Robert Lawless v. Board of Education of the City of Bridgeton, Cumberland County, 9/30/2024, (#357-24)

357-24
OAL Dkt. No. EDU 13639-23
Agency Dkt. No. 276-10/23
New Jersey Commissioner of Education
Final Decision
Robert Lawless,
Petitioner,
v.
Board of Education of the City of Bridgeton,
Cumberland County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
and the exceptions filed by petitioner Robert Lawless pursuant to N.J.A.C. 1:1-18.4, have been
reviewed and considered. Respondent, Board of Education of the City of Bridgeton (Board), did
not file a reply.
Pursuant to N.J.S.A. 18A:16-6, petitioner seeks reimbursement of counsel fees and costs
from the Board associated with the successful defense of an Order to Show Cause (OTSC) issued
against him by the New Jersey State Board of Examiners (SBE). 	In September 2017, after the
Board served him with tenure charges, petitioner agreed to resign from employment with the
Board. The Board accepted petitioner’s resignation and did not certify the tenure charges it had
contemplated bringing against him. 	In January 2018, the Board notified SBE of petitioner’s
resignation. 	In September 2018, SBE issued an OTSC against petitioner seeking to revoke his
teaching certificates due to allegations of unbecoming conduct. Petitioner retained counsel to

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defend against the OTSC. Ultimately, SBE vacated the OTSC on June 29, 2023, and took no action
against petitioner’s certificates. Petitioner was notified of same via letter dated July 5, 2023.
On October 13, 2023, petitioner initiated the instant matter via the filing of a petition of
appeal with the Office of Controversies and Disputes. The Board filed a motion to dismiss the
petition, 	which 	was 	appropriately 	treated 	as 	a 	motion 	for 	summary 	decision 	by 	the
Administrative Law Judge (ALJ) at the OAL. 	K.L. v. Bd. of Educ. of Borough of Kinnelon,
Commissioner Decision No. 315-08, at 4 (July 23, 2008). 	Petitioner filed a cross-motion for
summary decision. 	Upon review, the ALJ concluded that the matter was ripe for summary
decision.
The ALJ found as fact that the filing of the petition on October 13, 2023, was the first time
that petitioner put the Board on notice that he was seeking indemnification for counsel fees and
costs associated with the OTSC pursuant to N.J.S.A. 18A:16-6, and that said notice did not occur
“until five years of legal bills had accumulated.” Initial Decision, at 13. Applying the Appellate
Division’s recent holding in Azzaro v. Board of Education of the City of Trenton, 477 N.J. Super.
427 (App. Div. 2023), the ALJ concluded that petitioner’s delay in notifying the Board was “not
reasonable in that [he] should have put respondent on notice at the inception of the
administrative charges brought against him by the SBE in September, 2018.” Initial Decision, at
13. Thus, the ALJ granted the Board’s motion for summary decision, denied petitioner’s cross-
motion for summary decision, and dismissed the petition.
In his exceptions, although he neither contests the ALJ’s factual findings nor distinguishes
Azzaro, petitioner takes issue with the ALJ’s conclusion that waiting five years to put the Board
on notice of his indemnification request was unreasonable. He asserts that the plain language of

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N.J.S.A. 18A:16-6 does not require notice to be given to the Board at the outset of the
administrative proceedings. He argues that other statutes, such as N.J.S.A. 59:10A-1 pertaining
to the Attorney General’s duty to defend State employees, expressly require persons seeking a
defense to make a “request” for same. In other words, had the Legislature intended to include
a notice provision within N.J.S.A. 18A:16-6, it would have done so via the statute’s plain language.
Finally, petitioner claims that the Board does not have a policy concerning when notice must be
given regarding indemnification requests.
Upon review, the Commissioner adopts the Initial Decision as the final decision in this
matter for the reasons stated therein. 	The Commissioner agrees with the ALJ that Azzaro is
directly applicable to the present matter. In Azzaro, the Appellate Division expressly rejected the
argument raised in petitioner’s exceptions that because N.J.S.A. 18A:16-6 does not contain a
notice 	requirement, 	petitioners 	were 	under 	no 	obligation 	to 	demand 	a 	defense 	and
indemnification from the Board at the inception of the OTSC proceedings. Azzaro, 477 N.J. Super.
at 434. The court reasoned that “although N.J.S.A. 18A:16-6 does not specifically address when
a party must request defense costs and indemnification from a school board, the statute suggests
a 	board’s 	obligation 	arises 	when 	the 	action 	is 	instituted,” 	stating 	in 	relevant 	part,
“[w]henever any civil or administrative action . . . has been or shall be brought . . . the board shall
defray all costs of defending such action . . . .” 	Id. at 437. 	Ultimately, the court held that
petitioners had “an obligation to advise the Board they sought defense costs within a reasonable
period of time after the OSC was filed” and that “[w]hat constitutes a reasonable time may be a
fact-specific inquiry.” Id. at 440.

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In this case, the Commissioner concurs with the ALJ that waiting five years after the OTSC
was issued to advise the Board of petitioner’s request for indemnification was unreasonable
under the circumstances. The SBE issued the OTSC against petitioner in September 2018 and
vacated the OTSC on June 29, 2023. 	Still, petitioner failed to notify the Board of his
indemnification request until the instant petition was filed in October 2023. Petitioner fails to
provide any explanation as to why he declined to notify the Board at the inception of the OTSC
proceedings or when he retained counsel, other than arguing that neither the controlling statute
nor Board policy required him to do so. 	Given the court’s holding in Azzaro, petitioner’s
exceptions are unavailing.
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.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	September 30, 2024
Date of Mailing: 	September 30, 2024
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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 13639-23
AGENCY DKT. NO. 276-10/23
ROBERT LAWLESS,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF
BRIDGETON, CUMBERLAND COUNTY,
Respondent.
______________________________
Dean R. Wittman, Esq., for petitioner (Zeller & Wieliczko, LLP, attorneys)
Albert K. Marmero, Esq., for respondent (Marmero Law LLC, attorneys)
Record Closed: July 8, 2024 	Decided: August 16, 2024
BEFORE CATHERINE A. TUOHY, ALJ:
STATEMENT OF THE CASE
Petitioner, Robert Lawless, seeks reimbursement of counsel fees and costs
against respondent, City of Bridgeton Board of Education (Board) associated with the
successful defense of an Order to Show Cause (OTSC) issued to Lawless by the New
Jersey State Board of Examiners (SBE) pursuant to N.J.S.A. 18A:16-6.

OAL DKT. NO. EDU 13639-23
2
PROCEDURAL HISTORY
On October 13, 2023, petitioner filed a Verified Petition dated September 27,
2023, seeking an order directing Respondent to pay petitioner’s reasonable counsel
fees in the amount of $133,422.50 and costs in the amount of $3,263.58 incurred in the
successful defense of an OTSC issued by the SBE on September 21, 2018, in which it
directed Lawless to show cause why his teaching certificates should not be suspended
or revoked as a result of tenure charges filed against him by the respondent board.
By letter, dated July 5, 2023, the SBE advised that at its meeting of June 29,
2023, it voted to vacate the OTSC and that therefore, there was no pending action
against petitioner and his certificates were valid and in good standing. 	On October 13,
2023, petitioner filed his petition seeking reimbursement for counsel fees and costs
against respondent. 	On November 30, 2023, respondent filed a Notice of Motion to
Dismiss in Lieu of an Answer to Petition and Brief in Support of Motion to Dismiss with
attached Exhibits A, B and C.
The 	matter 	was 	transmitted 	from 	the 	Department 	of 	Education 	Office 	of
Controversies and Disputes to the OAL as a contested matter, where it was filed on
December 1, 2023.
On 	April 	29, 	2024, 	petitioner 	filed 	a 	Notice 	of 	Cross-Motion 	for 	Summary
Decision, Certification of Counsel, Statement of Material Facts and Brief in support of
Petitioner’s Cross-Motion, with attached Exhibits A through M.
On May 24, 2024, respondent filed a Brief in Opposition to Petitioner’s Cross-
Motion and in further Reply to its Motion to Dismiss.
Oral argument was conducted on July 8, 2024, and the motion record closed at
that time.

OAL DKT. NO. EDU 13639-23
3
FACTUAL DISCUSSIONS AND FINDINGS
Respondent’s Arguments
Petitioner’s legal costs and expenses were incurred in defending an OTSC
brought by the SBE and not the respondent. Petitioner no longer worked for respondent
and indemnification can only be sought by employees of the Board. 	Petitioner had not
been an employee of respondent for more than a year when the OTSC was filed by the
SBE. 	On August 30, 2017, respondent served sworn tenure charges on petitioner for
allegations of violations of various district policies including inappropriate conduct,
inappropriate restraints, and improper reporting of restraints that were used. 	Although
petitioner 	will 	argue that a 	subsequent 	investigation by 	the 	State 	found that the
allegations were unfounded, that has no bearing on whether district policies were
violated. 	The 	state 	has 	different 	standards 	and 	what 	might 	not 	be 	considered
institutional abuse by the state standards, could still be a violation of respondent’s
policies which could result in disciplinary action. Just because the state did not find that
institutional abuse occurred does not mean the conduct did not rise to a violation of
district policy. Also, there can be no indemnification when a disciplinary proceeding has
been brought against the employee by the board. 	The tenure charges were never
heard and no certification or vote by the board occurred as petitioner resigned his
position to work elsewhere. 	There was no formal determination of the merits of the
charges and petitioner opted to resign. 	Petitioner had every right to challenge the
tenure charges, but he decided to resign.
Respondent did not certify the tenure charges against petitioner, as he found
employment elsewhere and there was an agreement reached between the parties that
petitioner would resign, and respondent would waive the sixty-day notice provision to
allow him to resign and take the new position. 	The Board never voted on the tenure
charges and accepted petitioner’s resignation at its September 29, 2017, meeting.
Pursuant 	to 	the 	notification 	provisions 	set 	forth 	in 	N.J.A.C. 	6A:9B-4.3,
respondent’s superintendent did send a letter to the SBE dated January 24, 2018,

OAL DKT. NO. EDU 13639-23
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advising them that petitioner submitted his letter of resignation on September 29, 2017,
effective September 30, 2017, while he was on administrative leave with pay, while the
respondent conducted an investigation into his conduct which lead to the filing and
serving of Sworn Tenure Charges against him. 	(Exhibit B, Respondent’s motion to
Dismiss.) 	Although the tenure charges against petitioner were outlined in the letter,
they were not attached. 	The parties agreed that sometime later, the SBE requested a
copy from the respondent, and a copy was provided to the SBE by respondent.
Respondent argues that its involvement ended at that point and that the SBE on
its own initiative filed an OTSC a year later, on September 21, 2018, seeking to revoke
petitioner’s teaching certificates. Respondent was not a party to that action.
By letter, dated July 5, 2023, the SBE advised petitioner that at its meeting of
June 29, 2023, it voted to vacate the OTSC and that therefore, there was no pending
action against petitioner and his certificates were valid and in good standing. 	There
never was never any adjudication of the allegations raised in the tenure charges.
Petitioner would argue that the charges brought by respondent were false and
defamatory and he is therefore owed indemnification for having to defend the OTSC
brought by the SBE.
Indemnification is only required for conduct falling within the employment duties
of the school board employee and the allegations of inappropriate conduct do not fall
within the employment duties of the petitioner.
Typically, 	what 	happens 	in 	these 	cases 	is 	the 	employee 	would 	request
indemnification from the district; the district usually has insurance coverage, and the
matter would be forwarded to the insurance carrier; the employee would select an
attorney of their choosing; the attorney would submit a fee schedule to the insurance
company, who would approve, deny or modify the fee schedule. Invoices would then be
submitted to the district on a regular basis for approval; and then the insurer would have
a 	maximum 	level 	they 	would 	contribute 	towards 	the 	indemnification. 	Once 	the
maximum level was reached, the district would then kick in and pay for the rest of the

OAL DKT. NO. EDU 13639-23
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indemnification. 	None of that occurred in this case. 	Instead, the district is faced with a
six-figure invoice in a matter it was not involved in and had no notice of and that arose
from disciplinary charges which the district had brought in the past. 	The district had no
opportunity to vet the attorney or approve the fee structure or run it through insurance.
Furthermore, the fees and costs sought were not paid out of pocket by petitioner
and therefore he is not entitled to reimbursement for same.
There also was no proof of the reasonableness of the fees submitted.
Petitioner did not make a claim for indemnification for attorney’s fees and costs
until he filed this petition on October 13, 2023. The OTSC was filed in 2018 a year after
his 2017 resignation.
Therefore, respondent argues the petition should be dismissed.
Petitioner’s Argument
The only issue to be determined when a school board employee seeks civil
indemnification under N.J.S.A. 18A-16-6 is whether the employee was acting within the
scope of his employment duties. 	Mr. Lawless was a special education teacher with
respondent when all of these allegations occurred. 	He was acting in the scope of his
employment as a special education teacher. 	The allegations against Mr. Lawless were
unfounded by the state institutional abuse unit. 	Mr. Lawless was never disciplined for
anything. 	After four institutional abuse investigations had been brought against Mr.
Lawless that were unfounded, the superintendent decided that he must be some bad
actor and therefore brought sworn charges against him. 	The superintendent goes to
great length and certifies to facts that did not occur but were allegations that the
district’s own internal investigation uncovered were false and that the children were
lying and making up stories. 	Mr. Lawless knew the charges to be false, but it was not
until after the OTSC was filed and discovery produced that petitioner obtained all of the
interviews of various people confirming that the incidents did not occur and that the
children were lying to get Mr. Lawless fired. 	The district knew this because their own

OAL DKT. NO. EDU 13639-23
6
employees were saying this. 	The superintendent knew it was false yet swore to the
charges.
Mr. Lawless had been accused four times of doing things he did not do, and
then when served with tenure charges, he decided he no longer wanted to work for
respondent because of the things he was being accused of. He did not feel that he was
being properly supported by the district, so he started applying for other positions.
When the tenure charges came in, he found out another district wanted him. 	He
decided 	he 	did 	not 	want 	to 	work 	any 	longer 	for 	respondent 	with 	their 	constant
accusations and lack of support and decided to accept employment with another district.
Mr. Lawless did not admit to any wrongdoing or that any of the allegations were true.
Mr. Lawless said that the allegations were all false. 	But rather than going through the
process, knowing the respondent did not support him, he resigned and moved on.
Petitioner is not seeking any indemnification for the tenure charges being filed.
The time Mr. Wittman’s firm is billing as set forth in Exhibit “M” is time spent following
the SBE’s filing of the OTSC against petitioner. 	The SBE only knows what they were
told. 	They were told Mr. Lawless resigned, and tenure charges were pending against
him and the substance of those charges. Eventually they were provided with the actual
charges themselves. 	Respondent knew what was going on. 	They were getting
subpoenas from Mr. Wittman’s office for records and witnesses’ testimony. 	The
procedure referenced by respondent’s counsel for indemnification is not in writing or set
forth in any Board policy. Mr. Lawless went to his union and asked for an attorney, and
they gave him one. Mr. Wittman’s firm has been paid, but Mr. Lawless still has the right
of indemnification against the responsible party, which is respondent.
As set forth in exhibit “M” there is a breakdown as to what has been paid at the
NJEA rate and what is owed, based on Mr. Wittman’s firm’s billing. 	He has been paid
$74,840.45 and what he is claiming is $133,422.50 in counsel fees and $3,263.58 in
costs, based on Greene v. Board of Education of the Township of Irvington, Essex
County, 2014 WL 12844631 (OAL Docket No. EDU 4-04772-12), citing Salaam v. Board
pf Education of the Township of Irvington, Essex County, 2014 WL 503950 (App. Div.
2014). 	Mr. 	Lawless 	had 	to 	have 	an 	attorney 	represent 	him 	and 	is 	entitled 	to

OAL DKT. NO. EDU 13639-23
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indemnification. 	Petitioner is not seeking indemnification for the defense of disciplinary
charges brought against him by the respondent. 	He is seeking indemnification for the
defense of the OTSC brought against him by the SBE occasioned by the wrongdoing of
respondent who knew the charges were unfounded.
N.J.S.A. 18A-6 states 	that no one can be held harmless in a disciplinary
proceeding instituted against him by the Board. 	That is not what happened here. 	The
OTSC was brought by the SBE and not the Board. That is what the statute is supposed
to protect. 	The fact that petitioner no longer was an employee of respondent does not
matter. He was an employee of respondent when the allegations arose.
Dr. Thomasina Jones Superintendent signed the charges and put the wheels in
motion. 	The statute does not state that there must be an adjudication of the charges.
What happened was that the SBE could not prove their case and that is why the OTSC
was vacated, which should not prejudice Mr. Lawless who had to defend himself and
this went on for five years. 	The withdrawal of the OTSC is a determination in Mr.
Lawless’s favor. 	Respondent created the monster by saying all these things happened
when they did not, but this is not a claim for malicious prosecution.
The only issue is whether Mr. Lawless was acting in the scope of his employment
when these things occurred.
The Azzaro case is distinguishable from this case in that there was a finding that
twelve years was too long. 	This case only took five years. 	The Board had no notice in
that case which is different from this case. Also, the Board instituted the charges in this
case by the superintendent signing the charges and not in that case. 	It would be
unreasonable to require Mr. Lawless to go to respondent and ask for a defense when
they were the cause of his problems.
Although the parties raised various factual issues concerning the circumstances
surrounding the underlying tenure charges, both stipulated that this matter was ripe for
summary disposition.

OAL DKT. NO. EDU 13639-23
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The following facts are not in dispute and I FIND as follows:
Petitioner 	is 	a 	certified 	teacher 	by 	the 	N.J. 	Department 	of 	Education 	and
commenced employment with the respondent in the fall of 2008 as a special education
teacher and later attained tenure in that position.
On August 30, 2017, respondent issued sworn tenure charges against petitioner
for conduct unbecoming and other just cause.
Respondent did not certify the tenure charges against petitioner, as he found
employment elsewhere and there was an agreement reached between the parties that
petitioner would resign, and respondent would waive the sixty-day notice provision to
allow him to resign and take the new position.
The 	Board 	never 	voted 	on 	the 	tenure 	charges 	and 	accepted 	petitioner’s
resignation at its September 29, 2017, meeting.
Pursuant 	to 	the 	notification 	provisions 	set 	forth 	in 	N.J.A.C. 	6A:9B-4.3,
respondent’s superintendent did send a letter to the SBE dated January 24, 2018,
advising them that petitioner submitted his letter of resignation on September 29, 2017,
effective September 30, 2017, while he was on administrative leave with pay, while the
respondent conducted an investigation into his conduct which lead to the filing and
serving of Sworn Tenure Charges against him. 	(Exhibit B, Respondent’s motion to
Dismiss.) 	Although the tenure charges against petitioner were outlined in the letter,
they were not attached. 	The parties agreed that sometime later, the SBE requested a
copy of the tenure charges from the respondent, which respondent did provide.
On September 21, 2018, the SBE, on its own initiative, issued an OTSC to
petitioner seeking to revoke petitioner’s teaching certificates, based on the previous
tenure charges.
Respondent was not a party to that action.

OAL DKT. NO. EDU 13639-23
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Petitioner 	did 	not 	request 	respondent 	to 	provide 	him 	with 	a 	defense 	or
indemnification as to the SBE’s charges when they were filed against him on September
21, 2018.
Petitioner retained counsel and incurred legal fees in the amount of $133,422.50
and costs in the amount of $3,263.58 from October 1, 2018, to June 30, 2023.
(Certification of petitioner’s counsel, Exhibit M.)
By letter, dated July 5, 2023, the SBE advised that at its meeting of June 29,
2023, it voted to vacate the OTSC and that therefore, there was no pending action
against petitioner and his certificates were valid and in good standing.
On October 13, 2023, petitioner filed his Verified Petition dated September 27,
2023, seeking reimbursement for counsel fees and costs against respondent incurred in
defense of the SBE’s OTSC to suspend or revoke his teaching certificates.
The filing of this petition on October 13, 2023, was the first time petitioner put
respondent on notice that he was seeking indemnification for his legal fees and costs
associated with his defense of the SBE’s OTSC against him filed on September 21,
2018.
LEGAL ANALYSIS AND CONCLUSION
Both parties seek relief pursuant to N.J.A.C. 1:1-12.5, which provides that
summary decision should 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.” 	Our regulation mirrors R. 4:46-2(c) which provides that “the judgment or order
sought shall be rendered if the pleadings, depositions, answers to interrogatories and
admissions on file, 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 a
judgment or order as a matter of law.”

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A determination whether a genuine issue of material fact exists that precludes
summary decision requires the 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 allegedly disputed issue in
favor of the non-moving party. 	Our courts have long held that “if the opposing party
offers . . . only facts which are immaterial or of an insubstantial nature, a mere scintilla,
‘fanciful frivolous, gauzy or merely suspicious,’ he will not be heard to complain if the
court grants summary judgment.” 	Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
529 (1995) (citing Judson v. Peoples Bank and Trust Co., 17 N.J. 67, 75 (1954)).
The “judge’s function is not himself [or herself] 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 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.
Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). When the evidence “is so one-sided that
one party must prevail as a matter of law,” the trial court should not hesitate to grant
summary judgment. 	Liberty Lobby, 477 U.S. at 251-2, 106 S. Ct. at 2512, 91 L. Ed. 2d
at 214.
I CONCLUDE that this matter is ripe for summary decision since there are no
issues of material fact in dispute and that respondent is entitled to summary decision as
a matter of law as set forth below.
“Under the civil indemnification statute, N.J.S.A. 18A:16-6, a board of education
employee may be indemnified for attorney's fees and costs incurred defending civil
actions arising out of an act or omission that took place in the course and scope of
employment duties.” L.A. v. Board of Education, City of Trenton of Mercer County, 221
N.J. 192, 201-202 (2015).
N.J.S.A. 18A:16-6 provides:
Whenever any civil or administrative action or other legal
proceeding has been or shall be brought against any person
holding 	any 	office, 	position 	or 	employment 	under 	the
jurisdiction of any board of education, including any student

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11
teacher 	or 	person 	assigned 	to 	other 	professional 	pre-
teaching field experience, for any act or omission arising out
of and in the course of the performance of the duties of such
office, position, employment or student teaching or other
assignment to professional field experience, the board shall
defray 	all 	costs 	of 	defending 	such 	action, 	including
reasonable counsel fees and expenses, together with costs
of appeal, if any, and shall save harmless and protect such
person from any financial loss resulting therefrom; provided
that
a. 	no employee shall be entitled to be held harmless or
have 	his 	defense 	costs 	defrayed 	in 	a 	disciplinary
proceeding instituted against him by the board or when
the employee is appealing an action taken by the board;
and
b. 	indemnification for exemplary or punitive damages shall
not be mandated and shall be governed by the standards
and procedures set forth in N.J.S. 59:10-4.
Any 	board 	of 	education 	may 	arrange 	for 	and 	maintain
appropriate insurance to cover all such damages, losses and
expenses.
In Bower v. Bd. of Educ., 149 N.J. 416 (1997), the Supreme Court addressed the
statutory prerequisite. 	It held that the statute requires “mere proof by a preponderance
of the evidence that the act on which the charges are predicated arose out of and in the
course of performance of the duties of employment.” Id. at 434.
N.J.S.A. 18A:16-6 is in contrast to N.J.S.A. 18A:16-6.1, the statute that provides
for indemnification of education employees charged with criminal or quasi-criminal
actions. It provides:
Should any criminal or quasi-criminal action be instituted
against any such person for any such act or omission and
should such proceeding be dismissed or result in a final
disposition in favor of such person, the board of education
shall 	reimburse 	him 	for 	the 	cost 	of 	defending 	such
proceeding, 	including 	reasonable 	counsel 	fees 	and
expenses of the original hearing or trial and all appeals. No
employee shall be entitled to be held harmless or have his
defense costs defrayed as a result of a criminal or quasi-

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12
criminal complaint filed against the employee by or on behalf
of the board of education.
Any 	board 	of 	education 	may 	arrange 	for 	and 	maintain
appropriate insurance to cover all such damages, losses and
expenses.
[N.J.S.A. 18A:16-6.1(emphasis added).]
In Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977), the Appellate
Division held that an employee seeking indemnification “does not have the absolute
right to counsel of his own choosing at municipal expense.” 	Id. at 14. 	The Appellate
Division specifically noted that a right to absolute reimbursement was provided for only
when the municipality’s obligation was conditional on the outcome of the litigation. Ibid.
However, there was no right of reimbursement when “the obligation to provide for the
defense arose at the inception of the proceeding and was independent of the outcome
of the proceeding.” Id. at 15.
In this case, petitioner’s right to indemnification is governed by N.J.S.A. 18A:16-
6, which contains no requirement that the employee be successful in the litigation to be
indemnified. The relevant language in N.J.S.A. 18:16-6 can be contrasted with N.J.S.A.
18A16-6.1, 	which 	provides 	for 	indemnification 	in 	criminal 	actions 	only 	when 	the
proceedings are dismissed or result in a final disposition favorable to the employee.
Here, there is no dispute that SBE proceedings are an administrative action, not a
criminal 	action. 	Therefore, 	although 	petitioner’s 	claim 	arises 	out 	of 	a 	different
indemnification statute than the one at issue in Edison, it nonetheless bears the same
characteristics, in that it arose at the inception of the proceedings and was independent
of the outcome of the proceedings.
In Azzaro v. Bd. of Educ. of Trenton, 477 N.J. Super. 427 (App. Div. 2023) the
Court concluded that N.J.S.A. 18A:16-6 does not allow school board employees to wait
until the final disposition of a civil or administrative action filed against them before
seeking defense costs and indemnification from a school board. 	The employee must
provide the school board with reasonable notice after the initiation of the proceeding,
unlike the procedure set forth in N.J.S.A. 18A16-6.1, which provides that an employee

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13
cannot seek reimbursement of defense costs and indemnification until the conclusion of
a criminal or quasi criminal action.
In 	this 	case, 	petitioner 	failed 	to 	notify 	the 	respondent 	of 	his 	request 	for
indemnification until five years of legal bills had accumulated. 	Those bills were
generated by a law firm which the respondent had no input in choosing. 	Although in
Azzaro petitioner waited twelve years before seeking indemnification which the court
found was not reasonable, likewise, I CONCLUDE that petitioner’s waiting five years in
this case to put respondent on notice it was seeking indemnification pursuant to
N.J.S.A. 	18A:16-6 	was 	also 	not 	reasonable 	in 	that 	petitioner 	should 	have 	put
respondent on notice at the inception of the administrative charges brought against him
by the SBE in September, 2018.
ORDER
For the reasons stated above, it is hereby ORDERED that respondents motion
for summary decision is hereby GRANTED. Petitioner’s motion for summary decision is
DENIED and petitioner’s appeal is DISMISSED.
I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is
authorized to make a final decision in this matter. 	If the Acting 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 	ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION. 	Exceptions may be
filed by email to ControversiesDisputesFilings@doe.nj.gov or by mail to Office of

OAL DKT. NO. EDU 13639-23
14
Controversies and 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.
August 16, 2024
DATE 	CATHERINE A TUOHY, ALJ
Date Received at Agency:
Date Mailed to Parties:
CAT/gd

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APPENDIX
BRIEFS
For petitioner
• 	Petitioner’s 	Notice 	of 	Cross-Motion 	for 	Summary 	Decision, 	Certification 	of
Counsel, Statement of Material Facts and Brief in support of petitioner’s cross-
motion, with attached Exhibits A through M, dated April 29, 2024
For respondent
• 	Respondent Bridgeton BOE’s November 30, 2023, Notice of Motion to Dismiss in
Lieu of an Answer to Petition and Brief in Support of Motion to Dismiss with
attached Exhibits A, B and C
• 	Respondent’s May 24, 2024, Brief in Opposition to Petitioner’s Cross-Motion for
Summary Decision and Reply in further Support of its Motion to Dismiss