Francis Gavin v. Board of Education of the Township of Allamuchy, Warren County, and Lisa Strutin, 5/16/2023, (#143-23)

143-23
New Jersey Commissioner of Education
Final Decision
Francis Gavin,
Petitioner,
v.
Board 	of 	Education 	of 	the 	Township 	of
Allamuchy, Warren County, and Lisa Strutin,
Respondents.
Synopsis
In January 2021, pro se petitioner filed an appeal challenging the respondent Board’s decision to appoint
Lisa Strutin (Strutin) to a vacant seat on the Allamuchy Board of Education. The vacancy was created by
the resignation of William Cramer on September 9, 2020, prior to the end of his term. 	The Board
thereafter advertised the vacancy and petitioner submitted a statement of interest and resume on
September 28, 2020. The Board interviewed petitioner at a meeting on October 26, 2020 but did not fill
the vacancy and instead requested an extension of time from the Executive County Superintendent
(ECS) to appoint a replacement member. 	Subsequently, at a Board meeting on November 23, 2020,
Lisa Strutin (Strutin), who had recently lost her bid for reelection to the Board, was appointed to fill
Cramer’s unexpired term and was elected back to her former position as Board President. Petitioner
contended that the Board violated N.J.S.A. 18A:12-15 when it appointed Strutin to fill the vacancy more
than 65 days after the seat was vacated by the resignation of Cramer. The Board contended that this
matter is moot as Strutin was subsequently reelected to a full term on the Board in 2021 and the
vacancy created by the resignation of Cramer no longer exists.
The ALJ found, inter alia, that: there are no material facts at issue here and the matter is ripe for
summary decision; the Board failed to appoint a replacement member within the statutory timeframe
required by N.J.S.A. 18A:12-15 and therefore lost its authority to fill the vacancy; 	N.J.S.A. 18A:12-15
does not permit an ECS to grant a Board an extension of the 65-day window to fill a vacancy, so the
extension in this case (which was later rescinded) was invalid; accordingly, Strutin’s appointment was
null and void as it was not authorized under N.J.S.A. 18A:12-15. The ALJ granted petitioner’s motion for
summary decision, denied the Board’s cross motion, and ordered the ECS to appoint a Board member to
the Allamuchy Board of Education.
Upon review, the Commissioner concurred with the ALJ that the Board did not have statutory authority
to appoint Strutin to fill the Board vacancy created by Cramer’s resignation. However, the Commissioner
further agreed with the parties that petitioner’s requested relief is now moot as the term created by
that vacancy expired on December 31, 2021. Accordingly, the Initial Decision of the OAL was modified
with respect to the remedy; petitioner’s motion for summary decision was granted, but the requested
remedy was dismissed as moot.
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.

1
OAL Dkt. No. EDU 00307-21
Agency Dkt. No. 4-1/21
New Jersey Commissioner of Education
Final Decision
Francis Gavin,
Petitioner,
v.
Board of Education of the Township of
Allamuchy, Warren County, and Lisa Strutin,
Respondents.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL)
have been reviewed and considered, as have the exceptions filed by the respondents,
Allamuchy Township Board of Education (Board) and Board member Lisa Strutin, pursuant to
N.J.A.C. 1:1-18.4, and the reply thereto submitted by the petitioner, Francis Gavin.
Petitioner filed this matter seeking to vacate the Board’s appointment of Lisa Strutin to a
vacant seat on the Board. On September 9, 2020, William Cramer resigned as a member of the
Board, thereby creating a vacancy. The Board advertised the vacancy and petitioner submitted his
written expression of interest and a resume on September 28, 2020. The Board interviewed
petitioner at its regular Board meeting on October 26, 2020, but after a closed session, announced
that it would not be filling the vacancy at that time.
Pursuant to N.J.S.A. 18A:12-15(f), a Board is authorized to fill a vacancy on a board of
education. However, in accordance with N.J.S.A. 18A:12-15(a), if the Board has not filled a vacancy
within 65 days of its occurrence, the Executive County Superintendent (ECS) shall fill the vacancy.
143-23

2
On September 25, 2020, Strutin, who was president of the Board, contacted the ECS,
Rosalie Lamonte, by email to discuss the possibility of taking longer than 65 days to appoint a Board
member due to the upcoming school board election. On November 10, 2020 – three days before
the 65-day deadline – the vice president of the Board wrote an email to the ECS, inquiring about an
extension of the 65 days, and the ECS advised that the deadline would be extended to the
November 23 Board meeting. Thereafter, on November 17, 2020, the Board attorney requested an
extension to the December 21 Board meeting because the election results would not be certified
until the November 23 meeting; the ECS granted this request. After the ECS informed petitioner
that the deadline had been extended, petitioner inquired about the process. In response, on
November 20, 2020, the ECS rescinded the extension in an email copied to the Board secretary,
which stated:
I am definitely aware of the statute to which you refer. The county
office obviously prefers that the board makes the decision to fill a
vacancy rather than the county superintendent. Nevertheless, since
this appears to be generating some controversy, I have decided to
ask the Allamuchy board to forward resumes of interested parties to
me so that I can, consistent with my statutory authority as the
county superintendent, fill the vacancy. The board may certainly
advertise or otherwise post information about the vacant seat to
generate interest in the position.
After receipt and review of resumes, I will inform the board of my
decision.
Notwithstanding the ECS’s email, at a Board meeting held on November 23, 2020, Strutin –
who had recently lost her bid for reelection – resigned from the Board and expressed interest in the
vacant position created by Cramer’s resignation. At the same meeting, the Board voted to appoint
Strutin to the open seat and then elected her back to her former position as Board president. The
ECS sent a letter to the Board on December 3, 2020, directing the Board to rescind Strutin’s

3
appointment to the vacant seat. The Board did not comply. As such, petitioner filed the instant
petition challenging Strutin’s appointment.
Following cross-motions for summary decision, the Administrative Law Judge (ALJ) found
that the Board failed to appoint a member within the statutory timeframe and therefore lost its
authority to fill the vacancy. The ALJ found that N.J.S.A. 18A:12-15 does not permit an ECS to grant
a Board an extension of the 65-day window to fill a vacancy, so the extension in this case (which
was later rescinded) was invalid. As such, the ALJ declared Strutin’s appointment null and void as it
was not authorized by N.J.S.A. 18A:12-15, and further ordered the ECS to appoint a Board member
to the Allamuchy Board of Education.
In their exceptions, the Board and Strutin argue that this petition is now moot as there have
been multiple elections for the Board since the petition was filed. The Board explains that Strutin
was reelected to the Board in 2021 and the vacancy created by Cramer’s resignation in 2020 no
longer exists. The Board contends that while a decision on the novel issues in this matter would be
beneficial to help guide other Boards and ECSs through similar circumstances, the relief proposed
by the ALJ should be rejected as any harm it would remedy concluded more than two years ago.
In reply, petitioner makes clear that the term for the vacancy created when Cramer resigned
from the Board on September 9, 2020, ended on December 31, 2021. As such, petitioner agrees
with the Board that the specific relief sought is now moot. However, petitioner clarifies that he
alerted the ALJ prior to the expiration of the term but requested that a decision on the underlying
issue be adjudicated, and the Board agreed. Petitioner argues that as this matter is of public
importance and capable of repetition while evading judicial review, a decision should be rendered.
Petitioner further contends that since appointed members typically only fill the position until the

4
next election, judicial intervention will often become moot due to the short timeframe. As such,
petitioner requests that the Initial Decision be adopted in all aspects except the requested relief.
Upon review, the Commissioner agrees with the ALJ that the Board did not have statutory
authority to appoint Strutin to fill the Board member vacancy created by Cramer’s resignation.
N.J.S.A. 18A:12-15 provides:
Vacancies in the membership of the board shall be filled as follows:
a. By the county superintendent, if the vacancy is caused by the
absence of candidates for election to the school board or by the
removal of a member because of lack of qualifications or is not
filled within 65 days following its occurrence.
. . .
f. By a majority vote of the remaining members of the board after
the vacancy occurs in all other cases.
When interpreting a statute, the goal is to discern the legislative intent, which can be gleaned from
the plain language contained therein. Board of Education of the City of Sea Isle City v. Kennedy, 196
N.J. 1, 12 (2008). The word “shall” in the first line of the statute indicates that the statutory scheme
is mandatory. The statute makes clear that a Board has the legal authority to fill a vacancy by
majority vote, but if the vacancy is not filled within 65 days, then that authority shifts to the ECS.
The legislature clearly delineated who has the authority to appoint a Board member to a vacant
seat and the statute leaves no room for interpretation. There is no ambiguity that prior to the
expiration of 65 days, a Board may fill a vacancy by majority vote; but after 65 days, the Board no
longer has that authority. Notably, the legislature did not provide any mechanism by which an ECS
can extend the statutory timeframe beyond 65 days to fill a Board vacancy. Accordingly, here, the
Board was not authorized to appoint Strutin to fill the vacancy as more than 65 days had passed

5
since the resignation of former Board member Cramer. Any extension by the ECS was not
permitted under N.J.S.A. 18A:12-15.
The Commissioner agrees with the parties, however, that petitioner’s requested relief to
nullify Strutin’s appointment to the Board and to mandate that the ECS fill the vacancy is no longer
viable as the term created by that vacancy expired on December 31, 2021. Nevertheless,
considering that the issues in this case are capable of repetition, that such cases may often be
rendered moot due to a short timeframe before an unexpired term ends, and considering the
extensive delays in this matter, through no fault of the parties,1 the Commissioner has addressed
the underlying merits of this matter despite the lack of a remedy available at this late juncture.
Accordingly, the Initial Decision of the OAL is modified with respect to the remedy.
Petitioner’s motion for summary decision is granted, but the requested remedy is dismissed as
moot.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 The Commissioner notes that the parties’ cross-motions for summary decision were filed and argued by
March 30, 2021, while the Board member position at issue was still active. The Initial Decision was issued nearly
two years after the cross-motions for summary decision were filed.
2 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.
May 16, 2023
May 17, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INIITAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 00307-21
AGENCY DKT. NO. 4-1/21
FRANCIS GAVIN,
Petitioner,
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF ALLAMUCHY, WARREN COUNTY AND
LISA STRUTIN,
Respondents.
______________________________________
Francis Gavin, petitioner, pro se
Eric L. Harrison, Esq., for respondents (Methfessel & Werbel, attorneys)
Record Closed: February 1, 2023 	Decided: February 21, 2023
BEFORE JULIO C. MOREJON, ALJ:
STATEMENT OF THE CASE
Petitioner, Francis Gavin (Gavin) seeks to vacate Respondent, Board of Education
of the Township of Allamuchy’s (the Board), decision to appoint Respondent, Lisa Strutin
(Strutin), to a vacant seat on the Board.

OAL DKT NO. EDU 00307-21
2
PROCEDURAL HISTORY
On January 13, 2021, Gavin filed a petition with the Commissioner of Education of
the State of New Jersey (Commissioner), challenging the decision of the Board appointing
Strutin to a vacant board position as ultra-vires. 	Along with the petition, Gavin
simultaneously filed with the Commissioner an application for emergent relief pursuant to
N.J.A.C. 6A-3-1.6. The matter was transferred to the Office of Administrative Law (OAL)
and received at the OAL on January 13, 2021, as an emergent and contested matter.
On January 19, 2021, the parties appeared remotely before the undersigned for
oral argument concerning Gavin’s application for emergent relied and on January 22,
2021, an Order was entered denying Gavin’s application for emergent relief.
Thereafter, on February 24, 2021, the Board filed a motion for summary decision.
On March 5, 2021, Gavin filed a cross motion for summary decision. On March 10, 2021,
the Board filed its opposition to Gavin’s cross motion. 	On March 30, 2021, the parties
appeared remotely for oral argument. In accordance with Executive Order No. 127, as
extended by N.J.S.A.26:13-32, all Agency Initial Decisions and Final Decisions were
extended until January 1, 2022. I closed the record on February 1, 2023.
FINDINGS
The following facts are not in dispute and FIND the same as FACT herein.
The Board is a type II board of education pursuant to N.J.S.A. 18A:10-1 with nine
members and governs the Allamuchy Township School District in Allamuchy Township,
County of Warren and State of New Jersey. (Gavin’s Brief in opposition to the Board’s
motion for summary decision, Statement of Facts; and the Board’s Brief in support of its
motion, Statement of Undisputed Facts and in opposition to Gavin’s motion, Response to
Petitioner’s Statement of Facts). 	On September 9, 2020, William Cramer (Cramer)
resigned as a member of the Board and a vacancy on the Board was created. Id.

OAL DKT NO. EDU 00307-21
3
The Board then advertised on their district website the existence of the vacancy.
The Board required anyone interested in being appointed to the vacant seat to file a
written expression of interest and a resume by October 16, 2020. Id. Gavin submitted to
the Board Secretary a written expression of interest and resume on September 28, 2020.
Id.
On October 26, 2020, in a public session of a regular board meeting, the Board
interviewed Gavin. 	After conducting the interview, the Board moved into a closed
session. 	Id. 	When the Board returned to public session, Strutin, the Board president,
announced that the Board would not be filling the vacancy at that time. 	Id. 	The Board
did not identify any other individuals who had expressed an interest in filling the vacant
seat nor did the Board interview any other candidates for the seat. Id.
Pursuant to N.J.S.A. 18A:12-15f, the Board by a majority vote of the remaining
members of the board after a vacancy, is authorized to fill said vacancy. 	Pursuant to
N.J.S.A. 18A:12- 15a, the authority to fill a board vacancy shifts to the Dr. Rosalie Dr.
Lamonte, Interim Executive County Superintendent of Schools for Warren County, (Dr.
Lamonte) if the vacancy has not been filled by the local board within sixty-five (65) days
following the occurrence of the vacancy. 	Id. 	The Board failed to fill the vacancy by
November 13, 2020, a period of 65 days since the occurrence of the vacancy, and
therefore, the county superintendent is authorized by N.J.S.A. 18A:12- 15a to appoint a
board member. Id.
On September 25, 2020, Strutin contacted Dr. Lamonte to discuss the possibility
of the Board needing more than 65 days to appoint someone to fill Cramer’s vacant seat
pending the results of the upcoming election in November. 	(Certification of James
Schlessinger at ¶ 2, Exhibit A, attached to respondents’ motion; Certification of Lisa
Strutin at ¶¶ 4-5, attached to respondents’ motion).
On November 10, 2020, Board Vice President Giovanni Cusmano (Cusmano) sent
an email to Dr. Lamonte inquiring as to the deadline for the Board to fill the vacant seat.
(Certification of Lisa Strutin at ¶ 6, attached to respondents’ motion; Certification of James

OAL DKT NO. EDU 00307-21
4
Schlessinger at ¶ 4, Exhibit B, attached to respondents’ motion). 	In response, Dr.
Lamonte informed Cusmano that the Board could have additional time beyond the 65 day
period to fill the vacant seat. (Certification of Lisa Strutin at ¶ 6, attached to respondents’
motion; Certification of James Schlessinger at ¶ 4, Exhibit B, attached to respondents’
motion).
On November 17, 2020, Board Attorney Ari Schneider, Esq. sent an email to Dr.
Lamonte seeking a further extension of time for the Board to fill the seat. (Certification of
Lisa Strutin at ¶ 8, attached to respondents’ motion; Certification of James Schlessinger
at ¶ 5, Exhibit C attached to respondents’ motion). Dr. Lamonte reiterated her approval
of additional time for the Board to appoint a new member itself. 	Dr. Lamonte informed
Gavin of her extension. (Certification of Lisa Strutin at ¶ 8, attached to respondents’
motion; Certification of James Schlessinger at ¶ 5, Exhibit C, attached to respondents’
motion)
In response to an email from Gavin on November 14, 2020, advising her that the
65-day time period within which the Board was authorized to fill the vacancy had elapsed
and that he continued to be interested in the vacant seat, on November 17, 2020, Dr.
Lamonte responded to Gavin in an email informing him that she had "... extended the
timeline for the board to interview interested candidates and appoint someone until their
December 21, 2020 meeting." (Gavin’s Brief in opposition to the Board’s motion for
summary decision, Statement of Facts; and the Board’s Brief in support of its motion,
Statement of Undisputed Facts and in opposition to Gavin’s motion, Response to
Petitioner’s Statement of Facts).
On November 18, 2020,Gavin sent an email to Dr. Lamonte inquiring about the
circumstances that gave rise to an extension of time to fill the board vacancy and further
outlining the statutory framework of relative authority between Dr. Lamonte and the
Board. (Certified Petition, Exhibit D).
On November 20, 2020, in response to another inquiry from Gavin, Dr. Lamonte
reversed her prior decision granting the Board until at least the December 21, 2020, Board

OAL DKT NO. EDU 00307-21
5
meeting to fill the vacant Board position and informed Gavin that she would ask the Board
to forward to her the resumes of individuals who had expressed an interest in the vacant
board position. Dr. Lamont’s email to Gavin stated:
I am definitely aware of the statute to which you refer. 	The
county office obviously prefers that the board makes the
decision 	to 	fill 	a 	vacancy 	rather 	than 	the 	county
superintendent. 	Nevertheless, 	since 	this 	appears 	to 	be
generating some controversy, I have decided to ask the
Allamuchy board to forward resumes of interested parties to
me so that I can, consistent with my statutory authority as the
county superintendent, fill the vacancy. 	The board may
certainly advertise or otherwise post information about the
vacant seat to generate interest in the position.
After receipt and review of resumes, I will inform the board of
my decision. 1
[Certified Petition at ¶ 23]
It was not until Dr. Lamonte learned of Strutin’s intention to seek appointment to
the vacant seat that she attempted to rescind the extension she had previously granted.
Dr. Lamonte claimed that the Board’s 	anticipated appointment of Ms. Strutin “was a
means to circumvent the results of the election, resulting in a lack of transparency and
violation of the public’s trust.” (Certification of James Schlessinger, Exhibit F)
On November 23, 2020, the Board convened remotely for a regularly scheduled
board meeting. 	At this meeting Strutin resigned from her position as a member of the
Board and President and expressed interest in the vacant position created by Cramer's
resignation. Strutin was a candidate for reelection at the November 2020 election but did
not win reelection, and her term would conclude at the end of 2020. (Gavin’s Brief in
opposition to the Board’s motion for summary decision, Statement of Facts; and the
Board’s Brief in support of its motion, Statement of Undisputed Facts and in opposition to
Gavin’s motion, Response to Petitioner’s Statement of Facts).
1 Dr. Lamont’s email was copied to James Schlesinger (Schlesinger) , the Secretary of the Board regarding
her decision of November 20, 2020.

OAL DKT NO. EDU 00307-21
6
The remaining Board members then went into executive session. When the Board
returned to the public session the Board voted to appoint Strutin to fill Cramer’s vacant
board seat. Strutin was then sworn in as the replacement for Cramer and then the Board
elected her as President of the Board. 	The Board’s action in appointing Cramer was
taken without public notice, as the agenda did not provide that the Board would consider
Strutin to fill Cramer’s vacant seat position, and before public comment was allowed
regarding the same. Id.
Following the Board’s decision, on December 3, 2020, Dr. Lamonte, directed the
Board to rescind the appointment of Strutin to the Board not later than the Board’s next
regularly scheduled board meeting. 	On December 10, 2020, the Board convened for a
special meeting with an agenda of executive session to discuss potential litigation with
the Department of Education and a personnel matter. The only action taken by the Board
on December 10, 2020 was to appoint an acting superintendent. The regularly scheduled
meeting noticed for December 21, 2020 was cancelled due to the Board inability to have
a quorum of members. Id.
The Board gave no reason for declining to fill the vacancy at the December 3,
2020, meeting. The Board did not identify any other individuals who had expressed an
interest in filling the vacant seat nor did the Board interview any other candidates for the
seat. 	At no time after Cramer’s resignation, did the Board publicly discuss seeking an
extension of time of the December 21, 2020 extension granted by Dr. Lamonte to fill the
vacant seat on the Board after, or adopt a resolution to seek an extension of time of the
December 21, 2020, extension provided by Dr. Lamonte. Id.
ARGUMENTS
The Board argues that its appointment of Strutin to fill the vacancy on November
23, 2020 was within its authority under N.J.S.A. 18A:12-15(a) upon Dr. Lamonte granting
the Board an extension of the 65-day timeframe under the statute Id. The Board argues
further that its decision is presumed valid as Dr. Lamonte’s rescission of the granted
extension could only be effective if said decision could be shown to be arbitrary,

OAL DKT NO. EDU 00307-21
7
capricious, or unreasonable. The Board cites to following authority for this argument:
Cell v. Zoning Board of Adjustment, 172 N.J. 75, 81 (2002). Furthermore, a “trial court
. . . may not substitute its judgment for that of the governmental body being
challenged.” Miller v. Passaic Valley Water Commission, 259 N.J. Super. 1, 15 (App.
Div.), certif. denied, 130 N.J. 601 (1992). 	The Board posits that since Gavin has
failed to show the Board acted in an arbitrary, capricious, or unreasonable manner,
the Board’s decision is valid.
The Board’s main argument is contained in its brief in opposition to Gavin’s
cross-motion for summary decision as follows:
This tribunal’s decision on the parties’ cross-motions ultimately
comes down to one question: were the actions of the Board in
appointing Lisa Strutin arbitrary, capricious, or unreasonable?
Cell v. Zoning Board of Adjustment, 172 N.J.
75, 81 (2002)?.
[Board, opposition brief, at page 8]
Gavin’s main argument is that Dr. Lamonte did not have the statutory authority to
grant an extension of the 65-dasy to the Board. Gavin argues that N.J.S.A. 18A:12-15(a)
confers a mandatory duty on Dr. Lamonte through the word “shall” in N.J.S.A.18A:12-
15(a), 	and 	that 	Dr. 	Lamonte 	had 	no 	authority 	to 	delegate 	this 	duty 	pursuant 	to
N.J.S.A.18A:7-8.
Gavin argues further that while Dr. Lamont had the authority and discretion to grant
an extension of 65-days to the Board it would be correct that Dr. Lamont also had the
discretion to rescind such an extension in the present circumstances. 	Gavin cites to In
re Election Inquiry, 92 N.J.A.R. at 222, for this authority, where the Superintendent only
became aware of the potential conflict of interest after the deadline had passed and after
she had granted the extension. 	After having the concern brought to her attention, the
Superintendent rescinded the extension, thereby fully transferring the authority back to
herself. Gavin thus argues that Dr. Lamont, like the Superintendent in In Re Election

OAL DKT NO. EDU 00307-21
8
Inquiry, had the authority to invoke the mandatory duty, as prescribed by the word “shall”
in N.J.S.A.18A:12-15(a), to rescind the extension.
Gavin argues that the Board’s appointment of Strutin was ultra vires. In making
this argument, Gavin points out that Schlessinger, the Board’s Business Administrator,
received Dr. Lamont’s rescission at 5:33 pm on Friday, November 20, and there was
ample opportunity to communicate this rescission to the Board before its meeting began
at 7:30 pm on Monday, November 23. The Board’s appointment of Strutin after Dr. Strutin
rescinded the extension, Gavin argues, was therefore, ultra vires.
Gavin also argues that the arbitrary, capricious, or unreasonable standard is not
reached because Dr. Lamonte did not have authority to grant the extension, and therefore
the Board’s decision is not presumed to be valid, because the Board had no legal authority
to make a decision after the expiration of the 65-day period. Gavin argues for the following
relief herein:
1. 	Declaring the action taken by the Allamuchy Township Board
of Education on November 23, 2020 to fill the vacant board
seat to be ultra vires and null and void;
2. 	Vacating 	the 	purported 	appointment 	of 	Lisa 	Strutin 	on
November 23, 2020 as a member of the Allamuchy Township
Board of Education; and
3. 	Mandating the Executive County Superintendent to make an
appointment from the citizens of Allamuchy Township to fill
the vacancy on the Allamuchy Township Board of Education
within a time certain.
DISCUSSION AND CONCLUSIONS
Pursuant to N.J.A.C. 1:1-12.5(b), summary decision “may 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.” 	This rule is substantially similar to the summary-

OAL DKT NO. EDU 00307-21
9
judgment rule embodied in the New Jersey Court Rules. See Judson v. Peoples Bank &
Trust Co. of Westfield, 17 N.J. 67, 74 (1954). In Brill v. Guardian Life Insurance Co., 142
N.J. 520, 540 (1995), the New Jersey Supreme Court addressed the appropriate test to
be employed in deciding the motion:
[A] determination whether there exists a “genuine issue” of
material fact that precludes summary judgment requires the
motion 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
factfinder to resolve the alleged disputed issue in favor of the
non-moving party. 	The “judge’s function is not . . . to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” . . . . If
there exists a single, unavoidable resolution of the alleged
disputed 	issue 	of 	fact, 	that 	issue 	should 	be 	considered
insufficient to constitute a “genuine” issue of material fact for
purposes of Rule 4:46-2.
[Citations omitted.]
In evaluating the merits of the motion, all inferences of doubt are drawn against
the movant and in favor of the party against whom the motion is directed. 	Judson, 17
N.J. at 75. However, “[w]hen a motion for summary decision is made and supported, an
adverse party in order to prevail must by responding affidavit set forth specific facts
showing that there is a genuine issue which can only be determined in an evidentiary
proceeding.” N.J.A.C. 1:1-12.5(b). The New Jersey Supreme Court has cautioned that,
“if the opposing party offers no affidavits or matter in opposition, or only facts which are
immaterial or of an insubstantial nature, a mere scintilla, . . . ‘[f]anciful, frivolous, gauzy or
merely suspicious’ . . ., he will not be heard to complain if the court grants summary
judgment, taking as true the statement of uncontradicted facts in the papers relied upon
by the moving party, such papers themselves not otherwise showing the existence of an
issue of material fact.” Judson, 17 N.J. at 75 (citation omitted). Stated differently, "[b]are
conclusions . . . without factual support in tendered affidavits, will not defeat a meritorious
application for summary judgment.” U.S. Pipe & Foundry Co. v. Am. Arbitration Ass’n, 67
N.J. Super. 384, 399-400 (App.Div.1961). 	Likewise, unsupported and self-serving
statements, standing alone, are insufficient to create a genuine issue of material fact.

OAL DKT NO. EDU 00307-21
10
Heyert v. Taddese, 431 N.J. Super. 388, 413-414 (App. Div. 2013). And the “non-moving
party cannot defeat a motion for summary judgment merely by pointing to any fact in
dispute.” 	Brill, 142 N.J. at 529. 	Disputed issues of fact that are immaterial or of an
insubstantial nature will not suffice. 	Ibid.; Worthy v. Kennedy Health System, 446 N.J.
Super. 	71, 	85-86 	(App. 	Div. 	2016), 	certif. 	denied, 	228 	N.J. 	24 	(2016). 	Rather,
“[c]ompetent 	opposition 	requires 	‘competent 	evidential 	material’ 	beyond 	mere
‘speculation’ and ‘fanciful arguments,’” Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App.
Div. 2014), certif. denied, 220 N.J. 269 (2015) (citation omitted), and the party opposing
the motion “‘must do more than simply show that there is some metaphysical doubt as to
the material facts.’” Alfano v. Schaud, 429 N.J. Super. 469, 474 (App. Div. 2013), certif.
denied, 214 N.J. 119 (2013) (citation omitted).
Judged against these standards, I CONCLUDE that there is no genuine issue as
to any material fact and that the matter is ripe for summary decision in favor of Gavin.
Pursuant to N.J.S.A. 18A:12-15, on the occasion of a vacancy occurring on a local
board of education, the statute vests the local board of education with authority to appoint
a citizen of that municipality to fill such a vacancy. 	However, that authority exists for a
period of 65 days from the creation of the vacancy. 	After the expiration of 65 days, on
the failure of the local board of education to appoint, the authority shifts to the Executive
County Superintendent. The statute states in relevant part:
Vacancies in the membership of the board shall be filled as follows:
a. 	By the county superintendent, if the vacancy is caused by
the absence of candidates for election to the school board
or by the removal of a member because of lack of
qualifications, or is not filled within 65 days following its
occurrence;
* * *
f. By a majority vote of the remaining members of the board
after the vacancy occurs in all other cases.

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11
[N.J.S.A.18A:12-15]
The Board raise the following arguments in an effort to justify the action that they
took in contravention of N.J.S.A. 18A:12-15. 	1) Dr. Lamonte, the Executive County
Superintendent granted an extension of the legislatively established time frame to
appoint; and 2) the action of a local agency is not subject to review unless arbitrary,
capricious or unreasonable on its merits. 	Each of these arguments is without merit, as
Dr. Lamont did not have the authority to make said extension.
The Board argues that they sought from Dr. Lamonte an extension of the statutory
time frame and that the request was granted. 	However, as discussed herein, the
Legislature has established a clearly delineated grant of authority to appoint to fill a
vacancy on a local board of education. 	N.J.S.A. 18A:12-15 grants no authority or
provisions for extension or modification of that statutory scheme by anyone. The statute
provides that the Executive County Superintendent has no authority to modify the
unequivocal provisions of the statute. Id. The only authority granted by the statute to the
Executive County Superintendent in the circumstance of a vacancy is to fill that vacancy
after the passage of 65 days, the time frame in which the local board of education is
authorized to fill the vacancy. Id. [emphasis supplied] There is no grant of authority to
the Executive County Superintendent to extend or otherwise disregard the statutory
directive.
In addition to the authority to appoint to fill a vacancy on a local board of education,
the Legislature, in creating the statutory position of Executive County Superintendent, has
defined both the jurisdiction and the general scope of the powers and duties of the position
of the Executive County Superintendent. 	The jurisdiction of the Executive County
Superintendent is defined in N.J.S.A. 18A:7-5 as follows:
Each executive county superintendent shall devote his entire
time to the duties of his office, and he shall have general
supervision of all of the public schools of the districts of the
county except those city school districts in which there shall
have been appointed superintendents of schools.

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12
Among the 24 specifically mandated powers and duties that the Legislature has
vested in the Executive County Superintendent pursuant to N.J.S.A. 18A:7-8, none grant
the Executive County Superintendent the authority to extend statutory timeframes or to
delegate her authority to a local board of education. 	Without some legislative grant of
authority 	to 	modify 	the 	statutory 	scheme, 	Dr. 	Lamont, 	as 	the 	Executive 	County
Superintendent had no power to grant an extension of time to appoint to the Board.
In this matter, the Board failed to appoint within the statutory time frame, and thus
I CONCLUDE the Board lost its authority to appoint after the passage of the 65-days,
under N.J.S.A.18A:12-15, and only Dr. Lamonte, the Executive County Superintendent
can then appoint to fill the vacancy. 	The statute provides for no other relevant
considerations, interpretations or exceptions. No further inquiry need be made. The fact
that Dr. Lamonte granted the Board an extension after the 65-days, and then “rescinded”
the same was done so in error, as it is not allowed by N.J.S.A.18A:12-15.
Therefore, I CONCLUDE that the appointment of Strutin by the Board on
November 23, 2020 was not authorized by N.J.S.A. 18A:12-15 and must be declared to
be a nullity and I CONCLUDE that the Executive County Superintendent must be ordered
to fulfill her statutory duty to appoint a board member.
I CONCLUDE that summary decision for Gavin under N.J.A.C. 1:1-12.5, is
appropriate herein because there are no genuine issues in dispute and the relief
requested in his motion for summary decision, is GRANTED.
I CONCLUDE that the Board’s motion for summary decision is DENIED.
ORDER
It is hereby ORDERED that summary decision for Gavin under N.J.A.C. 1:1-12.5,
is appropriate herein because there are no genuine issues to dispute the relief requested
in his motion for summary decision, and therefore his motion for summary decision is

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13
GRANTED; and it is further ORDERED that the relief requested therein by Gavin in his
motion for summary decision, is GRANTED.
It is hereby ORDERED that the Board’s motion for summary decision is DENIED.
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.
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.
February 21, 2023
DATE 	JULIO C. MOREJON, ALJ
Date Received at Agency 	February 21, 2023
Date E-Mailed to Parties: 	February 21, 2023
lr

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APPENDIX
EXHIBITS
For petitioner:
Cross Motion for Summary Decision with an accompanying Brief.
For respondent:
Motion for summary decision, legal brief, certifications of Lisa Strutin and certification of
James Schlessinger, attorney certification, and exhibits.
The Board’s opposition brief to Gavin’s cross motion for summary decision