R.P., on behalf of minor child, S.P. v. Board of Education of the Westwood Regional School District, Bergen County, Jill Mortimer, Frank Connelly, Heather Goffe, Michael Kenduck, Chris Mello, Dan Vivino, Shelley Laforgia, Margaret Montenare, Thomas Spelda, and Andrew Phillips, 5/6/2024, (#180-24)

180-24
New Jersey Commissioner of Education
Final Decision
R.P., on behalf of minor child, S.P.,
Petitioner,
v.
Board of Education of the Westwood Regional
School District, Bergen County, Jill Mortimer,
Frank Connelly, Heather Goffe, Michael Kenduck,
Chris Mello, Dan Vivino, Shelley Laforgia, Margaret
Montenare, and Andrew Phillips,
Respondents.
Synopsis
Petitioner appealed a May 2, 2023 final decision by the respondent Board which confirmed that acts of
harassment, intimidation, and bullying (HIB) had been perpetrated against his minor son at Westwood
Regional High School on October 4 and October 5, 2022. 	Petitioner’s appeal, which was filed on
November 6, 2023, sought financial damages from the Board in addition to the discipline imposed upon
the students involved in the HIB incidents. The Board filed a motion to dismiss, contending that the
petition was submitted more than 90 days after the issuance of the final decision in this matter and is
therefore untimely pursuant to N.J.A.C. 6A:3-1.3(i).
The ALJ found, inter alia, that: the timeline of events in this case is effectively undisputed; pursuant to
N.J.A.C. 6A:3-1.16, petitioner’s appeal was required to be filed no later than July 31, 2023, which was
90 days from the issuance of the Board’s final decision in the HIB matter; however, petitioner’s appeal
was not filed until November 6, 2023, after his attorney perfected the submission by providing proof of
service to the Board; even if the appeal had been marked “FILED” on the date it was received by the
Department of Education’s Office of Controversies and Disputes, i.e., August 9, 2023, it was still received
beyond July 31, 2023; and there is insufficient evidence to demonstrate that the ninety-day deadline as
delineated in N.J.A.C. 6A:3-1.16 should be relaxed. Accordingly, the ALJ granted the Board’s motion to
dismiss and ordered the petitioner’s appeal dismissed.
Upon review, the Commissioner concurred with the ALJ that the petitioner’s appeal was untimely filed.
Accordingly, the Initial Decision was adopted as the final decision in this matter, and the petition of
appeal was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been
neither reviewed nor approved by the Commissioner.

180-24
OAL Dkt. No. 14011-23
Agency Dkt. No. 219-8/23
New Jersey Commissioner of Education
Final Decision
R.P., on behalf of minor child, S.P.,
Petitioner,
v.
Board of Education of the Westwood
Regional School District, Bergen County,
Jill Mortimer, Frank Connelly, Heather Goffe,
Michael Kenduck, Chris Mello, Dan Vivino,
Shelley Laforgia, Margaret Montenare, and
Andrew Phillips,
Respondents.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the petitioner pursuant to N.J.A.C. 1:1-18.4, and the Board’s reply
thereto, have been reviewed and considered.1
In this matter, petitioner challenges the May 2, 2023 harassment, intimidation, and
bullying (HIB) determination made by the Westwood Regional School District Board of
Education (Board) regarding HIB actions perpetrated by five Westwood Regional High School
students against petitioner’s minor child on October 4 and October 5, 2022.
Petitioner, through his attorney, mailed the petition of appeal on July 28, 2023; it was
received by the Office of Controversies and Disputes (C&D), which processes petitions on behalf
1 Petitioner filed a sur-reply to the Board’s reply, which was not considered by the Commissioner as sur-replies are
not permitted under the applicable regulations.

2
of the Commissioner, on August 9, 2023. That same day, C&D emailed petitioner’s attorney to
inform him that he must provide proof that the petition was served on the Board and the full
names of petitioner and his minor child. No response was received, and a follow-up email was
sent by C&D to petitioner’s attorney on August 28, 2023, advising petitioner’s attorney that the
petition would not be processed until C&D received proof of service and the full names of the
parties. 	Again, no response was received, and a formal deficiency notice was emailed and
mailed to petitioner’s attorney on October 2, 2023. Petitioner’s attorney mailed the proof of
service and names of the parties on October 27, 2023, and it was received by C&D on
November 6, 2023.
Following the Board’s motion to dismiss, the Administrative Law Judge (ALJ) concluded
that the petition of appeal was untimely pursuant to N.J.A.C. 6A:3-1.3(i). The ALJ found that the
petition of appeal was due by July 31, which was 90 days after the Board’s disclosure of its HIB
determination. However, the petition was not received by C&D until August 9. Furthermore,
the petition was deficient and, despite being notified of same, petitioner’s attorney did nothing
to address the deficiency until C&D advised on October 2 that the matter would be
automatically closed if proof of service was not provided by October 31. 	The ALJ noted that
petitioner’s attorney did not send the proof of service until October 27, and purportedly did so
“By Priority Express Mail,” although no such service is offered by the United States Postal
Service (USPS), and the mailing included no tracking information or proof of delivery. 	When
C&D finally received the proof of service on November 6, 188 days had passed since the Board’s
determination, and 89 days had passed since petitioner’s attorney was first notified of the
deficiency in the original filing. 	The ALJ found that “this was not timely under any

3
interpretation of ‘timely submitted’.” Initial Decision at 16 (internal citation omitted). Finally,
the ALJ concluded that there was no basis to relax the 90-day deadline. 	Accordingly, the ALJ
granted the Board’s motion to dismiss the petition.
In his exceptions, petitioner argues that mail sent on July 28 should have been received
the Department of Education (DOE) by July 31, and that if the DOE did not receive the appeal
until after that date, there must have been some sort of delay by the USPS or a backlog at the
DOE, for which petitioner should not be held responsible. Petitioner contends that the August
2023 email notices sent by C&D did not provide a deadline to provide proof of service and,
when a deadline was ultimately given, petitioner complied with it.
In reply, the Board urges the Commissioner to adopt the Initial Decision in its entirety
and to dismiss the petition of appeal as untimely.
Upon review, the Commissioner concurs with the ALJ that the petition of appeal was
untimely filed. 	Initially, the record demonstrates that petitioner’s original submission was
untimely. Although petitioner asserts that his mailing of July 28 should have been received by
July 31, the fact remains that the petition must be filed by the due date and filing means
“receipt . . . by an appropriate officer of the Department,” as provided for in N.J.A.C. 6A:3-1.2.
Mailing a petition via regular mail on a Friday, when it must be received by Monday, risks
running afoul of the deadline. Petitioner could have availed himself of faster mail services to
ensure receipt by July 31, or taken advantage of the recommended option to file by electronic
mail, which is permitted by N.J.A.C. 6A:3-1.2, but he neglected to do so.2
2 Indeed, C&D’s website clearly indicates that “it is strongly encouraged that all filings and general correspondence
be submitted electronically.” See https://www.nj.gov/education/cd/ (last visited April 10, 2024).

4
Furthermore, petitioner’s original submission was deficient, such that even if it had
been received by July 3, it would not have been filed on that date. 	N.J.A.C. 6A:3-1.3 clearly
requires that a petitioner must file proof of service along with the petition and supporting
materials. In the absence of proof of service, a petition is not “filed.” There is no dispute here
that petitioner failed to provide proof of service with his original filing.3 The petition was filed
by petitioner’s counsel, who should have been well aware of the regulatory requirements;
proof of service is not a requirement unique to the DOE or the administrative dispute resolution
process. 	Moreover, 	petitioner 	offers 	no 	explanation 	for 	his 	failure 	to 	respond 	to
communications from C&D regarding the deficiency for almost three months.4
The Commissioner rejects petitioner’s argument that by failing to list a specific deadline
in its communications, C&D was invoking N.J.A.C. 6A:3-1.16 and was relaxing the rules for proof
of service. To the contrary, all communications from C&D indicated that the petition would not
be processed until proof of service was received.
Nor is this matter similar to T.R. and T.R. v. Bd. of Educ. of the Bridgewater-Raritan Reg.
Sch. Dist., Commissioner Decision No. 269-13 (decided July 22, 2013). 	In T.R., a deficient
petition was received by the DOE within 90 days of the date of the decision at issue, and the
DOE notified the petitioners that if the deficiencies were timely corrected, that date would be
deemed the filing date of the appeal. 	Here, the original petition was not received within 90
days of the date of the decision at issue. Furthermore, in this matter, C&D did not indicate to
petitioner that timely correction of the deficiency would affect the filing date of the petition.
3 The original submission also failed to provide petitioner’s name and the name of the child on whose behalf the
petition was filed, which is required by N.J.A.C. 6A:3-1.4.
4 The emails were sent to the email address listed on petitioner’s attorney’s letterhead, and there has been no
assertion that the emails were not received.

5
Additionally, under no circumstances can 89 days from first notice to filing of the proof of
service be considered a timely correction. 	Finally, the petitioners in T.R. were pro se, and
therefore were afforded more leeway, while the petition in this matter was filed by an
attorney.
Accordingly, the Initial Decision is adopted as the final decision in this matter, and the
petition of appeal is hereby dismissed.
IT IS SO ORDERED.5
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	May 6, 2024
Date of Mailing: 	May 8, 2024
5 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.

New Jersey is an Equal Opportunity Employer
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 14011-23
AGENCY DKT. NO. 219-8/23
R.P., ON BEHALF OF MINOR CHILD, S.P.,
Petitioner,
v.
WESTWOOD REGIONAL SCHOOL DISTRICT
BOARD OF EDUCATION, BERGEN COUNTY,
MORTIMER, JILL; CONNELLY, FRANK; GOFFE,
HEATHER; KENDUCK, CHRIS MELLO; VIVINO, DAN;
LAFORGIA, SHELLEY; MONTENARE, MARGARET;
SPELDA, THOMAS
Respondents.
____________
Darius Marzec, Esq., and Joshua Neil Rubin, Esq., for petitioner (Marzec Law Firm,
P.C., attorney)
Jessika Kleen, Esq., for respondent (Machado Law Group, attorneys)
Record Closed: January 29, 2024 	Decided: February 22, 2024
BEFORE MATTHEW G. MILLER, ALJ:

OAL DKT. NO. EDU 14011-23
2
STATEMENT OF THE CASE
Petitioner, R.P., the parent of minor child S.P., has challenged the decision made
by the respondent, Westwood Regional School District Board of Education, Bergen
County, et al. (respondent or Board), concerning its determination of a harassment,
intimidation and bullying (HIB) complaint made against non-party students that was
brought per N.J.S.A. 18A:37-13.2 et seq. (the Anti-Bullying Bill of Rights Act).
PROCEDURAL HISTORY
On October 4 and 5, 2022, five students at Westwood High School are alleged to
have hacked S.P.’s Google Classroom account and posted “slurs based on religion, race,
disability, sexual orientation, gender and national origin” directed at multiple individuals
and groups. On December 28, 2022, petitioner filed a Notice of Claim1 with respondent
concerning this occurrence (and others) and were advised by letter dated January 6,
2023, that an HIB investigation had been instituted by the District.
On February 1, 2023, the District advised petitioner that an HIB violation had been
found and that the following measures had been taken; “Student Counseling, Student
Conference, and Parent Conference.” On March 1, 2023, petitioner notified respondent
“that they were exercising their right to have the claim considered by the Board of
Education.”
On April 27, 2023, petitioner met with the Board of Education and on May 2, 2023,
respondent’s Final Decision on the HIB complaint was emailed to R.P. On July 28, 2023,
petitioner sent its appeal of the determination to all parties via regular mail. The appeal
was marked as “received” by the Department of Education’s Office of Controversies and
Disputes (OC&D) on August 9, 2023. That same day, OC&D emailed petitioner’s counsel
and notified him that the petition was deficient. A follow-up email was sent by OC&D to
counsel on August 28, 2023. A formal deficiency notice was then sent to counsel by the
1 Apparently, a claim filed per N.J.S.A. 59:1-1, the New Jersey Tort Claims Act.

OAL DKT. NO. EDU 14011-23
3
Department of Education (DOE) on October 2, 2023. 	On October 27, 2023, petitioner
responded to the October 2, 2023, email, providing the missing documentation and
forwarding same “By Priority Express Mail.” The appeal was then noted to be filed as of
November 6, 2023.
The DOE acknowledged the November 6, 2023, filing of the appeal petition on
November 13, 2023, and on December 5, 2023, a Motion to Dismiss in Lieu of Answer
was filed by respondent. 	That filing was acknowledged by the DOE on December 6,
2023, and the Department transmitted this matter to the Office of Administrative Law
(OAL) on December 12, 2023, for a hearing as a contested case. 	N.J.S.A. 52:14B-1
to -15 and N.J.S.A. 52:14F-1 to -13.
On or about December 15, 2023, petitioner filed opposition to the Motion to
Dismiss, and submitted additional opposition on January 9, 2024. 	An initial conference
was held on January 18, 2024, and on January 29, 2024, respondent filed a reply brief,
at which time the record closed.
FACTUAL BACKGROUND
The basic facts and nature of the case are not in dispute. 	S.P. was a student at
Westwood High School when on October 4 and October 5, 2022, five students are alleged
to have utilized his Student Identification Number to gain control of his Google Classroom
account and thereafter posted “hateful speech in [his] name to other students and to
S.P.’s teachers, including, but not limited to religious, ethnic, and gender slurs.” (Exhibit
P-C.)
On December 28, 2022, petitioner reached out to respondent and was advised
that an HIB investigation had already been opened per N.J.S.A. 18A:37-13.2. Ultimately,
the petitioner was advised by letter dated February 1, 2023 that it had been determined
the five students had indeed committed acts of HIB and that the remedial actions taken
had been “Student Counseling, Student Conference, and Parent Conference.” 	(Exhibit
P-A.)

OAL DKT. NO. EDU 14011-23
4
Following the receipt of that letter, petitioner exercised his right per N.J.S.A.
18A:37-15(b)(6)(d), for a hearing before the Westwood Board of Education. 	Following
that hearing, on May 2, 2023, the District emailed petitioner a letter advising of the Board’s
final determination to uphold the original finding. The letter also advised petitioner of his
right to appeal the decision and the time frame in which to do so. (Exhibit P-B.)
MOTION
Respondent has filed a Motion to Dismiss the appeal of the HIB determination,
arguing that petitioner failed to comply with the ninety-day time limit encoded in N.J.A.C.
6A:3-1.3(i) to appeal the actions taken by it concerning the HIB complaint.
If respondent prevails on this motion, it is argued that the merits of the case are never
reached and that the appeal must be dismissed.
Petitioner opposes the motion for reasons that will be set forth below and argues that
his appeal was timely served.
I emphasize that the decision on this motion should not be interpreted as a reflection
that any conclusions have been reached concerning the underlying merit of petitioner’s
claims.
LEGAL ARGUMENTS
RESPONDENT:
Respondent argues that petitioner failed to comply with the ninety-day time limit
encoded in N.J.S.A. 18A:37-15(b)(6)(e) and N.J.A.C. 6A:3-1.3(i) to appeal the result of the
HIB investigation and that per N.J.A.C. 1:1-1.3(c), this statutory requirement cannot be
relaxed or disregarded.
More specifically, it is argued that from May 2, 2023 (the acknowledged day that
petitioner was advised of the Board’s final decision), it took 188 days, until November 6,

OAL DKT. NO. EDU 14011-23
5
2023, for the appeal to be filed and that petitioner unduly and unjustifiably delayed the filing
despite having multiple opportunities to correct the initial deficiency.
Respondent further argues that case law supports its position that a deficient filing
does not toll the ninety-day deadline. 	T.R. ex rel. E.R. v. Bridgewater-Raritan Reg’l Sch.
Dist., 2013 N.J. AGEN LEXIS 523 (July 22, 2013); DeMario v. State Bd. of Exam’rs, 2012
N.J. AGEN LEXIS 192 (April 17, 2012), aff’d, Comm’r (May 11, 2012).
PETITIONER:
Petitioner argues that his appeal was filed and served on timely basis, “on or before
July 31, 2023,” and was therefore compliant with the timing dictates of N.J.A.C. 6A:3, et
seq.
Petitioner noted:
On August 9, 2023, the NJDOE acknowledged by email that
it had received Petitioners’ Petition of Appeal . . . . That email
acknowledgment was three months before the date on which
Respondents contend that Petitioners filed their Petition of
Appeal, i.e., November 6, 2023. Resp. Ltr., second page, first
full 	paragraph. 	In 	other 	words, 	the 	District 	claims 	that
Petitioners did not file their Petition of Appeal until three
months after the NJDOE acknowledged that it had received
that very petition.
Petitioner claims that by forwarding the appeal to the OAL, the DOE was
acknowledging that the appeal was timely filed and cites the same cases as respondent
in support of his position.
TIMELINE
Perhaps the best way to understand the issues raised by this motion is to create a
timeline from the onset of the events in question to the disclosure of the results of the HIB
investigation by the school on February 1, 2023, and through the forwarding of the matter
to the OAL. There is no real dispute as to the timeline below.

OAL DKT. NO. EDU 14011-23
6
10/04/22 & 10/05/22—Incident(s) occur.
12/28/23—Filing of “Notice of Claim” by petitioner.
01/06/23—Westwood superintendent confirms investigation has been instituted.
02/01/23—Letter from superintendent to R.P. conveying results of the HIB investigation.
(Exhibit P-A.)
03/01/23—Petitioners advise the BOE that they are asserting their right to a hearing.
04/27/23—Petitioners appear with counsel before the BOE meeting concerning the HIB
investigation.
05/02/23—BOE final decision emailed to R.P. by superintendent. (Exhibit P-D.)
07/20/23—S.P. appeal dated. (Exhibit P-C.)
07/28/23—S.P. appeal sent to all parties via regular mail.2 (Exhibit P-F.)3
07/31/23—Ninety days from May 2, 2023.
08/09/23—Appeal marked as “Received” by the OC&D.4 (Exhibit P-D.)
08/09/23—Email from the OC&D to petitioner’s counsel:
We have received the petition of appeal filed in the above
captioned matter. Please provide proof that the petition was
served on the Board of Education. 	Following receipt, your
petition will be processed. Additionally, please provide the full
names of petitioner and his child.
2 July 28, 2023, was a Friday.
3 Counsel’s certification of service was supplied as part of Exhibit P-F.
4 Ninety-nine days from May 2, 2023.

OAL DKT. NO. EDU 14011-23
7
[Exhibit P-D.]
08/28/23—Email from the OC&D to petitioner’s counsel “following up” on the August 8,
2023, email and advising that the petition would not be processed “until we receive proof
of service.” (Exhibit C-A.)
10/02/23—Deficiency notice sent to petitioner by DOE, noting that proof of service and
the name of the petitioner and child have still not been provided and that
[t]his matter will not move forward until the deficiencies listed
above have been resolved. If the required documents are not
received by October 31, 2023, this matter will be deemed
withdrawn, and no further action will be taken.
There is a notation that the “Document filed by XX Petitioner” and an Agency Docket No.
had been assigned. (Exhibit P-E.)
10/27/23—Petitioner responds to the October 2, 2023, deficiency notice “By Priority
Express Mail” and provides the missing documentation/information. (Exhibit P-F.)
11/06/23—Appeal petition noted by the DOE to be filed.5 (Exhibit P-G.)
11/13/23—Acknowledgement of November 6, 2023, filing of the Petition of Appeal by
DOE. (Exhibit P-G.)
12/05/23—Motion to Dismiss in Lieu of Answer filed by respondent.
12/06/23—Acknowledgement of December 5, 2023, motion filing by DOE.
12/12/23—Matter forwarded to the OAL by the DOE.
5 188 days from May 2, 2023.

OAL DKT. NO. EDU 14011-23
8
LAW AND ANALYSIS
The regulation concerning appeals is N.J.A.C. 6A:3-1.3(i), which reads as follows:
Filing and service of petition of appeal - The petitioner shall
file a petition no later than the 90th day from the date of receipt
of the notice of a final order, ruling, or other action by the
district board of education, individual party, or agency that is
the subject of the requested contested case hearing. This rule
shall 	not 	apply 	in 	instances 	where 	a 	specific 	statute,
regulation, or court order provides for a period of limitation
shorter than 90 days for the filing of a particular type of appeal.
[Emphasis added.]
This rule (along with others in this chapter of the Administrative Code) can be
“relaxed or dispensed with by the Commissioner, in the Commissioner’s discretion, in any
case where a strict adherence thereto may be deemed inappropriate or unnecessary or
may result in injustice.” N.J.A.C. 6A:3-1.16.
Specifically, as to the filing of HIB appeals, N.J.S.A. 18A:37-15(b)(6)(e) reads as
follows:
at the next board of education meeting following its receipt of
the report pursuant to subparagraph (c) of paragraph (6) of
this subsection, the board shall issue a decision, in writing, to
affirm, reject, or modify the superintendent’s decision. 	The
board’s decision may be appealed to the Commissioner of
Education, in accordance with the procedures set forth in law
and regulation, no later than 90 days after the issuance of the
board’s decision . . . .
[Emphasis added.]
Further, per N.J.A.C. 1:1-1.3(c):

OAL DKT. NO. EDU 14011-23
9
Statutory procedural requirements shall not be relaxed or
disregarded except when permitted by the controlling Federal
or State statutes.
In the realm of “failure to timely appeal” cases, the complexity of the issues here
is more limited than usual. Most importantly, there is no dispute that May 2, 2023, is the
date that petitioner received notice of the final determination on the HIB complaint and
was further made aware of the ninety-day deadline in which to final an appeal of same.
Further limiting the scope of this decision is petitioner’s argument that the deadline
was met, not that the ninety-day time limitation should be relaxed.
As a baseline and before delving into the facts of the case, the purposes of the
ninety-day limitation were reviewed in the seminal case of Kaprow v. Board of Education
of Berkeley Township, 131 N.J. 572 (1993):
The first is to stimulate litigants to pursue a right of action
within a reasonable time so that the opposing party may have
a fair opportunity to defend, thus preventing the litigation of
stale claims. Ochs v. Federal Ins. Co., 90 N.J. 108, 112, 447
A.2d 163 (1982). 	The 	second purpose is 	“‘to penalize
dilatoriness and serve as a measure of repose’” by giving
security and stability to human affairs. Ibid. (quoting Farrell v.
Votator Div., 62 N.J. 111, 115, 299 A.2d 394 (1973)).
When a plaintiff knows or has reason to know
that 	he 	has 	a 	cause 	of 	action 	against 	an
identifiable defendant and voluntarily sleeps on
his rights so long as to permit the customary
period of 	limitations to 	expire, 	the pertinent
considerations of individual justice as well as the
broader considerations of repose, coincide to
bar his action. [Farrell, supra, 62 N.J. at 115.]
[Kaprow, 131 N.J. at 586–87.6]
6 See also R.H. ex rel. Minor Child v. Bd. of Educ. of Hackettstown, 2022 N.J. AGEN LEXIS 299 (Feb. 17,
2022).

OAL DKT. NO. EDU 14011-23
10
In support of their respective positions, both parties cite the same cases: DeMario
and T.R.
DeMario v. State Board of Examiners, 2012 N.J. AGEN LEXIS 192, concerned the
appeal 	of 	a 	denial 	of 	an 	application 	for 	principal 	and 	business 	administrator
endorsements. 	The pro se petitioner had received the respondent’s final determination
on December 10, 2009, and had filed his appeal on or about March 2, 2010 (day 81). On
March 4, 2010, the Bureau of Controversies and Disputes acknowledged receipt of the
appeal, but notified DeMario that it was procedurally deficient and listed what needed to
be done to make it compliant, which included providing proof of service on each
respondent. He was advised that if the deficient materials were “timely submitted,” March
2, 2010, would be deemed to be the filing date. DeMario, 2012 N.J. AGEN LEXIS 192 at
*4–6.
On June 1, 2010, DeMario forwarded an amended petition to the Board which was
filed on June 7, 2010, and a motion to dismiss from the respondent followed almost
immediately. The matter was then transmitted to the OAL as a contested case. Id. at *1–
2.
DeMario argued that he was confused and had multiple communications with the
Bureau as to whether he should utilize an attorney but was never told of the time urgency
of the supplying of the requested materials. He claimed that because he “was following
advice of the Bureau regarding submissions and schedules,” the ninety-day rule should
have been relaxed. Id. at *9.
The judge held that there was no compelling reason to relax the ninety-day rule.
It was determined that the March 4, 2010, letter was clear as to what materials needed to
be supplied in order for the appeal to be considered complete and that while the exact
meaning of the phrase “timely submitted” was not defined, “the fact is that DeMario did
not submit a proper petition of appeal until approximately three months after the
applicable ninety-day rule expired. 	Under any interpretation of ‘timely submitted,’
DeMario failed to cooperate.” Id. at *17.

OAL DKT. NO. EDU 14011-23
11
In 	T.R., 	an 	HIB 	case, 	it 	was 	found 	that 	the 	petitioners 	received 	the 	final
determination from the Board on August 31, 2012, and filed their petition on November
27, 2012 (day 88). They were advised by letter dated November 29, 2012, that the filing
was deficient, but that if the materials were “timely submitted, November 27, 2012 will be
deemed the filing date.” 	It is undisputed that the additional materials were received by
the Board on December 6, 2012. T.R., 2013 N.J. AGEN LEXIS 523 at *3–4.
Comparing the case to DeMario, the Commissioner found that while he had waited
three months to correct the petition’s deficiencies, T.R. had “cur(ed) the deficiencies in a
few days,” which was determined to be quickly enough to be considered timely submitted.
T.R. at *8. 	Therefore, he found that “the holding in DeMario . . . is not relevant to a
determination of timeliness in the case at bar.” Id. at *8–9.
While petitioner claims that the nature of the documentary deficiencies in this case
pale in comparison to those in DeMario and T.R., he ignores the timing issue, which
clearly does not inure to his benefit. Petitioner tries to distinguish DeMario by noting that
DeMario’s initial “appeal” was only a “letter purporting to be an Appeal,” while here, the
appeal was much more detailed and in a more professional format. A similar argument
is made concerning T.R.
However, neither of those cases (either in the Initial Decision7 or Final Decision)
mentioned the scope of the appeal deficiencies. Rather, they focused exclusively on how
quickly those deficiencies were addressed. 	In fact, in T.R., they were described as
“various deficiencies” and there was no indication that their nature had any impact on the
outcome of the case. 	T.R., 2013 N.J. AGEN LEXIS 523 at *1. 	In both cases, the
petitioners were advised as to what specific issues needed to be addressed and were
provided a general timeframe as to how quickly it had to be done for the appeal to be
considered “filed” as of the date of receipt. There, as here, the initial appellate filing was
not rejected as if it had never been sent. 	Rather, on all three occasions, the petitioner
was told to correct deficiencies and if they did so in a timely manner, the deadline issue
would not come into play.
7 T.R. ex rel. Minor Child, E.R. v. Bd. of Educ. of the Bridgewater-Raritan Reg’l Sch. Dist., Somerset Cnty., 2013 N.J.
AGEN LEXIS 116 (June 6, 2013).

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12
It should also be noted that the “relation back” doctrine was explicitly rejected in
DeMario, where the Commissioner undertook a detailed analysis of Gringeri v. Board of
Education of the Ramapo-Indian Hills Regional High School District, 1988 S.L.D. 158.
That case involved a pro se petitioner who filed “a document entitled ‘Petition.’” He was
advised that the document was insufficient on three separate occasions before finally
filing a perfected petition fifty-five days after the original non-compliant filing and 128 days
following the Board’s final action. 	The respondent filed a motion for summary decision,
which was granted. DeMario, 2012 N.J. AGEN LEXIS 192 at *12–17.
The administrative law judge (ALJ) in Gringeri explained:
While a liberal approach with respect to amendments to
petitions is a principle which often is followed, it cannot and
should not be used to overcome deficiencies which are patent
on their face. 	Cf., F. Bogart v. Board of Education of East
Orange, OAL DKT. EDU 6245-82 (Jan. 26, 1983), aff’d
Commissioner of Education (March 14, 1983).
[Gringeri, 1988 S.L.D. at 166.]
As in Gringeri, the ALJ in DeMario saw no reason to relax the ninety-day rule, and
the argument that the late submission “was simply a ‘perfected’ pleading which relates
back to his earlier submissions” was soundly rejected. DeMario, 2012 N.J. AGEN LEXIS
192 at *14 (citing Gringeri, 1988 S.L.D. at 166).
As noted above, the ninety-day deadline can be “relaxed or dispensed with by the
Commissioner, in the Commissioner’s discretion, in any case where a strict adherence
thereto may be deemed inappropriate or unnecessary or may result in injustice.” N.J.A.C.
6A:3-1.16.
However, in exploring the case law surrounding the relaxation of the ninety-day
rule, it becomes very apparent, very quickly, that the courts do not look indulgently on
same. 	Kaprow involved the termination of a tenured assistant superintendent effective

OAL DKT. NO. EDU 14011-23
13
June 30, 1981. After a rather complicated series of events involving RIF8 rights and the
“re-creation” of assistant superintendent positions years later, Kaprow filed a petition with
the Commissioner on August 1, 1988, asserting a claim to one of the re-created positions.
He amended that petition on December 16, 1988, to assert, for the first time, that the 1981
RIF was improper and had been made in bad faith. Kaprow, 131 N.J. at 576–78.
In the face of a partial victory for Kaprow in the underlying OAL case, the
Commissioner dismissed the petition, finding, in part, “that the bad-faith claim was
untimely instead of unsupported.” 	That decision was affirmed by the State Board of
Education, which found that the August 1, 1988, petition “was time barred by the ninety-
day limitations period of N.J.A.C. 6:24-1.2(c),” and the Appellate Division affirmed the
Board’s decision. Id. at 579.
While no explicit argument has been made that the ninety-day deadline should be
extended, a review of the case law would have quashed that assertion in any event. This
issue was explored in detail in my case of R.H. ex rel. Minor Child v. Board of Education
of the Town of Hackettstown, 2022 N.J. AGEN LEXIS 299 (Feb. 17, 2022), from which
this portion of the decision liberally borrows.
There are a multitude of reported court and administrative cases that explore this
issue, one of the most cited being Pacio v. Board of Education of Lakeland Regional High
School District, 1989 S.L.D. 2060.
In Pacio, a terminated high school teacher filed an action well past the ninety-day
deadline. While the case discusses multiple issues,9 in granting the respondent’s motion
for summary decision, the ALJ noted the strict standard applied by the Commissioner in
relaxing that deadline. It would only happen;
8 Reduction in force.
9 Including the “statutory entitlement” argument which is not applicable here. In essence, this argument concerns a request for an
exception to the deadline in cases where the petitioner is seeking a denied benefit to which they were statutorily entitled. Kaprow at
584–85; see also Lavin v. Hackensack Bd. of Educ., 90 N.J. 145 (1982); Polaha v. Buena Reg’l Sch. Dist., 212 N.J. Super. 628 (App.
Div. 1986).

OAL DKT. NO. EDU 14011-23
14
[w]here a substantial constitutional issue was presented,
where judicial review is sought of an informal administrative
determination, and where a matter of significant public interest
is involved.
[Pacio, 1989 S.L.D. at 2063 (citations omitted); see also
Morris-Union Jointure Commission v. Bd. of Educ. of S. River,
92 N.J.A.R.2d (EDU) 453 (1992); Balwierczak v. Bd. of Educ.
of Berkeley Heights, 1999 N.J. AGEN LEXIS 707 (Dec. 16,
1998).]
The bar can also be relaxed “when strict adherence would possibly result in an
injustice.” Grompone v. State-Operated Sch. Dist. of Jersey City, 1999 N.J. AGEN LEXIS
786 (Dec. 20, 1999) at *17, aff’d, 2000 N.J. AGEN LEXIS 1634 (February 28, 2000), aff’d,
2000 N.J. AGEN LEXIS 1635 (August 2, 2000).
Morris-Union also confirmed that “it is petitioner’s burden to show that it will suffer
injustice if the 90-day rule is strictly enforced.” 92 N.J.A.R.2d (EDU) at 471. Further, “the
fact that application of the rule may result in the dismissal of a meritorious claim does not
warrant relaxation of the rule.” K.B. v. Bd. of Educ. of Rancocas Valley Reg. High Sch.
Dist., 2002 N.J. AGEN LEXIS 52 (March 1, 2002), at *43–44.
Cases where the rule is relaxed are extremely rare and involve circumstances
much different than those presented here, and even then, after the decision in some of
these cases, that rule has been tightened. See Bey v. Bd. of Educ. of Newark, 1993 N.J.
AGEN LEXIS 164 (March 5, 1993).
While in Bey the rule was relaxed in a case involving the delinquent filing of an
appeal involving the Board’s failure to recommended tenure charges against “a teaching
staff 	member 	who 	had 	been 	accused 	of 	misusing, 	mismanaging, 	and 	possibly
misappropriating school funds entrusted to him in his capacity as school treasurer,”10 the
judge saw this case as unique since the prior cases discussed in the decision
ha[ve] 	dealt 	with 	an 	individual 	concern 	of 	the 	involved
petitioner only, such as a refusal to re-employ. None of these
10 Id. at 44.

OAL DKT. NO. EDU 14011-23
15
precedents dealt with concerns that could affect a wider
spectrum of the public.
[Bey, 1993 N.J. AGEN LEXIS 164 at *44.]
Other “relaxation” cases involved a student expulsion where a pro se parent’s
timely appeal was technically deficient (J.N. v. Elizabeth Bd. of Educ., 2005 N.J. AGEN
LEXIS 814 (July 8, 2005)) and where illegal conduct was being alleged against the
respondent, when that conduct was discovered after the expiration of the ninety days
(Eisenberg v. Fort Lee Bd. of Educ., 2008 N.J. AGEN LEXIS 45 (Jan. 9, 2008)).
In 	analyzing 	the 	effectively 	uncontested 	timeline 	of 	events 	in 	this 	case, 	I
CONCLUDE that there is no real question that the appeal was filed past the ninety-day
deadline. In fact, even if the original appeal had not been deficient, I FIND that petitioner
had likely already missed the deadline.
Counsel has certified that the original appeal was “served . . . by First Class Mail”
Friday, July 28, 2023. 	(Exhibit P-F.) 	That is eighty-seven days post-notification. 	With
July 29 & July 30 being a weekend, in order to be timely filed, it HAD to have been
received on Monday, July 31, 2023. 	Instead, it was marked as “received” by OC&D on
August 9, 2023 (Day 99). Therefore, irrespective of any deficiencies, it was already late.
Then, when counsel was advised of the deficiencies later that day and then
reminded of same on August 28, nothing was done. It was only after the October 2, 2023,
Notice of Deficiency was sent that any action was taken and that did not even occur until
Friday, October 27, 2023, and even then, when facing automatic dismissal on October
31, 2023, the response was purportedly sent “By Priority Express Mail” with no proof of
service or tracking.11 (Exhibit P-F.)
In its November 13, 2023, letter, the DOE acknowledged receipt of the now-
compliant appeal on November 6, 2023. 	(Exhibit P-G.) 	This is a full 188 days since
11 The United States Postal Service offers “Priority Mail Express” and “Priority Mail.” It does not offer a
service 	called 	“Priority 	Express 	Mail.” 	https://www.usps.com/ship/mail-shipping-services.htm 	(last
accessed February 1, 2024.)

OAL DKT. NO. EDU 14011-23
16
petitioner received notice of respondent’s final determination and eighty-nine days from
when petitioner was first advised of the deficiency in the original filing. 	As noted in
DeMario, this is not timely “[u]nder any interpretation of ‘timely submitted.’” 	DeMario,
2012 N.J. AGEN LEXIS 192 at *17.
Ultimately, I FIND that there is insufficient evidence to demonstrate that the ninety-
day deadline as delineated in N.J.A.C. 6A:3-1.16 should be relaxed. While the petitioner
sets forth a litany of allegations about and violations by respondent in his appeal, the only
issue before the OAL is a very basic one that is limited to a single event (albeit taking
place over two days) in which a single person was the victim, which led to a single HIB
complaint. 	Further, the appeal itself is limited to a single issue; the adequacy of the
disciplinary actions taken against the perpetrators following the finding that an act of HIB
had occurred.
While petitioner’s other grievances against respondent may well be justified and
encompass conduct that affected more than just S.P., the correct forum to adjudicate
same is not in the administrative arena, but rather likely in a trial court. 	There is simply
no broad public interest or grave injustice in and concerning the disciplinary decision by
respondent concerning a single HIB complaint and with no constitutional issues having
been articulated, there is nothing to justify an extension of the deadline or a denial of
respondent’s motion.
FINDINGS AND CONCLUSIONS
Given the totality of the evidence, I FIND that petitioner’s appeal was not filed until
November 6, 2023.
I further FIND even if the appeal had been marked as “FILED” on the date it was
received by OC&D (August 9, 2023), it was still received outside of the ninety-day
appellate deadline.

OAL DKT. NO. EDU 14011-23
17
I further FIND that even if the August 9, 2023, appeal had been timely, petitioner
failed to “timely submit” corrections to the deficiencies it had been advised of that day
until November 6, 2023.
I therefore CONCLUDE that petitioner’s appeal was filed out of time in violation of
N.J.A.C. 6A:3-1.3, and I further CONCLUDE that petitioner has supplied insufficient
evidence to demonstrate that the rule should be relaxed per the dictates of N.J.A.C. 6A:3-
1.16.
ORDER
Based on the foregoing, it is hereby ORDERED that respondent’s motion to
dismiss petitioner’s appeal be and is hereby GRANTED, and;
It is hereby ORDERED that petitioner’s appeal be and is hereby DISMISSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 14011-23
18
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked "Attention: Exceptions." 	A copy of any exceptions must be sent to the
judge and to the other parties.
February 22, 2024
DATE 	MATTHEW G. MILLER, ALJ
Date Received at Agency: 	February 22, 2024
Date Mailed to Parties: 	February 22, 2024
sej

OAL DKT. NO. EDU 14011-23
19
APPENDIX
EXHIBITS
FOR COURT:
C-A 	Email from OC&D to petitioner “following up” on the August 9, 2023, email
(August 28, 2023)
FOR PETITIONER:
P-A 	Letter to petitioner advising of the result of the HIB investigation (February
1, 2023)
P-B 	Letter to petitioner, final determination of HIB investigation (May 2, 2023)
P-C 	Appeal Petition
P-D 	Email from OCD to petitioner (August 9, 2023)
P-E 	Deficiency Notice (October 2, 2024)
P-F 	Response to Deficiency Notice (October 27, 2023)
P-G 	Letter from DOE to parties (November 13, 2023)
FOR RESPONDENT:
None