Tamaika Defalco V. Board of Education of The Township of Hamilton, Mercer County, 7/26/19, (#198-19)

198-19
New Jersey Commissioner of Education
Final Decision
Tamaika DeFalco,
Petitioner,
v.
Board of Education of the Township of
Hamilton, Mercer County,
Respondent.
Synopsis
Petitioner, a tenured Spanish teacher employed by the Hamilton Township Board of Education (Board),
appealed the Board’s determination that she had committed an act of harassment, intimidation and
bullying (HIB) pursuant to the New Jersey Anti-Bullying Bill of Rights Act (the Act), N.J.S.A. 18A:37-13
et seq. The Board found that petitioner committed HIB against a student classified to receive special
education services when, in the presence of other students and an in-class aide in her Spanish class, she
inappropriately directed the classified student to visit the child study team or guidance office if he was
unable or unwilling to perform work in her class. Petitioner requested that the Commissioner enter an
order vacating the Board’s determination of HIB. 	The Board contended that it acted in a reasonable
manner, and that – under the legal standard governing the Commissioner’s review of the action of a local
school board entrusted to determine HIB matters – its action was not arbitrary, capricious or
unreasonable. The Board filed a motion for summary decision, which was opposed by the petitioner.
The ALJ found, inter alia, that: 	petitioner’s argument that the Board failed to provide her with due
process because she had no opportunity to cross examine witnesses relied upon by the Board when
deciding she had committed an act of HIB, is without merit as – pursuant to the Act – due process in an
HIB inquiry does not require a full evidentiary hearing before the Board or the ability to cross examine
witnesses; petitioner admitted that she made statements to a classified student in her class, directing him
to visit the child study team, caseworker, or In-School Alternative Program; this statement was made in
front of the class and had the distinct capacity to point out to the other students the actual or perceived
characteristic of the classified student’s mental or sensory disability; petitioner knew, or should have
known, that her comments would have the effect of 1) placing the student in reasonable fear of emotional
harm, 2) insulting or demeaning him, and 3) creating a hostile educational environment. 	The ALJ
concluded that the Board’s determination that petitioner committed an act of HIB was not arbitrary,
capricious or unreasonable. Accordingly, the petition was dismissed.
Upon review, and finding the petitioner’s exceptions to be unpersuasive, the Commissioner concurred
with the ALJ’s findings and conclusions in this matter. Accordingly, the Initial Decision of the OAL was
adopted as the final decision for the reasons well stated therein. 	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.
July 26, 2019

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OAL Dkt. No. EDU 2365-18
Agency Dkt. No. 9-1/18
New Jersey Commissioner of Education
Final Decision
Tamaika DeFalco,
Petitioner,
v.
Board of Education of the Township of
Hamilton, Mercer County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) been reviewed and considered, as have the exceptions filed by the petitioner, Tamaika
DeFalco, pursuant to N.J.A.C. 1:1-18.4. 	The respondent, the Hamilton Township Board of
Education (Board), did not file a reply.
This matter concerns an allegation of harassment, intimidation, and bullying (HIB)
committed by a teacher against a student. 	The Administrative Law Judge (ALJ) found that due
process in an HIB inquiry does not require that a staff member be afforded a full evidentiary hearing
before the Board or the ability to cross examine witnesses. Regarding the substance of the allegation,
the ALJ noted that petitioner admitted she made statements to a classified student in her class,
directing him to visit the child study team, caseworker, or the In-School Alternative Program; such a
statement, made in front of the class, had the distinct capacity to point out to the other students the
actual or perceived characteristic of the classified student’s mental or sensory disability. 	The ALJ
found that the petitioner knew, or should have known, that her comments would have the effect of
1) placing the student in reasonable fear of emotional harm, 2) insulting or demeaning him, and

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3) creating a hostile educational environment for him. 	As such, the ALJ found that the Board’s
determination that the petitioner committed an act of HIB was neither arbitrary nor capricious.
In 	her 	exceptions, 	the 	petitioner 	argues 	that 	a 	finding 	of 	HIB 	mandates
constitutionally adequate due process protections, including the right to cross examine witnesses.
The petitioner contends that the HIB finding constitutes a “badge of infamy” accompanied by
“enormous reputational loss.” 	The petitioner cites to Matter of Allegations of Sexual Abuse at
East Park High School, 314 N.J. Super. 149 (App. 	Div. 1998) for the proposition that allegations
against a teacher must be the subject of a hearing in which the teacher has the opportunity to
challenge evidence, cross examine witnesses, and present evidence of her own. The petitioner argues
that although boards of education are not required to conduct plenary hearings regarding HIB
allegations, such a hearing must be available – at the Office of Administrative Law (OAL) – before a
final order becomes effective. The petitioner claims that because no such hearing was conducted by
the ALJ, the Initial Decision must be rejected.
Next, the petitioner contends that the standard for HIB findings against teachers is a
preponderance of the evidence, rather than the arbitrary and capricious standard applied to HIB
findings against students. The petitioner claims that the Board stands in a different role in relation to
its teachers than it does to its students, and that teachers are subject to reputational loss, direct
employment consequences, and the potential foreclosure of future employment opportunities, while
students are afforded confidentiality protections under federal and state privacy laws and cannot be
denied access to a free an appropriate public education as the result of an HIB finding. 	As such,
according to petitioner, review of an HIB allegation against a teacher under an arbitrary and
capricious standard is constitutionally inadequate.
Finally, the petitioner argues that there is a significant factual dispute as to whether
her statements fell within the acceptable scope of the student-teacher relationship. 	The petitioner
cites to S.A. and C.A. o/b/o G.A. v. Moorestown Bd. of Ed., Commissioner Decision No. 125-18,

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decided April 23, 2018, in which the Commissioner found that a teacher’s conduct – checking a
classified student’s work and test scores in the presence of other students – was not motivated by the
student’s status as a special education student and was a required part of her job as a special
education teacher. 	The petitioner claims that the limited scope of the Initial Decision’s review
improperly foreclosed inquiry into the details of how a teacher should assist a student in accessing
special education services.
Upon 	review, 	the 	Commissioner 	concurs 	with 	the 	ALJ 	that 	the 	Board’s
procedures, as applied in this case, complied with the due process requirements of the Anti-
Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13 et seq., and that the Board’s determination that
the petitioner had committed an act of HIB was not arbitrary, capricious, or unreasonable.
The Commissioner has previously addressed the question of the nature of a board of
education’s hearing regarding an HIB allegation and concluded that the Act does not require trial-
type adversary proceedings. 	L.K. and T.K., obo A.K. v. Mansfield Bd. of Educ., Commissioner
Decision No. 107-19 (April 22, 2019). The Act provides that “[a]t 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.” 	N.J.S.A. 18A:37-15(b)(6)(d).
Provisions for discovery, cross-examination, or other procedures more judicial in nature could have
been included by the Legislature in the Act, but were not, and the Commissioner declines to require
such procedures when they are not supported by the plain language of the statute.
The Commissioner finds unpersuasive the petitioner’s argument that a plenary
hearing must be conducted at the OAL. 	When a contested case is transmitted to the OAL, the
proceedings are conducted pursuant to the New Jersey Uniform Administrative Procedure Rules,
under which motions for summary decision are permitted. 	N.J.A.C. 1:1-12.5. 	The standard for
granting a motion for summary decision is well-established by Brill v. Guardian Life Insurance

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Company of America, 142 N.J. 520, 540 (1995), and the ALJ followed that standard in determining
that there are no material facts in dispute, given that petitioner admitted to making public statements
that referenced a student’s special education status.
Staff members accused of committing an act of HIB are entitled to the due process
guaranteed by the Act, including the same right to a hearing before the Board that is provided to
parents or guardians of students. Gibble v. Hunterdon Central Bd. of Educ., Commissioner Decision
254-16 (July 13, 2016). Nothing in the Act suggests that staff members are entitled to due process
protections that exceed those provided to students involved in HIB investigations. 	As such, the
standard of review to be applied is the same for both students and teachers. When a local board of
education acts within its discretionary authority, its decision is entitled to a presumption of
correctness and will not be disturbed unless there is an affirmative showing that the decision was
“patently arbitrary, without rational basis or induced by improper motives.” 	Kopera v. W. Orange
Bd. of Educ., 60 N.J. Super. 288 (App. Div. 1960). 	Furthermore, “where there is room for
two opinions, action is not arbitrary or capricious when exercised honestly and upon due
consideration [,]” such that the Commissioner will not substitute his judgment for that of the board.
Bayshore Sewage Co. v. Dep’t. of Envtl. Prot., 122 N.J. Super. 184 (1973). Here, the Board followed
the procedures required by the Act by making the petitioner aware of the charges and the evidence on
which they are based, and by offering the petitioner the opportunity to present evidence to the Board
– an opportunity of which she availed herself. 	Following those procedures, the Board determined
that the petitioner had committed an act of HIB. 	Nothing in the record indicates that the Board, in
making that determination, operated in an arbitrary, capricious, or unreasonable manner.
Regarding the petitioner’s argument that a factual dispute exists about whether her conduct
fell within the normal student-teacher relationship, the Commissioner agrees with the ALJ that this
issue is a “red herring.” 	Initially, District Policy 2466 – which is attached as an exhibit to
petitioner’s exceptions – clearly states, “The Board of Education guarantees the privacy provided by

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law that no pupil with a disability be labeled publicly,” and sets forth procedures for “coding” this
type of information, including referring to special education classes by the teacher’s name. 	The
petitioner’s conduct is contrary to this policy and thus cannot be construed to fall within the normal
student-teacher relationship. Moreover, as the ALJ noted, it is difficult to believe that the petitioner
did not understand that she could privately contact the student’s caseworker if she were concerned
about his ability to complete the work in her class.
Accordingly, the Initial Decision is hereby adopted as the final decision in this matter
and the petition is dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	July 26, 2019
Date of Mailing: 	July 26, 2019
1 This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

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State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 2365-18
AGENCY DKT. NO. 9-1/18
TAMAIKA DE FALCO,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP HAMILTON,
Respondent.
_______________________________
Edward A. Cridge, Esq., for petitioner (Mellk O’Neill, attorneys)
Joseph D. Castellucci, Jr., Esq., for respondent (Methfessel & Werbel,
attorneys)
Record Closed: May 23, 2019 	Decided: June 25, 2019
BEFORE JEFF S. MASIN, ALJ (Ret., on recall):
The Hamilton Township Board of Education (Board) found that Tamaika DeFalco
committed an act of Harrassment, Intimidation and Bullying (HIB) in violation of Board “Policy
5512 Harassment, Intimidation and Bullying.” By Verified Petition, she seeks to have the
Commissioner of Education overrule the Board’s decision. 	The Board responds that it acted
in a reasonable manner, and that under the legal standard governing the Commissioner’s
review of the action of a local school board entrusted to determine HIB matters, its action was

2
neither arbitrary, capricious nor unreasonable and therefore must be upheld. 	The Board
moves for summary decision, as authorized by N.J.A.C. 1:1-12.5.
The Board notified Ms. DeFalco of its decision on October 9, 2017. 	She filed her
Verified Petition on January 16, 2018. The Board filed an Answer on February 5, 2018. The
contested case was transferred to the Office of Administrative Law on February 13, 2018. 	A
prehearing conference was held by Administrative Law Judge Patricia Kerins on July 16,
2018. A Protective Order was issued on July 17, 2018. 	The Board moved for summary
decision on March 27, 2019. The contested case was transferred to this judge on April 9,
2019. Ms. DeFalco responded to the Board’s motion on April 29, 2019. 	Oral argument was
held on May 23, 2019, following which the record for the motion closed.
According to the Board’s Statement of Undisputed Facts, Ms. DeFalso is a tenured
Spanish teacher. 	B.L. is a student classified to receive special education services who was
in Ms. DeFalco’s Spanish class in the 2016-2017 school year. Lisa Kowalski is an education
assistant employed by the Board who served as an in-class aide in DeFalco’s class. On June
7, 2017, in the presence of several students and Ms. Kowalski, DeFalco directed B.L. to visit
the child study team or guidance office if he was unable or unwilling to perform classwork.
According to the Board, this action directed attention to B.L.’s status as a special education
student. DeFalco e-mailed a school counselor, Barbara Arora, and the learning consultant on
the child study team, Lisa Scaringelli, advising them that B.L. had his head on the desk and,
as a result, she had asked B.L. to visit the nurse, the school counselor, or his caseworker.
DeFalco also advised that when B.L. refused all of these options, she “told him he should go
down to [the In-School Alternative Program (“ISAP”) if he wants to lay on a desk, as it is not
permitted in the class.” 	She then requested the e-mail address of B.L.’s case manager. 	On
June 8, 2017, B.L.’s special education teacher, Jessica Sawicki (formerly Jessica Zipko) e-
mailed Principal Brian Smith, reporting “Petitioner’s inappropriate behavior toward B.L.”
Sawicki found the incident had broken confidentiality and “truly embarrassed B.L.” 	On June
12, 2017, Ms. Kowalski advised Mr. Smith that DeFalco told B.L. that “if he [did not] feel well
he could go to the nurse.” He declined to go to the nurse or to complete his work and
DeFalco then “asked him if he wanted to talk to someone in child study or guidance because
if he [did not] like being there or if the work was too difficult[,] then maybe they could help him

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or put him in a different class.” When he refused to visit the child study team or guidance
office, “he was asked to go sit in ISAP and he could sleep there.”
On June 14, 2017, B.L. reported to Robin Gesuelli, the anti-bullying specialist or HIB
coordinator and student assistance counselor, that DeFalco’s comments made him feel
“uncomfortable and embarrassed.” A.V., a student who witnessed the incident, provided a
statement corroborating B.L.’s statement. 	A letter was then sent to DeFalco notifying her of
the allegation that she had committed an act of HIB and that an investigation would be
conducted by the school’s anti-bullying coordinator, Nathan Webber, within ten school days
of the written report. B.L.’s mother was also notified of the investigation.
The Board’s Statement of Undisputed Facts details the investigation that followed. For
the present, it is sufficient to note that various witnesses were interviewed, as was Ms.
DeFalco. 	At the conclusion of the investigation on June 27, 2017, the Superintendent of
Schools 	determined 	that 	DeFalco’s 	conduct 	had 	caused 	“substantial 	disruption 	or
interference 	with 	orderly 	operation 	of 	school 	or 	the 	rights 	of 	other 	students.” 	The
Superintendent wrote that B.L. believed that DeFalco “insulted his intelligence” and “an adult
witness verified that . . . [Petitioner]” made the alleged statements. “The adult witness also
verified that “the personal conversation continued after the student left and that the class was
laughing due to the conversation in class.” The superintendent found that DeFalco’s conduct
was “[r]easonably perceived as motivated by actual or perceived characteristic” and “was
insulting or demeaning to B.L. because [DeFalco] was aware of B.L.’s IEP.” B.L. suffered
emotional harm given that the other students in the class were made aware of B.L.’s disability
and laughed after DeFalco stated “If you are struggling in this class, I can write you a pass to
child study and you can be removed” and B.L. refused to return to the class. In the
Superintendent’s opinion, DeFalco’s conduct created a hostile educational environment
because it caused B.L. emotional harm and led the other students to perceive the classroom
environment as not a supportive educational environment. Given this, the Superintendent
determined that the incident involved a violation of the Board’s HIB Policy.
On July 27, 2017, Ms. DeFalco was notified by letter that the results of the HIB
investigation had been reported to the Board and would remain on file. Her file would include
a letter noting the incident and “[u]pon returning to school on September 1, 2017, [DeFalco]

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will be required to participate in remedial training on HIB and building positive relationships in
the classroom.” On September 17, 2017, the Board conducted a hearing at DeFalco’s
request regarding the Superintendent’s report. At that hearing, DeFalco “denied making any
disparaging or demeaning comments towards B.L in 	her class.” 	On October 9, 2017, the
Board affirmed the Superintendent’s decision and found that “the investigation demonstrated
a preponderance of the evidence that [DeFalco] engaged in a harassing and disparaging act
toward . . .the classified student on or about June 7, 2017 at the Hamilton High School West.”
In moving for summary decision, the Board invokes the standard of review that
governs the Commissioner’s consideration of the action of a local board of education
determining that an act of HIB has occurred. 	That standard requires that the Commissioner
affirm 	the 	local 	board’s 	action 	unless 	the 	party 	challenging 	the 	board’s 	determination
demonstrates that the board acted in an arbitrary, capricious or unreasonable manner. As the
board is by statute the body designated to make the discretionary decision regarding whether
an HIB violation has occurred, its discretionary action “will not be upset unless patently
arbitrary, without rational basis or induced by improper motives.” Kopera v. W. Orange Bd. Of
Educ., 60 N.J. Super. 288, 294-96 (App. Div. 1960). Thus, if there “is room for two opinions,
action is [not arbitrary or capricious] when exercised honestly and upon due consideration,
even 	though 	it 	may 	be 	believed 	that 	an 	erroneous 	conclusion 	has 	been 	reached.”
Worthington v. Fauver, 88 N.J. 183, 204-05 (1982). 	As the court noted in Thomas v. Morris
Twp. Bd. Of Educ., 89 N.J. Super 327, 332 (App. Div. 1965), the Commissioner will not
substitute his or her judgment for that of the Board, as its action is entitled to a presumption
of 	correctness and may not be disturbed unless shown to be arbitrary, capricious or
unreasonable. 	In the Board’s view, its action cannot be successfully shown to be tainted by
such arbitrariness or unreason, and, given that the material facts relevant to determining that
question are not in genuine dispute, summary decision in its favor is warranted and Ms.
DeFalco’s petition must be dismissed. 	N.J.A.C. 1:1-12.5; Brill v Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995).
In response to the Board’s motion, Ms. DeFalco claims that this traditional review
standard cannot be applied to the Board’s determination that an HIB incident occurred. 	She
argues that the hearing process that the Board utilized at the “purported ‘Board Level’
hearing” did not afford Ms. DeFalco constitutional due process, as she was denied the right to

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cross-examine the witnesses who provided information in the investigation. 	Indeed, the
Board did not hear from the alleged victim of the comments, or from any of the student or
adult witnesses. 	Instead, it only had before it the school administration’s recitation of the
investigatory 	findings 	and 	conclusions. 	Noting 	what 	in 	her 	view 	is 	the 	due 	process
constitutionally required 	in 	the 	case of 	a teacher, 	someone with 	“liberty and 	property
interests“ that are different than those of students accused of HIB infractions (and without
considering 	in 	her 	appeal 	the 	constitutionality 	of 	such 	process 	vis-a`-vis 	students 	so
accused), DeFalco contends that since the basic constitutional due process to which she was
entitled was not provided, the application of a deferential “arbitrariness” standard in reviewing
the issue of whether DeFalco committed an act of HIB would be improper. 	In fact, the very
process utilized by the Board was itself arbitrary. 	Additionally, the Board made its decision
without having before it “any competent (i.e., first-hand) evidence other than the statements
of Ms. DeFalco, and, as such, its decision was made without any “rational basis for its
crediting those statements over the first-hand statements of Ms. DeFalco.” Given these
fundamental deficiencies, the Board must be required to prove its case against her in this
forum. Thus, the motion for summary decision should be denied.
In addition to her due process argument, Ms. DeFalco argues that on the facts, her
conduct cannot be a violation of the HIB statute or the Board’s HIB Policy. In this regard, she
claims that the Board decision
ignored and failed to consider a critical issue: specifically, the circumstances and
manner in which a teacher may appropriately refer a classified student to receive
special-education 	services 	during 	the 	school 	day. 	In 	the 	absence 	of 	this
information, 	there 	is 	no 	established 	legal 	principle 	underlying 	the 	Board’s
determination 	that 	Ms. 	DeFalco’s 	referral 	of 	the 	student 	for 	such 	services
constituted an act of HIB.
The Anti-Bullying Bill 	of 	Rights Act, N.J.S.A. 18A:37-13.1 to –32 (Act) prohibits
harassment, intimidation or bullying of students, whether such conduct emanates from
students or teachers or school administrators. The prohibited acts are defined thusly,
“Harassment, intimidation or bullying” means any gesture, any written, verbal or
physical act, or any electronic communication, whether it be a single incident or
a series of incidents, that is reasonably perceived as being motivated either by
any actual or perceived characteristic, such as race, color, religion, ancestry,
national origin, gender, sexual orientation, gender identity and expression, or a
mental, 	physical 	or 	sensory 	disability, 	or 	by 	any 	other 	distinguishing

6
characteristic, that takes place on school property, at any school-sponsored
function, on a school bus, or off school grounds as provided for in section 16 of
P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts or interferes with the
orderly operation of the school or the rights of other students and that:
a. a reasonable person should know, under the circumstances, will
have the effect of physically or emotionally harming a student or
damaging the student’s property, or placing a student in reasonable
fear of physical or emotional harm to his person or damage to his
property;
b. has the effect of insulting or demeaning any student or group of
students; or
c. creates a hostile educational environment for the student by
interfering with a student’s education or by severely or pervasively
causing physical or emotional harm to the student.
While local boards of education are authorized to adopt policies to implement the legislation,
the investigation of a complaint of HIB conduct must be carried out in accordance with the
requirements of N.J.S.A. 6A:37-15, which dictates certain time limits that must be met for the
investigation and determination of such complaints. 	There is no allegation here that the
investigation of this complaint did not meet these time requirements. Here, the Board adopted
Policy 5512, addressing “Harassment, Intimidation and Bullying.”
The Due Process Issue
In arguing that the Board failed to provide Ms. DeFalco with the due process required
by the Due Process Clause of the Sixth Amendment to the United States Constitution, she
focuses upon the lack of any ability afforded to her to cross-exam the witnesses who the
Board apparently relied upon in deciding that she had committed a prohibited act of HIB.
More broadly, her contention that she could not cross-exam means that she could not
confront her accusers, including the student allegedly harassed and the student and adult
witnesses seen as supporting the allegation. Traditionally, the right of confrontation, including
as it may the right to cross-examine, has been guaranteed in criminal matters, as a
“fundamental aspect of procedural due process.” 	Jenkins v. McKeithen, 395 U.S. 411, 428
(1969). 	The ability to cross-examine has been viewed historically as “the greatest legal
engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158, 90 S.
Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970) (quoting 5 Wigmore § 1367); see also

7
v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926 (1965); State v.
Branch, 182 N.J. 338, 348 (2005). 	However, while a criminal defendant is guaranteed such
confrontation by the Amendment, the applicability of that right has been generally restricted to
the criminal law. 	Here, counsel for Ms. DeFalco asserts that caselaw has nevertheless
argued for its applicability in administrative cases, such as this, where property rights are in
jeopardy and the accused individual is threatened with a “badge of infamy” if the charge of
HIB conduct is upheld. 	In order to determine if Ms. DeFalco suffered a constitutional
deprivation, it is necessary to review the cases upon which counsel bases his argument that
the right exists in this administrative context.
The 	general proposition 	that the due 	process 	clause’s promise 	of 	“fundamental
fairness” applies to administrative proceedings in which significant property rights are in
jeopardy cannot be doubted. 	Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542
(1985). However, the nature of that due process that conforms to constitutional requirements
can vary depending upon the context. Thus, the criminal context, wherein the liberty interest
is generally seen as in the most jeopardy, requires the highest level of due process. 	That
due process which is “due” in the civil, and especially in administrative, area can be less
stringent.
Administrative hearings in contested cases may conform to procedural due
process 	standards 	that 	are 	less 	restrictive 	than 	those 	imposed 	in 	court
proceedings . . . The issue is whether he received a hearing conforming to
principles of fundamental fairness. The determination of whether principles of
basic fairness have been afforded in contested administrative cases requires an
examination of the facts in each case, giving great weight to the effect of the
decision on the agency's public policy.
[In re Kallen, 902 N.J. 14, 26 (1983)]
None of the cases cited by counsel have explicitly held that the ability to cross-examine
witnesses is an essential element of the fundamental fairness to which one facing an
administrative hearing is entitled. 	In Greene v. McElroy, 360 U.S. 474 (1959), a case arising
from the administrative revocation of a security clearance from an engineer which led to his
discharge from employment, the Supreme Court discussed the question. 	The context of
national security considerations raised issues of the inherent authority of the President in
such matters. The Court explained

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[4] Certain principles have remained relatively immutable in our jurisprudence. One of
these is that where governmental action seriously injures an individual, and the
reasonableness of the action depends on fact findings, the evidence used to prove the
Government's case must be disclosed to the individual so that he has an opportunity to
show that it is untrue. While this is important in the case of documentary evidence, it is
even more important where the evidence consists of the testimony of individuals
whose memory might be faulty or who, in fact, might be perjurers or persons motivated
by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized
these protections in the requirements of confrontation and cross-examination. They
have ancient roots. They find expression in the Sixth Amendment which provides that
in all criminal cases the accused shall enjoy the right “to be confronted with the
witnesses against him.” This Court has been zealous to protect these rights from
erosion. 	It has spoken out not only in criminal cases, e. g., Mattox 	v. United States,
156 U.S. 237, 242-244; Kirby v. United States, 174 U.S. 47; Motes v. United States,
178 U.S. 458, 474; [*In re Oliver, 333 U.S. 257, 273, but also in all types of cases
where administrative and regulatory actions were under scrutiny. e g., Southern R. Co.
v. Virginia, 290 U.S. 190; Ohio Bell Telephone Co. v. Public Utilities Commission, 301
U.S. 292; Morgan v. United States, 304 U.S. 1, 19; Carter v. Kubler, 320 U.S. 243;
Reilly v. Pinkus, 338 U.S. 269. Nor, as it has been pointed out, has Congress ignored
these fundamental requirements in enacting regulatory legislation. Joint Anti-Fascist
Committee v. McGrath, 341 U.S. 168-169 (concurring opinion).
Professor Wigmore, commenting on the importance of cross-examination, states
in his treatise, 5 Wigmore on Evidence (3d ed. 1940) § 1367:
For 	two 	centuries 	past, 	the 	policy 	of 	the 	Anglo-American 	system 	of
Evidence has been to regard the necessity of testing by cross-examination
as a vital feature of the law. The belief that no safeguard for testing the
value of human statements is comparable to that furnished by cross-
examination, and the conviction that no statement (unless by special
exception) should be used as testimony until it has been probed and
sublimated by that test, has found increasing strength in lengthening
experience.
Little need be added to this incisive summary statement except to point out that under
the present clearance procedures not only is the testimony of absent witnesses
allowed to stand without the probing questions of the person under attack which often
uncover inconsistencies, 	lapses of recollection, and bias, but, in addition, even the
members of the clearance boards do not see the informants or know their identities,
but normally rely on an investigator's summary report of what the informant said
without even examining the investigator personally.
The Court ultimately did not determine “whether those procedures under the circumstances
comport with the Constitution . . . .” Nevertheless, it said

9
Where administrative action has raised serious constitutional problems, the Court
has assumed that Congress or the President intended to afford those affected by
the action the traditional safeguards of due process. See, e. g., . . . . These cases
reflect the Court's concern that traditional forms of fair procedure not be restricted
by implication or without the most explicit action by the Nation's lawmakers, even
in areas where it is possible that the Constitution presents no inhibition.
In the instant case, petitioner's work opportunities have been severely limited on
the basis of a fact determination rendered after a hearing which failed to comport
with our traditional ideas of fair procedure. The type of hearing was the product of
administrative 	decision 	not 	explicitly 	authorized 	by 	either 	Congress 	or 	the
President. Whether those procedures under the circumstances comport with the
Constitution we do not decide. Nor do we decide whether the President has
inherent authority to create such a program, whether congressional action is
necessary, or what the limits on executive or legislative authority may be. We
decide only that in the absence of explicit authorization from either the President
or Congress the respondents were not empowered to deprive petitioner of his job
in a proceeding in which he was not afforded the safeguards of confrontation and
cross-examination.
Thus, in a Cold War-era national security-related case where the petitioner’s job was
terminated and his “work opportunities 	. . . severely limited,” the Supreme Court determined
that 	a 	procedure 	that 	deprived 	him 	of 	confrontation 	and 	cross-examination 	was
“fundamentally unfair,” even if perhaps not unconstitutional. 	As such, the case cannot be
read as defining the due process constitutionally required in all administrative cases, as
indeed even in McElroy, the Court appears to have left open the possibility that had the
President or Congress explicitly authorized the process involving a denial of confrontation
and cross-examination, the process might meet constitutional standards. 	And in the other
cases cited by the Court in the above-quoted paragraph for the proposition that the protection
of “confrontation”might apply in the administrative context, the Court has also not decided the
issue squarely. 	In Southern R. Co. V. Virginia, 290 U.S. 190 (1933), the state’s corporation
commission required that the railroad construct an overhead bridge. 	The Court summarized
thusly
As 	authoritatively 	interpreted 	the 	challenged 	Act 	permits 	the 	Highway
Commissioner—an executive officer—without notice or hearing to command a
railway company to abolish any designated grade crossing and construct an
overhead when, in his opinion, necessary for public safety and convenience. His
opinion is final upon the fundamental question whether public convenience and
necessity require the elimination, unless what the Supreme Court denominates
"arbitrary" exercise of the granted power can be shown.
[Southern R., at 194].

10
The Supreme Court concluded that
After affirming appellant's obligation to comply with the Commissioner's order,
the court below said: “The railroad is not without remedy. Should the power
vested in the Highway Commissioner be arbitrarily exercised, equity's long arm
will stay his hand.” But, by sanctioning the order directing the Railway to proceed,
it, in effect, approved action taken without hearing, without evidence, without
opportunity to know the basis therefor. This was to rule that such action was not
necessarily “arbitrary.” 	There is nothing to indicate what that court would deem
arbitrary action or how this could be established in the absence of evidence or
hearing. In circumstances like those here disclosed no contestant could have fair
opportunity for relief in a court of equity. There would be nothing to show the
grounds upon which the Commissioner based his conclusion. He alone would be
cognizant of the mental processes which begot his urgent opinion.
The infirmities of the enactment are not relieved by an indefinite right of review in
respect of some action spoken of as arbitrary. Before its property can be taken
under the edict of an administrative officer the appellant is entitled to a fair
hearing upon the fundamental facts. This has not been accorded. The judgment
below must be reversed.
[Southern R. at 198-99].
Once again, the case reflects on the need for fairness, notice and hearing. But the Court did
not address the exact nature of such a hearing, other than that the opponent of the proposed
governmental action be advised, in advance, of the nature of the action 	proposed and given
the opportunity to be heard in opposition to such action. 	These requirements were also
emphasized in Morgan v. United States, 304 U.S. 1 (1938), a case testing “the validity of an
order of the Secretary of Agriculture fixing maximum rates to be charged by market agencies
at the Kansas City Stock Yard.” 	Morgan, at 13, where the Court spoke to the need for a “full
and fair hearing” and the need for such to provide the “fundamental requirements of fairness.”
Chief Justice Hughes explained
a “full hearing”—a fair and open hearing—requires . . . The right to a hearing
embraces 	not 	only 	the 	right 	to 	present 	evidence 	but 	also 	a 	reasonable
opportunity to know the claims of the opposing party and to meet them. The right
to submit argument implies that opportunity; otherwise the right may be but a
barren one. Those who are brought into contest with the Government in a quasi-
judicial proceeding aimed at the control of their activities are entitled to be fairly
advised of what the Government proposes and to be heard upon its proposals
before it issues its final command . . . Congress, in requiring a “full hearing,” had

11
regard to judicial standards,—not in any technical sense but with respect to those
fundamental requirements of fairness which are of the essence of due process in
a proceeding of a judicial nature. If in an equity cause, a special master or the
trial judge permitted the plaintiff's attorney to formulate the findings upon the
evidence, conferred ex parte with the plaintiff's attorney regarding them, and then
adopted his proposals without affording an opportunity to his opponent to know
their contents and present objections, there would be no hesitation in setting
aside the report or decree as having been made without a fair hearing. The
requirements of fairness are not exhausted in the taking or consideration of
evidence but extend to the concluding parts of the procedure as well as to the
beginning and intermediate steps.
Perhaps the case that comes closest to addressing the issue of whether the right to cross-
exam is a constitutionally mandated element of the basic fundamental fairness required in
administrative proceedings is Reilly v. Pinkus, 338 U.S. 269 (1949). The Postmaster General
ordered that the respondent’s use of the mails be restricted due to alleged fraudulent activity.
Federal 	law 	provided 	authority 	for 	such 	restriction. 	The 	alleged 	fraud 	involved
advertisements promoting kelp as an aid to weight loss. 	There was at least some dispute
over the scientific value of kelp and iodine for such purposes. 	Although the Court was
convinced that there was sufficient evidence to support the findings that the advertisements
misrepresented the respondent’s anti-fat treatment based on kelp, the Court nevertheless
determined that the order could not stand. 	In the administrative hearing held before the
Postmaster issued the order, cross-examination was permitted, but restrictions were placed
upon the respondent’s ability to cross-exam doctors testifying for the government who had
based at least some of their opinions on medical texts and publications, about which cross-
examination was not allowed. The Court noted
We think this was an undue restriction on the right to cross-examine. It certainly
is illogical, if not actually unfair, to permit witnesses to give expert opinions based
on book knowledge, and then deprive the party challenging such evidence of all
opportunity to interrogate them about divergent opinions expressed in other
reputable books . . .
The power to refuse enforcement of orders for error in regard to evidence should
be sparingly exercised. A large amount of discretion in the conduct of a hearing
is necessarily reposed in an administrative agency. And what we have said is not
to be taken as removing this discretion or as a compulsory opening of the gates
for floods of medical volumes, even where shown to be authoritative. But in this
kind of case as in others, one against whom serious charges of fraud are made
must be given a reasonable opportunity to cross-examine witnesses on the vital

12
issue of his purpose to deceive. And in this case any holding of harmless error is
precluded by the fact that the assistant solicitor presiding at the hearings adopted
the prosecutor's view that respondent was to be barred from using the mails
“regardless of the question of good faith, even if the respondent believed in all of
his representations . . . if they were false as a matter of fact.”
Thus, in Reilly, the Supreme Court, in reviewing a case in which cross-examination was
permitted, balked at the limits imposed on that cross. While the decision may be read to hold
that cross-examination must, as a general rule, be permitted, at least in cases of “serious
charges of fraud,” the case does not appear to stand for the proposition that in any
administrative proceeding involving any level of possible sanction, the right to cross-examine
in an essential part of “fundamental fairness” or of constitutional due process.
With this background concerning the cases that the McElroy Court cited for the
proposition that even in administrative and regulatory proceedings a party had the right 	to
“be confronted with the witnesses against him,” we must look to recent statements of the
Commissioner and Appellate Division concerning the nature of the HIB hearing. In 	Gibble v.
Board of Education of the Hunterdon Central Regional School District, Hunterdon County,
http://njlaw.rutgers.edu/collections/oal/final/edu02767-15_1.pdf, the Commissioner explained
that staff members of boards of education had the same rights to receive written information
about HIB investigations concerning their alleged conduct as students and parents of
students investigated for possible HIB infractions had. 	“It is only reasonable that this due
process protection also includes the same right to a hearing before the Board that is provided
under 	N.J.S.A. 18A37-15(b)(6)(d) 	to parents 	or guardians of students 	involved 	in 	HIB
investigations.” 	This position was endorsed on appeal by the Appellate Division, S.G. v.
Board 	of 	Educ. 	of 	the 	Hunterdon 	Cent. 	Reg’l 	Sch. 	Dist., 	A-5199-15T3 	(March 	1,
2018)(unpublished). 	There, the Court added, that while it did not have to detail the exact
nature of the scope of such a hearing to decide the case before it, nevertheless, “we point out
that the hearing should be meaningful and should be consistent with the procedures for
hearings involving students.” 	However, the Commissioner has rejected an argument which
the Commissioner characterized as calling for an expansion of “the investigatory process and
the HIB determination procedures to mirror discovery and trial-type adversarial proceedings,”
because such were not within the “intent of the Act.” 	L.K. and T.K., on behalf of minor child,
A.K. v. Board of Education of the Township of Mansfield, Burlington County. 	In her initial

13
decision in the L.K. case, Acting Chief Administrative Law Judge Lisa James-Beavers noted
that while petitioners therein argued for an “evidentiary” hearing, the statute, N.J.S.A. 18A:37-
15(b)(6)(d) provides that “[a]t 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.” The Legislature could have added the word “evidentiary”
had it wanted to direct a more judicial-type process, but it did not do so. L.K., Initial Decision
at http://njlaw.rutgers.edu/collections/oal/html/initial/edu07067-16_1.html.
While it would no doubt be more satisfactory to some if HIB determinations by school
boards were made after a full trial-type, judicialized hearing process with full rights to cross-
examine witnesses, I CONCLUDE that there is simply no constitutional, statutory or case law
support for the proposition that in a proceeding such as a Board HIB determination a right to
cross-examination exists. 	The absence before the Board of any direct testimony by the
accuser or other witnesses relied upon by the investigator and the Superintendent does not
present a ground for finding the process in violation of due process or fundamental fairness.
The due process/fundamental fairness requirement in an HIB inquiry is met by a process in
which the staff member is made aware of the charges and evidence upon which the charge is
based before the Board hearing and is then able to present to the Board such documents,
witnesses and testimony and argument as the staff member may offer. The Board may then
evaluate this evidence and determine if an incident of HIB occurred. 	Given the nature of the
legislativwe command and the limited sanctions, which do not involve the loss of tenure,
employment or future employment (the first two not without additional processes that would,
at least in the tenure situation, involve an full arbitration process), a more “judicialized”
process is not mandated.
Did Ms. DeFalco Engage in an Act of HIB?
Turning to the substantive question of whether Ms. DeFalco’s comments did violate
the HIB prohibition and therefore gave the Board sufficient legal grounds to find an HIB
violation, in her response to the Board’s statement of what the Board asserts are undisputed
facts, paragraph 4, she admits that there was a conversation in which she, “in the presence
of students and Ms. Kowalski, directed B.L., a classified student in her class who receives
special education and related services, to visit the child study team or guidance office if he is

14
unable or unwilling to perform classwork.” 	She specifically denies the remainder of the
paragraph, which claims that her admitted statement to B.L. “direct[ed] attention to B.L.’s
status as a special education student.” Indeed, it may be that this last, disputed section is not
a direct statement of fact, but a conclusion concerning the purported effect of the admitted
statement. 	In her e-mail of June 7, DeFalco reported that she offered B.L. a choice of going
to his “counselor or case manager.” As for the Board’s paragraph 5, she admits that she told
B.L. “he should go down to the In-School Alternative Program (“ISAP”) if he wants to lay on a
desk as that is not permitted in the class.” Ms. Kowalski reported the incident in an e-mail of
June 12, 2017, wherein she notes that DeFalco asked B.L. if he “wanted to talk to someone
in child study or guidance because if [B.] didn’t like being there or if the work was too difficult
then maybe they could help [B.] or put [B]. in a different class.” In his written statement, B.L.
reported that he had his head down and Ms. DeFalco first said she was writing him a pass to
the nurse, to which he said, “No” and then she said that she was writing a pass “to child
studies and I want you to tell them you are struggling in my class.” 	After he said that “I will
skip,” she told him to go to ISAP and he said “fine.” 	B.L. reported that he felt that Ms.
DeFalco had “insulted my intelligence.” He felt “ridiculed” and “disrespected.”
While there may be some divergence as to the exact words spoken by DeFalco to
B.L., the basic fact that she at the very least admits that she openly told the special education
student to go to his case manager when he refused to do his work is undisputed. Given that
she does not dispute this comment, her contention as to why the Board’s decision to find that
she had committed an act of HIB, aside from the due process argument, was arbitrary and
capricious is that the Board has failed to address the “mechanisms by which a student can be
referred to special education services, and the confidentiality procedures, if any, which exist
to maintain student privacy with such referrals.” 	It seems that DeFalco is claiming that her
words suggesting that B.L. might go to the child study team or guidance office were, possibly
in the absence of Board-supplied guidance, simply an acceptable means of referral of the
child to the team for the team’s support, guidance or for, perhaps, a change in the child’s IEP.
Frankly, this “defense” appears to be nothing other than a “red herring.” There is no question
that there can be times when a teacher may observe that a special education student’s
current IEP may need to be re-evaluated, when a particular class or means of support may
not seem to be effective in delivering a child the benefits of an appropriate educational
experience (FAPE). 	In such instances, it would be expected that the teacher would contact

15
the case manager to raise the concern. 	But to anyone familiar with the confidentiality
elements inherent in the special education context, as well as anyone familiar with and acting
with awareness of the HIB strictures, it could not be reasonable to believe that a public
statement to a classified student that he should go to the child study team due to a perceived
inability or unwillingness to do the classwork is an acceptable form of reference to the child
study team or for the purpose of enabling that student to receive assistance with needed
special education services. 	Such a statement, made in front of other students, has the
distinct capacity to point out to the other students the actual or perceived characteristic of the
subject student’s mental or sensory disability. If Ms. DeFalco truly believed that the student’s
ability to handle the work in her class was in doubt due to issues related to his special
education status, it is hard to imagine that she would not have understood that she could
privately contact the case manager or other responsible child study team member and raise
her concern. Indeed, in her e-mail of June 7, she specifically asked Ms. Scaringelli for the
name of the case manager. The claim that the Board has not provided information about how
to appropriately refer a student ignores the fact that no reasonable teacher aware of the need
for confidentiality and trained concerning HIB would choose to publicly announce her concern
or her direction to the student in front of his peers, an action that reasonably could be
foreseen as embarrassing and demeaning to the student. 	Thus, as I FIND that the Board
was well aware of the evidence of Ms. DeFalco’s comments, as reported in the investigation
by her, by Ms. Kowalski, who was present when they were made, and by B.L., it could quite
reasonably found that
A) 	DeFalco knew, or should have known, that her comments would have the
effect of placing this special education student in reasonable fear of
emotional harm;
B) 	had the effect of insulting or demeaning him; and
C) 	created a hostile educational environment for B.L.
As such, as I FIND that there are no material facts in dispute, I CONCLUDE that the Board’s
decision was neither arbitrary nor capricious.
ORDER
IT IS HEREBY ORDERED that the contested case is DISMISSED.

16
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.
June 25, 2019
DATE 	JEFF S. MASIN, ALJ (Ret., on recall)
Date Received at Agency:
Date Mailed to Parties:
mph

17
LIST OF EXHIBITS:
For petitioner:
Exhibit A 	Respondent's Answers to Interrogatories and Request for Production of
Documents
Exhibit B 	Policy 2466-Needless Public Labeling of Pupils with Disabilities
For respondent:
Exhibit A 	Letter dated December 29, 2017
Exhibit B 	Target/Accused/Witness Interview Statement of B.L.
Exhibit C 	Interview of Ms. DeFalco, dated June 22, 2017
Exhibit D 	Interview of Lisa Kowalski, June 19, 2017
Exhibit E 	Interview of Jessica Zipko, June 19, 2017
Exhibit F 	E-mails from T. DeFalco, June 7, 2017
Exhibit G 	E-mail from Jessica Zipko to Brian Smith, June 8, 2017
Exhibit H 	E-mai, from Lisa Kowalski to Brian Smith, June 12, 2017
Exhibit I 	Letter dated June 14, 2017
Exhibit J 	Superintendent’s HIB Report
Exhibit K 	Letter dated July 27, 2017
Exhibit L 	Letter dated October 9, 2017
Exhibit M 	Policy 5512 Harassment, Intimidation and Bullying