
various other parties) (Exhibit P-2)
September
09/29/21 – RH original “appeal” e-mail sent to OCD. (Exhibit P-3).
October
10/23/21 – Pro se petition of appeal (verified date) (Exhibit P-4).
10/25/21 – Pro se petition of appeal filed with supporting documentation. (Exhibit P-5).
10/27/21 – e-mail from RH to OCD requesting emergency status. (Exhibit P-3).
November
11/01/21 – Case transmitted to OAL.

OAL DKT. NO. EDU 09183-21
11
11/11/21 – 90 days from August 13, 2021
11/15/21 – 90 days from August 17, 2021
Law and Analysis
The regulation concerning appeals is N.J.A.C. 6A:3-1.3(i), which reads as follows;
Filing and service of petition of appeal - The petitioner shall file a
petition no later than the 90th day from the date of receipt of the
notice of a final order, ruling, or other action by the district board of
education, individual party, or agency, that is the subject of the
requested contested case hearing. This rule shall not apply in
instances where a specific statute, regulation, or court order
provides for a period of limitation shorter than 90 days for the filing
of a particular type of appeal.
(emphasis added)
This rule (along with others in this chapter of the Administrative Code) can be “relaxed or
dispensed with by the Commissioner, in the Commissioner’s discretion, in any case where a strict
adherence thereto may be deemed inappropriate or unnecessary or may result in injustice”.
N.J.A.C. 6A:3-1.16.
In the case at bar, there are a multitude of factors that must be weighed before an informed
decision can be made and that begins with a close look at the timeline and a determination of
when the ninety-day appellate deadline was triggered. Respondent argues that this date is April
22, the day Petitioner was advised by Mr. Havlusch that the BOE “took no action to overturn the
determination that your home is not eligible to receive transportation services”. It is further argued
that this was confirmed in Mr. Havlusch’s April 27 e-mail, in which he noted;
“the 4/22/21 email constitutes the Board’s final decision on this
matter, which you can appeal to the Commissioner of Education
through the Department of Education’s Office of Controversies and
Disputes, 	which 	can 	be 	found 	here
https://www.nj.gov/education/cd/.”’
(Exhibit R-HBOE 39)

OAL DKT. NO. EDU 09183-21
12
This was followed by the e-mail from Mr. Mango later than day in which he encouraged
R.H. to appeal to the Commissioner. 	(Exhibit R-HBOE 40). 	These communications were
acknowledged by Petitioner, who advised that he would “assuredly…address the Commissioner
of Controversies and Disputes”. (Exhibit R-HBOE 42).
In reviewing the totality of the circumstances, at least at this point, R.H. had been made
aware of the BOE’s “final decision” that had been made on April 22 and had acknowledged same.
He was separately advised of the “next step” (to file an appeal with OCD) on at least the following
nine occasions;
1. 	4/27/21 e-mail from Havlusch
2. 	4/27/21 e-mail from Mango
3. 	4/28/21 e-mail from Lamonte (1)
4. 	4/28/21 e-mail from Lamonte (2)
5. 	4/30/21 e-mail from Herbst
6. 	5/4/21 e-mail from Havlusch (1)
7. 	5/4/21 e-mail from Havlusch (2)
8. 	5/14/21 letter from Stewart
9. 	5/19/21 letter from Toscano
Further, RH acknowledged what the “next step” was on multiple occasions;
1. 	4/27/21 e-mail to Mango
2. 	4/28/21 e-mail to Lamonte
3. 	4/28/21 e-mail to Havlusch
4. 	4/30/21 e-mail to Havlusch
5. 	4/30/21 e-mail to Havlusch
6. 	5/3/21 e-mail to Havlusch
Petitioner argues that if there ever was a “final order” in this matter, it was the May 19
letter from Mr. Toscano, since in same he advised that “there will not be any further
communication on this issue”. 	(Exhibit R-HBOE 156-157). 	He also argues that he was, in
essence, misled, by Respondent’s continued interactions with him and that he was unaware of
the 90 day “ticking clock”.

OAL DKT. NO. EDU 09183-21
13
Concerning the phrase ‘final order, ruling, or other action”, I FIND that the facts support a
conclusion that same was made on April 21, 2021 when the BOE failed to overturn the initial
decision to deny busing services to M.C. The clock started “ticking” the next day (April 22) when
R.H. was advised of same in Mr. Havlusch’s e-mail. That this was a “final decision” was confirmed
via e-mail by both Mr. Havlusch and Mr. Mango on April 27. 	Both of those e-mails provided
specific instructions on how and where to appeal the decision and were acknowledged by
Petitioner.
The language of Mr. Havlusch’s e-mails was direct and the message clear; that the BOE
had made a final decision and that the next step for RH was to appeal same to the OCD.
While there was continuing dialogue between various parties, in none of those e-mails is
R.H. advised that the April 21 decision was not a “final” one or had been rescinded. The May 19
letter from Mr. Toscano merely reiterated what R.H. had been told previously; that the appeal had
already been rejected by the BOE and that R.H. can appeal same with the OCD. The contents
of that letter do nothing to support Petitioner’s contention that it “finalized” anything or that the
April 21 BOE decision was an interim or unofficial one.
The more interesting aspect of Petitioner’s argument concerns the events of July 31
through August 17. It was at this point that R.H. supplied the surveyor’s report and received an
e-mail from Mr. Mango on August 3 that same would be reviewed during the August 11 Board of
Education committee meetings. 	Following the meetings, on August 13 Mr. Havlusch e-mailed
R.H. After quoting the May 19 Toscano letter, he then offered to submit the dispute to the OCD
on R.H.’s behalf. (Exhibit R-HBOE Reply 1). R.H. acknowledged that e-mail and specified that;
We understand your point of reference to the attorneys letter and
the 	time 	that 	has 	passed. 	However 	finding 	a 	professional
representative who was willing to look into our situation and have
the time to take an actual measurement has been a time consuming
and costly process.
(Exhibit R-HBOE Reply 4)
He also asked, however, what steps that he needed to take now that the BOE was
submitting the matter to OCD.

OAL DKT. NO. EDU 09183-21
14
As it turns out, however, Mr. Havlusch actually submitted same to the Director of the Office
of School Finance for the New Jersey Department of Education and there was no subsequent
action taken on same. It should be noted, however, that R.H. was copied on that letter and would
have been aware that it had been submitted to the Office of School Finance and not OCD (despite
his denial during oral argument). (Exhibit P-2).
Exceptions to the 90 day “rule”
With the finding above, we delve into an area that, unfortunately, went completely
unbriefed by the parties, although it was raised during oral argument. As noted above, the ninety-
day appellate deadline can be “relaxed or dispensed with by the Commissioner, in the
Commissioner’s discretion, in any case where a strict adherence thereto may be deemed
inappropriate or unnecessary or may result in injustice”. N.J.A.C. 6A:3-1.16.
In exploring the case law surrounding the relaxation of the ninety-day rule, it becomes very
apparent, very quickly, that the courts do not look indulgently on same. One of the most oft-cited
cases involving this issue is Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572 (1993).
Kaprow involved the termination of a tenured assistant superintendent effective June 30, 1981.
After a rather complicated series of events involving RIF7 rights and the “re-creation” of assistant
superintendent positions year later, Kaprow filed a petition with the Commissioner on August 1,
1988 asserting a claim to one of the re-created positions. He amended that petition on December
16, 1988 to assert, for the first time, that the 1981 RIF was improper and had been made in bad
faith. Id. at 576-78.
In the face of a partial victory for Kaprow in the underlying OAL case, the Commissioner
dismissed the petition, finding, in part, “that the bad-faith claim was untimely instead of
unsupported”. That decision was affirmed by the State Board of Education, which found that the
August 1, 1988 petition “was time barred by the ninety-day limitations period of N.J.A.C. 6:24-
1.2(c)” and the Appellate Division affirmed the Board’s decision. Id. at 578.
7 Reduction in force.

OAL DKT. NO. EDU 09183-21
15
After discussing the validity of the ninety-day limitation period rule, the “statutory
entitlement” argument8 and due process rights, the court discussed the purpose of the rule as
well as what constituted “adequate notice”. As for the purpose, the Court held
that;
The first is to stimulate litigants to pursue a right of action within a
reasonable time so that the opposing party may have a fair
opportunity to defend, thus preventing the litigation of stale claims.
Ochs v. Federal Ins. Co., 90 N.J. 108, 112, 447 A.2d 163 (1982).
The second purpose is "'to penalize dilatoriness and serve as a
measure of repose'" by giving security and stability to human affairs.
Ibid. (quoting Farrell v.
Votator Div., 62 N.J. 111, 115, 299 A.2d 394 (1973)).
As for “adequate notice”;
Adequate notice must be sufficient to inform an individual of some
fact that he or she has a right to know and that the communicating
party has a duty to communicate. See Burns v. West Am. Corp.,
137 N.J. Super. 442, 446, 349 A.2d 142 (Dist.Ct.1975). Moreover,
adequate notice under the regulation must be sufficient to further
the purpose of the ninety-day limitations period. See Apex Roofing
Supply Co. v. Howell, 59 N.J. Super. 462, 467, 158 A.2d 49
(App.Div.1960). A limitations period has two purposes. The first is
to stimulate litigants to pursue a right of action within a reasonable
time so that the opposing party may have a fair opportunity to
defend, thus preventing the litigation of stale claims. Ochs v.
Federal Ins. Co., 90 N.J. 108, 112, 447 A.2d 163 	(1982). 	The
second purpose is "'to penalize dilatoriness and serve as a measure
of repose'" by giving security and stability to human affairs. Ibid.
(quoting Farrell v. Votator Div., 62 N.J. 111, 115, 299 A.2d 394
(1973)).
When a plaintiff knows or has reason to know that
he has a cause of action against an identifiable
defendant and voluntarily sleeps on his rights so
long as to permit the customary period of limitations
to expire, the pertinent considerations of individual
justice as well as the broader considerations of
repose, coincide to bar his action. [Farrell, supra, 62
N.J. at 115, 299 A.2d 394.]
8 The “statutory entitlement” argument is not applicable here. In essence, it concerns a request for an exception to
the deadline in cases where the petitioner is seeking a denied benefit that to which they were statutorily entitled.
Kaprow, supra, 131 N.J. at 584-585. See also, Lavin v. Hackensack Bd. of Ed., 90 N.J. 145 (1982), Polaha v. Buena
Reg’l Sch. Dist., 212 N.J. Super. 628 (App. Div. 1986).

OAL DKT. NO. EDU 09183-21
16
Kaprow, 131 N.J. at 586-87.
Kaprow also addressed the issue Petitioner’s continued attempts to resolve the claim after
the April 22 e-mail, citing to Riely v. Hunterdon Central Bd. of Educ., 173 N.J. Super. 109 (App.
Div. 1980). Riely concerned the non-renewal of the contract of a non-tenured teacher. She had
received notice of the non-renewal on April 13, 1976 and there had been an informal hearing
before the school board on May 10, 1976. The next day, she was sent a letter informing her that
the non-renewal decision remained unchanged. 	Then, in May, 1976, she filed a contract
grievance, which she lost in a decision dated May 1, 1977, which led to her filing a petition of
appeal with the Commissioner on June 20, 1977. Id. at 110.
While the Commissioner denied a motion to dismiss the petition, the State Board reversed,
citing the ninety-day rule. The Court held that even though the rule did not come into effect until
October 6, 1976, the limitation still applied, citing to Union Cty. Bd. of Ed. v. Union Cty. Teachers
Ass’n, 145 N.J. Super, 435, 437 (App. Div. 1976), certif. den. 74 N.J. 248 (1977) where the
Commissioner had ruled that given the rule changes, relief should have been requested from the
Commissioner and not via arbitration and that the petitioner had 90 days from the adoption of the
rule in which to file her appeal. Riely, 173 N.J. Super. at 112. See also, Bernards Tp. Bd. of Ed.
v. Bernards Tp. Ed. Ass’n, 79 N.J. 311, 326-327, n.4 (1979).
More specifically, the Kaprow court found that his “attempt to resolve his claim through
negotiations with the Local Board is irrelevant. It does not negate the fact that he received
adequate notice on February 23, nor does it toll the running of the limitations period.” Id. at 587,
cit. Riely, supra. It determined that Kaprow had;
(r)eceived adequate notice under N.J.A.C. 6:24- 1.2(c) on February
23, 1988, to trigger the ninety-day limitations period. On that day,
he learned from the Local Board the existence of that state of facts
that would enable him to file a timely claim. To insist under these
circumstances that there be additional or more-specific notice will
not further the objectives of the regulatory scheme, and would only
defeat the considerations of repose and interfere with the efficient
administration of the school laws. Because Kaprow received
adequate notice on February 23, he was obligated to file his petition
within the ninety-day period. Kaprow, however, did not file his
petition until August 1, more than two months after the limitations
period had expired. We therefore find that his claims are time-
barred by N.J.A.C. 6:24-1.2(c).

OAL DKT. NO. EDU 09183-21
17
Kaprow, 131 N.J. at 589.
Finally, Kaprow also addressed the other argument inferred by Petitioner; that by their
actions, Respondent should be equitably estopped from asserting the statute of limitations. As
noted by the court;
Equitable estoppel has been used to prevent a defendant from
asserting the statute of limitations when the defendant engages in
conduct calculated to mislead plaintiff into believing that it is
unnecessary to seek civil redress. See W.V. Pangborne & Co. v.
N.J. Dep't of Transp., 116 N.J. 543, 553, 562 A.2d 222 (1989).
Although public entities have a heightened duty to "turn square
corners," F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J.
418, 427, 495 A.2d 1313 (1985), equitable estoppel is rarely
invoked against public entities. O'Malley v. Department of Energy,
109 N.J. 309, 316, 537 A.2d 647 (1987).
Id. at 589.
The Court noted that there were no evidence that Mr. Kaprow had relied on the Local
Board’s misconduct and that it further made no misrepresentations that were “calculated to lull
(him) into a false sense of security with respect to his right to take judicial action”. 	Id 	at.589.
This, despite the Appellate Division deeming some the Local’s Board’s actions/inactions to be
“stonewalling”. 	The only part of the opinion that inures to RH’s benefit is that, unlike Kaprow,
here, the Board did indicate that it would take some action on his behalf via the August 13 e-mail.
(Exhibit R-HBOE Reply 4). Ibid.
The Kaprow court cited Friedman v. Friendly Ice Cream, Co., 133 N.J. Super. 333 (App.
Div. 1975), where an insurance carrier was alleged to have intentionally protracted settlement
negotiations with the intention of exhausting the statute of limitations in a case where the
defendant had essentially admitted liability. 	The court held that given the “meager record” and
the specific allegations made by Friedman, the matter was inappropriate for a summary judgment
motion. Id. at 337-38.
With no indication of detrimental reliance, the Kaprow court declined to toll the ninety-day
time limit on equitable estoppel grounds. Id. at 590. See also, Beltran v. Doe, 145 N.J. Super.
152 (App. Div. 1976), Peloso v. Hartford Fire Ins. Co., 56 N.J. 514 (1970), Petermann v. Duarte,
2019 N.J. Super. Unpub. LEXIS 807 (2019).

OAL DKT. NO. EDU 09183-21
18
Here, with the finding above that R.H. received notice of the agency’s “final action” on April
22, it is obvious that the delay in filing was unrelated to the actions of Respondent, particularly
since there did not appear to be any communication between the parties from the May 19 Toscano
letter until RH served the surveyor’s report on August 31. 	(Exhibits R-HBOE 156-157 and R-
HBOE 158). In fact, R.H.’s reply to that e-mail clearly inferred that even at this point, he was not
relying on anything Respondent had done thus far;
We understand your point of reference to the attorneys letter and
the 	time 	that 	has 	passed. 	However 	finding 	a 	professional
representative who was willing to look into our situation and have
the time to take an actual measurement has been a time consuming
and costly process.
(Exhibit R-HBOE Reply 4)
The court in Riely looked askance at such a course, noting;
Respondent had ample time to file the petition after promulgation of
N.J.A.C. 6:24-1.2. 	it is evidence to us that she gambled on a
favorable arbitration award and, having lost, then decided to seek
furth relief at the hand of the Commission. By then, her petition was
out of time.
Id. at 112. See also, Raymond v. Bd. of Ed. of Bor. of River Edge,
94 N.J.A.R.2d (EDU) 203.
This issue is also addressed in LeMee v. Bd of Ed. of Ridgewood, 1990 S.L.D. 663 (1990),
which cites to Pacio v. Bd. of Ed of Lakeland Reg’l High Sch. Dist., 1989 S.L.D. 2060 (1989) in
holding;
“Initially, the Commissioner notes that Pacio, supra, is clearly
dispositive of the threshold question herein, in that it stands
unequivocally for the proposition that in nonrenewal disputes the
90-day period for appealing to 10 the Commissioner is tolled from
receipt of the nonrenewal notice, requests for reconsideration
notwithstanding.” See, also, Portee v. Newark Bd. of Ed., 94
N.J.A.R.2d (EDU) 381(1994).
Wise v. Bd. of Ed. of Trenton, 2000 N.J. AGEN LEXIS 1147, cit.
LeMee, 1990 S.L.D. at 672. (emphasis added).

OAL DKT. NO. EDU 09183-21
19
That leads us into the final area of analysis; situations where the ninety-day deadline has
been relaxed. 	There are a multitude of reported court and administrative cases that explore this
issue, one of the most cited being Pacio. 	While Pacio discusses multiple issues, there, a
terminated high school teacher filed an action well past the ninety-day appellate deadline. 	In
granting the defendant’s motion for summary decision, the Court noted the strict standard applied
by the Commissioner in relaxing that deadline. It would only happen;
Where a substantial constitutional issue was presented, where
judicial 	review 	was 	sought 	of 	an 	informal 	administrative
determination, and where a matter of significant public interest is
involved. [citations omitted] Miller v. Morris School District 1980
S.L.D. ___ (February 25, 1980).
Pacio, supra, 1989 S.L.D. at 2063. See also, Morris-Union Jointure
Commission v. Bd. of Ed. of South River, 92 N.J.A.R 2d (EDU) 453
(1992) and Balwierczak v. Bd. of Educ. of Berkeley Heights, 1999
N.J. AGEN LEXIS 707 (Dec. 16, 1998).
The bar can also be relaxed “when strict adherence would possibly result in an injustice.”
Grompone v. State Operated Sch. Dist. Of Jersey City, 1999 N.J. AGEN LEXIS 786 (Dec. 20,
1999) at 17., app. denied, 1994 N.J. Super. Unpub. LEXIS 4, cit. Bogert v. East Orange Bd. of
Educ., OAL DKT. NO. EDU 6245-82 (January 26, 1983), aff’d Commissioner of Education (March
14, 1983).
Morris-Union also confirmed that “it is petitioner’s burden to show that it will suffer injustice
if the 90-day rule is strictly enforced.” Id. at 471. Further, “the fact that application of the rule may
result in the dismissal of a meritorious claim does not warrant relaxation of the rule.” K.B. v. Bd.
of Ed. of Rancocas Valley Reg. High Sch. Dist., 2002 N.J. AGEN LEXIS 52 (March 1, 2002) at
43-44.
Cases where the rule is not relaxed are much more prevalent that those where it was;
1. 	Rule not relaxed when petition filed two days late while petitioner
investigated appropriate grievance procedure. (Dreher v. Jersey
City Bd. of Ed., 1987 S.L.D. 1706, aff’d St. Bd., 1988 S.L.D. 2439,
rev’d o.g. App. Div. A-6120-82 (Feb. 28, 1988)
2. 	Rule not relaxed in teacher removal case where no claim of
constitutional issue or issue of fundamental public policy made.
Portee v. Bd. of Ed. of Newark, 1994 N.J.A.R.2d (EDU) 381 (1994).
See also, Wise, supra.

OAL DKT. NO. EDU 09183-21
20
3. 	Rule not relaxed in late filing case involving an alleged violation of
N.J.S.A. 	18A:37-2.1 	accusing 	a 	school 	board 	of 	failing 	to
commence expulsion proceedings against a student who assaulted
a teacher. 	Markulin v. Bd. of Ed. of Neptune, 1992 N.J.A.R.2d
(EDU) 406 (1992).
4. 	Rule not relaxed when the provisions of the Administrative Code
were changed to now include a ninety-day appellate deadline where
there was no such deadline previously. Riely, supra.
5. 	Rule not relaxed when school board committed misconduct and
failed to respond to inquiries regarding the issue at hand. Kaprow,
supra.
6. 	Rule not relaxed when teachers asserted a statutory claim to sick
pay amounts in the absence of a clear “final decision” and
employment terms were being negotiated, but when vouchers for
less than expected amount were distributed. Nadasky v. Bd. of Ed.
of Twp. of Clark, 2001 N.J. AGEN LEXIS 1385 (July 9, 2001). See
also, Balwierczak, supra.
Cases where the ninety-day limitation was relaxed are relatively rare and involve
circumstances much different than those presented here and even then, after the decision in
some of these cases, that rule has been tightened. Bey v. Bd. of Educ. of the City of Newark, 93
N.J.A.R.2d (EDU) 288 (March 5, 1993) explores these matters in some detail, including a case
where the rule was relaxed when the Commissioner concluded that petitioner had been
discriminated against due to gender and pregnancy when sick leave was not granted. Shokey v.
Bd. of Ed. of Cinnaminson, 1978 S.L.D. 919 (November 29, 1978). However, the court noted that
the Shokey decision “might not be rendered today”, since Riely, supra, and Pacio, supra were
both decided subsequently to it. Bey at 45.
Perhaps ironically, despite reviewing all the reasons why the rule should not be relaxed,
the Bey court actually relaxed the rule in a case involving the delinquent filing of an appeal
involving the assignment of “a teaching staff member who had been accused of misusing,
mismanaging, and possibly misappropriating school funds entrusted to him in his capacity as
school treasurer”. Id. at 43.
The court saw this case as unique since the prior cases discussed in the decision;

OAL DKT. NO. EDU 09183-21
21
…ha(ve) dealt with an individual concern of the involved petitioner
only, such as a refusal to re-employ. None of these precedents
dealt with concerns that could affect a wider spectrum of the public.
Id. at 44.
Other “relaxation” cases involved a student expulsion where a pro se parent’s timely
appeal was technically deficient [J.N. v. Elizabeth Bd. of Educ., 2005 N.J. AGEN LEXIS 814 (July
8, 2005)] and where illegal conduct was being alleged against the respondent, where that conduct
was discovered after the expiration of the ninety-days [Eisenberg v. Fort Lee Bd. of Educ., 2008
N.J. AGEN LEXIS 45 (Jan. 9, 2008)].
Here, the evidence simply does not support a conclusion that this issue is anything but a
personal one for Petitioner. 	There has been no argument that there is a figurative “class” of
students that are impacted by this specific, limited issue. While the overall issue (the specific data
utilized by the vendor in question to determine the distance in question) is not literally exclusive
to Petitioner, it would only, at best, potentially impact a very limited number of persons who live
on or near the two mile border, do not have access to courtesy or subscription busing and who
challenge the measured distance from their home to the school. In other words, the result of this
specific case would have a negligible impact, if any at all, on any persons other than Petitioner.
There is obviously no Constitutional issue at play here and there is no significant public
interest involved. That leaves the “injustice” issue and, to a degree in conjunction with that, the
“continuing violation” issue.
The issue of the continuing violation is the most appealing factually and facially for
Petitioner. 	Not only does Respondent’s decision impact M.C., but it also has the very real
potential to impact M.C.’s sibling, who is currently kindergartener in Respondent’s school system
and where it is anticipated that he will attend the same school as his big sister in the 2023-24
school year.9
The concern is that by not addressing this issue in dispute regarding M.C., we will only
revisit same in two years with her brother (who is not a party to this case).
9 Willow Grove educates students in Grades 2-4.

OAL DKT. NO. EDU 09183-21
22
However, in Kallimanis v. Carlstadt Bd. of Educ. OAL DKT. EDU 868-80 (August 8, 1980),
aff’d Comm’r of Ed. (September 26, 1980) aff’d State Bd. (March 4, 1981), where the petitioner
alleged a continuing violation of his rights (such as here, where the refusal to offer M.C. busing
occurs each school day), the court held that the ninety-day rule should not be relaxed. In fact,
the Court in North Plainfield Educ. Ass’n v. Bd of Educ. of the Borough of North Plainfield, 96 N.J.
587 (1984), addressed the issue as well in the context of an allegedly improper withholding of an
incremental salary increase. 	It noted that the despite the plaintiff continuing to lag behind in
salary, that lag was caused by a singular decision and did not constitute a new violation each
year. Therefore, the ninety-day deadline from the date of the original denial should not be relaxed.
Id. at 595. 	See also, Medford Investor Associates, L.L.C. v. Medford Bd. of Educ., 2013 N.J.
AGEN LEXIS 271 (Oct. 8, 2013).
The only “continuing violation” cases where the ninety-day rule was relaxed appear to be
in statutory rights claims, such as the improper reassignment of teacher in violation of her tenure
rights [City Ass’n of Supervisors v. Newark Sch. Dist., 2014 N.J. AGEN LEXIS 515 (Aug. 27,
2014)] or the failure to properly credit service [Board of Ed. of Borough of Alpha v. Alpha Educ.
Ass’n, 190 N.J. 34 (2006)].
In fact, the courts are practically unanimous in finding that “continuing violation” claims
concern discrimination cases and little else. O’Donnell v. Hanover Tp. Bd. of Educ., 97 N.J.A.R.2d
(EDU) 264 (1997), cit. North Plainfield Educ. Ass’n, supra.
Finally, there is simply no evidence that an “injustice” to the degree inferred by the courts
would occur if this matter were procedurally dismissed. While in every “losing” case there may
be some degree of “injustice”, the fact that Petitioner’s daughter remains ineligible for busing is
not a sufficiently negative result as to warrant a relaxation of the ninety-day rule given its almost
uniformly strict interpretation by the courts. See, generally, Eisenberg, supra.
Ultimately, I FIND that there is insufficient evidence to demonstrate that the ninety-day
appellate deadline as delineated in N.J.A.C. 6A:3-1.16 should be relaxed.

OAL DKT. NO. EDU 09183-21
23
CONCLUSION
Given the totality of the evidence, I CONCLUDE that Petitioner received notice that that
Respondent had issued a “final order” to deny his request that it provide M.C. with busing on April
22, 2021.
I further CONCLUDE that Petitioner’s appeal was filed out of time in violation of N.J.A.C.
6A:3-1.3 and I further CONCLUDE that Petitioner has supplied insufficient evidence to
demonstrate that the rule should be relaxed per the dictates of N.J.A.C. 6A:3-1.16.
ORDER
Based on the foregoing, Respondent's motion to dismiss Petitioner’s appeal be and is
hereby GRANTED and;
It is hereby ORDERED that summary decision be ENTERED on behalf of respondent and
that the Petitioner’s appeal be and is hereby DISMISSED.
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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24
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.
February 17, 2022
DATE 	Matthew G. Miller, ALJ
Date Received at Agency: 	February 17, 2022
Date Mailed to Parties: 	February 17, 2022
MGM/mm

OAL DKT. NO. EDU 09183-21
25
APPENDIX
WITNESSES
For petitioner:
None
For respondent:
None
EXHIBITS
For petitioner:
P-1 	April 10 e-mail from RH to Respondent
P-2 	August 17 letter from Havlusch to Office of School Finance
P-3 	September 29 e-mail from RH to OCD
P-3a 	October 27 e-mail from RH to OCD requesting emergency status
P-4 	October 23 petition of appeal
P-5 	October 25 filed petition of appeal
For respondent:
R-DTRS-27 	2021-22 District Report of Transported Resident Students (DRTRS)
R-HBOE 1-2 	April 13 e-mail from Havlusch to RH
R-HBOE 6 	April 15 e-mail from Havlusch to RH
R-HBOE 13 	April 15 e-mail from Havlusch to RH
R-HBOE 32 	April 22 e-mail from Havlusch to RH
R-HBOE 39 	April 27 e-mail from Havlusch to RH
R-HBOE 40 	April 27 e-mail from Mango to RH
R-HBOE 42 	April 27 e-mail from RH to Mango
R-HBOE 45 	April 27 e-mail from Mango to RH
R-HBOE 67 	April 28 e-mail from Lamonte to RH
R-HBOE 76a 	April 28 e-mail from Lamonte to RH

OAL DKT. NO. EDU 09183-21
26
R-HBOE 76b 	April 28 e-mail from Lamonte to RH
R-HBOE 77 	April 28 e-mail from RH to Lamonte
R-HBOE 134 	April 30 e-mail from Herbst to RH
R-HBOE 136 	April 30 e-mail from RH to Havlusch
R-HBOE 137 	April 28 e-mail from RH to Havlusch
R-HBOE 140 	April 30 e-mail from RH to Havlusch
R-HBOE 143 	May 4 e-mail from Havlusch to RH
R-HBOE 143-144 	May 3 e-mail from RH to Havlusch
R-HBOE 147-148 	May 4 e-mail from Havlusch to RH
R-HBOE 153 	May 18 e-mail from Stewart to multiple
R-HBOE 154 	May 14 letter from Stewart to Logic 54
R-HBOE 156-157 	May 19 letter from Toscano to Stewart, multiple
R-HBOE 158 	July 31 e-mail from RH to multiple
R-HBOE Reply 1 	August 3 e-mail from RH to multiple
R-HBOE Reply 1-2 	August 3 e-mail from Mango to RH
R-HBOE Reply 1a 	August 11 e-mail from RH
R-HBOE Reply 1b 	August 12 e-mail from RH
R-HBOE Reply 1c 	August 13 e-mail from Havlusch to RH
R-HBOE Reply 4 	August 13 e-mail from RH to Havlusch
R-OPP 1 	May 5 letter from Peck to RH