Sherry Marcus v. Board of Education of the Township of Upper Deerfield, Cumberland County, 6/10/2024, (#222-24)

222-24
New Jersey Commissioner of Education
Final Decision
Sherry Marcus,
Petitioner,
v.
Board of Education of the Township of Upper Deerfield,
Cumberland County,
Respondent.
Synopsis
Petitioner – formerly a non-tenured instructional aide in the respondent Board’s school district – filed an
appeal with the Commissioner that was dated August 23, 2022, though not received until September 1, 2022,
challenging the non-renewal of her employment for the 2022-2023 school year. Petitioner had been employed
by the Board as a non-tenured instructional aide under annual contracts for a number of years. The Board
filed a motion for summary decision, which was opposed by the petitioner.
The ALJ found, inter alia, that: 	there are no material facts at issue in this case, and the matter is ripe for
summary decision; petitioner was employed by the district as a part-time instructional aide for the 2021–2022
school year, and had been employed for a number of years prior; 	her position was non-certificated and
nontenured, and was a yearly position which required annual renewal; on April 20, 2022, the district
superintendent issued a Rice notice to petitioner, providing formal notification that the Board was considering
the possibility of non-renewal of her contract; 	subsequently, a letter dated May 10, 2022, was sent to
petitioner, advising that her employment contract would not be renewed for the 2022-2023 school year;
pursuant to N.J.A.C. 6A:3-1.3(i), the filing of an appeal to the Commissioner must be done within ninety days
from the date of the nonrenewal notice, and nothing tolls the ninety-day time limit; here, petitioner’s appeal
was due no later than August 12, 2022, but was not filed with the Office of Controversies and Disputes until
September 1, 2022; 	the petition was therefore late filed; and petitioner’s argument that the 90-day rule
should be relaxed based upon her belief that the nonrenewal notice was “void” is without merit. Accordingly,
the ALJ granted summary decision to the Board, and dismissed the petition.
Upon comprehensive review of the record, the Commissioner, inter alia, adopted the ALJ’s factual findings and
conclusion that the petition was untimely filed. Accordingly, the Board’s motion for summary decision was
granted, and the petition of appeal was dismissed as untimely.
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.

222-24
OAL Dkt. No. 09462-22
Agency Dkt. No. 226-9/22
New Jersey Commissioner of Education
Final Decision
Sherry Marcus,
Petitioner,
v.
Board of Education of the Township of
Upper Deerfield, Cumberland County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and respondent Board’s reply
thereto, have been reviewed and considered.
The threshold procedural issue in this case is whether the petition should be dismissed
pursuant to the 90-day rule, N.J.A.C. 6A:3-1.3(i). Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J.
572, 582 (1993). 	Petitioner was previously employed as a nontenured part-time instructional
aide with respondent’s district. Respondent sent petitioner a letter dated May 10, 2022, advising
her that her employment contract would not be renewed for the 2022-2023 school year. On
May 14, 2022, petitioner requested a written statement of reasons for the nonrenewal of her
contract. 	On June 10, 2022, the Board Superintendent provided petitioner with a written
statement of reasons. 	Petitioner appealed the nonrenewal decision to the Commissioner of
Education. 	According to an acknowledgment notice in the case file, her petition – dated

2
August 23, 2022 	– 	was 	received 	by 	the 	Office 	of 	Controversies 	and 	Disputes 	on
September 1, 2022.
After 	the 	matter 	was 	transmitted 	to 	the 	OAL, 	respondent 	filed 	a 	motion 	for
summary decision. Petitioner filed opposition. The Administrative Law Judge (ALJ) requested
supplemental briefs regarding whether the petition was filed in compliance with the 90-day rule,
N.J.A.C. 6A:3-1.3(i). 	Following review of all written submissions and oral argument, the ALJ
granted the Board’s motion for summary decision upon concluding that the petition was untimely
filed. The ALJ reasoned that because petitioner received the May 10, 2022, nonrenewal letter
sometime between May 10 and May 14, 2022, the petition should have been filed no later than
August 12, 2022 (ninety days from May 14, 2022). Additionally, the ALJ considered and rejected
petitioner’s argument that the 90-day rule should be relaxed based upon her belief that the
nonrenewal notice was “void” because: (1) the Board violated the Open Public Meetings Act
(OPMA), N.J.S.A. 10:4-6 to -21, on April 26, 2022, when it prevented her from discussing her
employment status during the public portion of the board meeting despite her prior written
request regarding same; and (2) the Board violated Rice v. Union County Regional High School
Board of Education, 155 N.J. Super. 64, 73 (App. Div. 1977), as it never provided her with a Rice
notice for the special board meeting held on May 9, 2022, at which, she contends, the Board
must have taken action regarding her employment.
In her exceptions, petitioner does not challenge the ALJ’s factual findings. Rather, she
disputes the ALJ’s legal conclusions and reiterates arguments that were previously considered
and rejected. 	She contends that the 90-day rule should be relaxed because of the Board’s
violation of OPMA and its failure to provide her with a Rice notice for the May 9, 2022, special

3
board meeting. 	In response, the Board maintains that the 90-day rule should not be relaxed
under the circumstances as the ALJ correctly concluded that petitioner’s contentions regarding
the Board’s violations of OPMA and Rice notice requirements are unsupported by law.
Upon review, the Commissioner adopts the ALJ’s factual findings and conclusion that the
petition was untimely filed. N.J.A.C. 6A:3-1.3(i) mandates that petitions shall be filed “no later
than the 90 th day from the date of receipt of the notice of a final . . . action by the district board
of education.” 	The 90-day limitation period “represents a fair and reasonably necessary
requirement for the proper and efficient resolution of disputes under the school laws.” Kaprow,
131 N.J. at 582. 	It “provides a measure of repose” and “gives school districts the security of
knowing that administrative decisions regarding the operation of the school cannot be
challenged after ninety days.” Ibid.
Here, the ALJ correctly concluded that the 90-day limitation period began when petitioner
received the May 10, 2022, nonrenewal letter. Salazar-Linden v. Bd. of Educ. of Twp. of Holmdel,
Monmouth Cnty., Commissioner Decision No. 99-08 (March 3, 2008), at 5-6, aff’d, 2009 N.J.
Super. Unpub. LEXIS 2713 * (App. Div. Oct. 28, 2009). It is undisputed that petitioner received
the May 10, 2022, nonrenewal letter by May 14, 2022. 	Therefore, she had a meaningful
opportunity to file her petition by August 12, 2022. The mandatory filing deadline is not subject
to change based upon a petitioner’s legal strategy, as that would defeat the measure of repose
to which school districts are entitled. See Nissman v. Bd. of Educ. of Twp. of Long Beach Island,
Ocean Cnty., 272 N.J. Super. 373, 382 (App. Div. 1994) (affirming State Board decision to dismiss
petition as time barred and explaining that while petitioner may have opted not to file a petition
sooner for tactical reasons, the Board “was entitled to know within 90 days of its action whether

4
its [decision] was going to be challenged”). Consequently, petitioner’s belief that the May 10,
2022, nonrenewal letter was void based upon the Board’s violation of OPMA and Rice notice
requirements—even assuming these contentions had merit—does not constitute “unusual and
compelling circumstances” warranting relaxation of the mandatory 90-day filing deadline.1 Id. at
591. 	Moreover, petitioner has not demonstrated that this matter implicates a novel
constitutional issue or a compelling public interest.
Accordingly, respondent’s motion for summary decision is granted, and the petition of
appeal is hereby dismissed as untimely.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	June 10, 2024
Date of Mailing: 	June 12, 2024
1 To the extent that the ALJ rendered conclusions regarding the merits of petitioner’s contentions that
the Board violated OPMA or Rice notice requirements, the Commissioner declines to adopt those
conclusions because it is unnecessary to do so in light of the petition’s procedural defect.
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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 09462-22
AGENCY REF NO. 226-9/22
SHERRY MARCUS,
Petitioner,
v.
TOWNSHIP OF UPPER DEERFIELD
SCHOOL DISTRICT,
Respondent.
Kevin McCann, Esq., for petitioner (Chance & McCann, LLC, attorneys)
Amy Houck-Elco, Esq., for respondent; Carl Taylor, Esq., on the briefs (Cooper
Levenson, attorneys)
Record Closed: April 10, 2024 Decided: April 29, 2024
BEFORE ELAINE B. FRICK, ALJ:
STATEMENT OF THE CASE
Respondent, Township of Upper Deerfield School District (the District), did not
renew petitioner’s annual contract as a nontenured part-time aide for the 2022–2023
school year. Petitioner appealed the District’s action. The District filed a motion for

OAL DKT. NO. EDU 09462-22
2
summary decision, asserting that as a matter of law, summary decision shall be entered
affirming the District’s nonrenewal of petitioner’s contract. Petitioner contends the motion
should be denied as there are genuine issues of material facts regarding the District’s
actions in its nonrenewal of her contract.
PROCEDURAL HISTORY
The District’s superintendent issued a letter on May 10, 2022, to petitioner,
advising her that her contract would not be renewed. Petitioner submitted her appeal
request to the Commissioner of the Department of Education (DOE) on August 23, 2022.
The matter was transmitted to the Office of Administrative Law on October 19, 2022,
where it was filed to be heard as a contested matter. N.J.S.A. 52:14B-1 to 14B-15 and
N.J.S.A. 52:14F-1 to 14F-13.
Telephonic conferences were conducted with counsel for the parties. Respondent
requested to submit a summary decision motion and a briefing schedule was set. The
parties submitted their motion filings and briefs. Oral argument on the motion was
scheduled for November 29, 2023. On that date, before oral argument was to be heard,
the undersigned ALJ sua sponte raised the procedural issue regarding the ninety-day
appeal filing requirement of N.J.A.C. 6A:3-1.3(i). The parties agreed to adjourn the oral
argument and submit supplemental briefs on the ninety-day appeal issue. Oral argument
was rescheduled.
Respondent submitted its supplemental letter brief. Petitioner’s supplemental brief
was not submitted as scheduled. Prior to the next scheduled oral argument date,
respondent’s then counsel of record left the law firm, and counsel assigned to take over
the file requested to adjourn the oral argument, to which petitioner’s counsel consented.
The attorneys requested a telephonic conference to reset the motion scheduling. During
the telephonic conference, petitioner’s request for a new date for the submission of their
supplemental brief, with consent of respondent, was granted. The parties further
confirmed a mutually agreeable date for oral argument, which was scheduled.
Petitioner’s supplemental submission on the motion was filed thereafter. Oral argument
was heard via Zoom audio/video technology on April 10, 2024.

OAL DKT. NO. EDU 09462-22
3
FACTUAL DISCUSSION AND FINDINGS
The following facts were confirmed as uncontested by the parties, or otherwise
deemed to be factual from the written submissions and argument of counsel. I thus FIND
as FACTS:
Sherry Marcus was an employee of the District as a part-time instructional aide for
the 2021–2022 school year. The position was non-certificated and nontenured. It is an
annual position, requiring annual renewal.
Marcus was first hired as a part-time instructional aide by the District for the 2008–
2009 school year. She asked on an annual basis to renew her contract. Her contract
was not renewed after the end of the 2010 school year. She was hired again as a part-
time instructional aide in November 2011, and was so employed through the end of the
2021–2022 school year.
The superintendent of the District, Dr. Peter Koza, issued a letter to Marcus on
April 20, 2022, which the parties confirm is commonly known as a Rice notice, which is
referencing the case Rice v. Union Cnty. Reg’l High Sch. Bd. of Educ., 155 N.J. Super.
64, 73 (App. Div. 1977) (pursuant to the rights afforded under the Open Public Meetings
Act, reasonable advance notice is to be provided to an employee of an upcoming public
meeting if their rights might be adversely affected at the meeting, and the employee is
provided the opportunity to request a public discussion).
The Rice notice stated:
This letter is to notify you that there will be a discussion
regarding your employment in the Upper Deerfield Township
school District. If it is determined that a non-renewal is
necessary in the best interest of the district, you will be notified
of such decision. Therefore, accept this communication as
formal notification that there will be a discussion regarding
your employment status in our district. Notification will be
provided to you with respect to the outcome of the discussion.

OAL DKT. NO. EDU 09462-22
4
You have the right to request that the Board conduct any
discussions that may affect your employment in open session
at the next Board meeting on Tuesday, April 26, 2022 at 7:00
PM in the Woodruff School Library. Please notify Mrs. Lisa
D’Imperio at the Woodruff School or Dr. Frank Badessa at the
Board Office by noon on Monday, April 25, 2022 if you plan
on attending the meeting and having this discussion in the
public forum.
(Koza letter, April 20, 2022, attached to the District’s
Statement of Material Facts, Exhibit C.)
Marcus sent an email to the school representative on April 20, 2022, indicating that
she would be attending the board meeting and would like any discussions pertaining to
her employment to be done in open session. (Marcus email, April 20, 2022, attached to
Petitioner’s Response to Respondent’s Statement of Material Facts and Counter
Statement of Material Facts, Exhibit B.)
Marcus attended the Board of Education (BOE) meeting on April 26, 2022. She
contends she was prevented from discussing her employment status at the meeting as
she had requested, which she asserts is a violation of the Open Public Meetings Act
(OPMA), N.J.S.A. 10:4-12(b)(8). She claims that when a BOE member asked about the
nonrenewal, the meeting was moved to a closed session.
The BOE meeting minutes of April 26, 2022, were attached as Exhibit C to
Petitioner’s Response to Respondent’s Statement of Material Facts and Counter
Statement of Material Facts. The minutes confirm that motions were approved to table
the issuance of notices of continuation of employment for the 2022–2023 school year to
multiple staff members, such as nontenured professional staff, noninstructional staff,
secretaries, computer technicians, crossing guards, etc. (BOE meeting minutes of April
26, 2022, at 1–6.) Marcus’ name was not on the agenda.
Under the heading “Public Participation” of the meeting minutes, the following
appears:

OAL DKT. NO. EDU 09462-22
5
Sherry Marcus questioned Dr. Koza and the Board as to why
she was not being renewed for the 2022-2023 school year?
Barb Ostberg also question [sic] them as well? Dr. Koza
stated they are not meeting the performance standards of the
Board.
(BOE Minutes of April 26, 2022, at 9, punctuation original.)
Petitioner contends that there was no discussion at the meeting about her
nonrenewal. She claims that Superintendent Koza did not make a statement about her
performance, as the meeting minutes indicate.
A BOE special meeting was held on May 9, 2022. Marcus did not receive a Rice
notice regarding the meeting.
The day after that BOE meeting, Superintendent Koza issued a letter on May 10,
2022, which stated:
Please be advised that at the May 9, 2022 Special Meeting of
the Upper Deerfield Township Board of Education, your name
was not included among those individuals for renewal. Prior
to the April 26, 2022 Board of Education meeting you were
notified in a meeting and via a letter that it was possible your
position would be non-renewal [sic]. At this time I am formally
notifying you that you will not be renewed for the 2022-2023
school year.
(Superintendent Koza letter, May 10, 2022, to Marcus
regarding nonrenewal, attached as Exhibit D to District’s initial
motion submission.)
Marcus issued an email to Superintendent Koza on May 14, 2022, requesting a
written statement of reason for the nonrenewal of her contract for the 2022–2023 school
year. (Marcus letter May 14, 2022, attached as Exhibit E to petitioner’s response to
statement of facts.) A few weeks thereafter, Marcus’ attorney, Kevin P. McCann, issued
a letter on May 31, 2022, to Superintendent Koza, indicating “Sherry Marcus accepts
you[r] offer for reemployment for the 2022-2023 school year.” (Kevin P. McCann, Esq.,
letter May 31, 2022, attached as Exhibit E to the District’s initial motion submission.) The

OAL DKT. NO. EDU 09462-22
6
letter outlined that Marcus had received the Rice notice for the April 26, 2022, BOE
meeting, that her request to discuss the matter in open session had been “improperly
denied” and tabled, and that the BOE had gone into executive session. McCann’s letter
further indicated that Marcus did not receive Rice notice for the May 9, 2022, BOE
meeting, at which time “action of employment was taken” and Superintendent Koza
issued his May 10, 2022, letter to Marcus. McCann further indicated that due to the
superintendent’s failure to comply with Rice requirements and failure to comply with the
statute, N.J.S.A. 18A:27-4, et seq, the superintendent’s action in issuing the May 10,
2022, letter was invalid. McCann requested that the superintendent forward a
reemployment contract for Marcus for the 2022–2023 school year. (McCann letter, May
31, 2022.)
Superintendent Koza issued a letter response on June 10, 2022, to Marcus’ email
request of May 14, 2022, for a statement of written reasons for nonrenewal of her contract.
The superintendent’s letter indicated:
I did not recommend your renewal, as I believe you are not
the right fit in your position at the district. Among other
reasons, as an educator, your responsibility is to adhere to
policies and procedures, protect student interest, and work to
educate students in a healthy environment. In general you
failed to demonstrate skills and performance sufficient to
warrant a recommendation that you be renewed.
The items listed above resulted in the decision to non-renew
your employment contract.
You have ten days from the date of this letter to notify me in
writing whether you are requesting an informal hearing before
the Board to permit you to convince the Board to offer you
reemployment. Be advised that should you request an
informal hearing it will be scheduled within thirty (30) days.
(Superintendent’s letter, June 10, 2022, attached as Exhibit F
to the District’s initial motion submission.])
The “informal hearing before the Board” is commonly referred to as a Donaldson
hearing, referring to the case Donaldson v. Bd. of Educ. of the City of North Wildwood,
65 N.J. 236 (1974) (an informal hearing before a BOE shall be conducted, if timely

OAL DKT. NO. EDU 09462-22
7
requested, for a nontenured teaching professional to present information to convince the
BOE to offer reemployment rather than nonrenewal of their contract). Such a hearing
must be requested by the individual within ten days of the issuance of a statement of
reasons by the chief school administrator as to why a nontenured teaching staff member’s
contract was not renewed.
On the same date when the superintendent issued his letter of reasons for
nonrenewal to Marcus, counsel for the District issued a letter to Marcus’ attorney,
McCann, in response to McCann’s letter of May 31, 2022, wherein McCann indicated
Marcus was accepting the superintendent’s offer of reemployment for the 2022–2023
school year. (The District’s counsel’s letter, June 10, 2022, attached at Exhibit G of the
District’s initial motion submission.) Counsel for the District stated in their letter that
Marcus “does not have a contract for employment for the 2022-2023 school year. Your
client was non-renewed by the Superintendent.” (District’s counsel’s letter, June 10,
2022.) Further, counsel for the District indicated that under the law, Marcus was not
required to receive Rice notice for the May 9, 2022, BOE meeting because Marcus’ name
was not on the agenda. There was no action to be taken. The letter further indicated that
pursuant to N.J.S.A. 18A:27-10, the superintendent exercised his statutory authority to
provide a nontenured teacher with notification of nonrenewal, which authority does not
require BOE approval. (District’s counsel’s letter, June 10, 2022.)
The District’s counsel noted that upon receipt of a nonrenewal notice, a nontenured
teacher may request a statement of reasons within fifteen days of the notice, which
Marcus had done. The written reasons response from the superintendent must be issued
within thirty days of receipt of the request for reasons. The District confirmed that the
superintendent’s letter of reasons of June 10, 2022, was within thirty days of Marcus’
request email of May 14, 2022. (District’s counsel’s letter, June 10, 2022.)
Marcus’ attorney issued a letter to Superintendent Koza thereafter on June 13,
2022. The letter stated:
It seems to me that you are way out of time to schedule a
Donaldson hearing. We will be filing a Petition with

OAL DKT. NO. EDU 09462-22
8
Commissioner. The letter that you are addressing to my client
was supposed to be done before May 15, 2022, not June 10,
2022, when it was received. Thank you[,] we will copy you
with position to commissioner.
(McCann’s letter of June 13, 2022, attached at Exhibit I to
petitioner’s response to statement of facts.)
Marcus did not request a Donaldson hearing. Marcus submitted a petition for
reinstatement/renewal of her position of employment to the Commissioner of the DOE on
August 23, 2022.
The District asserts that this matter is ripe for summary decision. Petitioner was
timely notified of nonrenewal prior to May 15. When she asked for a statement of reasons
for nonrenewal, the superintendent properly complied by issuing his June 10, 2022, letter
within a thirty-day timeframe from petitioner’s request for the reasons. Petitioner could
have sought a Donaldson hearing but did not do so. Instead, petitioner chose to submit
a petition to the DOE. Her petition was untimely, as it was submitted more than ninety
days from the date of her receipt of the nonrenewal letter of May 10, 2022.
Even if the petition were considered timely filed, the District contends there is no
basis for petitioner to claim that a Rice notice violation occurred and invalidated the
issuance of the nonrenewal letter. The District asserts that it went beyond what is
statutorily required by the superintendent having issued the Rice notice regarding the
April 26, 2022, BOE meeting. The BOE tabled the issue of renewals of employment
contracts. The District acknowledges there was no discussion in the open session by the
BOE about nonrenewal of petitioner’s contract. It argues that there is no statutory right
for a nontenured employee to be heard by the BOE, or to have their employment status
discussed at a BOE meeting, prior to the issuance of a nonrenewal notice by the
superintendent. The statute empowers the superintendent to issue the nonrenewal notice
prior to May 15. There is no requirement that the superintendent must gain the “approval”
of the BOE before the superintendent issues their determination.
The District indicates that there was no obligation to issue a Rice notice for the
May 9, 2022, BOE meeting. Marcus’ name did not appear on the agenda, so there would

OAL DKT. NO. EDU 09462-22
9
be no discussion regarding her nonrenewal. Again, the authority rests with the
superintendent to issue a nonrenewal letter by May 15, and the superintendent is not
required to obtain approval from the BOE before issuing a nonrenewal letter. The
superintendent’s letter of May 10, 2022, satisfied the statutory requirement to notify
petitioner by May 15, 2022. Petitioner timely requested reasons for her nonrenewal,
which were timely furnished by the superintendent in his June 10, 2022, letter. The
asserted reasons were sufficient, as there is no statutory nor case law requirement that
a detailed listing or explanation of reasons is required.
Petitioner had the opportunity thereafter to request a Donaldson hearing, or to
have an informal hearing before the BOE to convince them of reasons why she should
be renewed. She never requested a Donaldson hearing. The District asserts she cannot
now claim that there was a violation of her Rice rights or that she did not have the
opportunity to appear before the BOE. Under such circumstances, the District contends
that summary decision should be entered, since there is no factual dispute regarding the
District’s compliance with the notification requirements for the nonrenewal of a
nontenured employee’s contract. N.J.S.A. 18A:27-3.2.
Petitioner asserts that summary decision should be denied. She contends that the
BOE improperly tabled the issue of her employment status. Her recollection of the April
26, 2022, BOE meeting differs from the meeting minutes, where it is noted that the
superintendent commented about her performance. She contends this is a genuine issue
of material fact in dispute, as she asserts there was no discussion and that her OPMA
rights were violated by the BOE opting not to discuss her employment. Moreover, she
was never provided Rice notice of the May 9, 2022, BOE meeting, at which time the list
of staff members to be renewed was ratified. Petitioner acknowledges that her name was
not on the agenda. However, she argues that does not circumvent the Rice notice
requirement since the exclusion of her name from the list of staff who were to be renewed
meant that she was an employee whose contract was not going to be renewed. This is
a violation of Rice notice requirements, and a violation of her right to request to have her
employment discussed in open session.
Petitioner further contends that the May 10, 2022, letter of nonrenewal by

OAL DKT. NO. EDU 09462-22
10
Superintendent Koza was improper, having been issued the day after the BOE meeting.
This demonstrates that there had to have been some discussion about her nonrenewal
by the BOE members, which petitioner asserts may have happened in executive session
at the May 9, 2022, BOE meeting.
Marcus contends there are deficiencies in the superintendent’s letter of reasons
for nonrenewal. The June 10, 2022, deficiencies letter was sparse and incomplete,
without details or context as to what skills or performance petitioner failed to demonstrate.
The reasons provided further do not align with her annual evaluation report. (Evaluation
report dated June 14, 2022, for 2021–2022 school year.) She received all satisfactory
ratings for effectiveness and attitude. Comments for Marcus indicated that she provides
instructional support in the academic setting, fulfills her responsibilities as a Basic Skills
Intervention aide, assists the teachers, and has provided coverage for the teachers. This
discrepancy demonstrates that there is a dispute as to whether the superintendent
properly satisfied his requirement to provide a statement of reasons for nonrenewal, and
thus summary decision must be denied.
Petitioner thus contends that there are genuine issues of material fact in dispute
to warrant denial of the District’s summary decision request.
Petitioner asserts that the issue of filing her petition in ninety days, since the May
10, 2022, letter of nonrenewal is void on its face due to her OPMA rights having been
violated, should be dismissed. Her right to be heard at the April 26, 2022, BOE meeting
was denied, and she thereafter never received notice of the May 9, 2022, BOE meeting.
Recognizing that the letter of nonrenewal would be void on its face, her attorney
transmitted a letter of acceptance of continuing her contract of employment. Petitioner
asserts that letter was not responded to by the District, so the ninety-day limitation for
filing has yet to be tolled.
Petitioner acknowledges that she received the June 10, 2022, letter of reasons for
nonrenewal. Since that could be considered a response to her counsel’s May 31, 2022,
letter of acceptance of a position of employment, the ninety-day clock would run from

OAL DKT. NO. EDU 09462-22
11
petitioner’s receipt of the June 10, 2022, letter. If that date is applied, then the petition
submitted to the Commissioner on August 23, 2022, was within the ninety-day time limit.
Petitioner further asserts that the New Jersey Administrative Code provides for a
relaxation of the rules in such circumstances, to consider the June 10, 2022, letter as the
date from which the ninety days should toll. Petitioner asserts that N.J.A.C. 6A:3-1.16
gives the Commissioner of the DOE authority to relax or dispense with the rules in
determining controversies and disputes under the school laws, in situations where strict
adherence may be inappropriate, unnecessary, or result in injustice. The ninety days
should be relaxed here since petitioner was denied her OPMA rights on April 26, 2022,
she never received Rice notification for the May 9, 2022, meeting, and her belief that the
May 10, 2022, letter of nonrenewal was void on its face was reasonable. Thus,
petitioner’s appeal should not be dismissed for having been filed more than ninety days
after the “voided” May 10, 2022, letter of nonrenewal and within ninety days of the June
10, 2022, letter of reasons for nonrenewal.
LEGAL ANALYSIS AND CONCLUSIONS
In an administrative law matter, a “party may move for summary decision upon all
or any of the substantive issues in a contested case.” N.J.A.C. 1:1-12.5(a). The motion
“shall be served with briefs and with or without supporting affidavits.” N.J.A.C. 1:1-
12.5(b). The judge may grant the motion “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.”
Ibid. The non-moving party will prevail if they “set forth specific facts showing that there
is a genuine issue which can only be determined in an evidentiary proceeding.” Ibid.
The law surrounding the nonrenewal of nontenured teachers is established by both
statute and case law. The pertinent statute, N.J.S.A. 18A:27-10, provides that “[o]n or
before May 15 in each year, each nontenured teaching staff member continuously
employed by a board of education since the preceding September 30 shall receive either
(a) A written offer of a contract for employment . . ., or (b) A written notice from the chief
school administrator that such employment will not be offered.” Ibid. The primary purpose

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of the statute is to provide nontenured teaching staff with timely notice when their contract
is not being renewed so that they can look for other employment. See Wachstein v.
Burlington Cnty. Bd. of Educ., 1976 S.L.D. 928, 931.
The chief school administrator, here the superintendent, is required to issue the
nonrenewal letter to a nontenured teaching staff member before May 15, as required by
N.J.S.A. 18A:27-10. A nontenured teacher who is not recommended for renewal by the
chief school administrator is deemed nonrenewed. N.J.S.A. 18A:27-4.1(b). Prior to
notifying the employee of their nonrenewal, the superintendent shall notify the BOE of the
recommendation not to renew the contract and the reasons for the recommendation. Ibid.
An employee whose contract is not renewed shall have the right to receive a written
statement of reasons for nonrenewal and thereafter request a Donaldson hearing.
N.J.S.A. 18A:27-4.1(b).
The employee’s request for a written statement of reasons for nonrenewal must
be made by the employee within fifteen days of their receipt of the nonrenewal letter.
N.J.S.A. 18A:27-3.2. The response shall be given to the teaching staff member “in writing
within 30 days after the receipt of such request.” N.J.S.A. 18A:27-3.2.
The employee has the right to a Donaldson hearing, which is an informal
appearance before the BOE, to permit the employee “to convince the members of the
board to offer reemployment.” N.J.S.A. 18A:27-4.1(b); see N.J.A.C. 6A:10-9.1(c). The
Donaldson hearing must be requested within ten days of the employee’s receipt of the
written reasons for nonrenewal. N.J.A.C. 6A:10-9.1(a). Once requested, the Donaldson
hearing must occur within thirty calendar days thereafter. N.J.A.C. 6A:10-9.1(b).
The BOE is required to notify a nontenured teaching staff member of its final
determination regarding nonrenewal only when the teacher has requested and
participated in the informal Donaldson hearing. N.J.A.C. 6A:10-9.1(i); Donaldson v. Bd.
of Educ. N. Wildwood, 65 N.J. 236 (1974). The BOE is not required to notify the teacher
of nonrenewal if the employee never requested the Donaldson hearing. Thus, if a
Donaldson hearing is not requested, once the employee has received the notice of

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nonrenewal from the superintendent, as a matter of law, the employee’s contract is
deemed nonrenewed.
Although the controlling statute of N.J.S.A. 18A:27-10 requires affirmative action
from the chief school administrator to notify nontenured teaching staff members of
nonrenewal, it does not require the BOE to resolve or ratify a nonrenewal at a public
meeting in advance of the issuance of the superintendent’s nonrenewal letter. Welch v.
Bd. of Educ., 159 N.J. Super. 29 (App. Div. 1978). Thus, regardless of whether an
employee who received a nonrenewal letter requested a Donaldson hearing or not, the
BOE is never required to take formal action to accept or reject the chief school
administrator’s determination of nonrenewal. N.J.S.A. 18A:27-10.
The nonrenewed member may seek an appeal of the determination of nonrenewal
by submitting a petition for relief with the Commissioner of the DOE, asserting a
controversy has arisen under the school laws. N.J.A.C. 6A:3-1.3(a); 6A:3-1.3(d). The
petition must be filed “no later than the 90th day from the date of receipt of the notice of
a final order, ruling, or other action by the district board of education, individual party, or
agency, that is the subject of the requested contested case hearing.” N.J.A.C. 6A:3-1.3(i).
The ninety-day time frame in a dispute of the nonrenewal of a nontenured teaching staff
member begins to run from the date the employee receives the notice of nonrenewal.
The New Jersey Open Public Meetings Act (OPMA), N.J.S.A. 10:4-1 to 4-21,
imposes certain notice and other requirements with which a BOE must comply. Under
the OPMA, the public has a right to advance notice of governmental meetings where
public business is discussed. N.J.S.A. 10:4-9. The regulation specifies that “[a] public
body may exclude the public only from that portion of a meeting at which the public body
discusses any . . . matter involving the employment” of a public employee “unless all the
individual employees or appointees whose rights could be adversely affected request in
writing that the matter or matters be discussed at a public meeting.” N.J.S.A. 10:4-
12(b)(8).
In the matter of Rice v. Union Cnty. Reg’l High Sch. Bd. Of Educ., 155 N.J. Super.
64 (App. Div. 1977), the Appellate Division held that:

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[t]he plain implication of the personnel exception to the New
Jersey Open Public Meetings Act is that if all employees
whose rights could be adversely affected decide to request a
public hearing, they can only exercise that statutory right and
request a public hearing if they have reasonable advance
notice so as to enable them to (1) make a decision on whether
they desire a public discussion and (2) prepare and present
an appropriate request in writing.
(Rice, 155 N.J. Super. at 73.)
Thus, “when ‘all individual employees . . . whose rights could be adversely affected
request in writing that the matter or matters be discussed at a public meeting,’ the
governing body may not opt to shut its doors.” Kean Federation of Teachers v. Morell,
233 N.J. 566, 584–5 (2018) (quoting N.J.S.A. 10:4-12(b)(8)). However, “[t]he OPMA does
not contain a requirement about the robustness of the discussion that must take place on
a topic.” Id. at 588.
Where any action taken by a public body at a meeting does not conform with the
provisions of OPMA, a potential remedy is the voiding of the action taken by the public
body. There is no remedy if the public body “took no action that could be
voided.” McGovern v. Rutgers, 211 N.J. 94, 112 (2012).
Here, it must be determined whether the District will prevail on its motion for
summary decision, seeking to dismiss Marcus’ petition for relief as a matter of law. The
first contention is whether Marcus adhered to the ninety-day period for the filing of an
appeal with the Commissioner. The May 10, 2022, notice of nonrenewal from the
superintendent to Marcus is straightforward and plainly notifies Marcus that she will not
be renewed for the 2022–2023 school year. There are no conditions, nor ambiguity in
the letter for Marcus to dispute.
Marcus does assert that the nonrenewal notice was voided when her Rice rights
were violated by the BOE not having an open public discussion regarding her employment
at the April 26, 2022, BOE meeting. She further contends the May 10, 2022, nonrenewal

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letter was voided by the District having failed to provide to her Rice notice for the May 9,
2022, BOE meeting, where she asserts there must have been some discussion by the
BOE either at the meeting or sometime prior, regarding her nonrenewal. The District
contends that the issuance of the Rice notice for the BOE meeting of April 26, 2022, did
not trigger an absolute requirement that Marcus’ employment status would be discussed
at the meeting. It further contends that it is not statutorily required to provide Rice notice
if Marcus’ name was not on the agenda. She was not on the agenda for the May 9, 2022,
BOE meeting. Only those getting renewed were listed on that agenda. Marcus asserts
that the absence of her name on the agenda was a trigger that she would be nonrenewed,
and thus possible discussion would be had, and must have occurred, so her Rice notice
requirements were violated, and thus the May 10, 2022, nonrenewal notice was voided.
The statute governing the nonrenewal notice requirement, N.J.S.A. 18A:27-10,
does not trigger the need for a Rice notice to be issued to the nontenured teaching staff
member if they are not going to be renewed. The statute places the authority to issue the
renewal or nonrenewal notice in the hands of the chief administrative officer, which is the
superintendent here. The statute does not require petitioner to have the opportunity to
discuss her nonrenewal status in advance of receipt of the notice. The superintendent is
required to advise the BOE in advance of the issuance of the nonrenewal notice to the
employee. N.J.S.A. 18A:27-4.1(b). This again does not trigger a Rice notice requirement.
There is no requirement that the BOE must formally approve or disapprove of the
superintendent’s determination in advance of the issuance of the nonrenewal letter. The
only requirement for a BOE “discussion” to be had on the issue is where the nonrenewed
employee has requested a statement of reasons for nonrenewal in a timely manner, and
thereafter timely requests a Donaldson hearing. The Donaldson hearing is not an
adversarial proceeding. It is the employee’s opportunity to assert their reasons to
convince the BOE to consider renewal of the employee’s contract. If no action is taken
by the BOE to change the nonrenewal, the employee’s next form of recourse is to initiate
a petition with the Commissioner, which must be done within ninety days from the date of
the nonrenewal notice. Nothing tolls the ninety-day time limit.
Marcus’ assertion that the nonrenewal notice was voided is not supported by the
plain reading of the statutes, regulations, and the case law. The notice was issued in

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advance of the statutory deadline of May 15. I CONCLUDE the nonrenewal notice dated
May 10, 2022, was properly issued, in unambiguous and unconditional form. I
CONCLUDE that petitioner received the notice sometime between May 10, 2022, and
May 14, 2022, which is the date petitioner requested her statement of reasons for
nonrenewal. Considering the latest date of May 14, 2022, and counting ninety days
thereafter, Marcus was required to submit a petition to the Commissioner by August 12,
2022. The petition was submitted on August 23, 2022. I thus CONCLUDE that the
petition was not timely filed, and this matter shall be DISMISSED.
Consideration has been given to Marcus’ contention that there should be a
relaxation of the rules, given her belief that the May 10, 2022, letter was voided, and
rather that the June 10, 2022, letter of reasons for nonrenewal should be deemed the
controlling date to trigger the ninety-day time frame. Marcus further contends that this
relaxation should further be considered, given that she notified the District she was
accepting reemployment, as per the May 31, 2022, letter from her counsel, since the May
10, 2022, letter would have been voided and the BOE was not in compliance with issuing
nonrenewal by May 15. Her reemployment should have thus occurred since the statute
requires reemployment for the year if the District failed to issue an intended nonrenewal
letter by May 15, 2022.
These arguments rely upon the acceptance that a Rice notice requirement was
violated. As addressed above, there is no Rice requirement. Marcus has not raised a
genuine issue to require an evidentiary hearing by asserting that the BOE possibly
discussed her employment in closed or executive session, in violation of OPMA. The fact
that the BOE had issued notice for the April 26, 2022, meeting does not trigger a mandate
to have a discussion. Nor is the statute somehow overridden by Rice and OPMA if there
was no discussion had where the Rice notice had been issued. There is no “robustness”
requirement for discussions to be had under the OPMA, and even if the Board somehow
violated the OPMA, the Board took no action on Marcus’ employment at the April 26th
meeting; thus, there is no Board action that could be voided as a result of any OPMA
violation. Just as there was no requirement for Marcus to receive a Rice notice in advance
of the April 26, 2022, BOE meeting, there was no requirement for Marcus to receive a
Rice notice in advance of the May 9, 2022, meeting.

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Marcus promptly acted to request a notice of reasons for nonrenewal, which was
issued to her in a timely manner. The purpose of the statement of reasons is to disclose
any “correctible deficiencies” in a teacher’s performance that may help to aid them in
obtaining and maintaining future positions in teaching employment. Donaldson, 65 N.J.
at 245. Although a BOE should provide a nonrenewed teacher with the true reasons for
its decision, if it fails to do so, there is “no authority to impose a penalty for a board’s
failure to provide accurate reasons unless it is established that the real reasons for the
board’s action are in violation of constitutional or legislatively conferred rights.” Sheridan
v. Bd. of Educ., EDU 08068-03, Initial Decision (October 18, 2004), modified,
Commissioner Final Agency Decision (December 1, 2004)
https://njlaw.rutgers.edu/collections/oal/. “Absent constitutional constraints or legislation
affecting the tenure rights of teachers, local boards of education have an almost complete
right to terminate the services of a teacher who has no tenure and is regarded as
undesirable by the local board.” Dore v. Bd. of Educ., 185 N.J. Super. 447, 456 (App.
Div. 1982). The BOE may decline to follow the superintendent’s recommendation for
renewal, but “may not do so arbitrarily and capriciously.” Jackson Twp. Bd. of Educ. v.
Jackson Educ. Ass’n ex rel Scelba, 334 N.J. Super. 162, 168 (App. Div. 2000).
Reasons for nonrenewal that are vague do not override a board’s broad discretion
in deciding whether to retain nontenured teachers. See, Sheridan and Guerriero v. Bd.
of Educ. of the Borough of Glen Rock, State Board of Education (February 5, 1986), aff’d,
No. A-3316-85T6 (App. Div. 1986). Even when a teacher has received satisfactory
evaluations, a board has no obligation to renew a nontenured teacher’s employment.
See, Bd. of Educ. v. Wyckoff Educ. Ass’n, 168 N.J. Super. 497 (1979).
Marcus’ contention that the letter of reasons for nonrenewal was vague and
contrary to her annual evaluation does not present a genuine issue of material fact to be
determined at an evidentiary hearing. The letter stated she was not a good fit and “failed
to demonstrate skills and performance sufficient to warrant a recommendation that [she]
be renewed.” The letter also alludes to her responsibility as a teacher to “adhere to
policies and procedures,” but does not provide any more description as to what that
means. In Marcus’ final evaluation, her performance was graded as satisfactory, but did

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note recommendations for improvement regarding her attendance and compilation of
data to provide to teachers to assist them. As established in Wyckoff and Sheridan,
satisfactory evaluations and vague statements of reasons do not override the virtually
unlimited discretion that a BOE has in deciding whether or not to renew nontenured
teaching staff. Considering this fact in the light most favorable to Marcus that the letter
provided a vague explanation is of no consequence because Marcus has not alleged that
the statement of reasons was pretextual and that the Board nonrenewed her for an
unconstitutional or illegal reason. Thus, Marcus’ contention regarding the vagueness of
the letter of reasons further does not support her request for a relaxation of the rules to
consider her petition to have been timely filed.
Marcus was advised in the letter of reasons that she had the right to request an
informal hearing, being a Donaldson hearing, within ten days of receipt of the June 10,
2022, letter of reasons. Marcus did not request a Donaldson hearing, and instead opted
to file her petition. She was not mandated to have a Donaldson hearing before opting to
file the petition, as the District suggested in its motion submission that Marcus failed to
exhaust her administrative remedies. However, she was required to have the petition
filed with the Commissioner of the DOE within ninety days of the notice of nonrenewal.
The case law pertaining to adherence to the ninety-day time limit for filing does not
provide for a relaxation of the rules for untimely filing. The language of the statute setting
the ninety-day time frame to file a petition is mandatory. If a petitioner spends part of that
time period attempting to resolve the matter in other ways, it does not provide justification
to toll or extend the ninety-day limit. Pacio v Bd. of Educ. of Lakeland Reg’l High Sch.
Dist., 1989 S.L.D. 2060. Likewise here, petitioner’s assertions that her belief that the
nonrenewal letter was void and that she took other efforts to assert her objection under
Rice and OPMA violations did not toll the ninety-day time frame or otherwise require a
relaxation of the rules.
Taking into consideration Marcus’ arguments for relaxation of the rules in the light
most favorable to her, there still is no genuine issue of material fact presented to mandate
an evidentiary hearing on the matter, nor any compelling reason to relax the rules. Hence,

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I CONCLUDE that summary decision should be entered in favor of the District, and the
matter shall be DISMISSED.
ORDER
It is ORDERED that respondent’s motion for summary decision is GRANTED and
this matter shall be DISMISSED.
I hereby FILE this initial decision with the COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-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. Exceptions may be filed by email to
ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies and

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20
Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500. A copy of any exceptions must be sent to the judge and to the other parties.
April 29, 2024
DATE ELAINE B. FRICK, ALJ
Date Received at Agency:
Date Mailed to Parties:
EBF/sg/jm

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APPENDIX
May 1, 2023, Motion for Summary Decision filed by respondent
June 1, 2023, Opposition to the motion filed by petitioner
June 9, 2023, Reply brief to opposition filed by respondent
November 29, 2023, Supplemental brief on ninety-day-rule issue by respondent
March 11, 2024, Supplemental brief on ninety-day-rule issue by petitioner