H.D. and D.D., on behalf of minor child, L.D. v. Board of Education of the Borough of Woodcliff Lake, Bergen County, 11/2/2020, (#252-20)

252-20
New Jersey Commissioner of Education
Final Decision
H.D. and D.D., on behalf of minor child, L.D.,
Petitioners,
v.
Board of Education of the Borough of
Woodcliff Lake, Bergen County,
Respondent.
Synopsis
Petitioners 	appealed 	the 	respondent 	Board’s 	determination 	that 	their 	minor 	child, 	L.D.,
committed an act of harassment, intimidation and bullying (HIB) in violation of New Jersey’s
Anti-Bullying 	Bill 	of 	Rights 	Act 	(Act), 	N.J.S.A. 	18A:37-13 	et 	seq. 	The 	Board’s 	HIB
determination stemmed from an incident in January 2020 wherein L.D. was accused of making a
racial comment toward a fellow fifth grader. 	An administrative hearing was requested by an
attorney for the petitioners, and held on March 5, 2020. 	Thereafter, on March 6, 2020, the
Board’s written decision upholding the finding of HIB was delivered to petitioners. The within
petition of appeal was not filed until July 2020. 	The Board filed a motion for summary decision,
arguing that the petition is time-barred time-barred pursuant to N.J.A.C. 6A:3-1.2(i), which requires
petitions to be filed no later than 90 days from the date of receipt of the action that is the subject of
the case. The petitioners opposed the motion.
The ALJ found, inter alia, that: there is no genuine issue as to any material fact here, and the case is
ripe for summary decision; under N.J.A.C. 6A:3-1.3(i), a petitioner shall file a petition 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 case; and petitioners’
argument that the timeframe in this matter must be relaxed given the exceptional circumstances of
the COVID-19 epidemic is without merit. 	Accordingly, the ALJ concluded that petitioners did not
file a timely appeal of the Board’s HIB decision, and consequently declined to address the
substantive issues in this case.
Upon an independent review – and finding petitioners’ exceptions to be unconvincing – the
Commissioner concurred with the ALJ’s determinations and adopted the Initial Decision of the
OAL as the final decision in this case. 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.
November 2, 2020

OAL Dkt. No. EDU 06602-20
Agency Dkt. No. 153-7/20
New Jersey Commissioner of Education
Final Decision
H.D. and D.D., on behalf of minor child,
L.D.,
Petitioners,
v.
Board of Education of the Borough of
Woodcliff Lake, Bergen 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 the reply thereto by the
Board have been reviewed and considered.
This matter involves a harassment, intimidation, and bullying (HIB) complaint made
by another student against petitioners’ minor child, L.D. 	The Administrative Law Judge (ALJ)
granted the Board’s motion to dismiss on the basis that that the petition was untimely because it was
filed more than 90 days after the Board’s decision finding that L.D. had committed an act of HIB.
In their exceptions, petitioners argue that their attorney was not served with a copy of
the Board’s decision. Petitioners include a certification stating that due to the COVID-19 pandemic,
they were delayed in sending a copy of the Board’s decision to their attorney until April 3, 2020.
Petitioners also contend that the 90-day timeline should be relaxed in the interest of justice, because
the case raises constitutional issues that should be evaluated on the merits.
In reply, the Board argues that it had no knowledge that petitioners were represented
by counsel, as they appeared at the Board hearing the day before the decision was issued without

2
counsel and indicated that they had elected to proceed without counsel. The Board also asserts that
there is no evidence to support relaxing the 90-day timeline.1
Upon review, the Commissioner concurs with the ALJ that the petition is time-barred
pursuant to N.J.A.C. 6A:3-1.2(i), which requires petitions to be filed no later than 90 days from the
date of receipt of the action that is the subject of the case. 	The Board’s decision was issued on
March 6, 2020, and the petition of appeal was not filed until July 2, 2020. The Anti-Bullying Bill of
Rights Act does not require that the Board’s decision be served on counsel for the parents of the
students at issue. Furthermore, while the Commissioner recognizes the difficulties many individuals
have faced due to the COVID-19 pandemic and understands that petitioners may have been delayed
in sending a copy of the decision to their attorney as a result, petitioners admit that they forwarded
the decision to their attorney on April 3, 2020, two months before the 90-day timeline expired on
June 4, 2020.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this
matter and the petition is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	November 2, 2020
Date of Mailing: 	November 6, 2020
1 The Board’s reply also includes substantive arguments regarding the HIB decision. 	As the Commissioner has
determined to dismiss this matter for failure to timely file, he does not reach the substantive HIB issues alluded to in
petitioner’s exceptions and more explicitly argued in the Board’s reply.
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 06602-20
AGENCY DKT. NO. 153-7/20
H.D. & D.D. ON BEHALF OF L.D.,
Petitioners,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF WOODCLIF LAKE, BERGEN COUNTY,
Respondents.
______________________________________
Phoung Dao, Esq. for petitioners
Jeffrey R. Merlino, Esq., for respondent Borough of Woodcliff Lake (Sciarrillo,
Cornell, Merlino, McKeever & Osborne, LLC)
Record Closed: September 10, 2020 	Decided: September 17, 2020
BEFORE KIMBERLY A. MOSS, ALJ:
Petitioner challenges the Borough of Woodcliff Lakes Board of Education’s
(Board 	or 	respondent) 	determination 	that 	minor 	child 	L.D. 	committed 	an 	act 	of
Harassment, Intimidation and Bullying (HIB).
A petition challenging the Board’s HIB determination was filed with the Office of
Administrative Law (OAL) on July 8, 2020. 	Respondent filed a motion for summary

OAL DKT. NO. EDU 06602-20
2
decision on September 4, 2020. Petitioner filed opposition to the motion on September
10, 2020.
FACTUAL DISCUSSION
Having reviewed the supporting documents submitted by both sides I FIND the
following to be the FACTS of this matter:
On January 15, 2020, L.D was a fifth-grade student in Woodcliff Lakes Public
Schools. 	On that date a parent of one of the students complained that L.D. committed
an act of HIB against the parent's daughter. 	L.D. was accused of making a racial
comment that her daughter was a poor African. 	An investigation was conducted which
confirmed HIB based on race/skin color. 	On or about January 16, 2020, petitioners
were informed of the HIB investigation. On January 24, 2020, petitioners were informed
the investigation determined that the incident with L.D. was an HIB incident.
On or about February 12, 2020, the law firm of Dao Law LLC sent a letter to
Lauren Barbelet, Superintendent of Woodcliff Lake Public Schools that petitioners
requested an administrative hearing, which was held on March 5, 2020. 	On or about
March 6, 2020, respondent delivered the Board’s written decision denying the appeal to
petitioners. 	Petitioners were advised in the letter that they could appeal the Board’s
decision to the Commissioner of Education no later than ninety days after the Board’s
decision. 	Petitioner forwarded the March 6, 2020, letter from the Board denying their
appeal 	to 	their 	attorney 	on 	April 	3, 	2020. 	Petitioners 	filed 	an 	appeal 	with 	the
Commissioner of Education on June 29, 2020.
LEGAL DISCUSSION AND CONCLUSIONS
The Commissioner has specifically addressed the time in which a petitioner must
initiate a contested case for the Commissioner’s determination of a controversy or
dispute arising under the school laws.
N.J.A.C. 6A:3-1.3(i) requires that:
The petitioner shall file a petition 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

OAL DKT. NO. EDU 06602-20
3
board of education, individual party, or agency, which is the subject of the
requested contested case hearing.
Such a rule represents a fair and reasonably necessary requirement for the
proper and efficient resolution of disputes under the school laws and falls within the
scope of authority granted to the Commissioner. Kaprow v. Bd. of Educ. of Berkeley
Twp., 131 N.J. 572, 582 (1993). The limitation period gives school districts the security
of knowing that administrative decisions regarding the operation of the school cannot be
challenged after ninety days. Ibid. 	Its purposes are to stimulate litigants to pursue a
right of action within a reasonable time so that the opposing party may have a fair
opportunity to defend and to penalize dilatoriness and serve as a measure of repose by
giving security and stability to human affairs. Id. at 587.
The ninety-day requirement is to be strictly construed and is mandatory. Wise v.
Bd. of Educ. of the City of Trenton, EDU 160-00, Comm’r (September 11, 2000), aff’d,
State Bd. of Educ. (January 3, 2001), <http://lawlibrary.rutgers.edu/oal/search.html>. 	A
petitioner must file a petition within ninety days from a notice of adverse action and not
within ninety days of her exhaustion of other avenues and mechanisms she might have
employed in seeking renewal of employment. Id. Informal attempts to resolve a dispute
do not serve to toll the statute of limitations. See Kaprow supra at 588. Also, the ninety-
day period for filing a petition of appeal commences when a petitioner learns of facts
that would enable her to file a timely claim. Id. at 587. “Adequate notice must be
sufficient to inform an individual of some fact that he or she has a right to know and that
the communicating party has a duty to communicate.” Ibid. (citation omitted).
N.J.A.C. 6A:3-1.13 states:
The rules in this chapter shall be considered general rules of practice to
govern, expedite and effectuate the procedure before, and the actions of
the Commissioner in connection with, the determination of controversies
and disputes under the school laws. Where such rules do not reflect a
specific statutory requirement or an underlying rule of the OAL, they may
be relaxed or dispensed with by the Commissioner, in the Commissioner's
discretion, in any case where a strict adherence thereto may be deemed
inappropriate or unnecessary or may result in injustice.
Respondent knew that petitioners had counsel, and respondent did not copy
petitioners' counsel of its decision. 	However, petitioners were informed of the Board’s

OAL DKT. NO. EDU 06602-20
4
decision to deny their appeal on or about March 6, 2020. Petitioners informed their
attorney of the Bord’s denial of their appeal on April 3, 2020.
Petitioner argues that N.J.A.C. 6A:3-1.3(i) (the 90-day rule) should be relaxed in
accordance with N.J.A.C. 6A:3-1.16. N.J.A.C. 6A: 3-1.3(I) is to be strictly construed. 	It
clearly states the petitioner shall file a petition no later than the 90th day. The fact that
petitioner’s attorney was not noticed by the Board is not an exceptional circumstance
because petitioners were noticed by the Board on or around March 6, 2020.
Petitioner argues that the Covid 19 pandemic is an exceptional circumstance
requiring the 90-day rule to be relaxed. 	Petitioner did not provide a certification or any
information specifically as to how the pandemic affected them to cause a relaxation of
the 90-day rule.
I CONCLUDE petitioner did not file a timely appeal of the Board’s HIB decision.
Since the appeal was not timely filed, I will not address the substantive portion of the
motion.
ORDER
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.

OAL DKT. NO. EDU 06602-20
5
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.
September 17, 2020
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	September 17, 2020
Date Mailed to Parties: 	September 17, 2020
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