J.N. on behalf of minor child T.N. V. BOARD OF EDUCATION OF ELIZABETH, 7/18/05 (#249-05)

#249-05 (OAL Decision http://lawlibrary.rutgers.edu/oal/word/initial/edu09193-04_1.doc)
J.N. ON BEHALF OF MINOR CHILD, 	:
T.N.,
PETITIONER, 	: 	COMMISSIONER OF EDUCATION
V. 	: 	DECISION
BOARD OF EDUCATION OF THE 	:
CITY OF ELIZABETH, UNION
COUNTY, 	:
RESPONDENT. 	:
___________________________________:
SYNOPSIS
Petitioner challenged the Board’s decision to expel her son from school following an
incident in which T.N. shot a fellow student in the leg with a plastic pellet gun, causing a
bruise. Petitioner also sought to compel the district to provide an alternative educational
placement in the event that her son’s expulsion from school was upheld. 	Respondent
Board maintained that petitioner’s appeal was not timely filed, and that expulsion was
warranted under the circumstances.
The ALJ determined to consider the timeliness question before considering the expulsion
issue. He found the petition to have been filed beyond the 90 day time limit set forth in
N.J.A.C. 	6A:3-1.3(d). 	Because 	petitioner 	had 	advanced 	no 	argument 	to 	support
relaxation of the time limit, the ALJ concluded that the petition should be dismissed. The
expulsion issue was never reached.
Upon consideration of the facts and law, the Commissioner disagrees with the ALJ’s
conclusion that the petition in this matter must be dismissed. The Commissioner finds
that applicable regulations allow for discretion in decisions regarding pro se petitions that
do not meet minimal standards for acceptance (N.J.A.C. 6A:3-1.4(b) and N.J.A.C. 6A:3-
1.16.) In matters such as this, involving the right to a free public education, where there
are compelling public interests and significant constitutional issues, the 90 day rule for
filing petitions may be relaxed. Further, the Commissioner finds: petitioner did not sleep
on her rights; dismissal of the petition precludes a disposition on the merits; and
respondent demonstrated no prejudice caused by the eleven day delay in service of the
petition. 	Accordingly, the Commissioner denies the respondent Board’s motion to
dismiss, and remands this matter to the OAL for a hearing on the merits.
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 9193-04
AGENCY DKT. NO. 224-6/04
J.N. ON BEHALF OF MINOR CHILD, 	:
T.N.,
PETITIONER, 	: 	COMMISSIONER OF EDUCATION
V. 	: 	DECISION
BOARD OF EDUCATION OF THE 	:
CITY OF ELIZABETH, UNION
COUNTY, 	:
RESPONDENT. 	:
___________________________________:
The record in this matter and the initial decision of the Office of
Administrative 	Law 	(OAL) 	have 	been 	carefully 	and 	independently 	reviewed.
No exceptions have been filed by the parties. 	After considering the facts and law,
however, the Commissioner is constrained to disagree with the ALJ’s conclusion that the
petition in this matter must be dismissed.
The following facts are undisputed. On March 18, 2004, T.N. appeared at
a meeting of the Elizabeth Board of Education for a disciplinary proceeding regarding an
incident in which T.N. shot a fellow student in the leg with a plastic pellet gun, which
resulted in a bruise. 	Respondent sent T.N. a letter and resolution memorializing his
expulsion 	from 	the 	Elizabeth 	public 	schools, 	which 	was 	received 	by 	T.N. 	on
March 20, 2004.
Petitioner, T.N.’s mother, filed a petition and request for declaratory ruling
with the Bureau of Controversies and Disputes (the Bureau) on June 16, 2004. 	The
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petition was partially handwritten on copies of N.J.A.C. 6A:3-11.4(a) (format of petition
of appeal) and 6A:3-2.2(a) (format of petition for declaratory ruling). 	It included the
name and address of the petitioner and respondent, and a notarized verification.
Because it did not set forth specific allegations and did not include a proof
of service upon respondent, the Bureau returned it on Thursday, June 17, 2004,
acknowledging that it contained “some of the elements of a Petition of Appeal,” but
explaining that it was incomplete. The Bureau advised that petitioner could refile, using
the papers she had already submitted, but adding a statement of specific facts and
identifying the relief she sought. 	Petitioner was also instructed to serve a copy on the
Elizabeth Board of Education and submit to the Bureau proof that the Board was served.
The Bureau outlined the methods for proving service, provided a copy of the rules for
filing petitions, and identified a telephone number for questions.
The following Tuesday, June 22, 2004, petitioner sent to the Bureau a
copy of a letter addressed to the Elizabeth Board of Education, in which she asked that
her son be returned to school and set forth allegations and supporting facts. At this point,
the petition lacked proof that all of petitioners papers had been served on the Elizabeth
Board of Education. 	The Bureau wrote to petitioner on June 23, 2004 to advise her of
same, and also instructed her to address her petition to the Commissioner. 	The Bureau
also stated that it would use June 23, 2004 as the petition filing date, even though more
documentation was needed “within ten (10) days of receipt of this letter.”
Less than ten days later, on July 2, 2004, the Bureau received from
petitioner a modification of her June 22, 2004, letter. 	It had been addressed to the
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Commissioner, and was accompanied by a photocopy of a certified mail ticket indicating
receipt of the petition by the Elizabeth Board of Education on June 29, 2004.1
On July 27, after the due date for respondent’s answer had passed, the
Bureau sent respondent a second and final notice. 	Eight days later, on August 4, 2004,
the Bureau received respondent’s answer. 	The matter was transmitted to the OAL on
August 20, 2004, and a hearing was held on May 16, 2005.
At the hearing, the ALJ decided to initially limit the evidence to facts
pertinent to respondent’s claim that the petition was time-barred. 	(Initial decision at 2.)
T.N. was respondent’s only witness. 	(Initial decision at 2.) 	The ALJ found that
“1. 	Petitioner 	received 	written 	notice 	of 	the 	determination 	to 	expel 	T.N. 	on
March 20, 2004. 2. The filing date for the petition was June 23, 2004.” (Initial decision
at 3.) 	In the initial decision dated May 31, 2005, he reasoned that June 23, 2004, was
beyond 	the 	allowed 	90-day 	time 	limit 	for 	filing 	petitions 	that 	is 	set 	forth 	in
N.J.A.C. 6A:3-1.3(d). He further asserted that petitioner had not advanced any argument
to support relaxation of the rule. (Initial decision at 3). Because the ALJ concluded that
the petition was untimely filed, he did not hear evidence on the merits of T.N.’s
expulsion. (Initial decision at 2.)
The regulation, N.J.A.C. 6A:3-1.3(d), upon which the ALJ relied for his
determination, does require that a petitioner file a petition “no later that 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.” 	However, there are other regulations that may be applied to this matter.
1 Although it appears that the Bureau received the documentation it requested on July 2, 2004, it sent out a
final notice to petitioner on August 2, 2004, reiterating its June 23, 2004 request. Petitioner complied with
the request on August 5, 2004.
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N.J.A.C. 6A:3-1.4 (b), which addresses pro se petitioners, provides as
follows:
A 	petition 	submitted 	by 	a 	pro 	se 	petitioner 	that
substantially includes the requisite information as set forth
in (a) above shall be accepted for filing notwithstanding
that 	the 	petition 	does 	not 	conform 	to 	the 	prescribed
technical format, and such petitioner shall be notified of
any material deficiencies 	which shall be remedied before
the matter can proceed. 	However, where a petition does
not meet minimal standards regarding parties, allegations or
relief sought, it may be returned to the petitioner without
being filed. (Emphasis added)
Thus, N.J.A.C. 6A:3-1.4 mandates that a pro se petition that is substantively compliant
shall be accepted, technical deficiencies notwithstanding, but uses permissive language
that 	allows 	discretionary 	decisions 	regarding 	pro 	se 	petitions 	with 	substantive
deficiencies. 	That is to say, the Commissioner may decide to return the petition, but is
not required to.
The petitioner in this matter is pro se. There is no question that her initial,
timely submission to the Bureau failed to identify the facts and sought-after relief, and
lacked a proof of service. 	On the other hand, it is obvious that petitioner was making a
serious attempt to file a proper petition. 	She obtained sample forms and got her
submission notarized. 	Almost immediately after receiving the Bureau’s June 17, 2004,
letter, she sent a letter with specific factual allegations and a specific remedy demand to
respondent, with a copy to the Bureau. It is safe to assume that she thought that copying
the Bureau on the letter to respondent constituted proof of service, notwithstanding the
instructions that the Bureau sent her. Immediately after receiving another letter from the
Bureau, petitioner addressed her substantive petition to the Commissioner, and forwarded
it to him with a copy of a receipt showing that respondent received the petition on
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June 29, 2004. 	Under these circumstances, dismissal of petitioner’s petition is not a
foregone conclusion.
Another regulation germane to this matter is N.J.A.C. 6A:3-1.16, entitled
“Relaxing of Rules.” It provides:
The rules in this chapter shall be considered general rules
of practice to govern, expedite and effectuate the procedure
before, and the actions of the Commissioner in connection
with, the determination of controversies and disputes under
the school laws. Where such rules do not reflect a specific
statutory requirement or an underlying rule of the OAL,
they 	may 	be 	relaxed 	or 	dispensed 	with 	by 	the
Commissioner, in the Commissioner’s discretion, in any
case where a strict adherence thereto may be deemed
inappropriate or unnecessary or may result in injustice.
T.N.’s expulsion from school is an action with very serious consequences.
In 	P.H. 	v. 	Board 	of 	Education 	of 	the 	Borough 	of 	Bergenfield, 	Bergen 	County,
2002 School Law Decisions, State Board of Education (July 2, 2002), the State Board
articulated the importance of educating children:
[W]e [are] mindful both of our responsibility for ensuring
that all of New Jersey’s children are afforded a thorough
and efficient education and of the societal implications if
we were to fail in that responsibility.
The State Board further concluded:
that a student must be afforded the opportunity to obtain a
public education even when he has been appropriately
excluded from the regular education program. To conclude
otherwise would not only be shortsighted, but would also
be an abrogation of our responsibilities.
Prior cases that address relaxation of the ninety day rule for filing petitions
have discussed global considerations, e.g., compelling public interests and substantial
constitutional issues. 	See, e.g., DeMaio v. New Providence Board of Education,
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96 N.J.A.R. 2d (EDU) 449, 453; Pacio v. Lakeland Regional High School District, 1989
S.L.D. 2060, 2064. 	The present case implicates both, as exemplified by the language
from P.H., quoted above. Under Article VIII, Section IV, paragraph 1 of the New Jersey
Constitution, T.N. is entitled to a free public education. Failure to provide him with same
poses significant detriment both to him and to society.
Also, 	in 	Boles 	v. 	Board 	of 	Education 	of 	Vocational 	Schools 	of
County of Bergen, 92 N.J.A.R. 2d (EDU) 554, the Commissioner considered several
factors in determining that the 90-day rule should be relaxed in that case. He found that:
1) the petitioner in that case had not slept on his rights; 2) there had been no final
disposition of the issues that the petitioner had raised; 3) the petitioner should not have
been punished for the narrowness of the pleadings drafted by his lawyer; 4) respondent
had demonstrated no prejudice; and 5) the requested relief was prospective. Ibid. at 6-7.
Factor three is not relevant to the present case. However, factors one, two
and four mitigate in the present petitioner’s favor. 	T.N.’s mother did not sleep on her
(T.N.’s) rights. She timely initiated the petition and showed diligence in trying to appeal.
Dismissal 	of 	her 	petition 	precludes 	a 	disposition 	on 	the 	merits, 	and 	respondent
demonstrated no prejudice caused by the eleven day delay in service of the petition.
Moreover, the record shows that respondent was late in filing its answer.
Finally, without a disposition on the merits, it cannot be determined
whether 	respondent 	would 	be 	required 	to 	provide 	any 	retroactive 	relief, 	as 	per
Boles factor #5.
In Summary, the Commissioner finds that under the circumstances of this
case, relaxation of the 90-day rule is warranted. Accordingly, the Commissioner hereby
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remands this matter to the OAL. 	Respondent’s motion to dismiss is denied, and the
matter shall proceed to hearing on the merits.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: July 8, 2005
Date of Mailing: 	July 8, 2005
2 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C .6A:4-1.1 et seq.
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