EDWARD HENDRICKSON V. BOARD OF EDUCATION OF THE CITY OF RAHWAY, UNION COUNTY AND RAY LOPEZ, BOARD MEMBER, 4/13/18, (#119-18)

119-18
EDWARD HENDRICKSON, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
CITY OF RAHWAY, UNION COUNTY
AND RAY LOPEZ, BOARD MEMBER, 	:
RESPONDENTS. 	:
_______________________________________
SYNOPSIS
On September 27, 2017, petitioner appealed the respondent Board’s decision not to renew his
annual contract as Buildings and Grounds Manager at the end of the 2016-2017 school year.
Petitioner was notified by letter dated June 9, 2017 that his employment would be discussed and
acted on at one of two June Board meetings. Subsequently, on June 28, 2017, petitioner was
notified that the Board had voted not to renew his contract for the upcoming school year, and he
was relieved of his duties that day. Petitioner’s appeal asserted, inter alia, that the June 27, 2018
Board vote on his employment renewal was improper; he requested that the Board reconvene to
vote on a motion to extend his employment contract and to pay his salary pending a vote on the
motion. The Board filed a motion for summary decision, contending that petitioner’s appeal was
filed out of time, and that the petition failed to state a valid claim for relief.
The ALJ found, inter alia, that: there are no material facts at issue herein, and the matter is ripe
for summary decision; petitioner had notice of the Board’s decision to non-renew his contract no
later than June 28, 2017; 	pursuant to N.J.A.C. 6A:3-1.3(i), petitioner was required to file his
appeal 	within 	ninety 	days 	of 	final 	notice 	of 	the 	Board’s 	action, 	or 	no 	later 	than
September 26, 2017; in this case, the petitioner filed his appeal on September 27, 2017, thereby
failing to comply with the ninety-day rule; 	and petitioner has failed to establish exceptional
circumstances or a compelling reason to relax the statutory deadline for filing. Accordingly, the
ALJ granted the Board’s motion for summary decision and dismissed the petition.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusions, and adopted
the Initial Decision of the OAL as the final decision in this matter. The petition 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.
April 13, 2018

OAL DKT. NO. EDU 14934-17
AGENCY DKT. NO. 229-9/17
EDWARD HENDRICKSON, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
CITY OF RAHWAY, UNION COUNTY
AND RAY LOPEZ, BOARD MEMBER, 	:
RESPONDENTS. 	:
_______________________________________
The record of this matter and the Initial Decision of the Office of Administrative
Law have been reviewed. The parties did not file exceptions to the Initial Decision.
Upon review, the Commissioner concurs with the ALJ’s determination – for the
reasons stated in the Initial Decision – that the petition of appeal was time barred under
N.J.A.C. 6A:3-1.3(i). The Commissioner, likewise, concurs that petitioner has failed to set forth
any compelling reason to relax the timely filing requirement. Accordingly, the Initial Decision is
adopted as the final decision in this matter and the petition of appeal is dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	April 13, 2018
Date of Mailing: 	April 13, 2018
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1).

1
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 14934-17
AGENCY DKT. NO. 229-9/17/1
EDWARD HENDRICKSON,
Petitioner,
v.
BOARD OF EDUCATION OF THE
CITY OF RAHWAY, UNION COUNTY
AND RAY LOPEZ, BOARD MEMBER,
Respondents.
David Rostan, Esq., for petitioner (Law Office of David Rostan, attorneys)
Fred Shahrooz-Scampato, Esq., for petitioner (Law Offices of Fred Shahrooz-
Scampato, attorneys)
Margaret A. Miller, Esq., for respondents (Weiner Law Group, attorneys)
Record Closed: February 15, 2018 	Decided: March 5, 2018
BEFORE SUSANA E. GUERRERO, ALJ:
Respondents, the Board of Education of the City of Rahway (“Board”) and Board
Member 	Ray 	Lopez 	(collectively 	“respondents”) 	filed 	a 	motion 	seeking 	summary
decision on the basis that Edward Hendrickson’s (“petitioner” or “Hendrickson”) petition

OAL DKT. NO. EDU 14934-17
2
was untimely filed; and that the Board’s vote that resulted in not renewing Hendrickson’s
employment was proper and fully in accordance with applicable law. Petitioner opposes
the motion.
FACTUAL BACKGROUND
Petitioner was employed by the Board as a Building and Grounds Manager for
the Rahway Public Schools (“District”) beginning in February 2011. His contract of
employment extended for the remainder of the 2011/2012 school year. In May 2011, he
was reappointed for the 2012/2013 school year, and was subsequently reappointed for
employment by the Board in May of every year through the 2016/2017 school year.
Petitioner’s contract of employment for the 2016/2017 school year was due to expire on
June 30, 2017. 	By letter dated June 9, 2017, Rahway’s Superintendent of Schools
advised petitioner that his employment would be discussed at the June 13, 2017 Board
meeting and that action would be taken at that meeting or at the June 27, 2017 meeting.
On June 27, 2017, the Board considered Hendrickson’s employment and the
Superintendent’s recommendation that petitioner be reappointed for a six-month period
(July 1, 2017 through December 31, 2017) rather than a one-year term. 	The Board
consisted of nine members, and the motion to reappoint petitioner for six months
resulted in a vote of three ayes, three nays; with the additional three Board Members
absent. 	Board member Ray Lopez was one of the three members who voted not to
renew petitioner’s employment contract.
On 	June 	28, 	2017, 	the 	day 	following 	the 	Board’s 	vote, 	the 	Board’s
Secretary/Business Administrator informed Hendrickson of the Board’s vote. 	Petitioner
was relieved of his duties at that time, and turned in his keys to the District buildings and
vehicle. He did not return to work for the District after June 28, 2017 and his contract of
employment expired on June 30, 2017.
On 	September 	27, 	2017, 	petitioner 	filed 	his 	Petition 	of 	Appeal 	with 	the
Commissioner of Education, and served it on the Board. The Petition asserts: 	that the
June 27, 2017 vote did not constitute a recorded roll call of the majority vote of the full

OAL DKT. NO. EDU 14934-17
3
membership of the Board pursuant to N.J.S.A. 18A:27-4.1; that another vote should
have taken place to break the deadlock; that respondent Ray Lopez should have
recused himself from the June 27 vote; and that the Board’s decision not to renew the
petitioner’s contract was arbitrary and capricious. 	The petitioner requests that the
Board reconvene to vote on the motion to extend petitioner’s contract of employment
and to pay his salary pending a vote on the motion.
Respondents’ Motion for Summary Decision
Respondents filed a motion for summary decision on December 13, 2017. 	The
basis for the motion is two-fold. 	First, respondents assert that summary decision is
appropriate here because petitioner failed to file the petition within ninety days of the
Board’s decision, as required by N.J.A.C. 6A:3-1.3. 	Petitioner was advised by letter
dated June 9, 2017, that the Board would be discussing his employment status at the
Board’s regularly scheduled June 13, 2017 meeting, and that action would be taken at
that meeting or at the following meeting on June 27, 2017. 	The Board voted on the
motion to reappoint petitioner on June 27, 2017, and while petitioner may not have been
aware of the result of this vote on that day, he was informed of the outcome of the vote
the following day, June 28, 2017, by the Board’s Secretary/Business Administrator.
Respondents maintain that petitioner knew or should have reasonably known of any
claims that he may have had against the Board regarding its failure to appoint him on
June 27, when the Board’s final “action” occurred. 	Respondents assert that petitioner
was, 	therefore, 	required 	to 	file 	his 	Petition 	of 	Appeal 	with 	the 	Commissioner 	of
Education 	by 	September 	25, 	2017, 	or 	by 	September 	26, 	2017 	at 	the 	latest 	if
Hendrickson could not be deemed to have known or reasonably known of the Board’s
action until he spoke with the Board Secretary/Business Administrator on June 28,
2017.
Second, 	respondents 	maintain 	that 	summary 	decision 	is 	also 	appropriate
because there is no legal basis for awarding petitioner’s requested relief—i.e., that the
Board reconvene and conduct a new vote on the motion to reappoint petitioner. 	The
Board’s June 27 vote on the motion to reappoint Hendrickson was a proper roll call vote
of 	the 	Board, 	in 	complete 	accord 	with 	N.J.S.A. 	18A:27-4.1, 	and 	it 	resulted 	in

OAL DKT. NO. EDU 14934-17
4
Hendrickson not receiving the necessary five affirmative votes for reappointment.
Despite petitioner’s contention, the Board had no legal obligation to take a second vote
on the motion in order to “break the tie.”
N.J.S.A. 18A:27-4.1, which addresses a Board of Education’s procedures for
taking certain personnel actions, states in part:
Notwithstanding the provisions of any law, rule or regulations
to the contrary,
a. 	A board of education shall appoint, transfer or remove
a certificated or non-certificated officer or employee only
upon the recommendation of the chief school administrator
and 	by 	a 	recorded 	roll 	call 	majority 	vote 	of 	the 	full
membership of the board. 	The board shall not withhold its
approval for arbitrary and capricious reasons.
Finally, respondents add that even if respondent Board member Ray Lopez had
recused himself from the June 27 vote, as petitioner claims he should have, petitioner
would still not have the five affirmative votes required to support his appointment.
Petitioner’s Response to the Motion for Summary Decision
Petitioner opposes respondents’ motion for summary decision, asserting that
there are genuine issues of fact in dispute. 	One such genuine issue of fact is when
Hendrickson became aware of the Board’s final decision not to renew his contract, and
when the ninety-day period began to run. 	Hendrickson asserts that the ninety-day
limitations period did not start until the end of August because that is when a final
decision regarding his employment status was made or communicated to him and when
he stopped receiving payments and medical insurance from the District. 	According to
petitioner’s certification, he was told by a Board member on June 27, 2017 that the
Board had a tie vote concerning his employment, and that his employment status would
be revisited in July because “there was not a majority of the full board voting” to renew

OAL DKT. NO. EDU 14934-17
5
the contract.2 Hendrickson’s certification also states that he was told by the same board
member after a July 14, 2017 board meeting (at which time petitioner’s employment
was not addressed, nor scheduled to be addressed) that the Board was “not sure as to
what they were going to do” with him, but that “no final decision was made.” 	No one
advised 	him 	of 	his 	employment 	status 	with 	the 	District 	after 	that 	conversation.
According to petitioner, since he continued to receive payments from the District
through the end of August, he was under the impression that he was still employed by
them and that a final decision concerning his employment had not been made.3
Petitioner asserts in his brief that even if the petition was filed one day late, the
deadline should be relaxed given the “multiple misleading actions which respondent
undertook toward Mr. Hendrickson.” 	He argues that the Board failed to apprise him of
“some facts that he had a right to know . . . that the communicating party had a duty to
communicate,” and that the respondents failed to communicate a final determination
that Hendrickson would no longer be employed as of June 30, 2017. 	Petitioner
maintains respondents should be estopped from asserting that the petition is time-
barred because it had an affirmative obligation to communicate to the petitioner that as
of June 27, he would have to seek civil redress if he wanted to appeal its decision.
Finally, petitioner argues that the Board acted in bad faith in relying on an
unsubstantiated anonymous complaint in deciding not to renew his contract, and that
the Board’s vote was calendared in a manner to foreclose votes by supportive board
members. 	This, according to petitioner, demonstrates a genuine question of fact as to
whether respondents acted for arbitrary and capricious reasons.
Respondents’ Reply
Respondents filed a reply to petitioner’s opposition, stressing that petitioner failed
to present any reliable or competent evidence to substantiate his claim that there is a
2 Petitioner declined to identify the Board member who he claims told him this despite respondents’
request, and the undersigned’s direction to do so by February 12, 2018. Petitioner was advised by the
undersigned that his failure to disclose the name of this Board member would result in an adverse
inference being drawn against him regarding his assertions concerning the Board member.
3 Respondents explain that the payments received by Hendrickson after he was released of his duties at
the end of June 2017 constituted a payout of his accumulated vacation time.

OAL DKT. NO. EDU 14934-17
6
genuine issue of material fact in dispute here. 	Petitioner does not dispute that the vote
took place on June 27, 2017 and that no Board action took place after this date.
Anything that occurred after the vote, according to respondents, is of no consequence
since this is the date that triggered the ninety-day period. Since petitioner was an at-will
employee appointed for a fixed term contract extending from July 1, 2016 through June
30, 2017, his employment with the District automatically ceased on June 30 regardless
of the result of the June 27 vote. 	Moreover, the District had no obligation to further
communicate with petitioner about his employment status as the Board’s vote on June
27 constituted the Board’s only action taken with respect to petitioner. 	Petitioner’s
unsubstantiated claims that he was advised by a Board member that further action
would be taken on his employment is insufficient to create a genuine issue of material
fact.
Respondents maintain that there is no justification for relaxing the application of
the ninety-day rule, and there is no basis for equitable estoppel to bar the Board from
asserting the statute of limitations defense. Petitioner does not specify what the Board’s
alleged “multiple misleading” actions were that warrant relaxation of the ninety-day rule
or that support an equitable estoppel argument. 	Petitioner also does not specify what
information the Board failed to disclose or communicate to Hendrickson that was legally
required. 	Respondents cite several cases, including Kaprow v. Berkeley Twp. Bd. of
Educ., 131 N.J. 572 (1993), to support their position that the statute of limitations period
is strictly applied, and argues that there are no compelling circumstances here that
justify relaxation of the rule, even if for just one day.
Oral Argument
Oral argument on the respondents’ motion for summary decision was held on
February 15, 2018. 	Counsel for respondents repeated the arguments raised in the
motion 	for 	summary 	decision 	and 	reply 	brief, 	arguing 	that 	summary 	decision 	is
appropriate here because petitioner’s appeal was not filed within ninety days of the
June 	27, 	2017 	hearing, 	the 	only 	day 	the 	Board 	took 	any 	action 	concerning
Hendrickson’s employment for the 2017–2018 school year.

OAL DKT. NO. EDU 14934-17
7
Counsel for respondent, Ms. Miller, also argued that since petitioner refused to
disclose the identity of the Board member who allegedly led him to believe that his
employment status would be determined sometime after June 27, there is no basis to
support petitioner’s position that the ninety-day period began at the end of August 2017.
Despite petitioner’s assertion that it was not until late August 2017 that he became
aware 	that 	he 	was 	no 	longer 	employed 	by 	the 	District, 	his 	own 	answers 	to
interrogatories undercut this position because they reveal that petitioner requested a
Statement of Reason for the Board’s decision sometime before July 1, 2017. 	The fact
that petitioner requested an explanation of the Board’s decision at that time confirms
that he was aware in late June that the Board’s decision concerning his employment
was a final one.
Mr. Scampato, counsel for petitioner, argued that the focus here should not be on
the date triggering the ninety-day rule, but on equity, justice and petitioner’s entitlement
to have a hearing. 	He argued that Hendrickson was not given enough information to
lead him to know that his employment was not renewed in June 2017.
ANALYSIS
Summary decision may be granted “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.” 	N.J.A.C. 1:1-12.5(b). 	To survive a summary decision, the opposing party must
show that “there is a genuine issue which can only be determined in an evidentiary
proceeding.” 	Ibid. 	Failure 	to 	do 	so 	entitles 	the 	moving 	party 	to 	summary
judgment/decision. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995).
The Commissioner of Education has jurisdiction to hear and determine all
controversies arising under the school laws. 	N.J.S.A. 18A:6-9. 	N.J.A.C. 6A:3-1.1 to -
1.17 sets forth the rules of procedure established by the Department of Education for
the 	filing 	of 	petitions 	with 	the 	Commissioner 	of 	Education 	to 	hear 	and 	decide
controversies and disputes arising under school laws. 	N.J.A.C. 6A:3-1.1. 	To initiate a
contested case pursuant to these rules, petitioner must prepare a petition of appeal and

OAL DKT. NO. EDU 14934-17
8
serve such petition upon each respondent. 	N.J.A.C. 6A:3-1.3(a). 	The petition must
state the allegations and facts giving rise to the appeal, and the specific relief sought.
N.J.A.C. 6A:3-1.4(a).
N.J.A.C. 6A:3-1.3(i), known as the ninety-day rule, provides that:
[t]he 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, which is the subject of the requested
contested case hearing.
[N.J.A.C. 6A:3-1.3(i).]
The 	ninety-day 	rule 	has 	been 	strictly 	followed 	and 	applied 	almost 	without
exception. 	D.Q. o/b/o S.Q. v. Sch. Dist. of Newark, 2009 N.J. AGEN LEXIS 640 (Jan.
21, 2009). In Dreher v. Jersey City Bd. of Educ., a petition filed only two days after the
ninety-day period was dismissed as untimely. 	1987 S.L.D. 1706, aff’d, 1988 S.L.A.
2439 (State Bd. of Educ. 1988), rev’d on other grounds, A-6120-82 (App. Div. 1989),
cert. denied, 117 N.J. 138 (1989).
The Commissioner, however, has discretion to relax these rules pursuant to
N.J.A.C. 6A:3-1.16 “under exceptional circumstances or if there is a compelling reason
to do so.” 	Snow v. Bd. of Educ. of the Twp. of Moorestown, 2007 N.J. AGEN LEXIS
312 (April 20, 2007). 	“Such authority is rarely invoked unless strict adherence to the
rule would be inappropriate, unnecessary or where injustice would occur, or where the
Commissioner finds the presence of a substantial constitutional issue or other issue of
fundamental public interest beyond that of concern only to the parties themselves.” Ibid.
In fact, this extraordinary relief has been reserved only for those situations where a
substantial constitutional issue is presented or where a matter of significant public
interest is involved, beyond that of concern only to the parties. AAA School LLC v.
Passaic Cnty. Educ. Servs. Comm’n, Passaic Cnty, 2014 N.J. AGEN LEXIS 397 (June
18, 2014).
In this matter, there is no dispute that on June 27, 2017 the Board voted on a
motion to reappoint Hendrickson for a six-month term extending from July 1, 2017

OAL DKT. NO. EDU 14934-17
9
through December 31, 2017, as his employment contract with the District was set to
expire on June 30, 2017. 	Of the nine sitting board members, only three of the required
five members voted in the affirmative to approve Hendrickson’s six-month contract, and
the motion to reappoint failed. 	The Board took no further action on petitioner’s
employment after the June 27, 2017 vote.
On June 28, 2017, the day following the Board meeting, Hendrickson met with
the Business Administrator/Board Secretary who informed him of the result of the
Board’s vote. 	Petitioner does not dispute that he had this meeting and that he was
informed of the Board’s vote. 	While petitioner maintains that he was under the
impression that the “tie vote” did not constitute the District’s final action concerning his
employment and that they would meet again to vote again on his contract, it is
undisputed 	that 	Hendrickson 	was 	dismissed 	by 	the 	Business 	Administrator/Board
Secretary on that day, he did not return to work for the district any time after June 28,
and he was never given any official notice that his employment would be addressed by
the Board again at some later date. 	Moreover, prior to 2017, petitioner had had his
previous employment contracts with the District approved at around the same time
every year and he was aware that his contract for the 2017–2018 school year had not
been renewed when addressed by the Board in June 2017. 	I FIND, therefore, that
petitioner received sufficient notice of the Board’s final decision not to renew his
employment 	contract 	on 	June 	28, 	2017, 	when 	he 	met 	with 	the 	Business
Administrator/Board Secretary. While petitioner maintains that it was not until the end of
August 2017 that he realized his employment with the District ended, he knew full well
that his most recent employment contract expired on June 30, 2017 and that the Board
did not renew his contract on June 27, 2017.
Petitioner did not file his appeal with the Commissioner of Education and the
Board until September 27, 2017. 	Based on the foregoing, I FIND that petitioner was
required to file the Petition of Appeal by September 26, 2017 to comply with the ninety-
day filing requirement; and I further FIND that petitioner’s petition is time-barred as it
was filed past the ninety-day statutory deadline. 	I also FIND that petitioner has not
presented any exceptional circumstances or compelling reasons for the Commissioner
of Education to relax this deadline.

OAL DKT. NO. EDU 14934-17
10
CONCLUSION AND ORDER
As 	the 	moving 	party, 	respondent 	Board 	carries 	the 	burden 	of 	proof 	to
demonstrate, by a preponderance of the credible evidence, that summary decision
should be entered in favor of respondents, and specifically that summary decision is
appropriate 	because 	petitioner 	failed 	to 	comply 	with 	the 	ninety-day 	rule. 	After
considering all of the proofs and arguments relative to the motion, I CONCLUDE that
respondents have met their burden by establishing that petitioner’s appeal was filed
beyond the ninety-day deadline established by N.J.A.C. 6A:3-1.3(i), and that petitioner
has failed to establish exceptional circumstances or a compelling reason to relax this
statutory deadline.
Based on the foregoing, I CONCLUDE that the respondents’ motion for summary
decision should be GRANTED.
It is, therefore, ORDERED that the motion for summary decision filed by the
Board of the City of Rahway and Ray Lopez, Board Member, is GRANTED for the
reasons stated herein.
In light of the above findings of fact and conclusions, it is unnecessary to address
respondents’ additional arguments in support of the motion to dismiss—specifically that
there is no legal basis for the Board to conduct a new vote on the motion to reappoint
petitioner.
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

OAL DKT. NO. EDU 14934-17
11
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, 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.
March 5, 2018
DATE 	SUSANA E. GUERERO, ALJ
Date Received at Agency:
Date Mailed to Parties:
jb