Alfonso Mastrofilipo v. Board of Education of the Borough of Lodi, Bergen County, 11/29/2021, (#302-21)

302-21
New Jersey Commissioner of Education
Final Decision
Alphonso Mastrofilipo, Jr.,
Petitioner,
v.
Board of Education of the Borough of Lodi,
Bergen County,
Respondent.
Synopsis
In this consolidated matter, the petitioner – a former member of the respondent Board of
Education, who had resigned to run for another public office – alleged that his rights were violated
when the Board filled two vacancies without interviewing the petitioner for the positions.
Petitioner claimed that the Board lacked a quorum when it voted to fill the two Board vacancies and
further alleged that the Board violated the New Jersey Election Law by not interviewing petitioner
nor considering his application as a candidate to fill one of the vacancies. The Board denied
petitioner’s allegations. The parties filed cross motions for summary decision.
The ALJ found, inter alia, that: there is no genuine issue as to any material fact here, and the
matter is ripe for summary decision; petitioner did not have a legal entitlement to be interviewed
for a vacancy on the Board; the Board did not violate any law or otherwise abuse its discretion in
declining to grant petitioner an interview for one of the two vacancies; and the Board’s bylaws
cannot supplant the common law quorum rule, under which the Board had a quorum when it voted
to fill the vacancies on the Board. Accordingly, the ALJ granted the Board’s motion for summary
decision and dismissed the petition.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusion in this matter.
Accordingly, the Board’s motion for summary decision was granted, and the consolidated petitions
of appeal were dismissed
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

OAL Dkt. Nos. EDU 00290-21 and EDU 09416-20 (Consolidated)
Agency Dkt. Nos. 208-9/20 and 210-9/20
New Jersey Commissioner of Education
Final Decision
Alfonso Mastrofilipo, Jr.,
Petitioner,
v.
Board of Education of the
Borough of Lodi, Bergen County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge (ALJ) that petitioner
does not have a legal entitlement to be interviewed for a vacancy on the Board, and that the Board did
not violate any law or otherwise abuse its discretion in declining to grant petitioner an interview. The
Commissioner further concurs with the ALJ that the Board’s bylaws cannot supplant the common law
quorum rule, under which the Board had a quorum when it voted to fill the vacancies on the Board.
Accordingly, the Board’s motion for summary decision is granted, and the petitions of appeal are
hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
302-21
November 29, 2021
December 1, 2021

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING RESPONDENT’S
MOTION FOR SUMMARY
DECISION
(CONSOLIDATED)
OAL DKT. NO. EDU 09416-20
AGENCY DKT. NO. 210-9/20
ALFONSO MASTROFILIPO JR.,
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF LODI, BERGEN COUNTY,
Respondent.
____________________________ 	and
OAL DKT, NO. EDU 00290-21
AGENCY DKT. NO. 208-09/20
ALFONSO MASTROFILIPO JR.,
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF LODI, BERGEN COUNTY,
Respondent.
_______________________________________
Alfonso Mastrofilipo Jr., petitioner, pro se
Joseph A. Garcia, Esq., for respondent (Cleary, Giaccobe, Alfieri, Jacobs,
attorneys)

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
2
Record Closed: June 10, 2021 	Decided: October 14, 2021
BEFORE ERNEST M. BONGIOVANNI, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner, Alfonso Mastrofilipo Jr. (Petitioner or Mastrofilipo) alleges his rights
were violated when, on or about September 16, 2020, respondent the Board of Education
of Lodi (BOE) filled two vacancies on the Board, without first interviewing him for the
positions. On September 28, petitioner filed two Petitions of Appeal with the New Jersey
Department of Education, one alleging that the BOE lacked a quorum when it voted to fill
two vacancies, the other alleging the Board violated the New Jersey Election Law by not
interviewing petitioner nor considering his application as a candidate to fill one of the two
vacancies. On September 29, 2020, Mastrofilipo filed a Petition for Relief on an Emergent
Basis and sought to enjoin the Board from filing the vacancies pending adjudication pf his
Petition of Appeal. On October 6, 2020, the New Jersey Department of Education, Office
of Controversies and Disputes, transmitted this case to the Office of Administrative Law
(OAL) for hearing as a contested case and for resolution of the petitioner's motion for
emergency relief. The case was received by the OAL on October 8, 2020 and was heard
the next morning October 9, 2020. 	By Order dated October 13, I dismissed the
petitioner’s request for Emergent Relief, finding among other things that petitioner failed
to establish a likelihood of prevailing on the merits. By Consent Order dated March 31,
2021, the two matters were consolidated.
On this underlying appeal and request by both sides for summary decision, as in
the application for emergent relief, the petitioner alleges that the BOE’s appointments
filling the two vacancies were unlawful 1) because he was not permitted to be interviewed
as a prospective possible BOE member and 2) there was no quorum present when the
two vacancies were filled. Respondent denies all the allegations, claims there are no real
factual disputes, and filed electronically a Motion for Summary Decision on July 20, 2020.
Petitioner also filed a motion for Summary Decision (Cross Motion) on July 23, 2020. The
parties elected to proceed summarily agreeing to and signing a lengthy Joint Stipulation

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
3
of Facts. Briefs were submitted and argument was heard on June 10, 2021, at which time
the record closed.
I agree with the BOE and grant summary decision in its favor and dismiss the
consolidated complaint.
FACTUAL DISCUSSION
While there were additional facts stipulated to, the most relevant and probative to
concluding the legal issues presented are the following stipulated facts1 are:
1. 	On August 31, 2021, petitioner resigned his seat on the BOE, as a condition to
his submitting a nominating petition to run for a new three-year term on the Lodi
Borough BOE at the upcoming election in November 2020.
2. 	The Lodi Borough BOE is a nine member Board.
3. 	At the scheduled time for the September 16, 2020 meeting, three members of
the BOE, Kerry Mastrofilipo, Jeffrey Telep and Joseph Ramos were absent from
said meeting.
4. 	With four of the remaining seven BOE trustees present at said meeting, the BOE
declared a quorum was satisfied under the common law quorum rule.
5. 	In view of the two vacancies, and the absence of the three remaining BOE
members from the meeting, the BOE attorney advised the BOE that Bylaw 163
did not govern the quorum determination. Rather the BOE Attorney counseled
the BOE that the common law quorum rule applied and a quorum was
determined to exist pursuant to the common aw quorum rule.
1 Some of the stipulated “facts” are actually legal arguments or conclusions which I cannot find to be facts. I have
also edited some of the stipulated facts for clarity or brevity. Otherwise, I have adopted and find only the facts that
have been so stipulated.

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
4
6. 	Although BOE Bylaw 163 requires five BOE members for a quorum, Bylaw 140
also provides for a nine member board which did not exist on September 16,
2020.2
7. 	The BOE Trustees in attendance at the at the September 16, 2020 Work
Session determined that a quorum was present , and so proceeded to the
meeting.
8. 	The BOE’s September 16, 2020 Work Session certified minutes note that the
BOE complied with its own policies and that a quorum was present.
9. 	In accordance with Bylaw 143, the BOE posted public notice of two BOE
vacancies and advised that interested parties must submit their resumes to the
BOE Secretary/Business Administrator James R Selesky (“Selesky”) on or
before Thursday September 10, 2020, at 4:00 p.m.
10. On or about September 10, 2020, at 3:55 p.m. petitioner sent an email to
Selesky notifying him and the BOE in his “interest” in filling one of the vacancies
as stated on the BOE’s website. The email said in relevant part:
a. 	“I have 3 years experience as a Former Lodi Board
Trustee with extensive knowledge of Bylaws and Roberts
Rules of Order and Procedures. 	I have ten years as a
PTA/PTO 	Member 	and 	many 	school 	and 	no-school
events. 	I have years of experience as a coach and
working with [C]hildren. 	I have been told by many that I
am a people person, I look forward to volunteering my time
to improve Lodi Education” (Exhibit A)
11. Selesky concluded that the petitioner did not satisfy the requirement of
submitting a resume by 4:00 p.m. on September 10, 2020.
12. On September 10, 2021, at 10:31 p.m., petitioner sent an email to Selesky
attaching a document entitled “Al Mastrofilipo resume”, and stated in the email
“Here is the deficiency you asked me I rectify, which includes my resume.
However, Selesky denies ever requesting Petitioner rectify a deficiency.3
2 The Board consisted at that time of seven members with two vacancies.
3 The two statements contradict each other and therefore are not useful as stipulated “facts”

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
5
13. 	On September 11, 2020, at 7:03 a.m. Selesky emailed petitioner regarding the
interview process and the qualifications to be a school board member in New
Jersey, in accordance with BOE Bylaws and N.J.S.A. 18A:12-1
14. Petitioner emailed Selesky on three separate occasions (September 11, 2020,
September 15 and September 16, 2020 inquiring as to his interview time slot.
15. On September 16, 2020, Selesky informed petitioner that he had failed to meet
the qualifying criteria (of submitting a resume no later than 4:00 p.m. on
September 10, 2020) to be considered as a candidate to fill one of the two
vacant BOE slots.
16. A BOE member cannot occupy two seats at the same time.
17. Joseph Bigica was interviewed for a vacant BOE trustee position.
18. Joseph Bigica appeared on the ballot for membership to the BOE during the
November 3, 2020 general election.
19. Following his interview, Joseph Bigica was not selected to fill a vacant BOE
trustee position.
20. The underlying basis as to why each candidate was or was interviewed was not
recorded at the September 16, 2020 Work Session certified meeting minutes.
21. Petitioner filed for an Advisory opinion with the School Ethics Commission
alleging three BOE trustees have conflicts of Interest. By Advisory Opinion A-
18-20, sated September 29, 2020, the School Ethics Commission determined
that the identified BOE trustees do not have per se conflicts in participating in
discussions and voting on the individuals to fill the vacant BOE seats.
LEGAL ANALYSIS
Both petitioner and respondent move for summary decision on the basis of the
Joint Stipulations of Fact and Joint Exhibits A and B.
Pursuant to N.J.A.C. 1:1-12.5(b), a summary decision “may be rendered if the
papers and discovery which have been filed, together with the affidavits, if any, show that
there is no genuine issue as to any material fact challenged and that the moving party is
entitled to prevail as a matter of law.” 	This rule is substantially similar to the summary

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
6
judgment rule embodied in the New Jersey Court Rules, R. 4:46-2. 	See Judson v.
Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). 	In connection therewith,
all inferences of doubt are drawn against the movant and in favor of the party against
whom the motion is directed. Id. at 75. In Brill v. Guardian Life Insurance Co., 142 N.J.
520 (1995), the New Jersey Supreme Court addressed the appropriate test to be
employed in determining the motion:
[A] determination whether there exists a ‘genuine issue’ of
material fact that precludes summary judgment requires the
motion judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable
to the non-moving party, are sufficient to permit a rational fact
finder to resolve the alleged disputed issue in favor of the non-
moving party. 	The ‘judge’s function is not . . . to weigh the
evidence 	and 	determine 	the 	truth 	of 	the 	matter 	but 	to
determine whether there is a genuine issue for trial’.
[Brill, 142 N.J. at 540 (citations omitted).]
The Motion judge must “consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party…are sufficient to permit
a rational fact finder to resolve the alleged dispute in favor of the non-moving party. Brill
v. Guardian Life Insurance Co., 142 N.J. 520 (1995). Even if the non-moving party comes
forward with some evidence, the judge must grant summary decision if the evidence is
“so one sided that [the moving party] must prevail as a matter of law” Id. at 536.
Actions of a board of education are presumed legitimate and will be upheld by the
Commissioner of Education “absent a showing of bad faith, illegal motive or a lack of a
rational basis.” Raimondi v. Westwood Regional Board of Educ., OAL Docket No. EDU
5904-04, 2005 W.L. 2428743*5. 	(Initial Decision September 26, 2005), aff’d 2007 W.L.
2247246 (App. Div 2007). 	In challenging these actions, the petitioner bears the burden
of proving the Board’s actions were unlawful arbitrary capricious or unreasonable.
Respondent contends that in all respects the BOE’s actions were lawful and
violated no law, regulation or policy, nor anyone’s rights. Respondent argues there are
no genuine material issues of fact, and that three distinct identifiable issues, when

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
7
considered in light of the undisputed facts, entitle the BOE to a decision for Respondent
as a Matter of Law. Petitioner also concedes what the three issues are and that there are
no genuine issues of fact among them, but contrarily, he is entitled to summary decision.
In light of that, 	I agree that there are no genuine issues of material fact, and for the
reasons that follow, that the Respondent is entitled to summary decision in its favor
1. 	The Quorum Requirement
Respondent argues that pursuant to the common law quorum role “ a majority of a
municipal governing body constitutes a quorum ; and in the event of vacancy, a quorum
consists of a majority of the remaining members.” Citing M.J. Law Enf’t Comm’n v
Divincenzo, 445 N.J. Super 187, 199 (App.Div. 2016) which quotes Ross v, Miller, 115
N.J. L. 1935. As noted in Divincenzo, a vacant position “is not counted to determine what
the legal quorum is. Id. at 200. Absent an applicable statute to the contrary, respondent
argues, the common law quorum rule applies, citing Bihilla v. Local Finance Bd., 2016
W.L. 3408396 #2 (App. Div. 2016).
If Respondent is legally correct on this issue, then a lawful quorum existed when
the Board filled the two vacancies on September 16, 2020, because there is no dispute
that the Lodi Board of Ed is a 9 member Board, that is, a “full board” consists of 9
members. However at the time of the September 16, 2020 meeting, the Board had only
seven members because of two vacancies. 	If the common law rule applies, the Board
had a quorum at that time because four BOE members (trustees) were present.
Petitioner however bases his argument on Lodi BOE Bylaw 163, which provides
that a quorum shall consist of five Board members, as well as State of New Jersey Office
of the Attorney General Opinion # 3, on Edgewater Park Twp. Committee v. Edgewater
Park Housing Authority 187 N.J. Super 588 (1982) and Prezlak v. Padrone, 67 N.J. 95,
102 (Law Div. 1961).
I agree with respondent however, that Board Bylaw 163 which states that a quorum
consists of five members cannot supplant the common law quorum rule which is a matter
of State law. 	I agree that since the Board’s Bylaw was not specifically authorized by a

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
8
statute, the bylaw if enforced would unduly prohibit the BOE from exercising its authority
and its lawful responsibility to govern, by in effect requiring a supermajority of Board
members to be present when all meetings and all actions are taken. State law makes it
clear that in absence of a statute which in relatively few instances require a supermajority
vote, almost all actions by a local BOE may be taken by a simple majority of those present
at a meeting. Respondent properly cites to Matawan Regional Teachers Ass’n v.
Matawan-Aberdeen Regional School Dist. Bd. of Educ 233, N.J. Super 504, 506-508
(App.Div. 1988) which held that the Board was not bound by its bylaw requiring a
supermajority (in this case two-thirds) for a vote to close and sell a school, where no such
enabling statute authorized that quorum requirement. Here with no enabling statute
whatsoever requiring certain numbers of Board members to be present when taking
essential actions such as determining the composition of the Board when vacancies are
created, the common law must be presumed to apply. 	Moreover, unintended chaos
would occur if individual boards set their own unique numerical requirements for votes to
fill vacancies. 	For example, a nine person Board with two vacancies which had a 8
person quorum requirement could not conduct business at all (except by the seldom used
doctrine of necessity) and it would be a common occurrence where Boards with extra
majority requirements for conducting general business could be effectively governed by
the Board members in the minority who simply chose to be absent or even resign and
thereby prevent the majority from taking action which the minority disfavor.
2. 	Petitioner’s Eligibility for Office
Respondent argues that petitioner was not eligible for appointment on September
16, 2021, because he was a candidate for office to the same Board for a term years.
They cite Kuken v Guzmen, 1990 S.L.D. 527 	where the Commissioner of Education
determined a a nominating position to stand for another term for a different term of years
(i.e. a term other than seeking reelection to the same office) trustee with time remaining
on his term must resign before submitting his nominating petition.
Although petitioner did not counter this point with another argument, I find there is
not enough in the record to determine whether petitioner was disqualified to fill out the
balance of one of the terms of the two vacancies simply because he was nominated for

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
9
a longer term. 	The Board clearly thought candidates for office should not be appointed
because they also, as noted in the Joint Stipulation of facts refused to appoint another
such would be appointee who was, like Mastrofilipo also running for office, but who was
interviewed and considered for the position. But the Board’s preferences are not enough
to as a matter of law, to disqualify the would be appointee. To the respondent’s point that
Mastrofilipo when he was a Board member was forced to resign before submitting his
petition to stand for office for a longer term, then logically, if petitioner had been appointed
at the September 16, 2020 meeting he could have been compelled to withdraw his
candidacy as a condition to assuming his office. 	I therefore conclude that at this stage
there is insufficient proof that petitioner was disqualified to fill the vacancy simply because
he stood for office in the upcoming election for another, longer term.
3. 	The Board’s requirements for filling vacancies.
The Board clearly and deliberately chose not to interview petitioner for one of the two
vacant positions. 	As both sides agree, there is no written record of why the Lodi BOE
chose not interview Mastrofilipo for the position, and to speculate on such possible
reasons would do neither side any good. 	The Board did require any person wanting to
be considered to submit a resume by the September 16, 2020, 4 P.M. deadline.
Mastrofilipo could argue that his email expressing interest in the position, where he wrote
about some of his qualifications for the job could constitute a resume, and the email was
received before the September 16, 2020, 4:00 p.m. deadline, albeit by five minutes. One
wonders why Mastrofilipo would wait so long and why he would submit something less
than the usual resume if he sought serious consideration. 	His email neglects basic
information such as his home address, particularly important as candidates to fill
vacancies in a municipal Board of Education only qualify if they have resided in the district
for at least one year. 	Further Mastrofilipo’s submission at 10:31 p.m., 6 hours after the
deadline, of a resume, seems a tacit admission, as Mastrofilipo said, his application for
the vacancy was deficient.
However, petitioner’s argument need not be decided over what constitutes a
resume. 	The fact is, and what Mastrofilipo protests, is that he was never given an
interview by the BOE to consider his qualifications. 	However, no statute, regulation,

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
10
Board policy, or legal principle has been cited, nor can be found, which holds that every
person, otherwise qualified to serve on a local Board of Education has a right to be
interviewed for the position. 	Since the BOE has the right to fill the vacancy among the
presumably great number of legally qualified residents of Lodi (who numbered 24,136 in
the 2010 Census), it is axiomatic that they have the broadest discretion in determining to
whom 	the 	Board 	wishes 	to 	give 	serious 	consideration 	to 	fill 	a 	vacancy, 	which
consideration 	assumes might include granting an interview. 	As petitioner certainly has
not raised even a hint of any invidious discrimination against him, in this case, the BOE
had every right to ignore petitioner’s interest or application for the vacancy and to refuse
to grant him an interview. As for any due process issue, only Bylaw 143 is implicated in
terms or helping to determine what process Mastrofilipo, and any other would-be
candidate for the vacancy had to expect. But here, BOE Bylaw 143 merely requires the
BOE give public notice of the vacancy and “invite any qualified person to submit a written
request for consideration…” 	The BOE 	followed its policy by the posting 	of the public
notice of the two vacancies. 	The Bylaw merely requires the invitation of the written
requests to fill the vacancies. It does not require the Board to grant interviews. Therefore,
the BOE did not violate its Bylaw 143.
CONCLUSIONS OF LAW
Summary decision may be granted when the papers and discovery that have been
filed show that there is no genuine issue as to any material fact challenged and the moving
party is entitled to prevail as a matter of law. N.J.A.C. 1:1-12.5(b). No evidentiary hearing
need be held if there are no disputed issues of material fact. Frank v. Ivy Club, 120 N.J.
73, 98, cert. denied, 498 U.S. 1073 (1991). “When the evidence is so one-sided that one
party must prevail as a matter of law, the [tribunal] should not hesitate to grant summary
[decision].” 	Della Vella v. Bureau of Homeowner Prot., New Home Warranty Program,
CAF 17020-13, Initial Decision (March 31, 2014), adopted, Comm’r (May 12, 2014),
http://njlaw.rutgers.edu/collections/oal/ (quoting Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 529 (1995)).
Where, as here, no further evidentiary hearing need be held as there are disputed
issues of material fact, and the burden of proof rests with the petitioner, and considering

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
11
the undisputed proofs, I CONCLUDE respondent is entitled to summary decision as a
matter of law. I agree that with respondent’s contention that there is no evidence that the
BOE abused its discretion, and further that petitioner’s claims that a quorum did not exist
for the BOE’s September 16, 2020 meeting and/or that he should have been granted an
interview before the Board chose persons to fill the vacancies, have no basis in law or
fact. Nor is there any reasonable argument to deny the Board’s reasonable exercise of
discretion as exemplified in the agreed upon stipulated facts. 	I therefore CONCLUDE
that petitioner’s requested relief must be DENIED and his Complaint be DISMISSED.
ORDER
I hereby ORDER that respondent’s requested motion to summary decision is
GRANTED, and accordingly, these matters are hereby DISMISSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 09416-20 and 00290-21 (Consolidated)
12
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the
judge and to the other parties.
October 14, 2021
DATE 	ERNEST M. BONGIOVANNI, ALJ
Date Received at Agency: 	10/14/21
Date Mailed to Parties: 	10/14/21
EMB/id