Askiaa Nash v. Board of Education of the City of Newark, Essex County and Roger Leon, Superintendent, 3/4/2022, (#44-22)

44-22
New Jersey Commissioner of Education
Decision
Askiaa Nash,
Petitioner,
v.
Board of Education of the City of Newark,
Essex County, and Roger Leon, Superintendent,
Respondent.
Synopsis
Petitioner filed an application for emergent relief seeking reinstatement to his former position as
Educational Media Specialist with the Newark Board of Education (Board), a position from
which petitioner was terminated in 2001. Petitioner filed two previous petitions appealing the Board’s
denial of his application for reinstatement, in 2013 and 2016; both cases were dismissed, the first as
untimely and due to his lack of tenure, and the second based on the doctrines of res judicata and collateral
estoppel. The 2013 decision was also upheld by the Appellate Division.
In the instant case, the ALJ found, inter alia, that: there are no material facts at issue here, and the matter
is ripe for summary decision; petitioner appeared at a hearing via Zoom on January 10, 2022 and agreed
to an adjournment until January 14, 2022, at which time petitioner failed to appear; petitioner’s current
argument is again based on the Board’s failure to reinstate him to the Educational Media Specialist
position he held from 1993 to 2001, when he was terminated after charges of sexual assault against two
students were brought against him; in the instant case, petitioner argued that he has a property claim to
his former position and now argues that he was improperly terminated from his position without a
hearing. The ALJ determined that petitioner’s claims in the instant matter – even if based on new
arguments not made previously – are still barred by the principles of res judicata and collateral estoppel.
Accordingly, the ALJ granted summary decision in favor of the Board and dismissed the petition with
prejudice.
Upon review, the Commissioner adopted the Initial Decision of the OAL as the final decision in this case.
In so determining, the Commissioner noted that the issue of whether petitioner is entitled to
reinstatement has been fully litigated and petitioner cannot attempt to re-litigate that issue by making
arguments that he failed to make previously. The Commissioner also found that the petition was
untimely. Accordingly, the matter was dismissed with prejudice.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

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OAL Dkt. No. EDU 00115-22
Agency Dkt. No. 238-12/21
New Jersey Commissioner of Education
Final Decision
Askiaa Nash,
Petitioner,
v.
Board of Education of the City of Newark,
Essex County, and Roger Leon,
Superintendent,
Respondents.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed, along with petitioner’s exceptions – filed pursuant to N.J.A.C. 1:1-
18.4 – and the Board’s reply thereto.
This matter was opened as a petition and motion for emergent relief filed by petitioner,
who is seeking reinstatement as an Educational Media Specialist by the Newark Board of
Education (Board). Petitioner worked for the Board from 1993 to 2001, when his employment
was terminated following an investigation by the Division of Youth and Family Services into
allegations that petitioner sexually assaulted two students. Criminal charges regarding the
same incident were also filed in 2001, and petitioner was convicted in 2002 and sentenced to
22 years of incarceration. In 2013, petitioner’s criminal conviction was reversed by the
New Jersey Supreme Court and the indictment was dismissed. Petitioner filed a petition
against the Board in 2013, seeking reinstatement to his former position. The 2013 petition was
44-22

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dismissed as untimely, but the Administrative Law Judge in that case also found that petitioner
was not entitled to reinstatement, as he had not earned tenure. Askiaa Nash v. State-Operated
School District of the City of Newark, Essex County, Commissioner’s Decision No. 424-13,
decided November 25, 2013. That decision was affirmed by the Appellate Division in 2015.
Petitioner filed another petition against the Board in 2016, again seeking reinstatement. The
petition was dismissed based on the doctrines of res judicata and collateral estoppel.
Askiaa Nash v. State-Operated School District of the City of Newark, Essex County,
Commissioner’s Decision No. 207-17, decided July 27, 2017 (Nash 2017). Petitioner filed the
instant petition and motion for emergent relief in 2021, again seeking reinstatement.
Petitioner now argues that as a non-tenured employee, he was improperly terminated in
violation of his due process rights as he was not given a statement of reasons for his
termination; was not provided with notice of nonrenewal; and was not given the opportunity
to challenge allegations at a Donaldson hearing; further, petitioner alleged that the Board
breached the collective bargaining agreement.
In an Initial Decision, the Administrative Law Judge (ALJ) noted that petitioner had not
appeared for the emergent relief argument1, but also granted the Board’s motion for summary
decision and dismissed the petition. The ALJ found that, even if petitioner’s claim is based on
arguments not made in his previous petitions, they are barred by the same principles of res
judicata and collateral estoppel as in Nash 2017, and he cannot continue to bring the same
claim by advancing new arguments he failed to make in prior years.
1 Petitioner appeared via Zoom for an emergent hearing on January 10, 2022, but the parties adjourned
the matter to January 14, 2022, at which time petitioner did not appear, despite efforts by the ALJ to
contact him that morning by phone and email.

3
In his exceptions, petitioner argues that the ALJ erred because he is not challenging the
tenure determination that was previously decided by the Appellate Division but was instead
arguing that he was entitled to a fair termination process as a non-tenured employee. He
alleges that the termination process was arbitrary, capricious and unreasonable because the
procedures for non-renewing his employment contract, set forth in N.J.S.A. 18A:27-4.1(b) and
N.J.S.A. 18A:27-10, were not followed and he was not given the opportunity to present his
position to the Board. As such, petitioner contends that his statutory and constitutional rights
were violated.2 Accordingly, petitioner urges the Commissioner to reject the Initial Decision.
In reply, the Board argues that the ALJ properly dismissed the emergent application and
granted summary decision in favor of the Board. The Board contends that the petition was filed
outside the 90-day limitation period set forth in N.J.A.C. 6A:3-1.3 because it was filed 20 years
after his termination. Additionally, the Board maintains that this is the third petition filed by
petitioner seeking reinstatement, so it is also barred by the doctrines of res judicata and
collateral estoppel, as the issues have already been decided. As such, the Board submits that
the Initial Decision should be adopted.
Upon review, the Commissioner finds at the outset that petitioner has failed to
demonstrate entitlement to emergent relief pursuant to the standards enunciated in Crowe v.
DeGioia, 90 N.J. 126 (1982), and codified at N.J.A.C. 6A:3-1.6. Petitioner did not appear for the
emergent argument and fails to demonstrate any of the prongs of the Crowe test to warrant
emergent relief. Further, the Commissioner agrees with the ALJ that summary decision should
2 Petitioner appears to argue that the ALJ’s statement that he attempted to call petitioner for the Zoom
hearing is untrue, and that petitioner actually called chambers in an attempt to be a part of the Zoom
meeting.

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be granted in favor of the Board. The Commissioner concurs with the ALJ that this matter is
barred by the doctrines of res judicata and collateral estoppel as it is the third petition filed
against the Board seeking reinstatement. The Commissioner does not find petitioner’s
exceptions to be persuasive. Although petitioner contends that he is advancing new arguments
based on improper termination as a non-tenured employee, the Commissioner notes that the
issue of whether petitioner is entitled to reinstatement to his position with the Board has been
fully litigated and petitioner cannot attempt to re-litigate that issue by making arguments that
he failed to make previously. Finally, the Commissioner finds that this matter is also barred by
the 90-day statute of limitations set forth in N.J.A.C. 6A:3-1.3. It has been 20 years since
petitioner’s termination, 9 years since his conviction was vacated, 6 years since the
Appellate Division decision in this matter, and 4 years since a decision was issued on
petitioner’s second petition. As such, the Commissioner agrees with the ALJ that the petition
should be dismissed with prejudice.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter
and the petition is hereby dismissed with prejudice.
IT IS SO ORDERED.3
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
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.
March 4, 2022
March 4, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 00115-22
AGENCY DKT. NO. 238-12/21
ASKIAA NASH,
Petitioner,
v.
BOARD OF EDUCATION OF THE
CITY OF NEWARK, ESSEX COUNTY AND
LEON ROGER, SUPERINTENDENT,
Respondent.
_____________________________________
Askiaa Nash, pro se petitioner
Adam S. Herman, Esq., for respondent (Adams, Gutierrez & Lattiboudere, LLC)
Record Closed: January 14, 2022 	Decided: January 18, 2022
BEFORE ERNEST M. BONGIOVANNI, ALJ:
Petitioner (Nash) makes this emergent application seeking reinstatement to the
position of Educational Media Specialist with the Board of Education of the City of Newark,
Essex County (Board/respondent). 	For the following reasons, I dismiss the emergent
application and grant summary decision in favor of the Board.

OAL DKT. NO. EDU 00115-22
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On January 5, 2022, this matter was transmitted to the Office of Administrative Law
(OAL) for emergent relief. On January 10, 2022, a hearing on this application via Zoom,
began. Petitioner who had only been served with opposition papers filed by respondent
earlier that day, agreed that he could use additional time to supplement his filing, and
accordingly the hearing was adjourned to 9:30 a.m., January 14, 2022, again via Zoom.
Petitioner failed to appear for the hearing, and despite efforts that morning to reach him
by phone (a voicemail rather than Nash answered the phone) and email (his email had
an automated reply saying it was full and could not receive any additional emails), Nash
could not be contacted. 	Further, Nash, had not filed any supplemental material for
consideration between January 10 and 14, and Nash has made no effort to contact the
OAL since. 	Accordingly, respondent asked for a dismissal of the application for Nash’s
failure to appear. 	Respondent also filed a responsive pleading which seeks summary
decision of the action based on numerous grounds.
The essence of Nash’s current application is based on the Board’s failure to
reinstate him, upon his request, to a position he held as a, Educational Media Specialist
from 1993 to 2000, when his employment was terminated after charges were brought of
sexual assault of two students. 	While petitioner was convicted of those charges and
sentenced to twenty-two years imprisonment, that conviction was overturned by the New
Jersey Supreme Court and in 2013, the Essex County Prosecutor’s Office dropped all
charges. Soon thereafter, Nash sought reinstatement to his position as Media Specialist,
the same application and remedy he seeks today. This application was the subject matter
of a Summary Decision granted to respondent by Order of the Honorable Ellen S. Bass.
ALJ. 	Aslkaa Nash v. State-Operated School District of the City of Newark,, Docket
Number, EDU 08449-13. (Initial Decision (November 25, 2013) adopted 	Comm’r
(February 2014) http://www.camlawrutgers.edu/library/oal. (hereinafter referred to as
“Nash, 2013”)
In that matter, Judge Bass found that Nash’s application was time barred. Judge
Bass found that the time for filing appeals before the Commissioner of Education is 90
(ninety) days “from the date of receipt of the notice of a final order ruling or other action
by the district Board of Education”. N.J.A.C. 6A:3-1.3 (i). The Board had terminated Nash
effective June 22, 2001, and Nash had filed his appeal 13 years later, and thus his

OAL DKT. NO. EDU 00115-22
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application was time barred. 	Judge Bass also determined Nash was not a tenured
employee. Judge Bass’ decision was affirmed by the Appellate Division on October 16,
2015 (DKT #A-2473-13T4).
In 	2017, 	Nash 	made 	the 	same 	application 	for 	reinstatement, 	in 	a 	petition
transmitted to the OAL and heard on motion for summary decision by the Honorable Jude
Tiscornia, ALJ. 	Judge Tiscornia dismissed the petition by Summary Decision. 	Askiaa
Nash v. State-Operated School District of the City of Newark, OAL Docket Number EDU
01563-17 (June 14, 2017) (hereinafter “Nash 2017”). Judge Tiscornia found that Nash’s
claim was barred both by the common law res judicata doctrine that 	provides that “a
cause of action between parties that has been finally determined on the merit by a tribunal
cannot be litigated by those parties or their privies in a new proceeding.” 	Nash 2017,
page 4, citing Velasquez v Franz, 123 N.J. 498, 505 (1991.) Judge Tiscornia also found
that Nash cannot bring the same claim again based on the doctrine of collateral estoppel.
Nash, 2017, pp 4-5, citing Winters v. N. Hudson Reg’l Fire and Rescue, 212 N.J. 67, 85
(2012), which defined collateral estoppel as applying when:
(1) the issue to be precluded is identical to the issue
decided in the prior proceeding; (2) the issue was actually
litigated in the prior proceeding; (3) the court in the prior
proceeding issued a final judgment on the merits; (4) the
determination of the issue was essential to the prior judgment;
and (5) the party against whom the doctrine is asserted was a
party to or in privity with a party to the earlier proceeding.
As stated by Judge Tiscornia in Nash, 2017, (page 5), in this case, I find that, once
again, in this case, the “facts and arguments presented are the same as those
contemplated by Judge Bass in her decision.”
Here, Nash argues that he has a property claim to the position of Media Specialist
from which he was terminated in 2001. 	He claims it was a violation of his due process
guarantees of “property rights” and “free speech rights” to terminate him from his position
without first holding a hearing. As noted by respondent, it has already been determined
by Judge Bass, the Commissioner of Education, and the New Jersey Appellate Division
that there was no denial of tenure rights. 	Even had Nash been wrongfully denied a so-

OAL DKT. NO. EDU 00115-22
4
called Donaldson hearing, that claim needed to be raised in 2001. 	Furthermore, his
current claim, even if based on new arguments not made in 2001, 2013 or 2017, are
barred by the same principles noted in Nash 2017, namely res judicata and collateral
estoppel. Petitioner is not entitled to bring the same claim year in and year out simply by
advancing new arguments he failed to make years ago. The paucity of such arguments
may be part of the reason why Nash failed to appear on the Emergent application which
he sought. 	It should be noted that this instant claim borders on abuse of process, not
only because it is the same action made years too late in 2013 and 2017 but also because
he seeks “emergent” review of a termination that took place more than 21 years ago.
The record discloses that there is no way relief sought by Nash could or should be
granted by the OAL, and that, given the clear record already established, no further
hearing can possibly be warranted. 	Nash’s 2022 claim is the same as those made in
2013 and again in 2017, and must be dismissed, as a matter of law. R:4-6.2.
ORDER
Based upon all of the foregoing, I FIND that Summary Decision in favor of the
Board is GRANTED and that this matter should be and is hereby Ordered to be
DISMISSED WITH PREJUDICE
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 (45) 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 00115-22
5
Within thirteen (13) 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, P.O. 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.
January 18, 2022
DATE 	ERNEST M. BONGIOVANNI, ALJ
Date Received at Agency: 	January 18, 2022
Date Mailed to Parties: 	January 18, 2022
id