R.Z. and L.D., on behalf of minor child, L.Z., v. Board of Education of the Northern Valley Regional High School District, Bergen County, 9/29/2023, (#295-23)

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295-23

New Jersey Commissioner of Education
Decision

R.Z. and L.D., on behalf of minor child, L.Z.,

Petitioners,

Board of Education of the Northern Valley
Regional High School District, Bergen County,

Respondent.

Synopsis

Petitioners sought to appeal the findings of a harassment, intimidation, and bullying (HIB)
investigation conducted by the anti-bullying specialist (ABS) at their child’s school. The petition
was filed prior to the Board’s issuance of its decision in the HIB matter. The Board filed a
motion to dismiss the petition as premature.

The ALJ found that, pursuant to N.J.S.A. 18A:37-15(b)(6)(e), only the Board’s final decision may
be appealed to the Commissioner; therefore, the ALJ concluded that the matter was not yet
ripe for review by the Commissioner when the petitioners initiated the within action.
Accordingly, the ALJ granted the Board’s motion to dismiss.

Upon review, the Commissioner adopted the ALJ’s Initial Decision as the final decision in this
matter. Accordingly, the Board’s motion to dismiss was granted 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.

OAL Dkt. No. EDU 05870-23
Agency Dkt. No. 143-5/23
New Jersey Commissioner of Education
Final Decision
R.Z. and L.D., on behalf of minor child, L.Z.,
Petitioners,
v.
Board of Education of the Northern Valley
Regional High School District, Bergen County,
Respondent.
The record of this matter, and the Initial Decision of the Office of Administrative Law
(OAL), have been reviewed and considered. The parties did not file exceptions.
Petitioners sought to appeal the findings of a harassment, intimidation, and bullying (HIB)
investigation conducted by the anti-bullying specialist (ABS) at their child’s school. At the time
of filing of petitioners’ appeal to the Commissioner, the findings at issue had been reported to
the superintendent but had not yet been affirmed, rejected, or modified by the Board. It is
uncontested that the Board did not render its final decision until after petitioners filed their
appeal with the Commissioner. For these reasons, the Board moved to dismiss the petition as
premature.
Citing N.J.S.A. 18A:37-15(b)(6), the Administrative Law Judge (ALJ) granted the Board’s
motion upon concluding that the petition was filed prematurely. The ALJ found that, per
N.J.S.A. 18A:37-15(b)(6)(e), only the Board’s final decision may be appealed to the Commissioner.
295-23

2
Thus, the matter was not yet ripe for review by the Commissioner when petitioners initiated this
action by filing their petition of appeal.
Upon review, the Commissioner adopts the ALJ’s Initial Decision as the final decision in
this matter. The Commissioner concurs with the ALJ that petitioners’ premature attempt to
appeal to the Commissioner before the Board had an opportunity to render its decision was
inconsistent with the statutory scheme. See M.M., on behalf of minor child v. Board of Education
of the Township of Lafayette, Sussex County, Commissioner Decision No. 253-20 (Nov. 5, 2020),
at 5 (“Only after the final decision by the board of education did the Legislature create a right of
appeal to the Commissioner, and for good reason – it is not in the interest of judicial economy to
adjudicate HIB matters in a piecemeal fashion.”).
Accordingly, the Board’s motion to dismiss is granted, and the petition of appeal is hereby
dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1. Under
N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date of mailing
of this decision.
September 29, 2023
October 2, 2023

New Jersey is an Equal opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 05870-23
AGENCY DKT. 143-5/23
R.Z. & L.D. ON BEHALF OF MINOR CHILD L.Z.,
Petitioner,
v.
BOARD OF EDUCATION OF THE NORTHERN
VALLEY 	REGIONAL 	HIGH 	SCHOOL
DISTRICT,
Respondent.
______________________________________
Avram E. Frisch, Esq., for petitioner (Law Offices of Avram E. Frisch, LLC
attorneys)
Christine Martinez, Esq., for respondent, (Machado Law Group, attorney)
BEFORE: KIMBERLY A. MOSS, ALJ
Record Closed: July 27, 2023 	Decided: August 22, 2023
Petitioners filed an appeal of a Harassment, Intimidation and Bullying (HIB)
matter. 	The petition was filed at the Office of Administrative Law on July 3, 2023.
Included in the filing was a motion to dismiss from respondent dated June 26, 2023.
Petitioner filed opposition to the motion on July 24, 2023. 	Respondent filed a reply to
the opposition on July 27, 2023. 	Petitioner filed a reply via email on July 31, 2023, on
which date the record closed.

OAL DKT. NO. EDU 05870-23
2
FACTUAL DISCUSSION
I FIND the following FACTS:
On or about January 13, 2023, petitioners informed the Board of an alleged HIB.
The HIB investigation was done within ten school days on January 30, 2023. 	The
findings were reported to the Board on February 13, 2023. On April 13, 2023, petitioner
requested a hearing before the Board. 	On April 17, 2023, petitioner requested that the
meeting be scheduled on a Monday. 	The Board initially offered May 22, 2023. 	It then
offered May 8, 2023, for the hearing before the Board. 	The meeting was scheduled for
May 8, 2023. 	On May 5, 2023, the Superintendent, after reviewing the investigation,
determined that further investigation was necessary. 	The results of the additional
investigation were reported to the Board on May 22, 2023.
On May 23, 2023, petitioners filed a petition of appeal stating that they disagreed
with the HIB findings and that they were denied the opportunity to have their appeal
heard within ten days. 	On June 2, 2023, petitioners were offered a hearing before the
Board on June 26, 2023, which petitioners rejected. 	The petition of appeal was served
on the Board on June 6, 2023. 	On June 8, 2023, the Board scheduled a special
meeting on June 12, 2023, where petitioners were provided with a hearing before the
Board.
LEGAL ANALYSIS AND DISCUSSION
R.4:6-2 provides:
Every defense, legal or equitable, in law or fact, to a claim for relief in any
complaint, counterclaim, cross-claim, or third-party complaint shall be
asserted in the answer thereto, except that the following defenses, unless
otherwise provided by R. 4:6-3, may at the option of the pleader be made
by motion, with briefs: (a) lack of jurisdiction over the subject matter, (b)
lack 	of 	jurisdiction 	over 	the 	person, 	(c) 	insufficiency 	of 	process, 	(d)
insufficiency of service of process, (e) failure to state a claim upon which
relief can be granted, (f) failure to join a party without whom the action
cannot proceed, as provided by R. 4:28-1. If a motion is made raising any
of these defenses, it shall be made before pleading if a further pleading is
to be made. No defense or objection is waived by being joined with one or
more other defenses in an answer or motion. Special appearances are
superseded. 	A 	motion 	to 	dismiss 	based 	on 	defense 	(e), 	and 	any
opposition thereto, shall be filed and served in accordance with the time
frames set forth in R. 4:46-1. If, on a motion to dismiss based on defense

OAL DKT. NO. EDU 05870-23
3
(e), matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and
disposed 	of 	as 	provided 	by 	R. 	4:46, 	and 	all 	parties 	shall 	be 	given
reasonable notice of the court’s intention to treat the motion as one for
summary judgment and a reasonable opportunity to present all material
pertinent to such a motion.
N.J.A.C. 6A: 3-1.5 (g) provides:
Nothing in this section precludes the filing of a motion to dismiss in lieu of
an answer to a petition, provided that such motion is filed within the time
allotted for the filing of an answer. Briefing on such motions shall be in the
manner and within the time fixed by the Commissioner, or by the ALJ if the
motion is to be briefed following transmittal to the OAL.
N.J.A.C. 6A: 3-1.10 provides:
At any time prior to transmittal of the pleadings to the OAL, in the
Commissioner's discretion or upon motion to dismiss filed in 	lieu 	of
answer, the Commissioner may dismiss the petition on the grounds that
the petitioner has advanced no cause of action even if the petitioner's
factual allegations are accepted as true or for lack of jurisdiction, failure to
prosecute or other good reason.
Board of Education v Repollet 2021 N.J. Super. Unpub. LEXIS 1955
provides:
The standards governing the grant or denial of a motion to dismiss for
failure to state a claim in the administrative context are identical to those
governing a similar motion in the Superior Court. Compare N.J.A.C. 6A:3-
1.10 with Rule 4:6-2(e); see also Sloan ex rel. Sloan v. Klagholtz, 342 N.J.
Super. 385, 393-94, 776 A.2d 894 (App. Div. 2001). When reviewing a
motion to dismiss pursuant to Rule 4:6-2(e), the inquiry is "limited to
examining the legal sufficiency of the facts alleged on the face of the
complaint." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739,
746, 563 A.2d 31 (1989)
N.J.S.A. 18A:37-15(b)(6) provides:
(a)Each 	school 	district 	shall 	adopt 	a 	policy 	prohibiting 	harassment,
intimidation or bullying on school property, at a school-sponsored function
or on a school bus. The school district shall adopt the policy through a
process 	that 	includes 	representation 	of parents 	or 	guardians, 	school
employees, 	volunteers, 	students, 	administrators, 	and 	community
representatives.
(b) A school district shall have local control over the content of the policy,
except 	that 	the 	policy 	shall 	contain, 	at 	a 	minimum, 	the 	following
components:
(6) a procedure for prompt investigation of reports of violations and
complaints, which procedure shall at a minimum provide that:
(a) the investigation shall be initiated by the principal or the principal’s
designee within one school day of the report of the incident and shall be

OAL DKT. NO. EDU 05870-23
4
conducted by a school anti-bullying specialist. The principal may appoint
additional personnel who are not school anti-bullying specialists to assist
in the investigation. The investigation shall be completed as soon as
possible, but not later than 10 school days from the date of the written
report of the incident of harassment, intimidation, or bullying or from the
date of the written notification from the superintendent to the principal to
initiate an investigation pursuant to paragraph (5) of this subsection. In the
event 	that 	there 	is 	information 	relative 	to 	the 	investigation 	that 	is
anticipated but not yet received by the end of the 10-day period, the
school anti-bullying specialist may amend the original report of the results
of the investigation to reflect the information;
(b) the results of the investigation shall be reported to the superintendent
of schools within two school days of the completion of the investigation,
and in accordance with regulations promulgated by the State Board of
Education pursuant to the “Administrative Procedure Act,” P.L.1968, c.410
(C.52:14B-1 	et 	seq.), 	the 	superintendent 	may 	decide 	to 	provide
intervention services, establish training programs to reduce harassment,
intimidation, or bullying and enhance school climate, impose discipline,
order counseling as a result of the findings of the investigation, or take or
recommend other appropriate action including seeking further information;
(c) the results of each investigation shall be reported to the board of
education no later than the date of the board of education meeting next
following the completion of the investigation, along with information on any
services provided, training established, discipline imposed, or other action
taken or recommended by the superintendent;
(d) 	parents 	or 	guardians 	of 	the 	students 	who 	are 	parties 	to 	the
investigation 	shall 	be 	entitled 	to 	receive 	information 	about 	the
investigation, in accordance with federal and State law and regulation,
including 	the 	nature 	of 	the 	investigation, 	whether 	the 	district 	found
evidence of harassment, intimidation, or bullying, or whether discipline
was imposed or services provided to address the incident of harassment,
intimidation, or bullying. This information shall be provided in writing within
5 school days after the results of the investigation are reported to the
board. A parent or guardian may request a hearing before the board after
receiving the information, and the hearing shall be held within 10 days of
the request. The board shall meet in executive session for the hearing to
protect the confidentiality of the students. At the hearing the board may
hear 	from 	the 	school 	anti-bullying 	specialist 	about 	the 	incident,
recommendations for discipline or services, and any programs instituted to
reduce such incidents;
(e) 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; and
(f) a parent, student, guardian, or organization may file a complaint with
the Division on Civil Rights within 180 days of the occurrence of any
incident of harassment, intimidation, or bullying based on membership in a

OAL DKT. NO. EDU 05870-23
5
protected 	group 	as 	enumerated 	in 	the 	“Law 	Against 	Discrimination,”
P.L.1945, c.169 (C.10:5-1 et seq.);
In M.M. obo minor child v. Board of Education of the Township of Layfette 2020
N.J. AGEN LEXIS 374, 6,7 the Commissioner stated:
There is no dispute that the Board has not issued a decision regarding
petitioner's HIB claim; in fact, petitioner admits as much in the petition of
appeal. 7 The district's ABC has made findings, and the superintendent
has reported those findings to the Board, but the Act requires those
findings to be affirmed, rejected, or modified by the Board, and it is the
Board's decision that is appealable to the Commissioner. N.J.S.A. 18A:37-
15(b)(6)(e). The Legislature explicitly created a multi-step process for the
investigation and determination of HIB allegations. Only after the final
decision by the board of education did the Legislature create a right of
appeal to the Commissioner, and for good reason - it is not in the interest
of judicial economy to adjudicate HIB matters in a piecemeal fashion. To
allow an appeal following the ABC's written report, as petitioner sought to
do here, would result in the expenditure of time and money to dispute
findings that could have been rejected by the Board if the matter had
proceeded to a vote. 	Moreover, the standard of review applicable to the
Commissioner's decision in HIB matters necessitates that the process be
concluded prior to coming before the Commissioner.
In this matter, the Board did not render a decision on the HIB hearing until after
petitioner filed the appeal with the Commissioner. 	The Superintendent determined that
further investigation was needed. The Board did not issue a decision prior to petitioners
filing the appeal to the Commissioner. 	The petitioner’s right to appeal does not accrue
until 	after 	the 	Board 	makes 	a 	final 	determination. 	Petitioners 	appeal 	to 	the
Commissioner in this matter was premature.
The petitioners were given a hearing before the Board on June 8, 2023, after
they filed the current petition. The petitioner states that its petition is the Board’s failure
to follow statutory process. 	However, petitioner’s right to appeal does not accrue until
after the Board has decided. Petitioners filed the petition prior to the Board deciding on
the HIB matter.
I CONCLUDE that the petition was filed prematurely since it was filed prior to the
Board’s decision on the HIB since petitioners’ right to appeal begins after the Board has

OAL DKT. NO. EDU 05870-23
6
made a decision on the HIB case. 	In addition, petitioners have had a hearing on the
merits by the Board subsequent to filing the petition.
ORDER
Accordingly, It is ORDERED that respondents motions for to dismiss the petition
be and is hereby GRANTED.
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 05870-23
7
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.
August 22, 2023
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	August 22, 2023
Date Mailed to Parties: 	August 22, 2023
ljb

OAL DKT. NO. EDU 05870-23
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APPENDIX
- 	Petitioner and Respondent’s, motions, briefs and exhibits.

OAL DKT. NO. EDU 05870-23
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