Maria Azzaro, The New Jersey Education Association, and Mellk O’Neill v. Board of Education of the City of Trenton, Mercer County, 9/14/2022, (#228-22)

228-22
New Jersey Commissioner of Education
Final Decision
Maria Azzaro, The New Jersey Education
Association, and Mellk O’Neill,
Petitioner,
v.
Board of Education of the City of Trenton,
Mercer County
Respondent.
Synopsis
This matter stems from a successful defense against an Order to Show Cause (OTSC) issued in 2007 to
petitioner Maria Azzaro by the New Jersey State Board of Examiners (SBE). Following hearings in the
original matter, which occurred between 2012 and 2018 at the Office of Administrative Law (OAL), an
Initial Decision dismissing the OTSC was issued by an ALJ in 2019 and adopted by the SBE in February
2020. The matter then closed. Subsequently, petitioners filed the within matter seeking reimbursement
from the Trenton Board of Education (Board) under N.J.S.A. 18A:16-6 for costs and fees associated with
defending against the OTSC. The parties filed cross motions for summary judgment.
The ALJ found, inter alia, that: there is no genuine issue as to any material fact here, and the matter is
ripe for summary decision; under N.J.S.A. 18A:16-6, a board of education employee may be indemnified
for attorney's fees and costs incurred defending civil actions that arise in the course and scope of their
employment duties; N.J.S.A. 18A:16-6 does not impose an affirmative duty on the employee to notify a
board of education at the outset of the underlying litigation; the Board’s argument that the petitioners
waived the right to indemnification when they did not notify it of the OTSC at the outset and did not
request that it provide Azzaro with a defense or indemnify her, is without merit as it is clear from the
record that the Board possessed sufficient information such that it was on notice of the charges against
Azzaro. 	The ALJ concluded that petitioners were entitled to indemnification for the costs and fees
incurred in defending Azzarro in the SBE proceedings. 	Accordingly, the ALJ granted the petitioners’
motion for summary decision and ordered the Board to reimburse petitioners in the amount of
$430,800 in fees and $5,361.60 in costs.
Upon review, the Commissioner disagreed with the ALJ that petitioners are entitled to indemnification,
citing to Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977) for the proposition that an employee
seeking indemnification does not have the absolute right to counsel of their own choosing at municipal
expense. 	The Commissioner found that, consistent with the Appellate Division’s holding in Edison,
Azzaro had no right to be represented by Mellk O’Neill at the Board’s expense without the express
agreement of the Board. Further, the Commissioner noted that petitioners failed to notify the Board of
their request for indemnification until more than a decade of legal bills had accumulated, from a law
firm which the Board had no hand in selecting. Accordingly, the Board’s motion for summary decision
was granted, and the petition was dismissed
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.

OAL Dkt. No. EDU 09699-20
Agency Dkt. No. 121-5/20
New Jersey Commissioner of Education
Final Decision
Maria Azzaro, The New Jersey Education
Association, and Mellk O’Neill,
Petitioners,
v.
Board of Education of the City of Trenton,
Mercer County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by respondent pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply thereto,
have been reviewed and considered.
In 2007, the State Board of Examiners (SBE) of the New Jersey Department of Education
issued an Order to Show Cause (OTSC) why petitioner Maria Azzaro’s teaching, specialist, and
principal certifications should not be revoked or suspended. The proceedings were based on
allegations pertaining to scheduling and grading practices at the school where Azzaro was
employed. After years of proceedings, the SBE dismissed the OTSC, and Azzaro’s certificates
were not suspended or revoked. Azzaro, along with the law firm of Mellk O’Neill, who had
represented her during the SBE proceedings, and the New Jersey Education Association (NJEA),
who had retained Mellk O’Neill on Azzaro’s behalf, filed a petition of appeal, seeking
228-22

2
indemnification from the Trenton Board of Education (Board) for the legal fees and costs of her
defense. Following cross-motions for summary decision, the Administrative Law Judge (ALJ)
concluded that petitioners were entitled to indemnification for the fees and costs of defending
Azzarro in the SBE proceedings. The ALJ reviewed the bills submitted by petitioners and, after
making some adjustments to the number of hours billed and hourly rates, ordered the Board to
reimburse petitioners in the amount of $430,800 in fees and $5,361.60 in costs.
In its exceptions, the Board argues that New Jersey case law requires that an indemnitee
must give timely notice to the indemnitor and, absent such notice, cannot demand reimbursement
for expenses that the indemnitor had no opportunity to control. The Board notes that its current
insurance coverage has a significantly lower limit than the policy that was in place when the SBE
proceedings began, such that the Board is prejudiced by the lack of notice that petitioners would
seek indemnification. The Board further contends that the hourly rate awarded by the ALJ is not
reasonable, and the bills submitted by petitioners lack sufficient detail to properly calculate the fee
total.
In reply, petitioners argue that the Board’s arguments regarding its insurance coverage are
outside the record and therefore improperly included in exceptions. Petitioners contend that the
ALJ correctly concluded that the indemnification statute does not require employees to notify a
board of education at the outset of litigation. According to petitioners, the Board only had an
obligation to indemnify Azzaro once the charges against her were dismissed. Petitioners further
state their belief that if the Board controlled the litigation, it would have done so with the aim of
minimizing expense, rather than exonerating Azzaro, such that it was imperative for Azzaro to have
independent counsel. Finally, petitioners argue that the ALJ appropriately calculated the
reasonable fees and costs of Azzaro’s defense.

3
Upon review, the Commissioner disagrees with the ALJ that petitioners are entitled to
indemnification. In Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977), the Appellate
Division held that an employee seeing indemnification “does not have the absolute right to
counsel of his own choosing at municipal expense.” Id. at 14. The Appellate Division
specifically noted that a right to absolute reimbursement was provided for only when the
municipality’s obligation was conditional on the outcome of the litigation. Ibid. However, there
was no right of reimbursement when “the obligation to provide for the defense arose at the
inception of the proceeding . . . and was independent of the outcome of the proceeding.” Id. at
15.
Here, petitioner’s right to indemnification is governed by N.J.S.A. 18A:16-6, which
contains no requirement that the employee be successful in the litigation to be indemnified.
The relevant language in N.J.S.A. 18A:16-6 can be contrasted with N.J.S.A. 18A:16-6.1, which
provides for indemnification in criminal actions only when the proceedings are dismissed or
result in a final disposition favorable to the employee. Here, there is no dispute that SBE
proceedings are an administrative action, not a criminal action. Therefore, although
petitioners’ claim arises out of a different indemnification statute than the one at issue in
Edison, it nonetheless bears the same characteristics, in that it arose at the inception of the
proceedings and was independent of the outcome of the proceedings.
Petitioners failed to notify the Board of their request for indemnification until more than
a decade of legal bills had accumulated. Those bills were generated by a law firm which the
Board had no hand in choosing. Consistent with the Appellate Division’s holding in Edison,

4
Azzaro had no right to be represented by Mellk O’Neill at the Board’s expense without the
express agreement of the Board.1
Accordingly, the Board’s motion for summary decision is granted, and the petition of
appeal is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 The Commissioner does not find petitioners’ arguments regarding the Board’s conflict – that it would prioritize a
low-cost defense over a vigorous one that would result in the dismissal of the SBE OTSC – availing. In Edison, the
Appellate Division noted that an employee does have the right to object to the appointment of an attorney
perceived to have a conflict of interest. Edison, supra, 147 N.J. at 16. However, having failed to give the Board the
opportunity to appoint an attorney for Azzaro, petitioners cannot now object to any hypothetical appointment.
The time for resolution of any disagreements between Azzaro or the NJEA and the Board regarding the appropriate
counsel to represent Azzaro was at the commencement of the proceedings, which is yet another reason notice to
the Board in advance of an indemnification request is required.
2 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.
September 14, 2022
September 14, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 09699-20
AGENCY DKT. NO. 121-50/20
MARIA AZZARO, THE NEW JERSEY
EDUCATION ASSOCIATION AND
MELLK O’NEILL,
Petitioners,
v.
BOARD OF EDUCATION OF THE CITY
OF TRENTON, MERCER COUNTY,
Respondent.
____________________________
Edward A. Cridge, Esq., for petitioners (Mellk Cridge, LLC, attorneys)
Rita F. Barone, Esq. for respondent (Flanagan, Barone, O’Brien, attorneys)
Record Closed: April 6, 2022 	Decided: June 15, 2022
BEFORE JUDITH LIEBERMAN, ALJ
STATEMENT OF THE CASE

OAL DKT. NO. EDU 09699-20
2
PROCEDURAL HISTORY
On June 11, 2007, the SBE filed an OSC in which it directed Azzaro to show cause
why her Teacher, Specialist and Principal Certifications should not be revoked or
suspended as a result of problems that occurred at a school within the Trenton School
District during the 2003-2004 school year. Pet. Exh. A. The OSC was transmitted to the
Office of Administrative Law (OAL) on August 13, 2007. 	It was initially assigned to
Administrative Law Judge (ALJ) Anna Viscomi. 	On or about February 23, 2012, it was
transferred to Hon. Edward J. Delanoy, Presiding Administrative Law Judge, after ALJ
Viscomi was appointed to the Superior Court. The hearing was conducted during twenty-
four days between July 2012, and May 2018. The record remained open after the hearing
for the receipt of transcripts and post-hearing submissions, and the record closed on April
29, 2019.
On September 12, 2019, Judge Delanoy issued an Initial Decision dismissing the
OSC with respect to Azzaro. Pet. Exh. D. On February 28, 2020, the SBE adopted Judge
Delanoy’s Initial Decision and ordered the dismissal of the OSC issued to Azzaro. Pet.
Exh. E. The SBE’s determination was not appealed and the matter was closed.
On or about May 19, 2020, petitioners filed a petition in which they seek payment
by respondent of the reasonable costs and attorneys’ fees incurred in the successful
defense of the OSC issued to Azzaro. Pet. Exh. F.
Petitioners and respondent filed cross-motions for summary decision. They assert
that summary decision is appropriate because there is not a genuine issue of material
fact. 	Oral argument on the motions was heard on March 31, 2022. 	Respondent was
asked to submit additional information. 	Its submission was received on April 5, 2022.
Petitioners submitted a letter in response on April 6, 2022, and the record closed that day.
Parties’ Arguments

OAL DKT. NO. EDU 09699-20
3
Petitioners contend:
1. 	Reimbursement 	pursuant 	to 	N.J.S.A. 	18A:16-6 	is 	required 	because 	the
allegations against Azzaro arose from her employment with respondent and
that she was found to have been acting within the scope of her duties.
2. 	Reimbursement is required notwithstanding the fact that the NJEA paid for her
representation.
3. 	Reimbursement shall be of the billable time expended in the defense of Azzaro
at a reasonable rate, not the discounted union rate paid by NJEA.
4. 	$450 per hour is the reasonable rate that should be applied here.
5. 	Azzaro was not required to demand an initial defense from respondent.
6. 	Petitioners’ 	demand, 	$485,550 	in 	legal 	fees 	and 	$5,518.75 	in 	costs, is
reasonable given the scope, length and complexity of the matter, counsels’
expertise in this specialized area of the law, and a completely successful
outcome. The hourly rate upon which this demand is based is reasonable and
comparable to that charged by similarly situated counsel.
Respondent contends:
1. 	The initial matter against Azzaro was brought by the SBE, not the Board. While
the matter was pending, petitioners did not notify the Board that Azzaro sought
a defense or provide notice that they would seek indemnity if the Board did not
provide a defense. This failure deprived the Board of an opportunity to control
the defense and its costs, as an indemnitor. Given this failure, and the resultant
prejudice suffered by the Board, petitioners are not entitled to payment by the
Board, pursuant to indemnification requirements imposed by New Jersey
courts.

OAL DKT. NO. EDU 09699-20
4
2. 	Because the Board should have been permitted to control the defense and set
its own costs and fees, it is required to merely pay the minimum, reasonable
cost and fees when counsel is selected independently.
3. 	Petitioners’ requested costs and legal fees are excessive, unreasonable and
unnecessary. The controlling statute does not provide that the Board is
responsible for a market rate. Further, the billing statements here include
redundant 	and 	unnecessary 	menial 	tasks; 	the 	requested 	hourly 	rate 	is
inappropriate on its face; is well beyond the highest rate that was charged; and
excessive compared to what the Board or its insurer would have paid had it
been given an opportunity to provide Azzaro’s defense.1
FACTUAL DISCUSSION
The following, taken from the parties’ briefs, certifications and documents, is
undisputed and, therefore, I FIND the following as FACT:
1. 	The allegations in the OSC were made by the SBE. 	They were not made at
the request of the Board.
2. 	Petitioners were not advised that the Board would take disciplinary action
against Azzaro.
3. 	The Board did not take disciplinary action against Azzaro.
4. 	The allegations in the OSC arose from Azzaro’s employment with the Board.
1 Respondent also argued, in a post-hearing submission, that it is further prejudiced by petitioners’ delay in seeking
indemnification because its current insurance policy limits coverage to 10 percent of the amount of the coverage that
was provided by the insurance policy at the time the OSC was initiated. Thus, the Board “was prohibited from defraying
the costs using insurance and has been significantly prejudiced.” April 5, 2022, Barone letter at 2. This issue was
neither included in the pleadings, addressed in briefs nor raised during oral argument. It will thus not be addressed
here.

OAL DKT. NO. EDU 09699-20
5
5. 	The OSC against Azzaro was dismissed in its entirety.
6. 	Azzaro acted within the scope of her duties as a Board employee during all
relevant times.
7. 	Azzaro’s counsel was paid by the NJEA, the union of which she was a member,
at a reduced hourly rate to which counsel and the NJEA agreed.
8. 	Petitioners did not notify the Board of the OSC.
9. 	Petitioners 	did 	not request 	that 	the 	Board provide 	Azzaro’s 	defense 	or
indemnify her for her defense.
10. Petitioners did not seek reimbursement of the costs of Azzaro’s defense until
after the OSC was dismissed.
11. There was no Board policy or employment manual that required an employee
to notify the Board of an action issued against them by the State Board of
Examiners.2
I also FIND the following as FACT because it is taken from the September 12,
2019, Initial Decision dismissing the OSC against Azzaro.3 	In addition to Azzaro, the
2 April 5, 2022, Barone letter at 2.
3 Official notice is taken of the facts as set forth in the Initial Decision and a related matter before the OAL that are
addressed below. N.J.A.C. 1:1-15.2(a) provides, “Official notice may be taken of judicially noticeable facts as explained
in N.J.R.E. 201 of the New Jersey Rules of Evidence.” N.J.R.E. 201provides:
(a) Notice of Law. --Law which may be judicially noticed includes the decisional,
constitutional and public statutory law, rules of court, and private legislative
acts and resolutions of the United States, this state, and every other state,
territory and jurisdiction of the United States as well as ordinances, regulations
and determinations of all governmental subdivisions and agencies thereof.
Judicial notice may also be taken of the law of foreign countries.
(b) Notice of Facts. --The court may judicially notice a fact, including:
. . .

OAL DKT. NO. EDU 09699-20
6
Initial Decision addressed Orders to Show Cause issued by the SBE against Board
employees Melvin Cummings and Priscilla Dawson.4 Azzaro was represented by the firm
Wills, O’Neill & Mellk.5
During the 2004-2005 school year, Azzaro was the vice principal and then the
acting principal and guidance counselor coordinator for Trenton Central High School
(TCHS); Dawson was the principal of TCHS; and Cummings was vice principal of the
Sherman School. Initial Decision at 6, 7, 9.
The DOE Office of Fiscal Accountability and Compliance (OFAC) investigated
scheduling and grading practices at the Sherman School during the 2004-2005 school
year. Initial Decision at 2. During the school year, the Trenton School District ran a ninth-
grade repeater program housed at Sherman. Initial Decision at 2. 	The District was
required to follow the standard educational guidelines for curriculum and awarding of
academic credit. Ibid. The investigation found that Azzaro, Dawson and Cummings were
involved in the following acts or omissions, which were incorporated into the OSC:
• 	At least five students had attained sufficient credit for promotion to tenth grade at the
end of the 2003-2004 academic year, but were incorrectly assigned to the ninth-grade
repeater program at the Sherman School.
• 	Twenty-nine 	Sherman 	students 	repeated 	courses 	that 	they 	had 	successfully
completed prior to their assignment to Sherman and were awarded credit for repeating
courses. 	Trenton 	would 	not 	transport 	students 	to 	classes 	off-site, 	nor 	could
instructional staff come on-site due to space restrictions.
(4) records of the court in which the action is pending and of any other court
of this state or federal court sitting for this state.
4 The three matters were consolidated by Judge Viscomi. In addition to Azzaro, Dawson and Cummings, James Lytle
was named as a respondent in the OSC. He was the superintendent of Trenton’s schools during the 2004–2005 school
year. His case was resolved by the parties prior to issuance of the Initial Decision dismissing the OSC. Initial Decision
at *10.
5 The name of the firm has since changed.

OAL DKT. NO. EDU 09699-20
7
• 	Numerous students assigned to Sherman were awarded credit for courses that did
not meet Department of Education Curriculum standards.
• 	Students were being awarded credit for tenth grade physical education when they had
twice repeated ninth grade physical education. Students who repeated other courses
were also given credit for honors courses and/or eleventh-grade courses.
• 	Full course credit was awarded for a three-week independent study program, even
though course credit should only be awarded for courses that provide forty minutes of
instruction during a 180-day school year. Azzaro and others approved the program,
but it was not approved by the Board.
• 	Seventy-nine students of a sample of 100 had an excessive rate of absenteeism.
• 	Student academic records at Sherman were altered to indicate the successful
completion of courses not offered at Sherman.
[Initial Decision at 2-3].
I also FIND as FACT that the Initial Decision on the OSC referenced a tenure
charge filed against Dawson by the Trenton Board of Education on December 5, 2007: In
re Tenure Hearing of Dawson, Sch. Dist. of Trenton, Mercer Cty., EDU 10447-07, Initial
Decision 	(September 	8, 	2009), 	adopted, 	Comm’r 	(December 	4, 	2009),
http://njlaw.rutgers.edu/collections/oal/. The tenure matter was heard by Judge Viscomi.
In her decision, Judge Viscomi detailed the procedural history of the tenure matter. She
noted that she had been assigned “four previously filed certificates’ matters relating to the
alleged conduct herein and involving this respondent and three other former assistant
vice principals and school superintendent[.]” Id. at *1. After an April 15, 2008, pre-hearing
conference with the parties, Judge Viscomi rejected an application to consolidate the
tenure matter against Dawson with the already consolidated OSC matter. Ibid.

OAL DKT. NO. EDU 09699-20
8
The charges against Dawson concerned the Sherman School repeater program
during the 2004-2005 school year. The allegations included the inappropriate assignment
of students in the program; failure to enable students to attend courses and obtain credits
needed to obtain a high school diploma; students were assigned to classes that they had
already passed; and students who were eligible for the tenth grade were enrolled in the
ninth grade. 	In addition to several other witnesses offered by the Board, Azzaro and
Cummings testified at the hearing. 	Judge Viscomi found, and the DOE Commissioner
agreed, that the Board did not sustain any of its charges against Dawson.
During oral argument on this application for legal fees and costs, the Board’s
counsel acknowledged that the Board was aware of the OSC.
LEGAL ANALYSIS AND CONCLUSION
The provisions of N.J.A.C. 1:1-12.5, which governs motions for summary decision,
mirror the language of R. 4:46-2 of the New Jersey Court Rules governing motions for
summary judgment. N.J.A.C. 1:1-12.5 permits early disposition of a case before the case
is heard if, based on the papers and discovery which have been filed, it can be decided
“that there is no genuine issue as to any material fact challenged and that the moving
party is entitled to prevail as a matter of law.” 	N.J.A.C. 1:1-12.5(b). 	An adverse party
does not bear an obligation to oppose the motion, but to survive summary decision, there
must be “a genuine issue which can only be determined in an evidentiary proceeding.”
Ibid. 	The non-existence of one entitles the moving party to summary decision. 	Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). 	Moreover, even if the non-moving
party comes forward with some evidence, this forum must grant summary decision if the
evidence is “so one-sided that [the moving party] must prevail as a matter of law.” Id. at
536. Here, the parties do not assert that material issues of fact exist and none have been
found. Accordingly, this matter is ripe for summary decision.
“Under the civil indemnification statute, N.J.S.A. 18A:16-6, a board of education
employee may be indemnified for attorney's fees and costs incurred defending civil

OAL DKT. NO. EDU 09699-20
9
actions arising out of an act or omission that took place in the course and scope of
employment duties.” L.A. v. Board of Education, City of Trenton of Mercer County, 221
N.J. 192, 201-202 (2015). N.J.S.A. 18A:16-6 provides:
Whenever any civil or administrative action or other legal
proceeding has been or shall be brought against any person
holding 	any 	office, 	position 	or 	employment 	under 	the
jurisdiction of any board of education, including any student
teacher or person assigned to other professional pre-teaching
field experience, for any act or omission arising out of and in
the course of the performance of the duties of such office,
position, employment or student teaching or other assignment
to professional field experience, the board shall defray all
costs of defending such action, including reasonable counsel
fees and expenses, together with costs of appeal, if any, and
shall 	save 	harmless 	and 	protect 	such 	person 	from any
financial loss resulting therefrom; provided that
a. 	no employee shall be entitled to be held harmless or have
his defense costs defrayed in a disciplinary proceeding
instituted against him by the board or when the employee
is appealing an action taken by the board; and
b. 	indemnification for exemplary or punitive damages shall
not be mandated and shall be governed by the standards
and procedures set forth in N.J.S. 59:10-4.
Any 	board 	of 	education 	may 	arrange 	for 	and 	maintain
appropriate insurance to cover all such damages, losses and
expenses.
In Bower v. Bd. of Educ., 149 N.J. 416 (1997), the Supreme Court addressed the
statutory prerequisite. 	It held that the statute requires “mere proof by a preponderance
of the evidence that the act on which the charges are predicated arose out of and in the
course of performance of the duties of employment.” Id. at 434. See also Waters v. Bd.
of Educ. of Toms River, 2011 N.J. Super. Unpub. LEXIS 3083, *12 (December 22, 2011)
(“In the context of the defense of a civil action, the outcome of the litigation is irrelevant,
the statute protects both successful and unsuccessful litigants as long as” the cause of
action arose out of the performance of the employee’s duties and occurred in the

OAL DKT. NO. EDU 09699-20
10
performance of the duties)(citing Lonky v. Bd. of Educ. of Bayonne, OAL Dkt. No. EDU
07205-05, 	final 	decision, 	(July 	7, 	2008) 	(slip 	op. 	at 	3),
http://lawlibrary.rutgers.edu/oal/search.shtml).6 	In 	Lonky, 	the 	ALJ 	observed 	that,
because N.J.S.A. 18A:16-6 does not require a disposition in favor of the employee, “there
is an entitlement to indemnification if the sole criteria for satisfying the statute has been
met by showing that the employee was performing the job she was hired for when the act
occurred.” EDU 07205-05 at *3-4.
This 	is 	in 	contrast 	to 	N.J.S.A. 	18A:16-6.1, 	the 	statute 	that 	provides 	for
indemnification of education employees charged with criminal or quasi-criminal actions.
It provides:
Should any criminal or quasi-criminal action be instituted
against any such person for any such act or omission and
should such proceeding be dismissed or result in a final
disposition in favor of such person, the board of education
shall reimburse him for the cost of defending such proceeding,
including 	reasonable 	counsel 	fees 	and 	expenses 	of 	the
original hearing or trial and all appeals. No employee shall be
entitled to 	be 	held harmless 	or have his defense 	costs
defrayed as a result of a criminal or quasi-criminal complaint
filed against the employee by or on behalf of the board of
education.
Any 	board 	of 	education 	may 	arrange 	for 	and 	maintain
appropriate insurance to cover all such damages, losses and
expenses.
[N.J.S.A. 18A:16-6.1(emphasis added).]
This statute expressly conditions indemnification upon dismissal of the charges or
a “result in a final disposition in favor” of the employee. The Commissioner of Education
explained:
6 Unpublished Appellate Division and administrative decisions are not precedential. They are offered in this
Initial Decision because they provide relevant guidance.

OAL DKT. NO. EDU 09699-20
11
By its very terms, central to qualifying for protection afforded
under [N.J.S.A. 18A:16-6] is that the conduct triggering the
legal action against him or her must have 1) arisen out of the
performance of his/her duties, and 2) occurred in the course
of performing those duties. In the context of a civil action, the
outcome of the litigation is irrelevant, the statute protects both
successful and unsuccessful litigants as long as the above
two criteria are satisfied. However, in the context of a criminal
or quasi-criminal charge made against a school employee, in
addition to the above referenced criteria, N.J.S.A. 18A:16-6.1
imposes a third criteria as a prerequisite to indemnification,
i.e., the legal action must result in a final disposition in favor
of the school employee.
[Lonky (Final Decision) at *2-3(emphasis in original).]
The Board contends that petitioners waived the right to indemnification because
they did not notify it of the OSC at the start of the matter and request that it provide Azzaro
with a defense or indemnify her. There is a dearth of case law providing guidance on this
issue. 	A thorough search has revealed no cases in which a Board employee or their
representatives failed to notify the board of education, or the board was otherwise
unaware, at the outset of litigation. Indeed, petitioners advised during oral argument that
they are not aware of a case in which an employee or their representative did not
communicate with the board of education at the early stage of the underlying litigation.
The statute contains no language concerning notice to the board of education. As
noted by the Supreme Court, “’Our paramount goal in interpreting a statute is to give
effect to the Legislature's intent.’” New Jersey Div. of Child Protection and Permanency
v. Y.N, 220 N.J. 165, 178 (2014)(quoting Wilson ex rel. Manzano v. City of Jersey City,
209 N.J. 558, 572 (2012)).
The starting point of all statutory interpretation must be the
language used in the enactment. Farmers Mut. Fire Ins. Co.
of Salem v. N.J. Prop. Liab. Ins. Guar. Ass'n, 215 N.J. 522,
536, 74 A.3d 860 (2013); see also N.J.S.A. 1:1-1 (stating that
words of statute are customarily construed according to their
“generally accepted meaning”). “If the statutory language is
clear and unambiguous, and reveals the Legislature's intent,

OAL DKT. NO. EDU 09699-20
12
we need look no further.” Farmers Mut., supra, 215 N.J. at
536, 74 A.3d 860. Only when faithful adherence to the words
of the statute leads to more than one plausible interpretation
or to an absurd result or to a result at odds with the objective
of the overall legislative scheme do we look to extrinsic
sources, such as legislative history. Ibid.; DiProspero v. Penn,
183 N.J. 477, 492-93, 874 A.2d 1039 (2005).
[Ibid.]
See also Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75,
99 (2020)(“The words chosen by the Legislature have meaning and each is entitled to
receive its plain meaning”); Paff v. Galloway Township, 229 N.J. 340, 353 (2017) (“We
must presume that the Legislature intended the words that it chose and the plain and
ordinary meaning ascribed to those words”); Kaminskas v. Office of the Attorney General,
236 N.J. 415, 422-423 (2019)(“If the Legislature's intent is clear from the statutory
language and its context with related provisions, we apply the law as written. We turn to
extrinsic tools to discern legislative intent only when the statute is ambiguous, the plain
language leads to a result inconsistent with any legitimate public policy objective, or it is
at odds with a general statutory scheme”)(internal quotation marks and citations omitted)).
Unlike 	N.J.S.A. 	18A:16-6, 	other 	legislative 	enactments 	that 	provide 	for
indemnification of public employees clearly require notice of the underlying action to the
entity that is charged with the duty to indemnify. 	For example, N.J.S.A. 59:10A-1
provides:
Except as provided in section 27 hereof, the Attorney General
shall, upon a request of an employee or former employee of
7 The Attorney General may refuse to provide for the defense of an action referred to in section 1 if he
determines that:
a. the act or omission was not within the scope of employment; or
b. the act or the failure to act was because of actual fraud, willful
misconduct or actual malice; or
c. the defense of the action or proceeding by the Attorney General would
create a conflict of interest between the State and the employee or former
employee.

OAL DKT. NO. EDU 09699-20
13
the State, provide for the defense of any action brought
against such State employee or former State employee on
account of an act or omission in the scope of his employment.
For the purposes of this section, the Attorney General’s duty
to defend shall extend to a cross-action, counterclaim or
cross-complaint against an employee or former employee.
[emphasis added.]
The Legislative intent here should reasonably be understood to impose a duty upon the
Attorney General at the start of the underlying matter when a request has been properly
made. Given that the Legislature has expressly required notice in this distinct context, it
can reasonably be understood that it opted to not include a notice requirement in the
statute at issue here.
Nonetheless, the Board argues that petitioners’ failure to provide notice of the OSC
and their representation “deprived [it] of their opportunity to control, engage in, or aid the
defense of Azzaro.” Resp. Br. at 9. 	In support of this argument, it relies upon S.I. Indus.
V. AM. Motorists Ins. Co., 128 N.J. 188, 199-201 (1992), which address an insurer’s duty
to defend in the absence of notice:
We 	stress 	that 	the 	duty 	to 	defend 	is 	triggered 	by
facts known to the insurer. Although the insurer cannot ignore
known information simply because it is not included in the
complaint, the insurer has no duty to investigate possible
ramifications 	of 	the 	underlying 	suit 	that 	could 	trigger
coverage. Rather, the insured being sued is responsible for
promptly conveying to its insurance company the information
that 	it believes 	will 	trigger 	coverage. 	If 	it 	conveys 	that
information properly and promptly, it will be reimbursed for
previously-expended defense costs. Cf. Burd v. Sussex Mut.
Ins. 	Co., 	56 N.J. 383, 	390(1970) (where 	insurer 	did 	not
undertake defense initially, duty to defend translated into duty
to 	reimburse 	insured). However, 	if 	the 	insured 	does 	not
properly forward the information to the insurance company,
the insured cannot demand reimbursement from the insurer
for defense costs the insurer had no opportunity to control.
. . .

OAL DKT. NO. EDU 09699-20
14
Accordingly, when the insured's delay in providing relevant
information prevents the insurer from assuming control of the
defense, the insurance company is liable only for that portion
of the defense costs arising after it was informed of the facts
triggering the duty to defend.
Respondent also relies upon Grossman v. Rockaway Twp., 2019 N.J. Super.
Unpub. LEXIS 3596 (Law Div. February 7, 2019), in which parents of a student who took
her life filed a wrongful death complaint against the child’s school’s board of education
(BOE) and its employees. In a later complaint seeking indemnification pursuant to
N.J.S.A. 18A:16-6, an employee argued that she was entitled to choose her own counsel
and that the statute requires the BOE to defray the fees and costs of her defense. The
School Alliance Insurance Fund, the insurer and an intervenor, filed a declaratory
judgment action seeking a determination that, pursuant to the statute and its contract with
the BOE, it was obligated to defend the named employee and thus was the only party
entitled to select their counsel. 	The employee, instead, wished to proceed with her
selected counsel.
In an unpublished decision, the trial court noted that, at the time of its decision,
there was no case that interpreted the statutory requirement that a BOE “defray all costs
of defending such actions, including reasonable counsel fees and expenses.” Nor was
there a decision that “deals with this precise issue.” Id. at *7. For guidance. it referred to
Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977), in which the Appellate Division
addressed whether police officers against whom a citizen’s civil complaint was filed could
select their own counsel, independent of their municipal employer. The controlling statute
concerning representation and payment of fees and costs provided:
Whenever 	a 	member 	or 	officer 	of 	a 	municipal 	police
department or force is a defendant in any action or legal
proceeding arising out of or incidental to the performance of
his duties, the governing body of the municipality shall provide
said member or officer with necessary means for the defense
of such action or proceeding, but not for his defense in a
disciplinary 	proceeding 	instituted 	against 	him 	by 	the
municipality or in a criminal proceeding instituted as a result

OAL DKT. NO. EDU 09699-20
15
of a complaint on behalf of the municipality. If any such
disciplinary 	or 	criminal 	proceeding 	instituted 	by 	or 	on
complaint of the municipality shall be dismissed or finally
determined in favor of the member or officer, he shall be
reimbursed for the expense of his defense.
[N.J.S.A. 40A:14-155.]
The Edison court observed, “When a statute speaks in term of reimbursement, it
focuses 	on 	costs 	already 	incurred 	and 	contemplates 	governmental 	liability 	for
expenditures, reasonable in amount, for services rendered by counsel of the employee's
own 	choice.” Id. at 	4. 	The 	statute 	provided 	for reimbursement 	when 	an 	officer
successfully defended against disciplinary or criminal proceedings that were instituted by
the municipality. “Obviously, this would include the reasonable fees of counsel selected
by the officer, for the municipality could have no say in the choice of counsel to defend
against charges made by it.” Id. at 5. The court distinguished the reimbursement provision
from the remainder of the statute:
However, in dealing with the defense of actions other than
those initiated by the municipality, the statute does not speak
of reimbursement; it requires the municipality “[to] provide
said . . . officer with necessary means for the defense . . . .”
We conclude 	that 	this 	means 	that the 	municipality 	must
provide competent counsel, its own or outside counsel, or it
may 	approve 	counsel 	requested 	by 	the 	officer, 	but 	the
employee does not have the absolute right to counsel of his
own choosing at municipal expense. Were this not so, there
would have been no need to distinguish between the right to
reimbursement 	provided 	for 	in 	the 	last 	sentence
of N.J.S.A. 40A:14-155 and the portion relevant to the present
appeal; both obligations could easily have been couched in
terms of reimbursement. Instead, the Legislature provided for
reimbursement only where the municipality's obligation was
conditional on the outcome and arose after the fact; no right
of reimbursement 	was provided for where, as here, the
obligation to provide for the defense arose at the inception of
the proceeding against the officer and was independent of the
outcome of the proceeding.
We, 	therefore, 	conclude 	that the 	municipality's 	obligation
under N.J.S.A. 40A:14-155 does not require it to pay counsel

OAL DKT. NO. EDU 09699-20
16
chosen by a police officer without the prior agreement of the
municipality to do so.
. . .
Although obligated to provide for an officer's defense, the
municipality should have some control over costs, and at least
be in a position to know in advance what those costs will be.
See State v. Horton, 34 N.J. 518, 534 (1961). It cannot do this
if required to accept the officer's choice of attorney at his or a
court's assessment of a reasonable fee for his services.
[Id. at 14-15.]
The trial court in Goodman, relying largely upon Edison, held:
[T]he BOE’s obligations pursuant to N.J.S.A. 18A:16-6 arise
at the inception of the proceeding against the employee and
is independent of the outcome of the proceeding, unless
exemplary or punitive damages are imposed. The BOE “shall
defray all costs of defending such action, including reasonable
counsel fees and expenses, together with costs of appeal.”
N.J.S.A. 18A:16-6. 	This Court concludes that this language
means that the BOE shall provide competent counsel or it may
approve counsel selected by the BOE employee, but the
employee does not have the absolute right to counsel of his
or her own choosing at the BOE’s expense. Were this not so,
the 	legislature 	would 	not 	have 	included 	the 	insurance
provisions in the last clause of the statute. 	The Court notes
further that there are public policy principles at play. 	As a
matter of practicality it stands to reason that when a public
entity is sued and its employees have counsel there are
inherent questions with respect to a cohesive strategy and
coherent defense.
Accordingly, this Court concludes that the BOE’s obligations
pursuant to N.J.S.A. 18A:16-6 do not require it to pay counsel
fees as to Counsel chosen by an employee of the BOE without
the permission of the BOE.
[Id. at *11.]

OAL DKT. NO. EDU 09699-20
17
Grossman relied upon the municipal police officers’ defense and indemnification
statute, which is not fully analogous to the one at issue here. The police officers’ statute
imposes an affirmative duty upon their employers to “provide said member or officer with
necessary means for the defense” of “any action or legal proceeding [other than criminal
or disciplinary] arising out of or incidental to the performance of his duties[.]” 	The trial
court 	analogized N.J.S.A. 	18A:16-6 	to this provision notwithstanding its dissimilar
language.
Unlike the police officers’ statute, N.J.S.A. 18A:16-6 does not mandate provision
of a defense. 	It requires boards of education to defray all costs, including reasonable
counsel 	fees 	and 	expenses. 	The 	use 	of 	“defray” 	indicates 	that 	the 	Legislature
contemplated reimbursement as an option under all circumstances. 	“Defray” is defined
as “to bear or pay all or part of (the costs, expenses, etc.).” Defray Definition & Meaning
| Dictionary.com. 	Further understanding of the Legislature’s intent is found in its
statement to an amendment to the statute:
This committee bill expands the indemnification presently
provided under the statutes to school board members and
school board employees. Currently school board members
and employees are indemnified in civil actions and in criminal
proceedings 	if 	the 	criminal 	proceeding 	results in 	a 	final
disposition in favor of the board member or employee. The bill
expands indemnification to administrative and quasi-criminal
actions and other legal proceedings and again stipulates that
in the case of a quasi-criminal action indemnification shall only
be extended if the proceeding results in a final disposition in
favor of the board member or employee. In the case of school
board employees, the bill further stipulates that an employee
shall 	not 	be 	entitled 	to 	indemnification 	in 	a 	disciplinary
proceeding instituted against the employee by the board of
education or when the employee is appealing an action taken
by the board. Similarly, an employee shall not be entitled to
indemnification in any criminal or quasi-criminal complaint
filed against him by the board of education.
The bill further provides that indemnification for exemplary or
punitive damages is not mandated and shall be governed by
the standards and procedures set forth at N.J.S.59:10-4. That

OAL DKT. NO. EDU 09699-20
18
section of law provides for indemnification in the case of
exemplary or punitive damages at the discretion of a local
public entity only if the actions on which the damages were
based did not constitute actual fraud, actual malice, willful
misconduct or an intentional error.
[P.L. 2001, c. 178, sec. 2, eff. July 26, 2001; 2000 Bill Text NJ
A.B. 1755.]
In its statement, the Legislature referred only to a board’s obligation to “indemnify”
its employees. 	“Indemnify” is defined as “to compensate for damage or loss sustained,
expense incurred, etc.; to guard or secure against anticipated loss; give security against
(future damage or liability).” Indemnify Definition & Meaning | Dictionary.com. Neither the
definition of “indemnify” nor “defray” indicates that the obligation is to be satisfied at a
particular time and both contemplate reimbursement, e.g., payment to be made after a
cost or expense has been incurred. It can thus be concluded that the Legislature intended
“defray” 	to 	be 	understood in 	the 	same 	way 	as 	“indemnify,” 	and 	thus 	authorized
reimbursement. It must also be noted that the circumstances presented in Grossman are
different from this matter in a significant way: the board of education’s insurance company
offered to provide representation to the employee and the employee refused.
Nonetheless, petitioners contend that they could not request that the Board defend
or indemnify Azzaro until the OSC was resolved in her favor because the Board’s
obligation to indemnify was “triggered” not by the issuance of the OSC but, rather, by the
dismissal of the OSC. Pet. Opp. Br. 	at 4. 	That is, they could not have known whether
Azzaro was entitled to indemnification until it was found that the alleged acts or omissions
arose out of and in the course of the performance of the duties of her employment. This
required a finding in her favor at the close of the hearing on the OSC. Petitioners further
argue that any potential conflict between Azzaro’s interest and that of the Board could not
be identified and addressed until that time. 	Thus, an “internal conflict” between Azzaro
and the Board precluded appointment of counsel by the Board. As the allegations against
Azzaro in the OSC included “serious unbecoming conduct” and “engaging in a cover up,”
they “fell outside the scope of her duties and responsibilities.” Id. at 5-6. If those charges

OAL DKT. NO. EDU 09699-20
19
had been sustained, the Board would have had no N.J.S.A. 18A:16-6 reimbursement
obligation.
In support of this argument, petitioners cite to a line of cases involving a school
security guard who was charged criminally with having engaged in unlawful sexual
conduct with two minor students. 	Separate indictments were issued for the charges
concerning each of the victims. 	The security guard pled guilty to some of the charges
contained in one of the indictments. 	The remaining charges in that indictment were
dismissed and the second indictment was dismissed in its entirety. 	The security guard
made no admissions regarding the allegations contained in the second indictment. 	He
did, however, admit to engaging in conversations of a sexual nature with the two students,
both of whom were “minors and under [his] supervision and that he engaged in an
inappropriate touching of at least one of those minors during the course of that day.” L.A.
v. Board of Educ. of City of Trenton, Mercer County, 221 N.J. 192, 196 (2015). Afterward,
a civil complaint against the security guard and the school board was filed on behalf of
the second victim. 	The Board answered the complaint on its own behalf and took no
position with respect to the charges against the security guard, who was assigned counsel
through the NJEA. 	The civil complaint was settled without an admission of wrongdoing
by the Board or the guard. 	The guard and his counsel sought reimbursement of legal
fees and costs, pursuant to N.J.S.A. 18A:16-6. 	The ALJ who heard the case did not
conduct an evidentiary hearing. 	Rather, in response to a summary decision motion, he
found that there was no proof that the guard acted outside the scope of his duties because
the underlying matter was settled without a finding or admission of guilt. 	The DOE
Commissioner agreed and the Appellate Division reversed. 	The Supreme Court found
that disposition of the matter without an evidentiary hearing was inappropriate:
The ALJ based his determination that L.A. was acting within
the scope of his employment responsibilities solely on the fact
that L.A. had “not been adjudicated in any prior forum to have
committed any criminal act regarding K.O.” In so doing, the
ALJ failed to consider the extent of any factual 	overlap
between the offenses alleged in the [first] indictment, which
L.A. admitted to, and the offenses alleged in the [second]

OAL DKT. NO. EDU 09699-20
20
indictment. Nor did the ALJ consider L.A.'s admission during
his plea colloquy that he spoke inappropriately to [the second
victim], 	or 	the 	evidence 	referred 	to 	in 	the 	IAIU8 	report
substantiating [the second indictment’s] allegations.
We note that the IAIU report, being investigative in nature, is
distinguishable from an adjudicatory finding. In re R.P., 333
N.J. Super. 105, 116-17, 754 A.2d 615 (App. Div.2000).
However, the report could have been offered into evidence at
a hearing with the testimony of the DCF investigator, which
would have afforded L.A. “an opportunity to cross-examine
the investigator and other witnesses [offered] and to present
evidence to rebut the charge.” Id. at 117, 754 A.2d 615.
Thus, unlike Bower, supra, where dismissal of the criminal
indictment and the lack of any additional evidence “clearly
satisf[ied] Bower's burden of proof under the statute” to show
that he was acting within the scope of his employment, 149
N.J. at 434, 694 A.2d 543, here L.A.'s admission during his
plea colloquy and the IAIU report supporting K.O.'s allegations
show that there are issues of fact in dispute that are material
to determining whether L.A. committed the acts alleged by
K.O. in the civil action.
[Id. at 204-205.]
On remand, and after a hearing, the ALJ found and the Commissioner agreed that
the security guard “was not acting within the scope of his duties when he touched [the
student] inappropriately. 	Therefore, he has not met the burden required to support
indemnification under the statute.” 	L.A. and the Horace Mann Insurance Company v.
Board of Education of the City of Trenton, Mercer County, OAL DKT. NO. EDU 06498-15
(on remand EDU 10410-11)(Adopted, Comm’r, December 19, 2016). Consequently, he
was not entitled to indemnification for the costs and fees expended in the defense and
settlement of the civil lawsuit.
Here, petitioners suggest that the outcome of the OSC here, as in L.A., could
possibly have not been favorable for Azzaro and that the Board’s interest would be
8 New Jersey Department of Children and Families, Institutional Abuse Investigation Unit.

OAL DKT. NO. EDU 09699-20
21
contrary to Azzaro’s. It’s “interest would be in disposing of the case as cursorily as
possible, either by pressuring Ms. Azzaro to ‘throw in the towel’ and surrender her
teaching certificates . . . or by providing her with a skeleton defense. 	An attorney,
engaged by the Board to provide her with a defense, however, could not ethically seek
such a result.” Pet. Opp. Br. at 6. 	Therefore, petitioners argue, they could not have
requested defense or indemnification from the Board until after the OSC was dismissed.
L.A. is not analogous here. It did not address when a board of education employee
or their counsel shall communicate with the board of education about a lawsuit or
expressly 	request 	defense 	or 	indemnification. 	Rather, 	in 	L.A., 	there 	was 	clear
communication and understanding about the lawsuit, as the Board was a named
defendant and had clearly opted to not represent the security guard. 	There can be no
question that all parties were on notice of the lawsuit and the possibility that N.J.S.A.
18A:16-6 would later come into play.
In fact, boards of education and other employers have managed to confront the
issue of how to proceed with respect to representation of their employees, and of potential
conflicts of interest, prior to the final disposition of the underlying matter. In several cases,
boards of education have refused, at the outset of the underlying litigation, to provide a
defense based upon its interpretation of the charges against its employees. 	See e.g.,
Matthews v. Board of Educ. of the Union County Voc. Tech. Sch., 2014 N.J. Super.
Unpub. LEXIS 1915 (App. Div., August 6, 2014)(board’s insurer denied to defend and
indemnify at the start of the underlying proceeding because the complaint alleged an
intentional act, which it did not cover).
Furthermore, the question of whether an alleged wrongdoing arose out of or in the
course of the performance of the employees’ duties has been addressed during the later
indemnification proceeding. For example, in Waters v. Board of Education of Toms River,
2011 N. J. Supra. Unpub. LEXIS 3083 (App. Div. December 22, 2011), a school employee
and his board of education (BOE) were named as defendants in a civil lawsuit filed by a
student. 	The employee, through the NJEA, requested that the BOE provide him a

OAL DKT. NO. EDU 09699-20
22
defense. 	The BOE refused and the NJEA provided coverage through an insurer with
which it contracted. The lawsuit was settled with respect to the employee without a finding
of liability. 	The employee and the insurance company brought an action pursuant to
N.J.S.A. 18A:16–6 for reimbursement of the settlement and attorney’s fees and costs.
Although the lawsuit was based on a student’s allegations of inappropriate sexual
comments by the teacher, the Appellate Division found, “As a teacher, Waters held, at all
relevant times, an ‘office, position or employment under the jurisdiction of any Board of
Education.’ The allegations must necessarily be understood to have arisen solely
because of and in the course of Waters’ employment as a teacher.” Id. at *13(quoting
Bower v. Bd. of Educ. of E. Orange,149 N.J. 416, 431 (1997)). 	Having found that the
statute applied, the Appellate Division wrote that “the school board must protect its
employees by providing legal 	counsel, liability insurance, reimbursement for legal
counsel, or reimbursement for liability insurance.” Id. at *16-17. See also Lonky v. Bd. of
Educ. of the City of Bayonne, Hudson County, OAL. DKT. NO. EDU07205-07 (Adopted,
Comm’r, July 7, 2008).
Moreover, in Edison, the Appellate Division addressed the possibility of conflict
between an employer and the employee who is the subject of a lawsuit. It stated that the
employee has the “right to object to the appointment of an attorney perceived by them to
be in a position of a conflict of interest” and it recognized the propriety of an order requiring
the municipality “to retain outside counsel who would, when selected, owe sole allegiance
to the [represented police] officers.” 147 N.J. Super. at 17.
Based upon the cases that have applied N.J.S.A. 18A:16-6, petitioners’ contention
that they were precluded from communicating with the Board is not supported by the
statute or the cases that have interpreted it.
Nonetheless, as noted above, N.J.S.A. 18A:16-6 does not impose an affirmative
duty on the employee to notify a board of education at the outset of the underlying
litigation. 	The cases that have applied the statute have not definitely imposed this
requirement. 	To the extent this been addressed in the context of insurance contracts,

OAL DKT. NO. EDU 09699-20
23
those cases have recognized that the insurer’s knowledge of underlying litigation is
material. See S.I. Indus. v. Am. Motorists Ins. Co., 128 N.J. 188 (1992). 	Here, it is
undisputed that the Board had ample notice of the OSC, as documented in Judge Delanoy
and Judge Viscomi’s Initial Decisions. 	The parties and allegations of the OSC against
Azzaro, Dawson and Cummings were significantly similar to those in the Board’s
disciplinary action against Dawson. They were filed close in time and it is clear that the
Board was aware of the OSC, as consolidation of it with the tenure case was discussed.
Even if petitioners were obligated to notify the Board at the outset of the OSC, the Board
in fact possessed sufficient information such that it was on notice of the charges against
Azzaro.9 Accordingly, I CONCLUDE that petitioners are entitled to indemnification of the
costs of defending Azzaro in response to the OSC.
Petitioners seek legal fees in the amount of $485,550 (1,079 billable hours at $450
per hour), and costs and expenses in the amount of $5,518.75. Pet. Exh. J, K. 	With
respect to whether reimbursement should be at the discounted rate that was paid by
NJEA or at the higher rate sought by petitioners, the Commissioner of Education has
found that a non-discounted, reasonable rate was appropriate. 	In Salaam v. Board of
Education of the City of Irvington, Essex County, 2014 N.J. Super. Unpub. LEXIS 268,
No. A-5592-11T4, (App. Div. 2014), a criminal charge was filed, in 2008, against an
employee of the Irvington School Board (“Irvington”). 	The charge concerned conduct
related to the employee’s work duties. 	Because the employee was a member of the
NJEA, he was represented by an attorney through the NJEA Legal Services Program
(“Program”). By agreement with the Program, the attorney charged $142 per hour rather
than his normal rate of $250 per hour. The NJEA paid the attorney the reduced rate for
all the legal services he provided to the employee at the reduced rate. The charge was
dismissed in 2009. 	In 2010, the employee requested reimbursement from Irvington for
the cost of his defense, including counsel fees and expenses. Irvington did not respond
9 Indeed, counsel acknowledged during oral argument that the Board was aware of the OSC. Query whether
the Board could have filed a declaratory action seeking a declaration that it was authorized to make
determinations concerning Azzaro’s defense or indemnification, as the insurer did in Goodman.

OAL DKT. NO. EDU 09699-20
24
to the request. 	The employee subsequently petitioned the DOE Commissioner for
reimbursement pursuant to N.J.S.A. 18A:16-6.1, and the higher rate was awarded.
The Appellate Division agreed that the higher rate was appropriate:
We reject the Board's argument that the Commissioner erred
in awarding a higher hourly rate than that allowed by the NJEA
legal 	services 	program 	through 	which 	Salaam 	procured
Smith's representation. The NJEA legal fund allowed payment
of Smith's fees at a “volume discount rate” of $142 to $145 per
hour. However, as noted, N.J.S.A. 18A:16-6.1 mandates the
reimbursement of “reasonable” counsel fees. As the ALJ aptly
stated, the fact that a third party finances the defense does
not relieve the Board of its statutory obligation to pay those
reasonable fees. We agree with the ALJ that the purposes and
policies of the statute are advanced by allowing a school
employee to rely upon his union's insurance policy as a
means to fund his legal representation, and thereby “protect
himself from the potentially ruinous defense costs,” which in
turn “cannot inure to the benefit of the Board.” [Id. at *12-13.]
The starting point to determine a reasonable attorney fee is the “lodestar,” which
is “derived by multiplying the number of hours reasonably expended on the litigation by a
reasonable hourly rate.” Walker v. Giuffre, 209 N.J. 124, 130 (2012) (citing Rendine v.
Pantzer, 141 N.J. 292 (1995)). 	This requires a determination of the hours that were
“reasonably” expended on the matter. Id. at 335. 	The court should exclude hours that
were unreasonably expended. “Hours are not reasonably expended if they are excessive,
redundant, or otherwise unnecessary.” Rendine, 141 N.J. at 335 (quoting Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).
In Rode v. Dellarciprete, the court stated that a fee application must include “fairly
definite information as the hours devoted to various general activities, e.g., pretrial
discovery, settlement negotiations, and the hours spent by various classes of attorneys,
e.g., senior partners, junior partners, associates.” 892 F.2d at 1190 ((citing Lindy Bros.
Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d.

OAL DKT. NO. EDU 09699-20
25
Cir. 1973)). 	Although “[i]t is not necessary to know the exact number of minutes spent
nor the precise activity to which each hour was devoted nor the specific attainments of
each attorney[,] without some fairly definite information as to the hours devoted to various
general activities . . . and the hours spent by various classes of attorneys . . . the court
cannot know the nature of the services for which compensation is sought.” Rendine, 141
N.J. at 337(citing Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary
Corp., 487 F.2d 161, 167 (3d. Cir. 1973)).
The court “may exclude hours from the lodestar calculation if in its view the hours
expended exceed those that competent counsel reasonably would have expended to
achieve a comparable result, in the context of the damages prospectively recoverable,
the interests to be vindicated and the underlying statutory objectives.” Szczepanski v.
Newcomb Med. Ctr., 141 N.J. 346, 355 (1995) (internal citations and quotations omitted).
Furthermore, a judge may exclude hours that are “vague” or “improper.” N.M. v. A.S.,
2018 N.J. Super. Unpub. LEXIS 588, *10 (App. Div. 2018).
“Block billing” is a method by which each lawyer and legal assistant enters their
total daily time working on a case, rather than itemizing the time expended on each task
specifically. Ibid. (internal citations omitted). 	Although a substantial number of vague
entries may cause reason to exclude hours, block billing may be upheld as reasonable “if
the listed activities reasonably correspond to the number of hours billed.” FTC v. Circa
Direct LLC, 912 F. Supp. 2d 165, 177 (D.N.J. 2012) (internal citations omitted). 	An
appropriate approach is to look at the entire block, compare the listed activities with the
time spent, and determine whether the hours reasonably correspond to all activities
performed. N.M. v. A.S., 2018 N.J. Super. Unpub. LEXIS 588, at *13 (App. Div. 2018).
As noted previously, this matter here has an extensive procedural history. 	The
case was transferred to the OAL in August of 2007; the hearings occurred in 2012, 2013,
2014 and 2018; and the Initial Decision was issued on September 12, 2019. 	The law
firm’s bills for this entire time are “block billed”: 	the bills list the tasks completed, and,
below the list, include the total hours for all tasks completed in the aggregate, rather than

OAL DKT. NO. EDU 09699-20
26
indicating the time spent on each task. 	The bills do not indicate which attorney worked
on the case. Rather, the bills all indicate the “Principal Attorney” completed the hours of
work.
A careful review of all of the bills reveals that the billing statements include tasks
that, in the aggregate, reasonably correspond to the reported hours. 	Indeed, the firm
slightly underestimated the number of hours requested, based upon the bills provided.
The bills reasonably correspond to an exceptionally lengthy litigation that spanned over
a decade, involved a substantial record and a twenty-four day hearing.
The Board takes issue with portions of the bill, including the regular use of the
statement “and necessarily related services” and billing for “attendance to photocopying.”
See Resp. Br. at 3. 	However, despite the vagueness of the phrase “necessarily related
services,” this phrase is positioned at the end of the lists of other tasks that, as noted,
correspond to the hours requested in the respective billing statements. Thus, despite the
use of that phrase, the hours requested are reasonable in light the actions taken in the
case.
With regard to the billing for photocopying, the firm included “attendance to
photocopying of documents in preparation for meeting” in a bill dated June of 2007. This
bill includes a total of 22.55 hours; however, it does not specify the time spent on each
task. Given photocopying is an administrative task that should not be billed at the same
rate as a partner of a law firm, a downward adjustment on this bill is warranted. Given a
consideration of the various other tasks completed in the June 2007 bill, I find it
reasonable to exclude two hours from this bill.
In sum, due to the substantial length of the litigation and the nature of the issues
presented, I GRANT renumeration of 1,077 hours expended.
The question remains whether the hourly rate sought by petitioners is reasonable.
The hourly rate should be calculated according to the “prevailing market rates in the

OAL DKT. NO. EDU 09699-20
27
relevant community” and thus “the court should assess the experience and skill of the
prevailing party’s attorneys and compare their rates to the rates prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience,
and reputation.” Rendine, 141 N.J. at 337(citing Rode v. Dellarciprete, 892 F.2d at 1183).
“The party seeking to recover attorney’s fees has the initial burden of producing sufficient
evidence of what constitutes a reasonable market rate for the essential character and
complexity of the legal services rendered in order to make out a prima facie case.” Lanni
v. N.J., 259 F.3d 146 149 (3d Cir. 2001). 	If an adequate showing has been made, the
burden shifts to the other party who must rebut the reasonableness with actual evidence.
Smith v. Phila. House. Auth., 107 F.3d 223, 225 (3d Cir. 1997).
A reasonable hourly rate is to be calculated according to the prevailing market
rates in the relevant community. Rendine, 141 N.J. at 335(internal citation and quotation
omitted). The Rules of Professional Conduct (RPC) 1.5(a) requires several factors in
consideration of a reasonable fee:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other employment
by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with
the client;
(7) the experience, reputation, and ability of the lawyer or
lawyers performing the services;
(8) whether the fee is fixed or contingent.
[RPC 1.5(a).]
The “trial court should satisfy itself that the assigned hourly rates are fair, realistic,
and accurate, or should make appropriate adjustments.” Rendine, 141 N.J. at 337. To

OAL DKT. NO. EDU 09699-20
28
take into account delay of payment, the hourly rate at which compensation should be
awarded should be based on current rate at the time of the fee petition rather than the
rate when the services were actually performed. See Rendine, 141 N.J. at 337; See also
Lanni v. N.J. , 259F.3d 146, 149–150 (3d Cir. 2001).
Once the lodestar has been established, discretion may come into play and a court
may adjust the award for a variety of reasons. See Public Interest Research Group of N.J.
v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).10 One instance includes cases where the
attorney’s 	compensation 	is 	entirely 	or 	substantially 	contingent 	upon 	a 	successful
outcome, the court may increase the fee “to reflect the risk of nonpayment.” Rendine, 141
N.J. at 337. 	In determining the appropriateness of an enhancement, a trial court must
“determine whether a case was taken on a contingent basis, whether the attorney was
able to mitigate the risk of nonpayment in any way, and whether other economic risks
were aggravated by the contingency of payment.” Id. at 339.
Here, petitioner’s counsel requests the rate of $450 for all counsel given that (1)
the case was “gigantic”, (2) the case was complex, and (3) the attorneys are highly
experienced and specialized. See Pet. Br. at 13. 	Billing statements included services
rendered from May of 2007 to August of 2020. Petitioners assert that thousands of pages
of discovery were exchanged; the case involved issues of admissibility, reliability of
student records and discovery processes of confidential information; and that extensive
motion practice was utilized. Pet. Br. at 16–19. 	Also, the underlying issues were complex,
as they involved ascertaining what had happened to students during their high school
careers based on disparate records. This was made more complicated in part because
Trenton School District changed technology in 2004–2005. Id. at 19. 	Despite this, the
firm achieved a favorable disposition for petitioner, as the case was dismissed in its
10 Such factors include. “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the skill required to perform the legal service properly; (4) the preclusion of alternative employment; (5) the
customary fee for similar work; (6) the nature of the fee payment arrangement; (7) time limitations imposed
by the client or circumstances; (8) the amount involved and results obtained; (9) the experience, reputation
and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the attorney-
client relationship; and (12) fee awards in similar cases.” Id. at 1185 n.8 (internal citation omitted). However,
many of these are subsumed in the lodestar calculation. Id.

OAL DKT. NO. EDU 09699-20
29
entirety. 	It is undisputed that the NJEA paid the law firm between $129 and $182 per
hour.
Petitioners 	supplied certifications 	from the 	three 	attorneys who 	represented
Azzaro. They detail their experience as attorneys, particularly in this specific area of the
law, and their successes. Arnold M. Mellk, Esq. has practiced for over fifty years and has
extensive experience representing educators, including licensure hearings initiated by the
SBE. 	He has handled several cases that resulted in reported decisions including in the
Third Circuit and New Jersey Supreme Courts. 	Pet Exh. G. 	Gidian R. Mellk, Esq. has
practiced approximately twenty-three years, during which she exclusively represented
public 	employees 	“in 	connection 	with 	adversarial 	action 	taken 	against 	them” 	by
government entities. Pet. Exh. H at ¶2. 	Edward A. Cridge, Esq. has fifteen years’
experience, during which he largely represented public employees. Pet. Exh. I. 	Each
attorney has been involved with several prior cases that applied N.J.S.A. 18A:16-6 and -
6.1, including some that are cited here. Pet. Exh. G, H, I.
Petitioners also submitted the certification of Steven R. Cohen, Esq., a partner in
the firm Selikoff and Cohen who has practiced law since 1977. Pet. Exh. D. 	Mr. Cohen
certified that he “devote[s] a significant portion of [his] practice to the representation of
public-sector labor unions and their employees.” Id. at ¶1. He served as the chair of the
New Jersey State Bar Association’s labor and employment section and is currently a
member of its executive committee. Id. at ¶2. In addition to other matters, he has handled
“hundreds” of matters involving teachers, including tenure hearings and orders to show
cause brought by the SBE. Id. at ¶5. 	He is also a member of the National Employment
Lawyers Association-New Jersey, which equips him with knowledge of the “actual rates
charged by member attorneys, who are comparable in experience and skill” to Arnold
Mellk. Id. at ¶8. 	Mr. Cohen certified that he has known Arnold Mellk in a “professional
capacity for more than forty years and [is] fully familiar with his background, experience,
and skill level” and is aware that he is “very highly regarded” in the labor and employment
Law community. Id. at ¶6.

OAL DKT. NO. EDU 09699-20
30
Mr. Cohen certified that the prevailing market rate for an attorney of Arnold Mellk’s
caliber, who has handled a case as complex as this one, is “significantly” higher than
$450 per hour. Id. at ¶7. Also, an hourly rate of $400 per hour for senior associates with
more than fifteen years of experience comports with the prevailing market rate for
complex litigation “of the nature contemplated by this action.” Id. at ¶9.
The hourly rates referenced by Cohen are consistent with the fees authorized by
New Jersey courts. In FTC v. Circa Direct LLC, 912 F. Supp. 2d 165 (D. NJ 2012), which
involved a complaint alleging deceptive trade practices filed by the Federal Trade
Commission, the District Court approved $400 per hour for those attorneys with over
fifteen years’ experience, $350 per hour for the attorney with over twelve years’
experience; and $225 per hour for the attorneys who had between two and three years’
experience. 	In assessing the proper rate, the court examined rates that had previously
been approved in the southern New Jersey area and found that “[c]ourts have approved
rates between $115 and $750 for matters litigated in this vicinage for attorneys,
depending on the attorney’s experience and skill[.]” Id. at 175. In Williams v. Asbury Park
Bd. of Educ., the court upheld a $450 rate for plaintiff’s counsel in an LAD case who had
twenty years of experience handling discrimination cases. 2015 N.J. Super Unpub. LEXIS
2422, at *9 (App. Div. 2015). 	In Winyard v. 21 st Century Leasing Corp., No.’s A-2714-
12T3 and A-3384-12T3 (N.J. App. Div. Jan 21, 2015) (slip op. at 7), the Appellate Division
affirmed the trial court’s legal fee award to the plaintiff in a settled law division case, where
the defendant filed suit against a plaintiff who purchased a motor vehicle from defendant
and obtained his license plates and immediately stopped payment on the check;
defendant dismissed its complaint without prejudice. The court affirmed an award of $275
per hour for an associate who had been admitted for about six years, and $475 for a
partner who had been admitted to practice law since 1977.
Here, however, the bills submitted by the firm are deficient to the extent they do
not differentiate which attorneys billed which hours. Exh. J. 	Rather, all invoices identify
only the “principal attorney” and not the other attorneys. 	This is at odds with counsels’
certifications in which they represented that all three attorneys, each with a different level

OAL DKT. NO. EDU 09699-20
31
of experience, worked on this case. Pet. Br. at 19–22. 	This makes it impossible to
ascertain which of the three attorneys performed each billed service. Given that attorneys
with various levels of experience are entitled to significantly different rates, it would be
inappropriate to award the highest hourly rate for all billed services. Accordingly, a
reduction of the proposed hourly rate is warranted.
Attorney Cridge is the least experienced of the attorneys who worked on the
matter. He currently has fifteen years of experience, largely in this and related areas. As
indicated by Cohen and supported by case law, a rate of $400 per hour is reasonable
based upon the current market rate for an attorney with his experience. 	Without an
adequate guide to determine the work that was performed by each attorney, it is
appropriate to apply an hourly rate of $400 for all of the work performed by the attorneys.
This rate is reasonable based upon the market rate for a case of this nature at present
and the circumstances of this case. 	This rate is a significant increase from the amount
provided the NJEA.
Petitioners argue that an “Rendine enhancement” should be applied given that this
case was “entirely or substantially contingent on a special income.” As discussed above,
under N.J.S.A. 18A:16-6, recoupment of attorneys’ fees is not contingent upon a
favorable result. 	Rather, the Board must “defray all costs” which includes reasonable
legal fees and costs regardless of the result. Even though a subsequent analysis of the
context in which the allegations arose may be required, petitioners did not accept the risk
that an attorney who is paid on a fully contingent basis would have accepted. Petitioner
has not met the burden of proving that this case warrants a departure from the lodestar
rate analysis. Thus, no enhancement will be applied to this case.
Therefore, given the market rate for attorneys in this field, the qualifications of the
attorneys, the complex nature of the case, and the billing documents provided by counsel,
I CONCLUDE that all but two of the requested hours (1,077) shall be provided at a rate
of $400, for a total of $430,800.

OAL DKT. NO. EDU 09699-20
32
Petitioner also requests costs in the amount of $5,518.75. 	N.J.S.A. 18A:16-6
mandates that the Board of Education defray all costs, including reasonable counsel fees
and costs. 	Most of the costs demonstrated by petitioners appear to be reasonable and
warranted, with a couple of exceptions. 	Indeed, a detailed review of the invoices and
bills provided reveals that the costs enumerated in the invoices in Exh. J and the
documentation in Exh. K exceed the requested amount.
However, the following billed costs will be excluded from that total. The invoice
from November of 2007 includes a request for $16.20 for travel where no travel was
indicated in the billing statement. Exh. J. 	Thus, the costs shall be reduced by $16.20.
Moreover, petitioner submits an invoice (“Conference Detail”) dated November 5, 2008,
as the last page of Exh. K which states the amount due is $140.95. It is unclear whether
the figures from the final invoice in Exh. K were included in a billing statement in Exh. J.
It is also unclear which portions of the Conference Detail invoice belong to the present
case, or which portions thereof apply. Exh. K. 	Thus, the Conference Detail amount of
$140.95 will be deducted from the costs awarded. 	Accordingly, I CONCLUDE that
petitioners shall be reimbursed for costs in the amount of $5,361.60.
ORDER
For the foregoing reasons, I ORDER that petitioners are entitled reimbursement of
their bills at the rate of $400 per hour for 1,077 hours, and of $5,361.60 in costs.
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

OAL DKT. NO. EDU 09699-20
33
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the
judge and to the other parties.
June 15, 2022
DATE 	JUDITH LIEBERMAN, ALJ
Date Received at Agency:
Date Mailed to Parties:
mph
APPENDIX
List of Exhibits
For petitioners:
P-A 	Excerpt of transcript of May 9, 2018, Order to Show Cause hearing
P-B 	Office of Fiscal Accountability and Compliance Report of Investigation
P-C 	Order to Show Cause
P-D 	Initial Decision, EDE 6297-07, 6463-07, 6464-07
P-E 	February 28, 2020, State Board of Examiners Final Decision
P-F 	Petition
P-G 	Certification of Arnold M. Mellk, Esq.
P-H 	Certification of Gidian R. Mellk, Esq.

OAL DKT. NO. EDU 09699-20
34
P-I 	Certification of Edward A. Cridge, Esq.
P-J 	Legal services billing records
P-K 	Bills for costs
P-L 	November 19, 2011, email with interrogatory
P-M 	Billing records prepared by other attorneys
P-N 	July 11, 2012, Order, Waters v. Board of Education, MER-L-1071-12
P-O 	Certification of Steven R. Cohen, Esq.
For respondent:
R-A 	June 11, 2007, Order to Show Cause
R-B 	May 18, 2020, Petition
R-C 	Petitioners’ billable records
R-D 	Petitioners’ responses to discovery requests
R-E 	Lawless v. TA Assocs., L.P., 2015 N.J. Super. Unpub. LEXIS 2967
R-F 	Grossman v. Rockaway Twp., 2019 N.J. Super. Unpub. LEXIS 3596
R-G 	Salaam v. Bd. of Educ. of Irvington, Essex Cty., 2014 N.J. Super. Unpub.
Lexis 268
R-H 	Trenton Board of Education insurance policies