Eric Fitzke Grey v. Board of Education of the West Essex Regional School District, Essex County, 8/24/26 (#328-26)

328-26
OAL Dkt. No. EDU 05501-22
Agency Dkt. No. 145-6/22
New Jersey Commissioner of Education
Final Decision
Eric Fitzke-Grey,
Petitioner,
v.
Board of Education of the West Essex Regional
School District, Essex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the West Essex Regional School District Board of Education (Board)
pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply thereto, have been reviewed and considered.
Petitioner, who was employed by the Board as a middle school music and band teacher,
appeals the Board’s determination that he engaged in harassment, intimidation, and bullying
(HIB) against student H.O., who had a disability and a 504 plan. H.O.’s parents complained of
three incidents they alleged to be HIB. The first, referred to as the “shoes incident,” occurred
when petitioner made comments to H.O. about wearing white sneakers to a concert instead of
the required black shoes. 	The second, the “xylophone incident,” occurred when petitioner
commented that H.O. played a note at the wrong time. The third, the “binder incident,” occurred
when H.O. came to petitioner’s class without his music binder. Petitioner asked H.O. where he

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might have left it and, when H.O. could not recall, petitioner asked members of the class if they
had H.O.’s binder.
The district’s Anti-Bullying Specialist (ABS), Lisa Tamburri, found that the binder incident
constituted HIB, but the other two incidents did not. 	However, the subsequent decisions of
Superintendent Damion Macioi and the Board are unclear, as will be discussed below.
Nonetheless, the record is clear that the Board found that petitioner committed HIB, and
petitioner appealed.
Following 	a 	hearing, 	the 	Administrative 	Law 	Judge 	(ALJ) 	reversed 	the 	Board’s
determination, finding that it was unreasonable because Tamburri had based her determination
that the binder incident constituted HIB on incorrect facts, Macioi incorrectly found that that all
three incidents constituted HIB, and the Board incorrectly affirmed Macioci’s finding that all three
incidents constituted HIB. The ALJ concluded that: petitioner’s words and actions regarding the
binder incident were not motivated by any perceived characteristic of H.O.; petitioner did not fail
to adhere to H.O.’s 504 Plan; the incident did not substantially interfere with the orderly
operation of the school; and petitioner’s conduct did not cause H.O. to suffer emotional harm,
insult or demean him, or create a hostile educational environment.
In its exceptions, the Board argues that the ALJ incorrectly placed the burden of proof on
the Board, when case law provides that a petitioner is required to demonstrate by a
preponderance of the evidence that a board of education acted in an arbitrary, capricious, or
unreasonable manner. The Board also contends that the ALJ improperly analyzed the statutory
criteria for an act of HIB, and that its decision that the binder incident met the statutory criteria
is supported by the record. Finally, the Board argues that the inconsistency regarding the number

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of incidents found to constitute HIB does not render its decision regarding the binder incident
arbitrary, capricious, or unreasonable.
In response, petitioner argues that the ALJ applied the appropriate standard of review
and that the Initial Decision was correct and should be adopted.
Upon review, the Commissioner concludes that the difference between what the decision
says, and what the Board argues it meant, is so significant that this matter must be remanded to
the Board to issue a decision as to whether petitioner committed an act(s) of HIB against H.O.
that includes specific findings in accordance with N.J.S.A. 18A:37-15.
The Board’s decision, which was issued by the Board Secretary, states that “[a]ll three
incidents are corroborated by several witnesses.” 	The decision explains that the Board
“determined based on the totality of the circumstances recounted by the witnesses, that the
victim felt he was targeted because of his disability and that his belief is reasonable.” In doing
so, the Board specifically identified one of the witness statements as “compelling” – a statement
related to the shoes incident. Furthermore, the Board stated that “embarrassing [H.O.] because
he forgot his binder, and mocking him because he had the wrong shoes, completely ignored the
strategies you were required to utilize under the victim’s 504 Plan” (emphasis added). Ex. R-5.
Importantly, the letter contains no language that distinguishes the different incidents; there is
nothing to indicate that two of the incidents were found not to be HIB.
The Board argues that while the lack of clarity in the letters is “unfortunate,” the
inconsistency should not undermine the Board’s HIB determination regarding the binder
incident. In doing so, the Board cites to S.K. o/b/o K.S. v. Bd. of Educ. of the Twp. of Montgomery,
EDU 10786-24, Initial Decision, at 15 (June 13, 2025), aff’d, Commissioner Decision No. 433-25

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(Sept. 8, 2025). In S.K., the Commissioner found that inconsistencies in the witness accounts of
the location where a student’s comments were made did not undermine the Board’s findings
when the record adequately supported the Board’s conclusion that the statements were made.
That reasoning is inapplicable here, because the inconsistency is not between various accounts
of the events at issue, but rather inherent in the decision itself. Contrary to the Board’s assertion,
the letter is not merely ambiguous or unclear. Any rational reading of the Board’s decision must
lead to the conclusion that the Board found all three incidents to be HIB. Accepting the Board’s
argument that it did not find all three incidents to be HIB, while issuing a decision that said
otherwise precludes a meaningful review of the decision on appeal.
The Commissioner notes that the ALJ speculated that Macioci misread Tamburri’s report
and that, if Macioci had realized that Tamburri only found HIB with regard to the binder incident,
Macioci would have focused only on that incident and presented only that information to the
Board. 	The Commissioner disagrees with the ALJ’s suggestion that this would have been the
appropriate approach. A superintendent may disagree with the ABS’ conclusions, and a board of
education may disagree with the superintendent and/or the ABS.1 	For this reason, the
Commissioner also disagrees with the ALJ and petitioner that the presentation of facts regarding
all three incidents to the Board tainted their decision-making process. All three incidents were
part of the HIB complaint made by H.O.’s parents, and it was therefore appropriate for the Board
to hear about – and make a decision about – all three incidents. It is not the Board’s process, but
1 The Board suggests that petitioner knew, based on Tamburri’s report, that the Board only found the
binder incident to be HIB. But the ABS’ report and the Board’s decision are two separate parts of the
process, and because they do not have to agree with each other, it does not necessarily follow that the
Board’s decision can be presumed to be the same as the ABS’ conclusion.

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rather the content of the Board’s decision, and the discrepancies in its positions, that necessitates
the issuance of a new decision that clearly expresses the Board’s determination.
Accordingly, the Initial Decision is modified as detailed herein2 and this matter is
remanded to the Board
IT IS SO ORDERED.3
COMMISSIONER OF EDUCATION
Date of Decision: 	August 24, 2026
Date of Mailing: 	August 24, 2026
2 In light of the fact that this matter is being remanded to the Board, the Commissioner does not find it
necessary to reach any of the ALJ’s other findings or conclusions, and accordingly not does adopt or reject
them.
3 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days
from the date of mailing of this decision.

New Jersey Is An Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO.: EDU 05501-22
AGENCY DKT. NO.: 146-6/22
ERIC FITZKE-GREY,
Petitioners,
v.
WEST ESSEX REGIONAL SCHOOL
DISTRICT BOARD OF EDUCATION,
ESSEX COUNTY,
Respondent.
Alyssa K. Weinstein, Esq., for petitioner (The Busch Law Group, LLC, attorneys)
Ronald J. Ricci, Esq., for respondent (Ricci & Fava, LLC, attorneys)
Record Closed: May 20, 2025 	Decided: January 7, 2026
BEFORE: JOHN P. SCOLLO, ALJ, Retired and on Recall:
STATEMENT OF THE CASE
Eric Fitzke-Grey, a now-retired music and band teacher at the West Essex Middle
School appeals from a determination that he committed an act of HIB against H.O., a
student in his class, who had a disability and a 504 Plan.

OAL Dkt. No. EDU 05501-22
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PROCEDURAL HISTORY
Petitioner, Eric Fitzke-Grey (h/k/a “Fitzke”) filed an appeal following the West Essex
Regional School District Board of Education’s (a/k/a the Board or BOE) March 8, 2022 vote.
That vote upheld the District’s Superintendent’s January 20, 2022 determination to adopt
the Anti-Bullying Specialist’s (Assistant Principal Lisa Tamburri’s h/k/a “Tamburri”) HIB
Investigation Report dated January 20, 2022 (R-2 and R-17), which concluded that Fitzke
committed an act of HIB against H.O.
Tamburri forwarded the HIB Investigation Report to School Superintendent Damion
Macioci on January 20, 2022. On January 20, 2022, Superintendent Macioci, School
Principal Dr. Gina Donlevie, and Assistant Principal and ABS Lisa Tamburri signed the HIB
Report. The results of the HIB investigation were reported to the Board of Education on
January 24, 2022. Macioci wrote to Fitzke on January 31, 2022, saying that he agreed with
the conclusions of the HIB Investigation Report. On March 8, 2022, the Board of Education
held a hearing at which Fitzke and his attorney set forth their arguments urging the BOE to
reject 	the 	Superintendent’s 	determination. 	Afterwards, 	the 	Board 	voted 	to 	affirm
Superintendent Macioci’s determination and informed Fitzke of its affirmance in its letter
dated March 14, 2022. On June 9, 2022, Fitzke filed an appeal of the BOE’s decision with
the Acting Commissioner of the N.J. Department of Education. The Assistant Commissioner
referred the matter to the Office of Administrative Law on June 29, 2022 and it was received
and filed in the OAL Clerk’s Office on July 5, 2022. On July 11, 2022 the matter was
assigned to John P. Scollo, ALJ, who held an Initial Telephone Conference on July 21, 2022
and issued a Pre-Hearing Order dated July 22, 2022.
In accordance with the Pre-Hearing Order, the parties engaged in discovery. They
also engaged in motion practice. Conferences were held. 	The matter was tried before
Judge Scollo on October 2, 2024 and on October 8, 2024. Transcripts were ordered and
obtained; and the parties submitted their Post-Hearing Briefs on December 31, 2024. The
parties submitted Reply Briefs on January 14, 2025. The Tribunal received the last of the
exhibits on May 20, 2025 and the record closed.

OAL Dkt. No. EDU 05501-22
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Judge Scollo obtained extensions of time for issuing his Initial Decision, the most
recent extending the due date to January 5, 2026. This writing is Judge Scollo’s Initial
Decision.
BACKGROUND INFORMATION AND ISSUES
The parties agree that the allegations of HIB were made by H.O.’s father in a January
1, 2022 email. On January 3, 2022 the School’s Principal, Mr. Donlevie spoke to Tamburri
about M.O.’s (H.O.’s father’s) January 1, 2022 email to Lisa Swanick, Supervisor of Fine
Performing and Practical Arts and Marie Purcell, Guidance Counsellor with cc’s to Gina
Donlevie, Ph.D. Middle School Principal and M.O., H.O.’s mother. 	Tamburri testified that
she and Ms. Purcell spoke with, but did not formally “interview” H.O. on Monday, January
3, 2022. The formal HIB investigation started on January 6, 2022. She formally interviewed
H.O. and four student witnesses within ten days of the start of the January 6, 2022 HIB
Investigation start date. The four student witnesses were people whom H.O. identified as
being in Mr. Fitzke’s Band Classes. 	On January 6, 2022 Superintendent of Schools
Damion Macioci suspended Fitzke with pay pending the outcome of Tamburri’s HIB
investigation.
The issue is whether the Respondent proved by a preponderance of the credible
evidence that Fitzke committed an act of HIB against H.O.
SUMMARY OF DOCUMENTS AND TESTIMONY
The following is not intended to be a verbatim summary of the documents and
testimony presented, rather it is a summary of the information in the documents and
testimony which I found important.
Testimony of Lisa Tamburri and Related Documents
The testimony of Lisa Tamburri is summarized here. Lisa Tamburri was an Assistant
Principal and was the Middle School’s Anti-Bullying Specialist or ABS. On or about January

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3, 2022, Gina Donlevie, the Principal of West Essex Middle School requested Lisa Tamburri
to initiate a Harassment, Intimidation, and Bullying (“HIB”) investigation in regard to
allegations of HIB made against Eric Fitzke-Grey (hereinafter “Fitzke”), the school’s Music
and Band Teacher, namely, that he allegedly committed three acts of HIB against H.O., a
student who had a 504 Plan. Tamburri testified that within ten days after January 6, 2022,
she interviewed H.O., four “student witnesses” (Witness “A” through Witness “D’), and
Fitzke regarding the three suspected incidents of HIB referred to during the hearing as the
“shoes incident”, the “xylophone incident” and the “binder incident”. 	Tamburri confirmed
that she did not interview either of H.O.’s parents.
Tamburri set forth what she learned about the “binder incident” from H.O., the four
witnesses, and Fitzke. She testified that H.O. tardily entered the classroom, when the class
was already in session. Fitzke noticed that H.O. did not have his music binder and so he
questioned him about it and asked H.O. about where he might have left it. After H.O. could
not recall when or where he lost track of his binder, Fitzke asked members of the class to
see if they had possession of H.O.’s binder. Tamburri testified that the student witnesses
told her that H.O. had previously forgotten to take his music binder to Band Class on several
occasions. Tamburri testified that she could not, from the information given to her, precisely
state the duration of the “binder incident’. However, her account of what was said and done
is enough to convince this Tribunal that the length of time encompassed by the “binder
incident” was brief, perhaps a minute or two.
In Tamburri’s HIB Investigation Report and in her testimony, there was nothing
obtained from the witnesses that indicated that any of H.O.’s classmates ever suspected
that H.O. had a 504 Plan.
At 	the 	conclusion 	of 	the 	HIB 	Investigation, 	Tamburri 	issued 	her 	“Report 	of
Harassment, Intimidation and/or Bullying” (hereinafter the “HIB Investigation Report” or “HIB
Report”) dated January 3, 2022, but signed on January 20, 2022 (Exhibits R-2 and R-17).
In the HIB Report, Tamburri reported on her investigation of the “shoes incident”, the
“xylophone incident” and the “binder incident”.

OAL Dkt. No. EDU 05501-22
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Tamburri testified that she did not find the “shoes incident” to be an act of HIB
because Fitzke’s statements could not be corroborated. She stated that it could not be
determined whether Fitze’s alleged comments to H.O. about wearing white sneakers to the
concert instead of the required black shoes were spoken in public or in private.
In regard to the “xylophone incident”, the text of Tamburri’s report is scant. She wrote
that “the alleged offender’s [Fitzke’s] view [is that] this is a non-incident”, explaining that it
is someone playing at the wrong time. She wrote about “the victim [H.O.] making noise with
the xylophone during band class”, that “two students confirmed the incident”, but did not
describe the “incident” beyond a reference to someone playing a xylophone at the wrong
time. A third student witness mentioned that “H.O. was pointed out [apparently by Fitzke]
for being the source of the percussion section problems many times”. Thus, it appears that
the Tamburri Report says that the xylophone incident was indeed corroborated by two
witnesses, but not by all witnesses on that particular occasion. In her HIB Report (Exhibit
R-2, at Bates stamps 0062 thru 0065) on ps. 0064 and 0065, Tamburri sets forth her
reasons why she judged “this incident” [using the singular] to be HIB. By mentioning only
the “binder incident” in her reasons and not mentioning the “shoes incident” or “xylophone
incident”, Tamburri makes it clear that “this incident” refers only to the “binder incident”. On
pages 0064 to 0065 she sets forth all of her reasons which she found to be supportive of
her finding of HIB in the ‘binder incident”. In her testimony at the Hearing, Tamburri clearly
stated that no HIB occurred during the “xylophone incident” because there was a lack of
corroboration.
In her report and in her court testimony, Tamburri found that the “binder incident”
was corroborated. When asked in court about the occasion when Fitzke questioned H.O.
about his missing binder and why it should constitute HIB instead of ordinary classroom
management, Tamburri responded that it was HIB because H.O. had a Section 504
Individual Accommodation Plan based on medical diagnoses of ADHD and Anxiety,
captioned “Attention Deficit-Hyperactivity Disorder, Inattentive type ; Anxiety D/O”.
Tamburri testified that H.O.’s 504 Plan instructed staff to accommodate H.O. by
utilizing “non-verbal cues to help with focus and redirection” and by utilizing “positive

OAL Dkt. No. EDU 05501-22
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feedback/reinforcement as often as possible” (10/2/2024 Transcript at p.59, Lines 3 thru 13)
when dealing with instances where H.O. was having difficulty related to his ADHD disability.
Tamburi testified that forgetting or misplacing his binder would be such an incident.
Tamburri testified that Fitzke did not follow the 504 Plan’s accommodations and strategies
during the binder incident. Tamburri testified that non-verbal cues would be things like
tapping on a desk to get a student’s attention or giving a written instruction. Tamburri
generally indicated that positive feedback/reinforcement would be, for want of better terms,
encouragement and affirmation to help the student be successful.
Tamburri testified that, after interviewing H.O., four student witnesses, and Fitzke,
she concluded that Fitzke’s questioning of H.O., his alleged comments to H.O., and his
asking other students to check their binders in an attempt to locate H.O.’s binder was an
act of HIB. She stated it was HIB because of H.O.’s 504 Plan status. H.O. reported that it
made him feel uncomfortable. Tamburri believed it singled him out. She also believed it
“referred back” to his disability. She used the phrase “referred back” throughout her
testimony to express that Fitzke’s words and actions were linked to H.O.’s ADHD disability.
During her direct testimony, Tamburri examined the Primary and Secondary Prongs
of the HIB Statute and gave her reasons for her determination that all prongs were satisfied
in the “binder incident”. Thus, she decided that the HIB charge against Fitzke in the “binder
incident” was “founded”.
Importantly, Tamburri also testified that the only reason why she found that Fitzke
committed HIB was his failure to follow the 504 Plan by failing to give non-verbal cues and
by failing to offer positive feedback and reinforcement to H.O. During Tamburri’s testimony,
she stated clearly that without a violation of the 504 Plan, she would not have found that
Fitzke had committed HIB. Tamburri testified that she believed that Fitzke’s failure to follow
the 504 Plan was “illegal”. Tamburri explained that she used the word “illegal” because she
reasoned that Fitzke’s failure to strictly utilize the accommodations set forth in the 504 Plan
plus the belief that Fitzke’s words and actions, in her judgment, were directly connected
with (or “related back” to) H.O.’s disability amounted to an illegality, i.e., discrimination

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against a disabled student, an act of HIB. (10/24/24 Transcript, p.73, Lines 9 to p.74, Line
1).
On cross-examination, and on re-direct examination, Tamburri conceded that not
every failure to follow a student’s 504 Plan would necessarily be an act of HIB. However,
Tamburri testified that in the binder incident Fitzke committed HIB because he failed to give
positive feedback to H.O. as required by his 504 Plan and because, in her opinion, his words
“referred back” to H.O.’s disability. In contrast to Tamburri’s testimony that Fitzke’s words
and actions “referred-back” to H.O.’s perceived characteristic (i.e., his ADHD disability),
Tamburri later admitted during cross-examination that her investigation report did not
contain any facts proving that Fitzke said what he said to H.O. because of a perceived
disability or acted as he did because of a perceived disability. (10/2/2024 Transcript, p. 99,
Line 17 to p.102, Line 2, notably p. 101, Line 10. See also, p. 104, Lines 11 to 23.)
It came out later in Tamburri’s testimony and explained on cross-examination that
H.O. was transferred out of Fitzke’s Band Class on January 3, 2022, which was three days
before the HIB Investigation was even started. Tamburri confirmed that when she started
her HIB Investigation on January 6, 2021, she was not aware that H.O. had already been
transferred out of Fitzke’s Band Class. During cross-examination, Tamburri testified that
during the entirety of her HIB investigation, she was unaware that H.O.’s parents had
previously (i.e., in November and December, 2021, before the alleged HIB incidents)
requested the School’s Administration to transfer H.O. out of Band Class and that the
Administration denied their request.
During cross-examination, Tamburri admitted that if a student felt embarrassed in
school, it was not necessarily due to an act of HIB. (10/2/2024 Transcript, p. 105, Lines 18
to 24). 	During cross-examination, Tamburri agreed that H.O.’s 504 Plan did not exempt
him from arriving at class on time and doing his homework. Tamburri agreed that H.O. was
always required to bring his music binder to class. Counsel asked Tamburri if it was a
classroom management issue when a teacher reminded his students to bring their music
binders to class. Tamburri responded cautiously that it could “possibly” be considered a
classroom management issue. Throughout her testimony, Tamburri emphasized and

OAL Dkt. No. EDU 05501-22
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maintained that she believed Fitzke failed to follow H.O.’s 504 Plan and committed an act
of HIB because Fitzke embarrassed H.O. when he questioned him in front of his fellow
students about not bringing his binder to class while knowing that H.O. had an ADHD
disability. Tamburri testified that Fitzke failed to follow the 504 Plan and committed an act
of HIB because, in her judgment, he should have refrained from questioning H.O. about his
missing binder in the presence of other people. In a follow-up question, Tamburri was asked
if the questions Fitzke asked H.O. and others could have been an effort to locate the binder
so that H.O. could participate in the class. Tamburri responded that she did not know the
answer to the question. (This Judge’s perception was that she appeared reluctant to even
acknowledge the possibility that Fitzke was making a sincere effort to make it possible for
H.O. to participate in the class.)
Upon further cross-examination, Tamburri testified that H.O. told her during his
interview that he suspected that Fitzke was “out to get him” because he wore the school’s
basketball jersey to Band class. Tamburri offered no other evidence supporting the notion
that Fitzke disliked student athletes or H.O. in particular. Upon further cross-examination,
Tamburri conceded that H.O. never suggested that Fitzke was “out to get him” because of
his ADHD disability. Tamburri admitted that her HIB Report does not contain anything, other
than her own judgment that Fitzke was “referring back” to ADHD, suggesting that Fitzke
was targeting H.O. because of any perceived characteristic, specifically ADHD. (10/2/2024
Transcript, p. 104, Lines 11 to 23). The Tribunal believes that this is significant.
Analysis of Tamburri’s Testimony
Tamburri Determined that Fitzke Violated All Primary and Secondary Prongs
During her direct testimony, Tamburri explained that the “binder incident” constituted
HIB because it met the criteria set forth in the Anti-Bullying Statute N.J.S.A. 18A:37-13, et
seq. Tamburri testified about the elements of HIB. She testified that the Statute contains
three Primary Prongs (N.J.S.A. 18A:37-14 (1), (2) and (3)) and three Secondary Prongs
(N.J.S.A. 18A:37-14 (4).

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As set forth in the following two paragraphs, Tamburri determined that Fitzke violated
all three Primary Prongs of the HIB Statute.
Tamburri testified that she determined that the First Primary Prong (N.J.S.A. 18A:37-
14(1) was violated because the “binder incident” was motivated by an actual or perceived
characteristic. i.e., H.O. “had a 504 plan that indicates … a specific medical diagnosis and
corresponding interventions and teaching strategies”. She determined that Fitzke failed to
utilize these interventions and teaching strategies, despite the fact that Fitzke knew that
H.O.’s forgetfulness about his binder falls within the confines of H.O.’s disability, ADHD.
Tamburri testified that Fitzke’s conduct (i.e., his words and actions) during the binder
incident “referred back” to H.O.’s ADHD disability. That is to say, she found that Fitzke’s
questioning of H.O. about his missing binder and his request to the other students to look
for H.O.’s binder was linked to H.O. being forgetful. She reasoned that H.O.’s forgetfulness
is a manifestation of his ADHD disability and that Fitzke thereby wrongfully drew attention
to H.O.’s disability and that by doing so Fitzke created H.O.’s reasonable perception that
his conduct was motivated by H.O.’s disability.
In regard to the Second Primary Prong, Tamburri easily determined that the alleged
“binder incident” occurred on school grounds, thus establishing a violation of the Second
Primary Prong. 	In regard to the Third Primary Prong, Tamburri determined that some
instructional time was lost due to Fitzke’s questioning of H.O. and the binder search.
According to Tamburri, Fitzke caused a loss of instructional time and thus deprived the
students of their education. Her testimony reveals that she considered any disruption or
interference with the operation of the school to be significant. Thus, she determined that a
violation of the Third Primary Prong was established.
In regard to the Secondary Prongs of the HIB Statute, Tamburri stated that, while the
Statute requires that only one such prong needs to be demonstrated, in this matter she
determined that all three Secondary Prongs were satisfied.
Tamburri testified that Fitzke had been teaching for 19 years and was therefore
familiar with the HIB Statute. He was aware that the First Primary Prong of the HIB Law,

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namely 	its 	anti-discrimination 	provisions 	relating 	to 	a 	student’s 	distinguishing
characteristics, would affect whether a recipient of an actor’s words or actions would result
in a reasonable perception in the mind of a recipient that an actor’s words or actions were
motivated or not motivated by a distinguishing characteristic of the recipient. Also, Fitzke
would be aware of whether particular words or conduct were appropriate in school or during
a school-sponsored event and whether or not his words or conduct could interfere with the
operation of the school or the rights of students. Likewise, Fitzke was familiar with the three
Secondary Prongs of the HIB Law: (a) what a reasonable person should know would have
the effect of physically or emotionally harming a student or placing a student in reasonable
fear of physical or emotional harm; (b) the prohibition against insulting or demeaning
students; and (c) the prohibition against creating a hostile educational environment.
In 	regard 	to 	the 	three 	Secondary 	Prongs, 	Tamburri 	made 	the 	following
determinations.
First Secondary Prong: Tamburri determined that the First Secondary Prong was
established because, as a veteran teacher, Fitzke should have known that his conduct
(words or actions) would cause emotional harm to H.O. Basically, Tamburri believed that
Fitzke should have inherently known that questioning H.O. about his missing binder in front
of his fellow students would highlight the difference between the other students’ compliance
and 	H.O.’s 	ADHD-related 	non-compliance. 	Tamburri 	reasoned 	that 	this 	conduct
unreasonably 	focused 	the 	class’s 	attention 	on 	H.O., 	causing 	him 	embarrassment
(emotional harm) and causing him to fear that his classmates would somehow surmise that
he had a 504 Plan. Tamburri testified that she only found that Fitzke committed an act of
HIB in the “binder incident” because his words and actions “related back” (meaning they
were “linked”) to H.O.’s disability. 	Tamburri testified that Fitzke “should have known” that
publicly questioning H.O. about his missing binder would “relate back” (i.e., meaning it
would be connected to or linked to) to his ADHD disability.
Tamburri did not offer any explanation regarding how or why Fitzke – or any other
teacher facing circumstances of a student coming to class without his music binder – should
have evaluated or re-evaluated his or her course of conduct in approaching the problem of

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the missing binder other than to say that he should have utilized “non-verbal cues to help
with focus and re-direction” and to provide “positive reinforcement as often as possible”.
Tamburri did not offer any other suggestions about how Fitzke, using only non-verbal cues,
during the classroom lesson, could have helped H.O. locate his missing binder so that he
could have participated in the day’s lesson.
Second Secondary Prong: 	H.O. told Tamburri during his interview that he thought
that as a result of being questioned about his missing binder, his classmates somehow
would figure out or somehow become aware that he had a 504 plan and he feared that
rumors would be spread about him. 	Tamburri also focused on one statement, allegedly
made by Fitzke, to the effect that the other students could remember to bring their binders
to class, but not H.O. Tamburri reasoned that the statement, allegedly uttered by Fitzke to
H.O., 	“referred 	back” 	to 	H.O.’s 	disability. 	Because 	H.O. 	told 	Tamburri 	that 	he 	felt
uncomfortable and embarrassed, Tamburri believed that the “binder incident” insulted or
demeaned H.O.
Third Secondary Prong: H.O. confided to Tamburri during his interview that he felt
embarrassed and was fearful that his 504 Plan would be exposed by Fitzke’s questioning.
Because of the questioning and anticipated public exposure of his disability and because
H.O. subsequently transferred out of Fitzke’s class, Tamburri determined that the “binder
incident” created a hostile educational environment.
Tamburri’s Analysis of the Binder Incident
Tamburri’s analysis of the “binder incident” placed particular emphasis on H.O.’s
assertion that the “binder incident” embarrassed him because he thought that Fitzke’s
questions might expose his ADHD disability / 504 Plan to his entire class. Tamburri’s
testimony and conclusions indicated that she accepted H.O.’s assertions as true, (i.e., both
H.O.’s claim that “it’s not his fault to lose things” [10/2/24 Transcript, P.44, Ln 6], and H.O.’s
unproven claim that all his classmates now knew that he had a disability and a 504 Plan
[10/2/24 Transcript p. 48, Lines. 20-23]). Tamburri’s testimony also indicated that she did
not accept Fitzke’s assertions as true (i.e., that Fitzke was simply trying to locate H.O.’s

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binder and that Fitzke saw a “teachable moment” to reiterate for the benefit of all students
the importance of bringing one’s binder so that everyone will be prepared for class.)
Tamburri focused on what she believed was Fitzke’s failure to strictly adhere to the
strategies and accommodations listed in the 504 Plan. She testified that, in her opinion,
Fitzke did not comply with all the strategies and accommodations listed in H.O.’s 504 Plan.
That is to say, as noted previously, Fitzke did not “utilize non-verbal cues to help with focus
and re-direction”, such as written instructions and gestures; and that he did not provide H.O.
with “positive feedback/re-enforcement as often as possible”. Tamburri indicated that
positive 	feedback/re-enforcement 	would be, 	for 	want of 	a better 	term, the offer 	of
encouragement and affirmation to H.O. to help the student succeed.
The Contrast Between the Two Sides’ Positions
In this paragraph, I will state Fitzke’s position to illustrate the contrast between the
two sides’ positions. Fitzke’s position is that non-verbal cues such as written instructions
and gestures would have been ineffective and thus irrelevant to the binder incident because
such a non-verbal cues strategy is mismatched or incongruent with the circumstances of
the binder incident. That is to say, there were no non-verbal cues that could have helped
H.O. to remember where he last had possession of his binder. Fitzke’s position appears to
be that not every strategy or accommodation fits every circumstance and that the strategies
and accommodations can only be utilized insofar as they are appropriate to the individual
situation. 	Insofar as the utilization of positive feedback and re-enforcement is concerned,
Fitzke’s position is that he did indeed provide positive feedback and re-enforcement when
said “I love you” to H.O., by which he meant to reassure H.O. that all was well despite the
misplacement of the binder.
The Violation of the 504 Plan Was Especially Significant to Tamburri
As noted previously, Tamburri testified that the only reason why she found HIB was
because Fitzke, in her opinion, failed to comply with the 504 Plan. This means that without
a violation of a 504 Plan, Tamburri would not have determined that Fitzke committed an act
of HIB. 	During direct examination, the School District’s counsel asked Tamburri the

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following question: “Was Mr. Fitzke’s failure to comply with the 504 Plan the only reason
that HIB was found?” (The Tribunal takes particular notice of the word “only”.) Tamburri’s
answer was an unequivocal, categorical “Yes”. (10/24/2024 Transcript, p. 77, Lines 21-23).
The next four paragraphs analyze why Tamburri’s “yes” answer was significant and marked
a pivotal point in this matter.
Tamburri’s testimony demonstrates that she regarded each and every word or action
that, in her opinion, was out of compliance with a strict adherence to all strategies and
accommodations contained in a 504 Plan as “illegal” and an act of HIB. She testified that
any non-compliance with a student’s 504 Plan which, in her opinion, “related-back” to a
student’s distinguishing characteristic was to be considered an act of HIB. 	As noted, the
Tribunal believes that this was a pivotal point in Tamburri’s testimony. This is because her
answer to the question overlooks an important consideration, namely the effectiveness of
each strategy and accommodation set forth in the 504 Plan to the uniqueness of a given
set of circumstances.
As set forth in this Initial Decision’s Findings of Fact below, Fitzke actually provided
positive feedback and re-enforcement in accordance with the 504 Plan’s accommodation
number eleven. 	The Findings of Fact also declare that the 504 Plan’s accommodation
number three, the use of non-verbal cues, would be inadequate and inappropriate in the
circumstances presented in the binder incident because a verbal cue could not possibly
enable H.O. to recall where his binder was located. As will be seen, those Findings of Fact
contrast with and undermine the basis for Tamburri’s determinations (a) that Fitzke failed to
follow H.O.’s 504 Plan, and (b) that Fitzke committed acts of HIB.
In her “relation back” analysis, Tamburri’s finding of HIB would be correct where the
listed accommodation would likely be effective in the circumstances, but her finding of HIB
would be incorrect where the teacher either followed the 504 Plan’s accommodations or
where the accommodations were irrelevant, i.e., incongruent with the circumstances at
hand. In other words, in the circumstances of the binder incident, non-verbal cues could not
possibly be capable of effectively addressing the problem that the circumstances presented,
namely, assisting H.O. to recall when and where he last had his binder in his possession.

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As already noted, consistent with her strict interpretation of the 504 Plan, Tamburri
testified that she would not have found HIB in the binder incident but for Fitzke’s failure to
provide H.O. with non-verbal cues. The Tribunal is wary of an overly-strict application of the
504 	Plan 	because 	it 	could 	result 	in 	one 	(or 	more) 	of 	the 	Plan’s 	strategies 	or
accommodations being applied in circumstances where it was never intended to be applied.
If Tamburri’s strict interpretation of the 504 Plan were to be followed, then a teacher, like
Fitzke, could be deemed to have failed to follow the 504 Plan and be accused of committing
HIB every time he or she did not employ every strategy and accommodation of the 504 Plan
in 	a 	given 	set 	of 	circumstances, 	even 	where 	the accommodation 	does not fit 	the
circumstances. It would follow that such a strict interpretation of the 504 Plan could likely
result in an unjust accusation against the teacher. In the case at bar, Fitzke stood accused
of not offering non-verbal cues. As already noted, there was no possibility that a non-verbal
cue could enable H.O. to recall where his binder was located. Yet, Tamburri found that
Fitzke committed HIB when he failed to offer H.O. a non-verbal cue to help him locate the
binder. Tamburri found Fitzke committed HIB by not offering positive feedback and re-
enforcement. But, as Fitzke testified, he allowed H.O. to participate in the class without his
binder and he told him not to worry. Fitzke testified that by saying, “I love you”, to H.O. he
was communicating to him that all was well even though he did not have his binder. The
question is: Should all the strategies and accommodations set forth in a student’s 504 Plan
be automatically applied (i.e.,required) in every set of circumstances, or should their
application be left to the sound discretion of what a reasonable teacher would do in the
given set of circumstances? This question will be addressed in the CONCLUSIONS
Section.
Summary of School Superintendent Damion Macioci’s Testimony and Related Documents
Damion 	Macioci 	testified 	that 	since 	2019 	he 	has 	served 	in 	the 	position 	of
Superintendent of Schools for the West Essex Regional School District. He holds a B.S. in
Exercise Science from William Paterson College and a M.S. in Physical Education from
Montclair State University. 	In addition, he has earned 43 credits in education leadership
from Thomas Edison State College and multiple certificates and certifications for teacher of

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15
physical 	education, 	for 	athletic 	trainer, 	for 	school 	supervisor 	and 	for 	chief 	school
administrator. Besides West Essex, he also worked in the Randolph Township School
District, the Livingston Township School District as the Principal of Heritage Middle School,
and as a gym teacher and athletic trainer at Chatham High School.
He recalled that during the 2021-2022 school year there was an investigation of HIB
regarding a Music and Band teacher named Eric Fitzke-Grey and a seventh grade student
by the initials of H.O., who had a disability and a 504 Plan. He recalled that Lisa Tamburri,
an Assistant Principal, served as the school’s Anti-Bullying Specialist (ABS) and conducted
the HIB Investigation and issued the HIB Report dated January 20, 2022 (Exhibits R-2 and
R-17). 	Superintendent 	Macioci, 	Middle 	School 	Principal 	Gina 	Donlevie, 	Ph.D., 	and
Assistant Principal and ABS Lisa Tamburri conferred and signed the HIB Report (R-2) on
January 20, 2022. Macioci confirmed that both he and Tamburri had and continue to receive
HIB training as part of their school duties.
Daimon Macioci testified that he sent a letter to Fitzke dated January 31, 2022
informing him that an HIB Investigation of three incidents had been undertaken and
informing him of the results thereof.
In Macioci’s January 31, 2022 letter to Fitzke, he wrote that the ABS (Tamburri)
determined that Fitzke did not adhere to H.O.’s 504 Plan; that he had called out H.O. and
criticized his behaviors in front of his peers on occasions when H.O. forgot to take his binder
to class; and when H.O. hit the wrong note while playing the xylophone. Macioci wrote that
Fitzke’s actions created a hostile educational environment and caused him to withdraw from
the Band class. Macioci summarized each of the three incidents - the “shoes incident”, the
“binder incident”, and the “xylophone incident” - and noted that Fitzke’s words and actions
were witnessed and confirmed by four student witnesses. Thereafter, Macioci wrote,
“I have concluded that, based upon the information provided to
me by the ABS, that these incidents meet the definition of HIB
as set forth in the District’s HIB Policy. Specifically, I have found
that your actions toward the victim subjected him to harassment,
intimidation, and bullying. Most disturbing is that your conduct

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violated the victim’s 504 Plan, which placed you on notice of the
victim’s disability and the strategies and accommodations that
you were expected to utilize when addressing the very conduct
that occurred here. All of this led the victim to withdraw from your
class and band altogether, which conclusively demonstrates
that your conduct interfered with the victim’s rights and had the
effect of insulting and demeaning him. Finally, whereas here,
the victim’s 504 Plan identified the types of behaviors described
in the three (3) incidents reported here, you should have known
that your response to those behaviors would cause emotional
harm to the victim.” [Italics supplied.]
The letter concluded with information about Fitzke’s appeal rights and the associated filing
dates.
Macioci testified that he did not take part in investigating the allegations of HIB, nor
did he interview any witnesses or review any documents during the course of the
investigation. I FIND that there is no record of Macioci conducting his own independent
investigation or of his receipt of information over and above Tamburri’s Investigation Report.
Respondent’s counsel asked Macioci on direct examination about how many
allegations of HIB had been investigated by Tamburri. He responded that there were three
allegations, labelling them as the “shoes incident”, the “binder incident” and the “xylophone
incident”. His attention was directed to the eighth paragraph of his January 31, 2022 letter
to Fitzke, which is the last paragraph of the second page of the letter. He was further
directed to a part of the first sentence of that paragraph, specifically to the words “… these
incidents meet the definition of HIB ….” and was asked, “Which incidents were you referring
to when you wrote that?” [Italics supplied.] 	Macioci responded. “Specifically the second
incident which involved the binder.” 	In response to further questioning, Macioci testified
that he was aware that Tamburri did not find HIB in the ”shoes incident” or in the “xylophone
incident”, but only in the “binder incident”. 	In response to further questioning, Macioci
testified that his decision to affirm Tamburri’s HIB finding “was based on the fact that the
ABS (Tamburri) made a determination that the student (H.O.) was a victim based on his
disability and that disability led to the finding that the case met the additional prongs that
are required to have been met for the incident to constitute HIB.” (10/2/2024 Transcript at

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p. 140, Lns. 7 to 14.)
Macioci identified Exhibit R-4 as a letter dated February 18, 2022 from the BOE’s
attorney, Steven Fogarty to Petitioner’s attorney, Ronald Ricci confirming that the Board
was scheduled to hear Fitzke’s appeal on March 8, 2022. Macioci confirmed that the hearing
took place, that he was present, that Fitzke appeared with his attorney, and that the BOE
affirmed his decision upholding Tamburri’s finding of HIB.
Macioci identified Exhibit R-5 as a letter dated March 14, 2022 from the BOE’s
Business Administrator and Board Secretary Melissa Kida to Fitzke. In that letter Ms. Kida
summarized the hearing of March, 2022 before the BOE. The content of the letter included
summaries of the “shoes incident”, the “binder incident” and the “xylophone incident”; a
statement that the incidents were confirmed by several witnesses; a statement that the BOE
determined that the victim reasonably perceived that Fitzke’s comments were motivated by
his disability; and informing him that the BOE affirmed Superintendent Macioci’s decision
that Fitzke engaged in HIB.
Lastly, Macioci’s direct testimony concluded with his confirmation that no prior
conduct of Fitzke had any bearing on his determination to uphold Tamburri’s finding that
Fitzke committed HIB in the matter at hand.
On cross-examination, Petitioner’s counsel questioned Macioci about whether the
BOE’s decision found Fitze guilty of HIB only in the “binder incident” or in all three
allegations of HIB - the “shoes incident”, the “binder incident” and the “xylophone incident”.
Macioci responded that the finding of HIB was for the “binder incident” only. 	Thereupon,
counsel directed Macioci to Exhibit R-3 (eighth paragraph) wherein Macioci used the phrase
“these incidents” and asked him whether he was referring to only the “binder incident” or to
all three incidents (“shoes”, “binder” and “xylophone”). Macioci responded that although he
wrote “these incidents”, he was only referring to the “binder incident”. Continuing the cross-
examination, counsel asked if the use of the plural rather than the singular was a
typographical error. Macioci responded that it was not a typographical error. He further
explained that he meant to refer only to the “binder incident”, and that his “letter probably

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could have been written a little bit more clear to separate out.”
Petitioner’s counsel thereupon moved on to questioning Macioci about Exhibit R-5,
the March 14, 2022 letter written by Melissa Kida (BOE’s Business Administrator) to Fitzke.
Macioci confirmed that he was cc’d (i.e. copied) on this letter. Counsel pointed out that in
her March 14, 2022 letter, Ms. Kida referred to the corroboration of “all three incidents”, not
just the “binder incident”, but Macioci stated that he did not know why Kida referred to all
three incidents. [Italics supplied.] Upon further questioning, Macioci remained steadfast in
his assertion that neither he nor the BOE found Fitzke guilty of all three allegations of HIB.
Upon further cross-examination, Macioci testified that he never spoke personally to
Fitzke about any HIB incidents and he did not speak to H.O. or to his parents about any HIB
incidents.
On Re-Cross examination, Respondent’s counsel asked Macioci if a teacher had the
authority to decide which portions of a 504 Plan he would implement. Macioci’s response
was that a teacher did not have the authority to decide which portions of a 5054 Plan he
would implement. In answer to a follow-up question, he added that a teacher would not be
allowed to substitute his own judgment in place of the 504 Plan in deciding what is best for
the student who had a 504 Plan.
Analysis of Macioci’s Testimony
There is a dispute between the parties over the significance of the findings.
Petitioner-Fitzke’s counsel, Mr. Ricci, contended that Tamburri’s Report sets forth three
findings of HIB (in the “shoes incident”, in the “xylophone incident” and in the “binder
incident”), and that during her in-court testimony Tamburri said that she did not find acts of
HIB in the “shoes incident” and in the “xylophone incident”. However, Tamburri testified that
she did find an act of HIB, but it was only contained in the “binder incident”. Ricci’s point is
that the findings of HIB in Tamburri’s investigation report differed from the findings of HIB
as stated during her testimony. Ricci argued that these differences demonstrate an
inconsistency in her findings. Moreover, Ricci pointed out that Superintendent Macioci

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found acts of HIB in all three incidents (the “shoes incident”, the “binder incident”, and the
“xylophone incident”), which were based on his reading of Tamburri’s investigation report.
Ricci noted that the Superintendent found HIB in the “shoes incident” where Tamburri
clearly stated there was no HIB. Ricci argued that this indicates that the Superintendent’s
decision must have been based on some facts beyond those contained in Tamburri’s
investigation report and that it would have been improper for the Superintendent to do. Ricci
noted that the Superintendent found HIB in the “shoes incident”, but Tamburri clearly stated
that there could be no finding of HIB in the “shoes incident”. Ricci argued that the
Superintendent’s findings of HIB in all three incidents demonstrate a serious flaw in the
Superintendent’s findings that directly influenced his ultimate determination of the matter.
Ricci noted that the Board of Education affirmed the Superintendent’s flawed decision to
sustain the charges in all three alleged incidents of HIB against Fitzke. Ricci’s point is that
the BOE’s affirmance compounded the error. Ricci therefore urges this Tribunal to reject
the 	Superintendent’s 	decision 	and 	the 	Board 	of 	Education’s 	vote 	to 	affirm 	the
Superintendent’s decision.
Ms. Weinstein retorted, in her Reply Brief, that (1) Tamburri’s investigative report
clearly states that she only found acts of HIB in the “binder incident” because only the
“binder incident” was supported by corroborative evidence, and (2) Tamburri’s investigative
report clearly states that the “shoes incident” was not corroborated because she could not
determine if Fitzke’s comments to H.O. were made in public or in private and that the
“xylophone incident” was corroborated by two witnesses, but not by all three witnesses.
Citing passages from the depositions of Tamburri, Macioci, and Fitzke himself,
Weinstein argued that Tamburri’s investigative report was clear about what actions she
found to be HIB and what actions she did not find to be acts of HIB. Weinstein argues that
Tamburri’s findings were stated clear enough in her report so that they could not possibly
have mis-led Macioci or the BOE (the decision-makers) in any way. Weinstein argues that
despite Tamburri agreeing that her report could have been written clearer, it was clear
enough and Tamburri’s testimony was clear enough to demonstrate that she only found HIB
in the “binder incident”. Weinstein added that case law supports the principle that a BOE’s
decision is presumptively valid absent proof that the BOE acted with “no rational basis” or

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acted “without consideration and in disregard of circumstances”. 	Weinstein argues that
here Superintendent Macioci had a rational basis for his decision because HIB was
demonstrated in the “binder incident” and therefore his decision should stand.
On the issue of the clarity of the HIB Report, neither attorney is entirely correct, as
will be explained in the following FINDINGS OF FACT.
On the issue of the clarity of the HIB Report, I FIND that the transcript of the in-court
testimony and the transcript of Tamburri’s September 16, 2022 deposition demonstrate that
Ricci is incorrect because Tamburri’s testimony on both occasions was clear enough to
show that she found HIB only in the “binder incident”. I FIND that Weinstein is correct that
Tamburri’s HIB investigative report, her trial testimony, and her deposition testimony were
consistent. I FIND that in her HIB Report, her trial testimony, and her deposition testimony
Tamburri states that she found that Fitzke violated the HIB Statute only in the “binder
incident”. However, I FIND that in Macioci’s January 31, 2022 letter, paragraph eight,
Macioci’s wording clearly refers to multiple incidents. The clearest indication that Macioci
believed that Fitzke committed three acts of HIB is contained in the sentence that reads: “I
have concluded that … “these incidents meet the definition of HIB….” [Italics supplied.]
Clearly, Tamburri testified that her HIB Report found that only one HIB violation
occurred, the “binder incident”. 	However, just as clearly, two documents from the
Respondent’s side state that there were three HIB violations. [Italics supplied.] The two
documents are: Macioci’s January 31, 2022 letter to Fitzke (Exhibit R-3) and the letter from
the BOE’s Business Administrator, Melissa Kida, to Fitzke dated March 14, 2022 (Exhibit
R-5).
Tamburri determined that HIB occurred only during the “binder incident”. Yet, as we
shall see, Macioci’s January 31, 2022 letter (Exhibit R-3) and his testimony indicate that he
found more than one incident of HIB. The problem to be solved is whether we can reconcile
these contrasting issues of fact. This will be analyzed below.

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I note that on the presentation of Macioci’s direct testimony, Respondent’s counsel
attempted to elicit an explanation from Macioci which would cure the sharp difference
(“three 	HIB 	violations” 	versus 	“one 	HIB 	violation”) 	between 	Macioci’s 	account 	and
Tamburri’s account.
During his direct testimony Macioci tried to explain why Exhibit R-3, his letter to Fitzke
dated January 31, 2022 says “[t]hese incidents meet the definition of HIB.” [Italics supplied.]
The Tribunal notes that the phrase “these incidents” literally refers to more than one
incident. Respondent’s counsel asked Macioci, “Which incidents were you referring to when
you wrote that?” Macioci responded, “Specifically, the second incident, which involved the
binder.” The questioning went on to confirm 	Macioci’s understanding that Tamburri
determined that there was an act of HIB in the “binder incident”, but not in the “shoes
incident” nor in the “xylophone incident”. On cross-examination, Petitioner’s counsel, using
and quoting from Macioci’s January 31st letter (R-3), asked Macioci the following question:
“It says, ‘I have concluded that based upon the information provided [to] me by the ABS that
these incidents, plural meet the definition of HIB as set forth in the district’s HIB policy.’ Was
that a typo?” Macioci denied that it was a typographical error. Instead, he stated twice that
he could have written the letter “clearer”. 	I FIND that Macioci, a very educated man,
certainly knows the difference between the use of the singular and the use of the plural. In
reference to the number of incidents for which he found HIB to have occurred, Macioci
attempted to explain that when he wrote his January 31, 2022 letter to Fitzke (Exhibit R-3)
he used the plural when he really meant to use the singular when setting forth the number
of HIB incidents Fitzke committed. In light of Macioci’s understanding of the stark difference
between the singular and the plural, and the critical difference that using the singular versus
using the plural makes in determining the facts of this matter, I FIND Macioci’s explanation
too incredible to be worthy of belief. I also FIND that Macioci’s denial that he made a
typographical error when he wrote “these incidents” (i.e., denoting the use of the plural of
the word “incident”), means that he meant to write what he actually wrote in his January 31,
2022 letter. I FIND that he wrote and he meant to write “these incidents” signifying more
than only the “binder incident”. I FIND that on the first three paragraphs on the second page
of his three-page letter (Macioci’s January 31, 2022 letter a/k/a Exhibit R-3), Macioci
describes all three incidents and uses language which clearly sets forth the facts of each

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incident which form the basis of his belief that Fitzke violated the HIB Statute in all three
incidents. I FIND that Macioci’s use of the phrase “as concerns the most egregious
incident….” 	denotes a comparison of the “binder incident” to the two other “egregious”
incidents indicating that he regarded those two incidents acts of HIB. Thereafter, Macioci
(in the final paragraph of page two) uses the above-discussed conclusory sentence, “I have
concluded that, based upon the information provided to me by the ABS, that “these incidents
meet the definition of HIB as set forth in the District’s HIB Policy.” [Italics supplied.] I FIND
that, despite his attempts while giving testimony to change the literal meaning of what he
wrote in his January 31, 2022 letter, Macioci based his affirmance of Tamburri’s HIB Report
on his finding that there were three incidents of HIB, not only the “binder incident”. I FIND
that Macioci’s attempt to convince the Tribunal that that his use of the plural is a plausible
way of denoting the singular indicates a disregard of the truth and indicates prejudice on
his part and thus seriously impacts his credibility.
In Business Administrator / BOE Secretary Melissa Kida’s three-page letter (Exhibit
R-5) to Fitzke dated March 14, 2022, she stated that the BOE considered the record of the
March 8, 2022 Appeal Hearing, Macioci’s findings and decision, Tamburri’s HIB Report, and
Petitioner’s attorney’s Brief. 	Kida’s March 14, 2022 letter contains 12 paragraphs. 	In
Paragraphs 6 through 9, Kida cited information about all three incidents (the “shoes”,
“binder” and “xylophone” incidents) taken from the HIB Report and the statements of the
student witnesses. Tamburri’s, Macioci’s and the BOE’s interpretation of said information
supported H.O.’s accusations against Fitzke and the conclusion that Fitzke violated the HIB
Statute. In the first sentence of Paragraph 7, Kida stated,
“All three incidents are corroborated by several witnesses. While
the witnesses have varying recollections of what occurred, the
Board determined based on the totality of the circumstances
recounted by the witnesses, that the victim felt that he was
targeted 	because 	of 	his 	disability 	and 	that 	his 	belief 	is
reasonable.”
I FIND that Kida’s March 14, 2022 letter unequivocally states that the BOE’s
affirmance of Superintendent Macioci’s approval of Tamburri’s HIB Report mistakenly

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assumed, as did Macioci, that the HIB Report found HIB in “[a]ll three incidents” and “the
totality of the circumstances” of all three incidents. [Italics supplied.] I FIND that the content
of Kida’s letter is in direct contrast to Tamburri’s testimony, which was that there was one
and only one act of HIB committed by Fitzke – the “binder incident”.
The analysis set forth above provides the answer to the above-stated problem of
whether Tamburri’s account versus Macioci’s account can be reconciled. I FIND that there
is a contradiction between Tamburri’s finding of one act of HIB and Macioci’s finding of three
acts of HIB by Fitzke. I FIND that the two accounts cannot be reconciled.
I FIND that in Macioci’s January 31, 2022 letter, paragraph eight, Macioci’s wording
clearly refers to multiple incidents. The clearest indication that Macioci believed that Fitzke
committed three acts of HIB is contained in the sentence that reads: “I have concluded that
… these incidents meet the definition of HIB….” [Italics supplied.] 	I FIND that Macioci’s
January 31, 2022 letter, as written and literally interpreted, differs from his testimony. 	I
FIND that the January 31, 2022 letter removes all doubt. Macioci’s belief is that that Fitzke
committed multiple (plural) acts of HIB, namely, the “shoes incident”, the “xylophone
incident”, and the “binder incident”.
I FIND that Macioci’s belief that Fitzke committed three acts of HIB instead of only
one act of HIB is significant because it would very likely have had a cumulative effect. If
Macioci’s overall assessment of Fitzke was tainted by his belief that Fitzke committed three
acts of HIB rather than one act of HIB, then this would likely have affected his judgment and
would likely influence the severity of the penalties to be imposed on Fitzke. I FIND that
Macioci’s overall assessment of Fitzke was tainted and that his judgment was thereby
unduly influenced against Fitzke. I FIND that the BOE made the same factual mistake that
Macioci made.
Summary of Lisa Swanick’s Testimony and Related Documents
Lisa Swanick testified about her educational and professional background as follows.
She graduated in 2001 from William Patterson University with a Bachelors Degree in Music

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Management and in 2006 with a Post Baccalaureate teaching certification. In 2009 she
graduated from Boston University with a master’s degree in music education. In 2012 she
earned an NJSL supervisor certificate. She worked eight years as a teacher of Music for
the West Orange BOE and then moved on to the West Essex BOE. She has served as the
Supervisor of Fine Performing and Practical Arts. While in that role she was Fitzke’s direct
supervisor.
After focusing her attention to the 2021-2022 school year she recalled both Fitzke
and H.O. 	She recalled that in a December 6, 2021 email (R-16) to Guidance Counsellor
Carly Cressabenie (with a copy to her) Fitzke recommended that H.O. be transferred out of
Band class because he had been in contact with H.O.’s parents. She recalled a December
13, 2021 email (Exhibit P-7) sent by H.O.’s mother to Swanick saying that she likes Mr.
Fitzke and he has been working with them regarding their son, but that the class has
become too stressful and they want H.O. transferred to another class. Swanick recalled
having a telephone conversation with one or both parents about transferring H.O. out of the
Band class. Swanick testified that she lacked the authority to do so herself and that that
authority lay with the school Principal and the Guidance Department. She testified that the
transfer of H.O. did not occur in mid-December.
During cross-examination by Attorney Ricci, Swanick testified that on Thursday,
December 16, 2021 she had another telephone conversation with H.O.’s mother about the
hoped-for transfer. In a December 20, 2021 email to H.O.’s parents, Swanick informed them
that she was looking for options for the second semester.
Swanick recalled receiving an email sent by H.O.’s father to her and Guidance
Counsellor 	Marie 	Percell 	(cc: 	Principal 	Gina 	Donlevie 	and 	H.O.’s 	mother) 	on
Saturday,1/1/2022. 	The email stated that there was an “ongoing problem with Mr. Fitzke
for four weeks now”. H.O.’s father mentioned that he and his wife wanted to give the school
some time over the holidays to attend to the problem. The email set forth a list of complaints
about Fitzke’s conduct and their dissatisfaction with H.O. remaining in the Band class.
Swanick testified that after the school’s receipt of the 1/1/2022 email, H.O. was switched
out of Band class days after the 1/1/2022. She did not say who gave the approval for the
transfer.

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Swanick’s direct testimony concluded with her answers to questions about the nature
of a 504 Plan and her response to a question in which she agreed that teachers did not
have a choice of what sections of a 504 Plan they would implement or for substituting their
own judgment for what is written in a 504 Plan.
On cross-examination, Attorney Ricci asked Swanick if H.O.’s parents had reported
any incidents of bullying against H.O. by Fitzke during their conversations and emails in
December. She responded that she had not received any such information and she agreed
that if she had heard any such complaints she would have filed a report.
On cross-examination Swanick agreed that during her June 8, 2023 deposition she
stated that a Guidance Counsellor told her in December, 2021 that the request to switch
H.O. out of the Band class was “impossible”. Swanick confirmed that in mid-December the
school denied H.O.’s parents’ request for H.O. to be transferred, but that after receiving the
1/1/2022 email from H.O.’s father, the school granted the transfer request.
On further cross-examination, Swanick was shown Exhibit P-8. P-8 contained a
1/3/2022 email which she sent to H.O.’s father (cc: Principal Donlevie, Marie Purcel and
H.O.s mother) telling him that H.O. was to report to the Guidance Office on 1/4/2022 to pick
up his new schedule. He was being switched from Band class to an Exploratory Cycles.
She agreed that the switch was approved on Monday, 1/3/2022 the first school day after
her receipt of the 1/1/2022 email. 	Swanick confirmed that in mid-December the school
denied H.O.’s parents’ request for H.O. to be transferred, but that after receiving the
1/1/2022 email from H.O.’s father, the school granted the transfer request. Swanick denied
having any knowledge of a transfer request from H.O.’s parents in October, 2021.
Analysis of Lisa Swanick’s Testimony
Swanick testified that if H.O.’s parents alleged bullying by Fitzke, she would have
filed a report. There is no evidence in the record that Swanick filed such a report. Therefore,
I FIND that H.O.’s parents did not allege to Swanick that Fitzke bullied H.O.

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Swanick’s testimony confirmed that H.O.’s parents wanted to withdraw H.O. from
Band class long before the first of the alleged HIB incidents for which Fitzke was charged.
Her testimony confirmed that the parent’s reasons for the requested change had less to do
with Mr. Fitke, and more to do with H.O.’s commitment to his basketball team and the
scheduling conflicts involved with that and H.O.’s lack of enthusiasm with / enjoyment of the
Band class’s subject matter and their son’s feeling of stress. Their reasons also pertained
to a preference for an Exploratory Cycle type of class for H.O. The documents referred-to
during Swanick’ testimony indicate a contrast between H.O.’s mother’s generally favorable
view of Fitzke and H.O.’s father’s correspondence. One of the father’s emails to Fitzke
(Exhibit P-4) was apologetic because H.O. had to miss a Band event in favor of his
basketball commitment. Another email (Exhibit P-8) was sent by H.O.’s father to Swanick,
Purcell, and Principal Donlevie accusing Fitzke of misconduct, but which was based on
alleged facts that he clearly did not come by first hand.
Swanick’s testimony also provided insight into the school’s initial denial of the class
change request in early December, 2021 and its sudden reversal in early January, 2022.
Her deposition testimony was brought out on cross-examination revealing that the parents’
request for the class change was denied outright because the Guidance Office said: “The
switch is “impossible”. 10/2/2024 Transcript, p.176, Lines 7 to 15 and p. 177, Line 11 thru
p. 178, Line 2.) 	The Petitioner made the point that H.O.’s Father’s accusatory 1/1/2022
email resulted in the school reversing its decision and giving its approval of H.O.’s class
switch request by January 3, 2022.
Summary of Eric Fitzke-Grey’s Testimony and Related Documents
On October 8, 2024, Eric Fitzke-Grey testified at the OAL Hearing. He set forth his
ducational background, teacher certifications and employment history. He testified that he
appealed the BOE’s HIB determination because he believed he had not committed HIB and
because he wanted to apply for teaching positions in other school districts.

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Fitzke testified that he met H.O. at a Summer Band Camp and that H.O. enrolled in
his Band class in the Fall of 2021. H.O. enrolled to learn how to play percussion instruments
like various types of drums, like snare drums, kettle drums and base drums; keyboard
percussion instruments like bells, xylophones, marimbas and vibraphones, and accessory
instruments like cymbals, triangles, tambourines, and tom-toms.
Fitzke testified that at the start of the school year he emailed a Band Handbook,
which had everything a student needed to fully participate in Band class. Binders enabled
all Band class enrollees to know what would be required for the class, such as attendance,
bringing one’s binder and instrument to class, and class materials. 	He also created or
revised binders tailored for each of the 10 to 30 types of musical instrument in the Band. A
binder contained the student’s portfolio which included music, instructions telling students
how to practice, software used to record homework, a notebook, etcetera. He stated that
the 	binders 	for 	percussion 	instruments 	were 	very 	different 	from 	binders 	for 	wind
instruments.
Fitzke recalled that in the 2021-2022 school year he taught two sections of Band
class, one with 35 students and one with 31 students, for a total of 66 students. 	The big
event of the year was the December 16th Concert where the students played in an
ensemble, rather than individually. 	Fitzke testified that the goals of Band class were not
only to learn how to play an instrument, but to perform in combination with other musicians,
to create music, and to connect socially with others to create a whole that was larger than
its parts. Fitzke testified that in the 2021-2022 school year, because of distancing
requirements made necessary by Covid restrictions, the Band Class was held in larger
quarters, such as an auditorium rather than in a classroom.
Fitzke testified that in 2021-2022 he had seven students in his Band class who had
IEPs or 504 Plans. He recalled that H.O. had a 504 Plan and that there were 11 teaching
strategies associated with it. He recalled that H.O. needed assistance with organizational
skills. His counsellor recommended and he received preferential seating, which meant that
he should be seated where the teacher could keep a close watch on him. 	Because H.O.
was a percussionist, he and all percussionists had to be placed in the back row of the band,

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but since they were required to stand while playing, Fitzke could easily watch H.O., who
was placed in the middle of the percussionists, fulfilling that requirement of his 504 Plan.
Fitzke was familiar with the requirement of using non-verbal cues (such as a head nod or
pointing) and the requirement for using positive re-enforcement. He stated that he utilized
these and the other teaching strategies when needed. 	Fitzke recalled that he and H.O.
worked-out 	a 	plan 	whereby 	H.O. 	would 	place 	paper 	messages 	on 	his 	podium 	to
communicate with Fitzke when he needed to do so.
Fitzke testified that he recalled communicating with H.O.’s mother in October, 2021
once on the telephone and several times by email. She was concerned that H.O. was trying
to balance the demands of academics (including Band class) and the demands of athletics,
especially basketball. She asked about withdrawing H.O. from Band class. Fitzke testified
that he had several athletes in his classes; he understood; and he stated that it was entirely
up to the student and his parents. He recalled that the school administration initially denied
the request to withdraw H.O. from Band class, but subsequently decided in early January,
2022 to allow him to withdraw. Fitzke recalled a December 2, 2021 email in which H.O.’s
mother called him “a wonderful teacher”.
Fitzke testified about what became known as the “binder incident”. He recalled that
on Tuesday December 21, 2021, while he was ten minutes into the class, H.O. walked down
the steps of the auditorium and onto the stage approaching him. Although Fitzke was busy
directing the band’s performance of music, H.O. tapped him on the shoulder and started
talking to him. Fitzke motioned him to join the percussionists. 	H.O. sat down in another
section and started texting on his cell phone, which was prohibited in class. Subsequently,
Fitzke asked H.O. why he was using his cell phone in class and again directed him to join
the percussionists. Fitzke noticed that H.O. did not have his binder. 	He asked H.O. if he
knew where his binder was located and asked if perhaps he left it at home or at the high
school. H.O. did not know where it was. Fitzke decided to do a “binder check” in order to
find out if anyone had H.O.’s binder. While doing so, he asked about eight students to hold
up their binders so that he could read the names written on them. Fitzke noticed that, in his
words, H.O. looked “a little deflated”, so he told H.O. to check for his binder when he went
home. He also told H.O., “We got this. Don’t worry about it. I love you.” [Emphasis supplied

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by Fitzke.] When asked about whether he meant “I love you” sarcastically, he denied that
he said it sarcastically. Fitzke explained that students missing their binders was a common
type of occurrence in Band class and that he had said the same thing to others previously
because he didn’t want them to feel shame.
On cross-examination, counsel for the Respondent queried whether Fitzke had
undergone any training about the HIB Statute. 	Fitzke responded in the affirmative. Since
he was familiar with the First Primary Prong’s prohibition against acting in a way that could
be perceived as being motivated by a person’s distinguishing characteristic, counsel asked
whether Fitzke considered putting off the inquiry into the whereabouts of H.O.’s binder until
a later time, when it could be done outside the presence of H.O.’s classmates. 	Fitzke
responded that he was trying to locate the binder so that H.O. could immediately participate
in the class. Fitzke was asked on cross-examination if he ever considered whether his
request to the other students to hold up their binders might make H.O. feel that his disability
was being displayed in front of his classmates. Fitzke denied that that was his intent.
Counsel then confronted Fitzke with the statements of the student witnesses. They stated
that Fitzke tried to embarrass H.O. by having the other students hold up their binders to
demonstrate that everyone, except H.O., could remember to bring one’s binder to class.
Fitzke responded that one of the witnesses assumed that Fitzke was frustrated with H.O.,
which was not true. He pointed out that the statements were anonymous and undated.
Thus, they could have been conflating the events of December 21st date and other times
when H.O.’s binder was missing.
Analysis of Eric Fitzke-Grey’s Testimony
The Respondent-School District’s contention is that Fitzke committed an act of HIB
when he ignored H.O.’s 504 Plan and the School District suggests that his ignoring of the
504 Plan is thoroughly intertwined (i.e.,“linked”) with the alleged act of HIB, namely the
singling-out of H.O. in front of his peers to target him for his distinguishing characteristics
and to demean and ridicule him (rather than 	employ the accommodations set forth in his
504 Plan). It is clear that the 504 Plan existed to provide a real-time way to recognize H.O.’s
ADHD disability. In dealing with a student like H.O., whose 504 Plan included a diagnosis

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of ADHD, a teacher, like Fitzke, would be called-upon to find ways on a daily basis in real-
time to help H.O. address those ADHD-related problems as they manifested themselves
during the course of any given day. It is clear that the District focused on the content of
some of the witnesses’ statements which said that Fitzke polled his entire class in order to
make the point to H.O. that only he came to class without his binder. The District maintains
that Fitzke’s conduct isolated and embarrassed H.O. and that Fitzke’s conduct made H.O.
believe that his status as a 504 Plan student was being revealed to his peers.
On the other hand, Fitzke’s testimony tells us that, in recognizing that H.O. had once
again forgotten his binder, Fitzke’s way of addressing the situation was twofold. First, Fitzke
started a search for H.O.’s binder (believing that the binder may have been in another
student’s possession). Fitzke did so because H.O.’s lack of a music binder would render
him unable to participate in class and therefore H.O.’s lack of a binder could interfere with
the operation of the class. 	Second, Fitzke decided to use the situation as a learning
experience by demonstrating to all students that it was important to come to class on time,
fully prepared, and fully engaged. Fitzke testified that after the “binder incident” concluded,
H.O. walked passed the percussion instrument section to a place where he would not be
able to participate in class and that once there he proceeded to use his cell phone instead
of attempting to participate in the class. Fitzke emphasized that in telling H.O., “We got this.
Don’t worry about it. I love you”, he was trying to assure H.O. that all was well despite the
missing binder.
FINDINGS OF FACT
Having analyzed Tamburri’s, Macioci’s, Swanick’s, and Fitzke’s testimony and the
documents, indeed, the entire record, I make the following FINDINGS OF FACT.
I FIND that on the day of the “binder incident” H.O. showed up late for class, which
was already in session, and was not in possession of the binder containing the music which
would have enabled him to participate in the class. 	I FIND that when Fitzke noticed that
H.O. did not have his music binder he questioned him about it and asked H.O. about where
he might have left it. I FIND that it was a legitimate attempt to help H.O. remember where

OAL Dkt. No. EDU 05501-22
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his binder might be. 	I FIND that the questions, as composed, lacked any indication of
hostility, impatience, or malice.
I FIND that Fitzke asked the members of the class to check to see if anyone was in
possession of H.O.’s binder. I FIND from an examination of the student witnesses’ accounts
that there was nothing that indicated that it took Fitzke a long time to question H.O. and to
ask the students to check to see if anyone had H.O.’s binder. I FIND that there is a lack of
reliable evidence that proves that Fitzke asked each and every student to hold up his or her
binder or that he polled the entire class. I FIND from examining the evidence that Fitzke’s
use of class time to try to locate H.O.’s binder was minimal in duration, perhaps a minute or
two. I FIND that this amount of time was not significant enough to “interfere” with H.O.’s or
anyone else’s education. I FIND that after the “binder incident” concluded, H.O., instead of
following Fitzke’s instructions to join the percussionists, walked passed the percussion
instrument section to a place where he would not be able to participate in class and that
once there he proceeded to use his cell phone instead of attempting to participate in the
class.
I FIND that the evidence indicates that Fitzke’s questions about the whereabouts of
the binder were proper under the circumstances as a matter of classroom management
(i.e., to facilitate H.O.’s ability to participate in the class). 	I FIND that there is a lack of
reliable evidence that proves that Fitzke made any attempt to highlight that H.O. was the
only student without a binder. 	I FIND that there is no evidence in the record regarding the
“binder incident” from which it could reasonably be inferred that Fitzke did anything that
would suggest to anyone that H.O. had a 504 Plan.
I FIND that the evidence does not suggest that the nature of the search for the
missing binder disrupted the orderly operation of the class. I FIND that the evidence does
not suggest that the nature of the search for the missing binder could cause physical or
emotional harm to any student in the class and thereby tend to create a hostile educational
environment. I FIND that the evidence demonstrates that the nature of the search for the
missing binder was to enable H.O. to participate in the class, and so was a legitimate use
of class time. I FIND that during the “binder incident” Fitzke did not say or do anything that

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was physically or emotionally harmful to anyone. I FIND that during the “binder incident”
Fitzke did not say or do anything that made the educational environment hostile to anyone.
According to Tamburri’s testimony, in her notes of H.O.’s interview, H.O. himself
never stated that Fitzke did not like him as a person. During his interview with Tamburri,
H.O. noted that he wore a basketball jersey, and suggested that it was H.O.’s association
with the basketball team which Fitzke did not like. I FIND that H.O.’s comments to Tamburri
about Fitzke not liking him because he wore a basketball jersey was mere speculation. 	I
FIND that there is no reliable evidence supporting the notion that Fitzke did not like H.O. as
a person; did not like H.O. as a student athlete; and did not like H.O. because he was
associated with the basketball team. I FIND that there is no factual basis for Tamburri’s
conclusion that Fitzke’s words or conduct during the “binder incident” was related to H.O.’s
ADHD diagnosis or disability. I FIND that Tamburri’s conclusion that Fitzke was motivated
by H.O.’s ADHD diagnosis or disability is without reliable factual support and I FIND that it
is based solely on unsupported speculation. 	I FIND that there is no reliable evidence
supporting the notion that Fitzke did not like H.O. as a person; did not like H.O. as a student
athlete; and did not like H.O. because he was associated with the basketball team.
I FIND that H.O.’s complaint to Tamburri about feeling embarrassed was purely
subjective and was not something that was reasonably and objectively attributable to
Fitzke’s questions or his search for the binder. I FIND that there are no objective, verifiable
facts in the record that would even remotely support H.O.’s statement that the “binder
incident” could make his whole class suddenly realize that he had a 504 Plan. I FIND that
H.O.’s suspicion was mere speculation, unsupported by facts. 	I FIND that Tamburri’s
agreement with H.O. on this point was also speculation unsupported by facts.
I FIND that Tamburri misinterpreted the facts (the content of Fitzke’s words and
actions, as well as Fitzke’s intent) when she determined that Fitzke improperly referenced
H.O.’s ADHD disability (which would have violated the First Secondary Prong) of the HIB
Law and when she determined that Fitzke’s words and actions were insulting or demeaning
towards H.O. (which would have violated the Second Secondary Prong) as he questioned
him about the whereabouts of his binder and as he engaged the other students to check to

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see if anyone else had possession of H.O.’s binder in an attempt to search for it. I FIND it
significant that the record contains no factual evidence from a witness, from H.O., from
Fitzke or from any document that indicates that Fitzke said what he said or did what he did
during the “binder incident” because of H.O.’s ADHD disability. I FIND it significant that the
only substantiation offered by the Respondent to support the idea that Fitzke’s words or
actions were linked to H.O.’s ADHD disability or “referred back” to H.O.’s ADHD disability
is merely the opinion of Tamburri.
I FIND that Fitzke’s questions were not reasonably capable of causing any emotional
or physical “harm” to H.O. (a student with a 504 Plan) or anyone else. I FIND that the cross-
examination of Fitzke failed to adequately establish an intent to embarrass or ridicule H.O.,
or to point out H.O.’s disability. I FIND that during the “binder incident” neither Fitzke’s words
nor his actions “referred back” to H.O.’s ADHD disability. I FIND that, insofar as the issue
of whether Fitzke “referred back” to H.O.’s disability, there is no causative connection, in
this instance and under this set of circumstances, between the timing of Fitzke’s questions
to H.O. and the timing of the “binder check”. I FIND that the purpose of Fitzke’s attempt to
locate H.O.’s binder cannot be reasonably construed, by H.O. or anyone else, as an attempt
to embarrass H.O. I FIND that there is no evidence in the record which indicates that the
504 Plan forbade a teacher from questioning H.O. or which prohibited a teacher from
inquiring into why H.O. did not have his binder in his possession or was otherwise not
prepared to participate in the class on a given day. 	I FIND that Fitzke told the truth when
he stated that H.O. looked “deflated” after being questioned about not having his required
binder in his possession, but I also FIND that it would be mere speculation on the part of
Tamburri to conclude that H.O.’s “deflated” appearance was to any extent caused by
Fitzke’s conduct (words or actions) or was solely due to some action of Fitzke. I FIND that
H.O.’s “deflation” could just as easily have been due to his realization of his own lack of
preparation and disappointment with himself.
I FIND that Fitzke told the truth when he stated that at the end of the “binder incident”
he said, “I love you” to H.O. I FIND there is insufficient evidence in the record to interpret
Fitzke’s statement of “I love you” to H.O. as sarcasm. I FIND that there is insufficient
evidence in the record to indicate that Fitzke’s “I love you” statement to H.O. was meant to

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embarrass or to ridicule H.O. 	I FIND that there is no causative connection, in this instance
or under these circumstances, between the timing of Fitzke’s questions and the timing of
the “binder check”. I FIND that during the “binder incident” neither Fitzke’s words not his
actions were “linked to” or “referred back” to H.O.’s disability. I FIND that the context of the
record (Fitzke’s use of the moment to underscore to all students, including H.O., that it was
important to be fully prepared for class) indicates that when Fitzke said “I love you” to H.O.,
it was a brief, necessary, and proper use of class time. I FIND that Fitzke testified in a
manner that was clear, forthright, and coherent and so, I found him to be credible. I FIND
that the cross-examination of Fitzke failed to adequately establish an intent to embarrass
or ridicule H.O. or to point out his disability.
Analysis of the HIB Prongs
In regard to the First Primary Prong and First Secondary Prong, I FIND that Fitzke
did not say or do anything during the “binder incident” that referenced H.O.’s ADHD
disability; or, that he either said or did anything during the “binder incident” that related back
to H.O.’s ADHD disability; or that he said or did anything during the “binder incident” that
would have the effect of harming a student or placing him or her in fear of harm.
In regard to the Second Primary Prong, I FIND that the “binder incident” did indeed
occur on school premises.
In regard to the Third Primary Prong, Tamburri’s direct testimony indicates that there
was only a brief pause in the flow of the class, after which Fitzke quickly resumed the lesson.
On cross-examination, Tamburri admitted that she did not know how much time Fitzke spent
questioning H.O. about his binder. Given the facts in the record, and given the context, I
FIND that the amount of time Fitzke spent talking with H.O. when he entered the class late
and the amount of time that Fitzke spent searching for H.O.’s binder was brief, perhaps a
minute or two. I FIND that since the evidence demonstrates that the time spent questioning
H.O. and looking for the binder was intended to enable H.O. to participate in the class its
purpose was to enhance the operation of the class (school) rather than to disrupt or interfere
with the operation of the class (school).

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I FIND that the conversation between Fitzke and H.O. during the “binder incident”
was brief and was necessary for the attempt to locate H.O.’s binder. I FIND that the amount
of time spent on attempting to locate the binder was inconsequential to the instructional flow
of the class. 	I FIND that the contents of the HIB Report and of Tamburri’s testimony
contained insufficient evidence about the nature of the aforesaid conversation and binder
search that would indicate the infringement of any student’s rights. Thus, I FIND that there
is insufficient evidence to sustain the determination of a violation of the Third Primary Prong.
I FIND that there is insufficient evidence of any conduct of Fitzke (either an affirmative
statement or an affirmative action or either an omission of any statement or omission of any
action) to sustain the determination that during the “binder incident” he disrupted or
interfered with the orderly operation of the school, or interfered with the rights of any student.
Thus, I FIND that there is insufficient evidence to sustain the finding of a violation of the
Third Primary Prong.
On the subject of whether Fitzke said or did anything directed at H.O. which a
reasonable person should have considered physically or emotionally harmful to H.O. in
violation of the First Secondary Prong of the HIB Statute, I FIND that there is no evidence
or insufficient evidence supporting Tamburri’s determination that Fitzke’s words or his
actions were linked to or “referred to” H.O.’s ADHD disability. 	I FIND that Fitzke did not
harm H.O. by anything he said or did, either by commission or omission and so, did not
violate the First Secondary Prong.
I FIND that the conversation between Fitzke and H.O. during the “binder incident”
was brief and was necessary for the attempt to locate H.O.’s binder. I FIND that the amount
of time spent on attempting to locate the binder was inconsequential to the instructional flow
of the class. 	I FIND that the aforesaid conversation and binder search did not disrupt or
interfere with the ordinary operation of the school or with the Band Class in particular. 	I
FIND that the aforesaid conversation and search did not infringe the rights of any student.
Tamburri’s direct testimony indicates that there was only a brief pause in the flow of the
class, after which Fitzke quickly resumed the lesson. On cross-examination, Tamburri
admitted that she did not know how much time Fitzke spent questioning H.O. about his

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binder. Given the facts in the record, and given the context, I FIND that the amount of time
Fitzke spent talking with H.O. when he entered the class late and the amount of time that
Fitzke spent searching for H.O.’s binder was brief, perhaps a minute or two.
In regard to the Second Secondary Prong and the Third Secondary Prong, I FIND
that the questions Fitzke asked H.O. cannot be reasonably construed to have insulted H.O.
and the questions cannot be reasonably construed to have demeaned H.O. in violation of
the Second Secondary Prong. 	I FIND that these questions were neutral in character and
were actually asked to help H.O. find his binder. For the same reasons, I FIND that there
is insufficient evidence of hostility, impatience, or malice in Fitzke’s words or actions which
would 	support 	Tamburri’s 	determination 	that 	Fitzke 	created 	a 	hostile 	educational
environment for H.O. by interfering with his education or by severely or pervasively causing
him physical or emotional harm in violation of the Third Secondary Prong.
Lost Education Time
I here address the subject of lost educational time, i.e., a disruption or interference
with the orderly operation of the school or the subject of creating a hostile educational
environment which allegedly resulted in H.O.’s withdrawal from the Band class.
I have already found that Fitzke’s words and actions did not interfere with the orderly
operation of the school. I also found that Fitzke’s questions to H.O. and his request to the
students to search for H.O.’s binder lacked any indication of hostility, impatience, or malice.
I have already found that Fitzke’s words and actions were directed towards the goal of
finding the binder so that H.O. could participate in the class. Tamburri answered a question
which sought to ascertain why she believed that H.O. lost educational time because of the
binder incident. Tamburri cited H.O.’s withdrawal from Band class as evidence of it being a
hostile educational environment. On cross-examination, Tamburri admitted that during her
investigation, she did not know that long before the binder incident, H.O.’s parents had,
prior to the binder incident, asked the school’s administration to transfer H.O. out of Band
class. I FIND that Tamburri’s determination that Fitzke had committed an act of HIB was
based on her incorrect assumption that H.O. withdrew from Band class because of Fitzke’s

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words and or conduct during the binder incident, or was due to some overall dissatisfaction
with Fitzke. I FIND that the documents and the testimony indicate that H.O. withdrew from
Band class because he and his parents preferred that he take a class that was better suited
to his educational and athletic goals. This is explained further below.
H.O.’s Withdrawal From the Band class
On the subject of H.O.’s withdrawal from the Band class serving as a basis for
establishing the Third Secondary Prong (lost educational time) and serving as a basis for
establishing the Third Primary Prong (a disruption or interference with the orderly operation
of the school), Tamburri answered questions which sought to ascertain why she believed
that H.O. lost educational time on account of the binder incident. Tamburri responded by
saying that H.O. withdrew from Band class because of Fitzke’s conduct during the “binder
incident”. I FIND that a fair reading of the correspondences, including Exhibits P-4 and P-5
(October, 2021 emails from H.O.’s parents to Fitzke), overwhelming demonstrates that
H.O.’s parents wanted to transfer him out of Fitzke’s band class due to scheduling conflicts
between band concerts and his participation in basketball games, as well as H.O.’s
disinterest in “marching band”, long before the first alleged incident of HIB (the “shoes
incident” on December 16, 2021). I FIND that both H.O. and H.O.’s parents preferred that
some other class or a study period would be of greater value to H.O. than Band class. I
FIND that a fair reading of the correspondences demonstrates that H.O. and his parents
wanted him to further his basketball talents rather than his musical talents. I FIND that a fair
reading of the correspondences of H.O.’s mother complimented Fitzke and expressed
comments favorable to Fitzke. I FIND that a fair reading of the correspondence from H.O.’s
father could not have been made with personal knowledge of the facts and that he made
unsubstantiated accusations against Fitzke. On cross-examination, Tamburri admitted that
during her investigation, she did not know that long before the binder incident, H.O.’s
parents had asked the school’s administration to transfer H.O. out of Band class. 	I FIND
that the school administration denied and / or delayed granting H.O.’s and his parents’
wishes to transfer H.O. out of Fitzke’s Band class and thus kept H.O. in a class in which he
did not want to participate. I FIND that all the above reveals that when Tamburri found that
Fitzke committed an act of HIB, she did so assuming facts which were incomplete or

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incorrect, and based on supposition, rather than reliable evidence. I FIND that Tamburri
was incorrect when she assumed facts rather than seeking to confirm the complete and
true set of facts. I FIND that Tamburri improperly assumed that H.O. withdrew from the
Band class because of Fitzke’s alleged act of HIB. I FIND that H.O.’s withdrawal or transfer
out of Band class was not because of any statement or act attributable to Fitzke. 	I FIND
that Tamburri’s misunderstanding of the facts, notably those set forth above concerning
H.O. withdrawal from the Band class, was significant enough to interfere with her ability to
make sound findings of fact and valid conclusions in her HIB findings. I FIND that the last
line of Tamburri’s HIB Report (where she says, “It is founded”), which encapsulates her
findings of HIB against Fitzke, she based her findings on incomplete or incorrect facts and
on supposition rather than on reliable facts.
From all the above, I FIND the evidence to be insufficient to sustain Tamburri’s
determination that Fitzke created a hostile educational environment by interfering with his
education or by severely or pervasively causing him physical or emotional harm, which
would be a violation of the Third Secondary Prong of the HIB Law. I FIND the evidence to
be insufficient to sustain Tamburri’s determination that Fitzke interfered with the operation
of the school in violation of the Third Primary Prong.
On the subject of whether Fitzke said or did anything directed at H.O. which a
reasonable person should have considered physically or emotionally harmful to H.O. in
violation of the First Secondary Prong of the HIB Statute, I FIND that there is no evidence
or insufficient evidence supporting Tamburri’s determination that Fitzke’s words or his
actions were linked to or “referred to” H.O.’s ADHD disability. 	I FIND that Fitzke did not
harm H.O. by anything he said or did, either by commission or omission and so, did not
violate the First Secondary Prong.
I FIND that the evidence offered to sustain a violation of any of the Secondary Prongs
(N.J.S.A. 18A:37-14-(4) (a, b, and c) of the HIB Statute is not convincing and does not meet
the threshold of a preponderance of the credible evidence.

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FURTHER MISCELLANEOUS FINDINGS OF FACT
I FIND that in the context of the binder incident non-verbal cues, like written
instructions would have been useless for the purpose of locating the missing binder.
Moreover, I FIND that Fitzke did indeed utilize positive feedback/reinforcement when
dealing with the problem of H.O. not bringing his binder to class. At the close of the
discussion about the missing binder, Fitzke told H.O. “I love you”, which was most likely
than all alternatives, meant to reassure H.O. that all was well despite the fact that he came
to class unprepared for the lesson. I FIND that Tamburri misinterpreted the facts (Fitzke’s
use of the phrase, “I love you”) of the binder incident. In particular, I FIND that Tamburri
mistook Fitzke’s words to H.O. as sarcasm or ridicule.
I FIND that Tamburri misinterpreted Fitzke’s words and actions as being motivated,
intentionally or unintentionally, as targeting a protected characteristic of H.O., namely, his
ADHD disability, which would, if true, violate the First Primary Prong of the HIB Law. I FIND
that there is insufficient evidence supporting Tamburri’s finding that Fitzke’s words and
actions referred-back to H.O.’s ADHD disability. I FIND that Tamburri misinterpreted the
facts (the content of Fitzke’s words and actions) when she claimed that Fitzke referenced
H.O.’s ADHD disability. She based her finding mainly on H.O.’s statement that he was
fearful that his disability might have been revealed to his classmates, a fear that was
ultimately proven to be unfounded. I FIND that there is insufficient evidence to support
Tamburri’s conclusion that Fitzke did something that would reasonably cause H.O. to
become fearful that his 504 Plan was going to become known to his fellow students. I FIND
that Tamburri’s determination that H.O. reasonably feared for the disclosure of his 504 Plan
was unsupported by any facts and was illogical. For any “if-then” proposition (i.e., a cause-
and-effect proposition) to be valid, the conclusion must be the result of a valid (true)
premise. If the premise (cause) does not support the conclusion in all circumstances, then
the conclusion is not valid. 	To attempt to validate the truth of a conclusion without first
validating the premise by demonstrating a causative effect in all cases is to improperly affirm
the conclusion. That is why this logical fallacy is called “the fallacy of affirming the
consequent”. In the matter at hand, it was illogical for Tamburri to conclude (i.e., presume)
that Fitzke’s words and actions would necessarily result in the classmates finding out about

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H.O.’s 504 plan.
I FIND that Tamburri’s conclusion that Fitzke violated the Second Secondary Prong
of the HIB Law was improvidently based on H.O.’s answer to Tamburri’s questioning about
how he felt insulted and demeaned and how he became fearful that his ADHD disability
would become known to his classmates due to Fitzke’s words and actions during the binder
incident. Tamburri’s conclusion attributed H.O.’s feelings of discomfort, embarrassment or
fear as being caused only by Fitzke’s inquiry about the missing binder and Fitzke’s
supposed failure to follow the requirements of H.O.’s 504 Plan. It appears that Tamburri did
not give enough consideration to other possible causes. Tamburri did not state whether
there was any other possible causes for H.O.’s discomfort, embarrassment or fear, such as
H.O.’s realization that he was the cause of his own discomfort, embarrassment and fear
since he had not followed the school’s rules about being prepared for class. 	I FIND that
Tamburri’s conclusion was not logical because it failed to consider the possibility of other
causes of H.O.’s discomfort, embarrassment or fear. Instead, Tamburri engaged in a
logically fallacious “only cause” analysis of the facts, which ignored other, perhaps more
tenable, reasons for causing H.O. to feel discomfort, embarrassment or fear. To engage in
an “only cause” analysis and to fail to consider other causes, opens up the possibility that
the investigator’s own prejudicial or pre-conceived notions factored into her consideration
of whether or not the accused was guilty of committing HIB. I FIND that this would be an
unacceptable approach to determining guilt or innocence and I FIND that here it reveals a
serious flaw in Tamburri’s fact-finding and in her determination that Fitzke was guilty of HIB.
During her direct testimony, in answer to a question seeking to ascertain why
Tamburri believed that H.O. lost educational time, Tamburri responded by saying that H.O.
withdrew from Band class after the binder incident. I FIND that Tamburri’s conclusion that
Fitzke had committed an act of HIB was improvidently based on her assumption that H.O.’s
withdrawal from Band class was due to Fitzke’s words and / or conduct during the binder
incident. 	On cross-examination, Tamburri admitted that during her investigation, she did
not know that long before the binder incident, H.O.’s parents had asked the school’s
administration to transfer H.O out of Band class. 	I FIND that this reveals that Tamburri
made her determination based upon incomplete facts, incorrect facts, supposition, or

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misinformation, but certainly not on the actual facts.
I FIND that there is insufficient evidence supporting the finding that Fitzke created a
hostile educational environment for H.O. by interfering with his education or by severely or
pervasively causing him physical or emotional harm.
Having failed to explain what was inappropriate about searching for H.O.’s binder
and about the questions that Fitzke asked of H.O. and the other students during the binder
incident, I FIND that Tamburri did not offer an adequate foundation for her conclusion that
Fitzke had insulted and demeaned H.O. in violation of the Second Secondary Prong of the
HIB Law; she merely rendered her own unsubstantiated opinion and presumed that Fitzke
violated the Law. Tamburri hastily concluded that Fitzke “should have known” that his
inquiries were insulting and demeaning to H.O. I FIND that Tamburri did not state a reason
for her conclusion that Fitzke violated the Second Secondary Prong of the HIB Law; she
merely presumed that he had violated it. Tamburri’s method for determining guilt or
innocence on this point was flawed and therefore I FIND that her credibility is in doubt.
I FIND that, insofar as the information contained in the record pertaining to the binder
incident, it demonstrates there was a brief pause in the flow of the class, after which Fitzke
quickly resumed the lesson. 	I FIND that there is no evidence or insufficient evidence
supporting Tamburri’s finding that Fitzke’s words or his actions referred to H.O.’s ADHD
disability. On cross-examination, Tamburri admitted that she did not know how much time
was spent by Fitzke in questioning H.O. when he entered the class late or how much time
was spent on the search for H.O.’s binder. Given the facts in the record, and given the
context, 	I 	FIND 	that 	the 	amount 	of 	time 	spent 	was 	brief 	and 	I 	FIND 	that 	it 	was
inconsequential to the instructional flow of the class and did not disrupt or interfere with the
operation of the school.
I FIND that in the context of the binder incident non-verbal cues, like written
instructions would have been useless for the purpose of locating the missing binder.
Moreover, I FIND that Fitzke did indeed utilize positive feedback/reinforcement when
dealing with the problem of H.O. not bringing his binder to class. At the close of the

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discussion about the missing binder, Fitzke told H.O. “I love you”, which was most likely
than all alternatives, meant to reassure H.O. that all was well despite the fact that he came
to class unprepared for the lesson. 	I FIND that Tamburri misinterpreted the facts (Fitke’s
use of the phrase, “I love you”) of the binder incident. In particular, I FIND that Tamburri
mistook Fitzke’s words to H.O. as sarcasm or ridicule.
I FIND the fact that the Board of Education did not produce either of H.O.’s parents
and / or H.O. himself to testify at the Hearing to support its charge of HIB against Fitzke.
I FIND that the Board of Education prosecuted its case against Fitzke almost entirely
upon hearsay evidence.
ANALYSIS OF THE PARTIES’ RESPECTIVE POSITIONS
The Respondent maintains that the HIB investigation and the conclusion reached by
the Anti-Bullying Specialist and the subsequent affirmance by the Superintendent and the
BOE’s vote adopting the conclusion of the Anti-Bullying Specialist were conducted in
accordance with the procedures set forth in N.J.S.A. 18A:37-14, commonly referred to as
“The 	Anti-Bullying 	Bill 	of 	Rights 	Act” 	and 	were 	therefore 	conducted 	properly. 	The
Respondent’s case is based on the testimony of three witnesses, Tamburri, Macioci, and
Swanick 	and 	by 	various 	documents, 	including 	statements 	from 	students 	who 	were
interviewed by the Anti-Bullying specialist. Basically, the Respondent maintains that in this
matter, the Petitioner’s failure to follow H.O.’s 504 Plan provided all the proof necessary to
prove a violation of the Anti-Bullying Statute.
The Petitioner maintains that the Respondent’s basis for concluding that he bullied
H.O. was inappropriate because the District did not muster actual facts to prove that he
targeted H.O. due to his disability. Moreover the Respondent is incorrect when it asserts
that HIB exists whenever a teacher does not literally follow every point in a 504 Plan in each
and every set of circumstances. Petitioner argues that in the circumstances of the “binder
incident” he indeed followed the 504 Plan.

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APPLICABLE LAW
The HIB Statute
N.J.S.A. 18A:37-14 defines “Harassment, intimidation or bullying” as,
Any gesture, any written, verbal or physical act, or any electronic
Communication, whether it be a single incident or a series of
incidents, that is:
[1] reasonably perceived as being motivated either by any actual
or 	perceived 	characteristic 	such 	as 	race, 	color, 	religion,
ancestry, national origin, gender sexual orientation, gender
identity 	and 	expression, 	or 	a 	mental, 	physical 	or 	sensory
disability, or by any other distinguishing characteristic,
[2] that takes place on school property, at any school-sponsored
function, on a school bus, or takes place off school grounds as
provided for in N.J.S.A. 18A:37-15.3,
[3] that substantially disrupts or interferes with the orderly
operation of the school or the rights of other students and that:
a. 	A reasonable person should know, under the circumstances, will
have the effect of physically or emotionally harming a student or
damaging 	a 	student’s 	property, 	or 	placing 	a 	student 	in
reasonable fear of physical or emotional harm to his person or
damage to his property; or
b. 	Has the effect of insulting or demeaning any student or group of
students; or
c. 	creates a hostile educational environment for the student by
interfering 	with 	a 	student’s 	education 	or 	by 	severely 	or
pervasively causing physical or emotional harm to the student.”
Thus, to constitute HIB the gesture or action must contain all three primary (i.e.,
numerically-listed) elements plus at least one of the three alphabetized (“a”, “b” or “c”)
elements.
Board of Education’s HIB Decisions Are Afforded a Presumption of Validity
The decision of a local board of education should not be disturbed absent a finding

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that the action below was arbitrary, capricious, or unreasonable. T.B.M. v. Moorestown Bd.
of Educ., EDU 2780-07, Initial Decision (February 6, 2008), (citing Thomas Morris Twp. Bd.
of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965), aff’d, 46 N.J. 581 (1966)). In an appeal
of 	a 	District’s 	finding, 	with 	respect 	to 	an 	HIB 	investigation, 	the 	burden 	of 	proving
“unreasonableness” of Board action is on Petitioners. G.M. v. Roselle Park Borough Bd. of
Educ., 95 N.J.A.R.2d (EDU) 107, 109. Courts have held that “[w]here there is room for two
opinions, action is not arbitrary or capricious when exercised honestly and upon due
consideration, even though it may be believed that an erroneous conclusion has been
reached.” Bayshore Sewage Co. v. Dep’t of Envtl. Prot., 122 N.J. Super. 184, 199-200 (Ch.
Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). 	“Thus in order to prevail, the
petitioner must demonstrate that the Board acted in bad faith, or in utter disregard of the
circumstances before it.” 	T.B.M., see also, W.C.L. and A.L. ex rel L.L. v. Tenafly Bd. of
Educ., OAL Dkt. No. EDU 3223-12 (2013).
LEGAL ANALYSIS AND CONCLUSIONS
MISCELLANEOUS CONCLUSIONS
I 	have 	found 	that 	Fitzke 	gave 	consistent, 	plausible, 	reasonable, 	candid,
straightforward and otherwise reliable and credible testimony on his own behalf. I found no
plausible evidence that Fitzke disliked athletes, particularly basketball players. I found no
plausible evidence that Fitzke disliked disabled students, particularly those diagnosed with
ADHD, and I found that Tamburri’s HIB Investigation Report does not contain any factual
evidence that would support the accusation that Fitzke was motivated during the binder
incident by H.O.’s disability. Having found no plausible evidence that Fitzke was motivated
by any distinguishing characteristic and having found no plausible evidence that Fitzke was
motivated by H.O. being associated with athletics, particularly basketball, I therefore
CONCLUDE that Fitzke’s words and actions during the “binder incident” were not motivated
by any perceived characteristic of H.O. and that Fitzke’s words or actions were not
motivated by H.O. being associated with athletics, particularly basketball.

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On the subject of Fitzke’s adherence with H.O.’s 504 Plan, having found that Fitzke
employed the accommodations and strategies of H.O.’s 504 Plan (providing positive
feedback and reinforcement) by reassuring H.O. that all was well, I CONCLUDE that Fitzke
complied with H.O.’s 504 Plan on this point. Having found that providing “non-verbal cues
to help with focus and redirection” was a tool or strategy that would not have been useful in
the circumstances of the binder incident, I CONCLUDE that Fitzke did not fail to adhere to
H.O.’s 504 Plan on this point.
I have found that Fitzke followed the accommodations and strategies of the 504 Plan
when he offered “positive feedback and reinforcement” to H.O. by verbally reassuring him
that despite the absence of his binder, all was well. I have found that in the circumstances
of the binder incident, H.O.’s 504 Plan called for teachers to accommodate 504 Plan
students by employing “non-verbal cues to help with focus and redirection”. The non-verbal
cues would include the use of written instructions or helping the student re-focus on the
subject matter of the lesson. I have found that non-verbal cues would not have been useful
tools in the circumstances of the binder incident. This leads to the conclusion that when
Tamburri found that Fitzke committed an act of HIB when he failed to give H.O. “positive
feedback and reinforcement”, she simply overlooked the positive nature of his “I love you”
comment to H.O. It can also be concluded that using “non-verbal cues” would have been
pointless during the binder incident since the purpose of a non-verbal cue is to convey a
message by non-verbal means such as written instructions, tone of voice and facial
expressions in order to clarify, enhance or supplement a previous verbal or written
instruction. During the binder incident the issue was simply whether the binder could be
located or not. Had H.O. been offered as a witness by the Respondent, the matter could
have been further clarified, but Respondent chose not to use H.O. as a witness. 	Having
found that the use of non-verbal cues would not be relevant to or useful in the circumstances
of the binder incident. I therefore CONCLUDE that Tamburri was incorrect when she
determined that Fitzke committed HIB by failing to utilize non-verbal cues during the binder
incident. I also CONCLUDE that Fitzke did utilize positive reinforcement and therefore
Tamburri was incorrect when she determined that Fitzke committed HIB by failing to utilize
positive reinforcement.

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A 504 Plan Must Be Applied With Professional Discretion and Common Sense
I CONCLUDE that the application of the strategies and accommodations set forth in
a student’s 504 Plan should not be automatically required, and should be left to the sound
discretion of the teacher as he or she sees fit under the given set of circumstances and
without the fear of being charged with HIB when he or she decides to apply the strategies
and accommodations of the 504 Plan as applied with professional discretion and common
sense. 	I CONCLUDE that, in accordance with my FINDINGS OF FACT (i.e., that Fitzke
actually followed the 504 Plan) Tamburri’s factual basis for saying that Fitzke didn’t follow
the 504 Plan and consequently was guilty of HIB, vanishes, or put another way, it is refuted.
Having found that Fitzke did not refer to H.O.’s ADHD or to his anxiety disorder;
having found that Fitzke made no reference to forgetfulness or inattention; having found
that Fitzke merely took an opportunity to emphasize the need for all students to come to
class prepared for the lesson; having found that Fitzke’s search for the missing binder was
remedial in nature; and having found that Fitzke actually complied with the 504 Plan by
offering positive feedback to H.O., I CONCLUDE that Fitzke complied with the 504 Plan’s
mandate to provide positive feedback and reinforcement. I CONCLUDE that I must disagree
with the Anti-Bulling Specialist’s finding that Fitzke did not provide positive feedback and
reinforcement and her finding that Fitzke committed an act of HIB against H.O. 	I
CONCLUDE that while the 504 Plan called for the use of “non-verbal cues”, such non-verbal
cues would have been useless in the circumstances of the “binder incident”. 	The “binder
incident” did not call for wordless dialogue; it called for diligent and practical verbal inquiry
and a search for the missing binder. Fitzke employed both.
Conclusions Regarding the Prongs of the HIB Statute
Having found that there is no evidence (beyond Tamburri’s mere opinion) which links
or “refers back” from Fitzke’s words or actions to H.O.’s ADHD disability, I CONCLUDE that
Tamburri’s determination that Fitzke “referred back” to H.O.’s ADHD disability is without
support in the evidence presented. I CONCLUDE that Tamburri’s determination that Fitzke
“referred back” to H.O.’s ADHD disability is mere speculation on her part. Having found that

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there is no credible evidence in the record which proves that Fitzke was motivated by an
actual 	or 	perceived 	characteristic, 	or 	other 	distinguishing 	characteristic 	of 	H.O., 	I
CONCLUDE that the Respondent did not prove a violation of the First Primary Prong of the
HIB statute. Having concluded that Respondent failed to prove a violation of the First
Primary Prong, I CONCLUDE that Fitzke did not commit an act of HIB.
I CONCLUDE that the alleged “binder incident” occurred on school property, which
would satisfy the Second Primary Prong of the HIB Statute.
Having found that there is insufficient credible evidence in the record (such as a
substantial loss of time from learning) which supports the proposition that the orderly
operation of the school (or even the particular Band class) was substantially interrupted or
substantially interfered with by any of Fitzke’s words or actions, I CONCLUDE that the
Respondent did not satisfy the Third Primary Prong of the HIB Statute.
Having found that Fitzke did not refer to H.O.’s ADHD or to his anxiety disorder;
having found that Fitzke made no reference to forgetfulness or inattention; having found
that Fitzke merely took an opportunity to emphasize the need for all students to come to
class prepared for the lesson; having found that Fitzke’s search for the missing binder was
remedial in nature; and having found that Fitzke actually complied with the 504 Plan by
offering positive feedback to H.O., I CONCLUDE that Fitzke complied with the 504 Plan’s
mandate to provide positive feedback and reinforcement. I CONCLUDE that I must disagree
with the Anti-Bulling Specialist’s finding that Fitzke did not provide positive feedback and
reinforcement and her finding that Fitzke committed an act of HIB against H.O.
Having found that there was insufficient evidence to support the idea that Fitzke did
anything that would reasonably cause H.O. to be in fear of his 504 Plan becoming known
to his fellow students, I CONCLUDE that Tamburri’s conclusion that Fitzke caused H.O. to
suffer emotional harm was logically invalid.
Having found that Tamburri concluded that Fitzke insulted and demeaned H.O. in
violation of the Second Secondary Prong of the HIB Law without offering an adequate

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foundation for her conclusion, I CONCLUDE that the Respondent has not established that
Fitzke is guilty of insulting and demeaning H.O.
Having found that Fitzke did not create a hostile educational environment, nor did he
interfere with any student’s rights, I CONCLUDE that Tamburri’s determination that Fitzke
violated the Third Secondary Prong of the HIB Statute was incorrect and that the
Respondent has not established that Fitzke was guilty of an act of HIB.
Tamburri found that Fitzke’s use of some class time, pausing to question H.O. about
his missing binder and pausing to perform a search for H.O.’s missing binder, was a
substantial interruption and / or interference with that operation of the school or was a
substantial interference with the rights of students. 	Having found that Tamburri’s finding
was not grounded on sufficient facts, nor on sufficient objective standards, but was merely
founded on her own subjective opinion of what constitutes a disruption of or interference
with the orderly operation of the school, what degree of disruption or interference constitutes
a substantial disruption of or interference with the orderly operation of the school, I
CONCLUDE that neither Tamburri’s HIB Report nor her testimony established that Fitzke
was responsible for any disruption of or interference with the orderly operation of the school
during the “binder incident”. Thus, I CONCLUDE that the Respondent did not prove that
Fitzke violated the Third Primary Prong of the HIB Statute. Having found that Tamburri’s did
not adequately demonstrate an interference with any student’s rights, I CONCLUDE that
the Respondent did not prove that Fitzke violated the Third Primary Prong of the HIB
Statute.
Having 	found 	that 	the 	record 	does 	not 	provide 	sufficient 	factual 	support 	for
Tamburri’s determination that the First Primary Prong and the Third Primary Prong of the
HIB Law were violated, and having found that the record does not provide sufficient factual
support for Tamburri’s determination that any of the Secondary Prongs of the HIB Law were
violated, I CONCLUDE that Tamburri’s finding of HIB was incorrect and cannot be
sustained. I must therefore further CONCLUDE that Macioci’s affirmance of the findings in
Tamburri’s HIB Report, and the BOE’s affirmance of Macioci’s action were both in error and
cannot be sustained. Therefore, I CONCLUDE that the finding of HIB against Fitzke must

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be REVERSED. Moreover, insofar as the BOE affirmed Macioci’s finding of three incidents
of HIB, based on his misreading of Tamburri’s HIB Report, that the action of the BOE was
in error and cannot be sustained. I CONCLUDE that the BOE’s affirmance of Macioci’s
finding of three incidents of HIB must be REVERSED.
Having found that there is insufficient credible evidence in the record (such as a
substantial loss of time from learning) that supports the proposition that the orderly
operation of the school (or even of the particular Band class) was substantially disrupted or
substantially interfered with by any of Fitzke’s words or actions, I CONCLUDE that the
Respondent did not satisfy the Third Primary Prong of the HIB Statute.
Having found that H.O. was removed from / transferred out of Fitzke’s Band class at
the longstanding, pre-incident request of his parents, I CONCLUDE that no act of HIB
attributable to Fitzke caused or contributed to H.O.’s withdrawal from the Band class.
Having found that Tamburri improperly assumed that Fitzke’s conduct caused H.O.’s
withdrawal from Band class, I CONCLUDE that the facts on which she based her
determination were incorrect and thus her decision making on the ultimate issue of Fitzke’s
guilt or innocence of the HIB charge in the “binder incident” was flawed. I CONCLUDE that
Tamburri’s incorrect factual assumptions and her flawed decision making resulted in a
flawed HIB Report on which Superintendent Macioci and the BOE relied. The BOE’s
affirmance should not be disturbed unless there is good cause to find that it acted in an
arbitrary, 	capricious 	or 	unreasonable 	manner. 	I 	CONCLUDE 	that 	under 	these
circumstances, there is good cause to find that the BOE’s affirmance was unreasonable
because the BOE was led astray by incorrect factual assumptions and flawed decision
making in the writing of the HIB Report. I also CONCLUDE that the BOE was led astray by
Superintendent Macioci’s misreading of the HIB Report and his finding that Fitzke had
committed three acts of HIB instead of one. I CONCLUDE that the BOE’s affirmation of
Superintendent Macioci’s affirmance and acceptance of the HIB Report was in error.
Having found that the purpose of the time Fitzke used to search for the missing
binder was so that H.O. could participate in the day’s class lesson and not for any purpose

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that would be detrimental to the progress of the day’s lesson, I CONCLUDE that the
consumption of time was more likely to enhance the educational process than it was to
interfere with it. I CONCLUDE that the Respondent has not proved a violation of the First
Primary Prong or a violation of the Third Primary Prong, or a violation of any of the three
Secondary Prongs of the HIB Law. Having found that the record does not provide sufficient
factual support for Tamburri’s determination that the First Primary Prong and the Third
Primary Prong of the HIB Law were violated, and having found that the record does not
provide sufficient factual support for Tamburri’s determination that any of the Secondary
Prongs of the HIB Law were violated, I CONCLUDE that Tamburri’s finding of HIB was
incorrect and cannot be sustained.
The Petitioner Met His Burden of Proof
Having 	made 	findings 	of 	facts 	demonstrating 	that 	Tamburri 	reached 	her
determination of guilt without a reliable factual basis, I CONCLUDE that the Petitioner has
proved that the determination reached in Tamburri’s HIB Report is flawed because it lacks
a reliable basis. Reliance on an unreliable HIB Report is unreasonable. Likewise, the
Superintendent’s and the BOE’s reliance on the flawed HIB Report rendered their actions
unreasonable. “Unreasonableness” is one of the three characteristics by which the BOE’s
determination may be overturned. And so, I CONCLUDE that the BOE acted “in utter
disregard of the [factual] circumstances before it” when it adopted the factually unsupported
findings and the flawed reasoning that led to the determination of Fitzke’s guilt by the HIB
investigator and by the superintendent. Thus, I CONCLUDE that the “arbitrary, capricious
or unreasonable” criteria for disturbing the decision of the BOE has been met.
Macioci’s Use of Incorrect Facts Requires Reversal
Macioci did not read Tamburri’s investigative report correctly. If he had done so, he
would have realized that Tamburri found that an act of HIB occurred only in the “binder
incident”. Macioci would then have focused only on the “binder incident”. By focusing only
on the “binder incident” Macioci would have had a better chance to see the incident in a
more neutral manner and perhaps would have come to a different determination. In the

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eighth paragraph of his January 31, 2022 letter to Fitzke, Macioci says that Fitzke’s actions
towards H.O. “… led the victim to withdraw from your class and band altogether, which
conclusively demonstrates that your conduct interfered with the victim’s rights and had the
effect of insulting and demeaning him.” Macioci’s analysis of the facts did not “conclusively
demonstrate” that Fitzke’s conduct interfered with H.O.’s rights because Macioci assumed
facts that were incorrect. Macioci’s use of incorrect and incomplete facts was an error that
cannot be understated. Because Macioci’s decision was predicated on incorrect facts, I
CONCLUDE that it is unreliable and should therefore be rejected. Moreover, I CONCLUDE
that the Board of Education compounded Superintendent Macioci’s error when they, using
the same incorrect facts as Macioci, voted to affirm Macioci’s affirmance of the ABS’s
finding. Having found that Macioci’s affirmance of Tamburri’s HIB Report was incongruent
with the content of the HIB Report, having found that Macioci was unable to convince this
Tribunal that his January 31, 2022 letter found only the “binder incident” to be an act of HIB.
Having found that Macioci’s January 31, 2022 letter clearly stated that he found three acts
of HIB, and having found that the BOE relied on Macioci’s flawed affirmance of Tamburri’s
HIB Report, I CONCLUDE that the BOE acted unreasonably when it affirmed Macioci’s
factually flawed affirmance. When a Board acts unreasonably, its decision is no longer
afforded the presumption of validity. Here, the BOE affirmed a decision that was factually
flawed and therefore, I CONCLUDE that the BOE’s action must be and hereby is
REVERSED.
I must therefore further CONCLUDE that Macioci’s affirmance of the findings in
Tamburri’s HIB Report, and the BOE’s affirmance of Macioci’s action were both in error and
cannot be sustained. Therefore, I CONCLUDE that the finding of HIB against Fitzke must
be REVERSED. Moreover, insofar as the BOE affirmed Macioci’s finding of three incidents
of HIB, based on his misreading of Tamburri’s HIB Report, that the action of the BOE was
in error and cannot be sustained. I CONCLUDE that the BOE’s affirmance of Macioci’s
finding of three incidents of HIB must be REVERSED.

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ORDER
In keeping with the CONCLUSIONS set forth above, I hereby ORDER that the
BOE’s finding that Eric Fitzke-Grey violated N.J.S.A. 18A:37-14 and thereby committed an
act of Harassment, Intimidation, and Bullying against his student, H.O., must be and
hereby is REVERSED.
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.
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. 	Exceptions 	may 	be 	filed 	by 	email 	to
ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies and

OAL Dkt. No. EDU 05501-22
53
Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500. A copy of any exceptions must be sent to the judge and to the other parties.
January 7, 2026
DATE 	JOHN P. SCOLLO, ALJ, Retired on
recall
Date Received at Agency:
Date Mailed to Parties:
db

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APPENDIX
List of Witnesses
For Petitioner:
Eric Fitzke Grey, Petitioner
For Respondent:
Lisa Tamburri, ABS
Damion Macioci, Superintendent
Lisa Swanick, Director of Performing and Practical Arts
List of Exhibits
For Petitioner:
P-1 	H.O. 504 Plan In evidence
P-2 	H.O. Educational Impact &
Interventions of Teaching Strategies
(Rick Fitzke)
P-3 	9/30/21 Email Fitzke to Marisa
O’Keefe
P-4 	10/3/21 Email Micah O’Keefe to
Fitzke
P-5 	10/24/21 Email Chain Marisa O’Keefe
to Carly Cr In evidence
P-6 	11/12/21 Email Chain O’Keefe to
Fitzke
P-7 	Email Chain O’Keefe to Swanick In evidence
P-8 	01/01/22 Email Chain Micah O’Keefe
to Swanick and Purcell
In Evidence
P-9 	01/10/22 Email Macioci to School

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Board
P-10 	01/11/22 Interview Notes Fitzke and
Tamburi In evidence
P-11 	01/12/22 Letter Fitzke to Tamburi
P-12 	Pennsylvania Verification Form Email
Fitzke and Macioci
P-13 	Emails Fitzke to Band
Families/Members Dress Attire and
Concert Reminders
P-14 	Photo H.O. Sneakers
P-15 	Letters to Fitzke from West Essex
Administrators Congratulations for
Band Performance
P-16 	Thank You Letters Students to Fitzke
P-17 	Thank You Letters to Fitzke
P-18 	Observation Reports Fitzke 2000-
2021
P-19 	Swanick Deposition In evidence
P-20 	12/2/21 Email “Possible Change
for Spring”
For Respondent:
Number 	Description 	Date
R-1 	Letter, Macioci to Fitzke re: suspended with pay
pending outcome of investigation
1/6/2022
R-2 	HIB Investigation Report 	1/20/2022 	In evidence
R-3 	Letter, Macioci to Fitzke re: results of investigation
were shared with Board
1/31/2022 	In evidence
R-4 	Letters, Macioci to Fitzke and Fogarty to Ricci re: 	Feb. 2022 	In evidence

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Board hearing
R-5 	Letter, Kida to Fitzke re: results of Board hearing 	3/14/2022 	In evidence
R-6 	Petitioner’s Retirement Letter 	3/21/2022
R-7 	Petitioner’s Petition of Appeal 	6/9/2022 	In evidence
R-8 	Respondent’s Answer and Affirmative Defenses 	6/28/2022
R-9 	Prehearing Order 	7/22/2022
R-10 	Petitioner’s Interrogatory Responses 	8/31/2022
R-11 	Deposition Transcript – Damion Macioci 	9/16/2022 	In evidence
R-12 	Deposition Transcript – Lisa Tamburri 	9/16/2022 	In evidence
R-13 	Deposition Transcript – Petitioner Eric Fitzke Grey 	10/17/2022 	In evidence
R-14 	Prior 	Inappropriate 	Conduct 	(for 	background
purposes only)
1998, 	2007,
2016, 	2019,
2021
R-15 	Email string between Swanick, Rizzo, Fitzke, and
Shroyer 	re: 	hold 	off 	on 	communication 	re:
performance
12/10/2021
R-16 	Fitzke email re: suggest moving H.O. from his class 	12/6/2021 	In evidence
R-17 	H.O. Interview 	1/6/2022 	In evidence
R-18 	Fitzke Summary 	Undated 	In evidence
R-19 	Text Messages between Fitzke and Vallone 	Jan. 	2022 	–
Aug. 2022
In evidence
R-20 	Text Messages between Fitzke and Rizzo 	Jan. 	2022 	–
Jan. 2023
In evidence