H.D., on behalf of minor child, E.B. V. BOARD OF EDUCATION OF THE CITY OF JERSEY CITY, HUDSON COUNTY AND MS. EVERETT, TEACHER, 1/6/17, (#2-17)

2-17
1-1.D., on behalf of minor child, E.B.,
PETITIONER,
v. 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY 	DECISION
OF JERSEY CITY, HUDSON COUNTY
AND MS. EVERETT, TEACHER,
RESPONDENTS.
SYNOPSIS
Petitioner filed a pro se appeal alleging that personnel employed by the respondent Board
improperly notified the Division of Child Protection and Permanency (Division) that E.B. had
been physically abused by his father. 	Petitioner asserted that E .B.'s black eye was caused by a
fight at school, which Ms. Everett - E.B.'s classroom teacher - communicated to petitioner via a
telephone call on Friday, along with the message that she did not want to report the fight because
the children would be suspended and mi ght miss scheduled PARCC testing. 	On the following
Monday, however, petitioner alleged that Ms. Everett called her claiming that E.B.'s injury - a
noticeable black eye - had occu1Ted over the weekend and not at school; the reporting of this
information to the Division led to E.B. 's removal from petiti oner's care and placement in a foster
home. Petitioner contended that the teacher changed her story to protect her teaching position, as
she was required to report classroom fighting and had not done so. Petitioner requested that the
school be investigated and that the teacher be reprimanded for her behavior. 	The respondents
contended that the Commissioner lacks jurisdiction in this case, and filed a motion to dismiss
pursuant to N.J.A .C. 6A:3-1.5(g).
The ALJ found, inter alia, that: respondent's motion to dismiss in lieu of an answer was filed in
accordance with N.J.A. C. 6A:3-l .5(g); for the purposes of the motion, all facts alleged by the
petition were deemed admitted; N.J.S.A. 18A:l l-l(c) vests the power to control and regulate the
conduct of public school employees exclusively in the local board of education; 	pursuant to
N.J.S.A. 18A:6-9, the Commissioner's jurisdiction extends only to ••controversies and disputes
arising under the school laws"; 	and the relief sought by the petitioner herein is not available
under the Commissioner's authority to resolve controversies and disputes. 	The ALJ concluded
that the petition must be dismissed for lack of jurisdiction.
Upon comprehensive review, the Commissioner concurred with the findings and conclusions of
the ALJ. 	Accordingly, the Commissioner adopted the Initial Decision of the OAL as the final
decision in this matte r. The petition was dism issed.
T his synops is is not part of the Commissione r's decision. It has been prepared for the convenience of the
reade r. It has been neither reviewed nor approved by th e Commissioner.
January 6, 	2017

2-17
OAr. DKT. NO. l ~ DU 10655- 16
AGENCY DKT. NO. 156 -5/16
H. D.. on hchalr or minor chitd, I~. B.,
Pl fflTION E R,
v.
BOARD OF E DUCATION OF TH E CITY
01' JI ~ RSEY CITY. HUDSON COUNTY
AND MS. EV ERETT. T E ACH I ~ R .
RESPONDJ :NTS.
COMMISSION ER OF EDUCATION
DECISION
The record nf this muller and the Initial Dedsion nf the Office of Administrati ve
Law have heen reviewed. The parties did not file exceptions lo the Initial Decision.
Upon a comprehensive review of this mauer. the Commissioner concurs with the
Administrative Law .Jud ge - for the reasons slated in the Initial Decision - that the Commissioner
docs not have jurisdil:tion to grant the relief sought hy the petitioner in this matter. Acrnr<lingly,
the petition of appeal is hcrchy dismissed.
IT IS SO ORDERED.·
u~~~tlA¥Jv
ACTING COMMISSIONER 01• l ~ DUCATION
Date of Dec ision: 	1/06/17
1/06/17	Date of Mailing:
• This dc ds inn may he a Jlp calcd to the Superior Court. Appe ll ate Division. pur~uant to/>./.. 2008. , .. .ln .

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
MOTION TO DISMISS
OAL DKT. NO . EDU 10655-16
AGENCY DKT. NO. 156-5/16
H.D. ON BEHALF OF E.B.,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF
JERSEY CITY, HUDSON COUNTY, AND MS.
EVERETT, TEACHER,
Respondents.
H.D., prose
Cherie Adams, for respondents (Adams, Gutierrez and Lattiboudere, attorneys)
Record Closed: 	October 17, 2016 	Decided: 	November 29, 2016
BEFORE ELLEN S. BASS, ALJ:
STATEMENT OF THE CASE
Petitioner, H.D., a former resident of Jersey City and the mother of E.B., alleges
school personnel improperly notified the Division of Child Protection and Permanency
(the Division) that E.B. had been physically abused by his father. 	She requests that the
hf' ll Jeruy 1s an Equal Opporfl mily Emp/oyr!r

OAL DKT. NO. EDU 10655-16
Martin School for the Arts "be investigated." 	She also demands that the classroom
teacher, Ms. Everett, be "reprimanded." The respondents, Jersey City Board of Education
(the Board) and Ms. Everett, ask that the petition be dismissed for lack of jurisdiction.
PROCEDURAL HISTORY
The petition of appeal was filed on April 26, 2016. 	Upon being advised by the
Department of Education that her appeal was procedurally flawed, H.D. refiled her petition
on May 31, 2016. 	Via letter dated June 22, 2016, counsel for the Board asked that the
petition be dismissed for lack of jurisdiction. 	She was advised by letter dated June 23,
2016, that it was necessary that respondents file a responsive pleading. Via letter dated
July 15, 2016, respondents filed a motion to dismiss the petition in lieu of an answer.
The case was transmitted to the Office of Administrative Law on July 18, 2016,
and was originally assigned to Judge Karaszegi. 	H.D. filed opposition to the pending
motion on September 30, 2016, and via letter dated October 11, 2016, respondents
renewed their request that the petition be dismissed. The case was reassigned to me on
October 14, 2016, after Judge Karaszegi's appointment to the New Jersey Superior
Court. Via letter dated October 17, 2016, I advised the parties of the change in judge and
indicated that I would be ruling on the pending motion to dismiss. 	I adjourned a pending
March 2017 hearing date, and closed the record as of the date of my letter.
FINDINGS OF FACT
Respondent's motion is filed 	in accordance with 	N.J.A.C. 	6A:3-1.5(g), 	which
permits the filing of a motion to dismiss in lieu of an answer. 	In ruling on a motion to
dismiss
The judge considers whether all the evidence together with all
legitimate inferences therefrom could sustain a judgment in
favor of the party opposing the motion. 	The judge is not
concerned 	with 	weight, 	worth, 	nature 	or 	extent 	of 	the
evidence. The judge must accept all the evidence supporting
the party defending against the motion and accord that party
the 	benefit 	of 	all 	inferences 	that 	can 	reasonably 	and
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OAL DKT. NO . EDU 10655-16
legitimately be deduced therefrom. If reasonable minds could
differ, the motion must be denied.
[37 New Jersey Practice. Administrative Law and Practice§
5.19, at 259-60 (Steven Lefelt, Anthony Miragliotta & Patricia
Prunty) (2d ed. 2000).J
All evidence supporting the party defending the motion must be accepted, and that party
must be "accorded the benefit of all inferences which can be reasonably and legitimately
deduced therefrom." 	Syvertsen v. Scotch Plains-Fanwood Bd. of Educ., 92 N.J.A.R.2d
(EDU) 251 (citing Dolson v. Anastasia, 55 N.J. 2 (1969)). 	Accordingly, for purposes of
the motion, all facts alleged by the petition will be deemed admitted, and I FIND as follows:
On Friday, April 8, 2016, H.D. received a call from Ms. Everett, the classroom
teacher, advising that her son, E.B., had been involved in an altercation with W., a
classmate, and that W. had punched her son in the face. Everett advised H.D. that E.B.'s
eye was bruised, and that she had applied ice to help reduce swelling. 	Everett told H.D.
she did not want to report the fight because the children were friends and would get
suspended; and as a result might miss important PARCC testing. H.D. sent her husband,
D.D., to pick up E.B. after school. D.D. arrived to find E.B. crying and upset, and he spoke
with Ms. Everett who shared the same story with him about the fight with W. When H.D.
returned home that evening, E.B. reported that W. was teasing him and calling him
names, so E.B. hit W. with his hat. W. then punched him in the face.
E.B. returned to school on Monday, April 11, 2016. 	That morning, Ms. Everett
called H.D. and advised that she believed E.B.'s black eye was the result of an injury at
home. They talked about having H.D. come to school to discuss the situation, and while
they never finalized their plans to do so, H.D. left work at 12:30 that day and went to the
school at 2:00 p.m. She met with the building principal, Ms. Jennings, who inquired about
how the bruise occurred. Ms. Everett was called to join the conversation. Everett denied
calling H.D. the prior Friday and advising that W. had struck E.B.; she now stated that
school personnel believed that E.B.'s father had struck him. Everett advised that she was
obliged to report her concerns to the Division and had done so. 	The petition avers that
3

OAL DKT. NO EDU 10655-16
On Monday about 9:00 p.m. DYFS took my son and placed him into
a foster home. The worker offered for a homecare worker to live in
the home but I refused. Till this time I do not know what my son said
and I also don't know what they told him to say to hide the fact there
was a fight in the classroom.
CONCLUSIONS OF LAW
The Commissioner of Education is without the authority to grant petitioner the relief
she seeks. I CONCLUDE that the petition of appeal must be dismissed. N.J.S.A. 18A:11
1(c) vests the power to control and regulate the conduct of public school employees
exclusively in local boards of education. See: F. R. on behalf of M.R. v. Montville Tp. Bd.
of 	Educ. , 	Dkt. 	No . 	47- 2105 , 	Comm'r 	(July 	21 , 	2005).
http://njlaw.rutgers.edu/collections/oal/>. Jn F.R., a parent asked that a building principal
be directed to apologize to his elementary age son for falsely accusing him of improperly
selling merchandise in school. 	The petition was dismissed , as there was "no statutory
authority for the Commissioner to order an employee of a public school district to tender
an apology to students. parents or anyone else, and no statutory authority for the
Commissioner to impose discipline on employees of a local board of education" except
as prescribed by N.J.S.A. 1BA : 6-10, et. seq. Ibid.
Moreover, to the extent that H.D. alleges that Ms. Everett improperly brought her
concerns about abuse to the Division's attention, respondents correctly assert that
Everett's obligation to do so was governed by N.J.S.A. 9:6-8.10, and any review of the
propriety of her actions is not justiciable here. 	Pursuant to N.J.S.A. 	18A:6-9, the
Commissioner's jurisdiction extends only to "controversies and disputes arising under the
school laws."
The demand that the Martin Center for the Arts "be investigated" flows from the
actions of Ms. Everett, and accordingly, for the reasons expressed above, is likewise not
a claim that is within the Commissioner of Education's jurisdiction. 	Nor is a request that
school personnel be "investigated" properly the subject of a petition of appeal before the
Commissioner. 	For a matter to be justiciable a party must have suffered a distinct injury
or harm that was caused by the adverse party and that can be remedied by a court, or
4

OAL DKT. NO. EDU 10655- 16
here, by the Commissioner. 	New Jersey Turnpike Auth. v Parsons, 3 N.J. 235, 240
(1949); In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180 (App. Div. 1988). 	A
request for an "investigation" is not relief available under the Commissioner's authority to
resolve controversies and disputes. 	See e.g.: Ciambrone v. Witty and Bloomingdale Bd.
of Educ., EDU 9202-00, Initial Decision (March 21, 2001), modified, Comm'r (May 7,
2001), <http://njlaw.rutgers.edu/collections/oal/>.
ORDER
Based on the foregoing, it is hereby ORDERED that the petition of appeal be
DISMISSED.
I 	hereby 	FILE 	this 	Initial 	Decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:148-10.
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OAL DKT. NO. EDU 10655-16
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, 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.
November 29, 2016
DATE 	ELLEN S. BASS, ALJ
Date Received at Agency:
Date Mailed to Parties:
6