B.K., on behalf of minor child, L.P. v. Board of Education of the Borough of Tenafly, Bergen County, 2/1/2021, (#31-21)

31-21
New Jersey Commissioner of Education
Decision
B.K., on behalf of minor child, L.P.,
Petitioner,
v.
Board of Education of the Borough of Tenafly,
Bergen County,
Respondent.
Synopsis
Pro se petitioner alleged that the respondent Board violated her child’s rights through a series of interactions
between L.P. and the principal of Tenafly Middle School, which L.P. attends; petitioner filed the within
appeal challenging the Board’s failure to discipline the principal for these alleged improper interactions and
demanding that tenure charges be filed against the principal to suspend him, reduce his pay, and/or terminate
his employment. The Board denied all allegations and asserted that by law, there is no mechanism available
to require the Commissioner of Education to order a local board of education to discipline or terminate a
principal, nor to require that he apologize based on allegations made by a parent. The parties filed cross
motions for summary decision.
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 challenged the Board’s failure to discipline the Tenafly Middle School
principal following three incidents in which she alleged violation of her child’s rights, including one in
which L.P. was brought to the school nurse’s office for suspected marijuana or vaping use during school
hours on school property; 	in each of the incidents, the Board investigated and found that there was
no inappropriate conduct by the principal toward L.P., and no basis for disciplinary action; such
determinations are appropriately made at the discretion of local boards of education; a board of education
is vested entirely with the authority to discipline its employees, including a principal, based on the board’s
sole judgment of whether the employee’s conduct was appropriate considering the facts and circumstances
surrounding the incident; here, the petitioner does not argue that the Board abused its discretion, but rather
asks that the Commissioner or the Office of Administrative Law (OAL) substitute its judgement for that of
the Board. The ALJ concluded that the petitioner failed to state a claim upon which relief can be granted.
Accordingly, as petitioner set forth no cause of action against respondent, the Board’s motion for summary
decision was granted, and petitioner’s cross motion was dismissed.
Upon review, the Commissioner concurred with the ALJ that the Commissioner does not have the authority
to compel a board of education to file tenure charges against an employee. Accordingly, the Initial Decision
of the OAL was adopted as the final decision in this matter, and 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.
February 1, 2021

OAL Dkt. No. EDU 02392-20
Agency Dkt. No. 25-1/20
New Jersey Commissioner of Education
Decision
B.K., on behalf of minor child, L.P.,
Petitioner,
v.
Board of Education of the Borough of Tenafly,
Bergen County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
In this matter, petitioner challenged the Board’s failure to discipline the principal
of the middle school, alleging that he violated her child’s rights in a series of interactions. The
Board determined that the principal had not acted in an improper manner and found no basis for
disciplinary action. 	Thereafter, petitioner filed a petition of appeal, seeking that the Board file
tenure charges against the principal so that he may be suspended, reduced in pay, or terminated.
The Administrative Law Judge (ALJ) found that petitioner does not have a cognizable right to
request that the Board or Commissioner impose disciplinary action on a school principal. As such,
the ALJ dismissed the matter for failure to state a claim upon which relief can be granted.
Upon review, the Commissioner agrees with the ALJ that the Commissioner does
not have the authority to compel a board of education to file tenure charges against an employee.

2
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter for the
reasons expressed therein, and the petition is hereby dismissed.
IT IS SO ORDERED. 1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	February 1, 2021
Date of Mailing: 	February 4, 2021
1 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.

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING RESPONDENT’S
MOTION TO DISMISS
OAL DKT. NO. EDU 02392-20
AGENCY DKT. NO. 25-1/20
B.K. ON BEHALF OF MINOR CHILD L.P.,
Petitioner,
v.
BOARD OF EDUCATION OF TENAFLY
BERGEN COUNTY,
Respondent.
Birgitta Karlen, pro se, petitioner
Stephen R. Fogarty, Esq., (Fogarty and Hara, attorneys) for respondent
Record closed: August 21, 2020 	Decided: December 18, 2020

2
BEFORE ERNEST M. BONGIOVANNI, ALJ:
STATEMENT OF THE CASE
Petitioner, B.K. on behalf of minor child, L.P., (petitioner or B.K.) has alleged that
respondent, the Board of Education of Tenafly, Bergen County (BOE), violated her child’s
rights 	by 	a 	series 	of 	interactions 	between 	L.P. 	and 	the 	Principal, 	John 	Fabbo
(Principal/Fabbo), of the Tenafly Middle School which L.P. attends. Respondent denies
all the allegations, claims there are no real factual disputes, and filed electronically a
Motion for Summary Decision on July 20, 2020. 	Petitioner also filed a motion for
Summary Decision (Cross Motion) on July 23, 2020.
Petitioner claims that the current Superintendent of the BOE, Ms. DeMarco,
wrongfully failed to discipline Principal Fabbo and seeks to overturn her decision.
Respondent answers that all the charges made against Principal Fabbo were thoroughly
investigated and properly addressed. Notwithstanding that, however, they argue by law,
there is no mechanism available to require the State Commissioner of Education to Order
a local BOE of discipline or terminate a principal or require that he apologize based on
allegations made by an aggrieved parent. 	I agree with the BOE and grant summary
decision in its favor and dismiss the complaint.
.
BACKGROUND AND PROCEDURAL HISTORY
On or about January 27, 2020, petitioner filed a petition of appeal with the
Commissioner of Education seeking to overturn the decision of the Tenafly Board of
Education not to discipline Principal John Fabbo of the Tenafly Middle School regarding
incidents 	involving 	interaction 	between 	Principal 	Fabbo 	and 	petitioner’s 	son 	L.P.
Petitioner had made essentially three allegations to the BOE concerning Fabbo.

3
Allegation One alleged that Fabbo lied about his knowledge and input into a
change in L.P.’s schedule when L.P. was removed for distractive behavior from a drama
class. 	Petitioner argued Fabbo was discriminating inappropriately against her son who
has a reading deficiency qualifying him for Special Education. However the BOE found
that Fabbo committed no inappropriate conduct toward L.P. Allegation Two involved an
incident where Fabbo grabbed the heads of two student’s one of them L.P. and pretended
he was going to knock their two heads. 	Petitioner contended such behavior was an
unacceptable offensive touching of L.P. and conduct not becoming of a teacher (or
Administrator). 	However, the board concluded there was no inappropriate or offensive
touching. 	The third incident concerned L.P. having 	being brought to the school’s
physician’s office for suspected vaping or marijuana use during school hours on school
property. 	Petitioner argued Fabbo did not follow State Law in dealing with students
suspected drug use, specifically N.J.SA. 18A:40A-14 and N.J.A.C. 6A16-4.2. Further she
claimed Fabbo failed to follow Tenafly’s BOE policies in the way he conducted his
meetings with the parent concerning this incident. However, the Board found there was
just cause for having a physical examination of L.P. concerning his conduct in class,
where he appeared to be unsteady after discussing marijuana and using the colloquial
phrase “4/20” which refers to a holiday to celebrate marijuana use. 	Further they found
the examination was conducted by the nurse with the principal present. While during the
exam, at one point, Fabbo touched L.P.’s jacket he didn’t touch L.P. 	Further the
examination was done in accordance with School Policy. They declined to take any action
against Principal Fabbo. 	B.K. filed an appeal with the New Jersey Department of
Education (DOE). She requested that Principal Fabbo be disciplined with tenure charges
initiated to include suspension decrease of pay and/or dismissal. She also requested the
BOE issue an apology to her over their handling of the matter.
On or about February 11, 2020, the matter was transmitted to the Office of
Administrative Law (OAL), where it was filed on February 19, 2020, as a contested case.
N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. 	A telephone prehearing scheduled
for March 25, 2020 was rescheduled owing to the COVID-19 emergency. 	A prehearing
conference was held on June 18, 2020.

4
Respondent filed electronically a Motion for Summary Decision on July 20, 2020.
Petitioner also filed a motion for Summary Decision (Cross Motion) on July 23, 2020. On
August 21, petitioner filed a reply to respondent’s motion. No oral argument was
requested.
FACTUAL DISCUSSION AND FINDINGS OF FACT
Based upon the petitioner’s filing, respondents motion for summary decision, brief
and certification in support of summary dismissal, on petitioner’s motion for summary
decision certification and argument, and respondents brief in opposition to petitioner’s
motion, and for the purpose of deciding the motion for summary decision, I FIND the
following:
1. 	Petitioner, B.K. is the mother of L.P., a student in the school district of
the Borough of Tenafly, and is representing his interests in this matter.
2. 	The respondent, BOE operates the public schools serving children from
pre-kindergarten through 12 th grade high school, including the Tenafly
Middle school, which L.P. attended during the time relevant to this
matter.
3. 	On January 31, 2019, B.K. sent a letter to the Superintendent for the
BOE complaining of certain actions she claimed Principal Fabbo took
against L.P. First, after the theatre teacher had removed L.P. from her
class owing to what she called his disruptive behavior, B.K. met with
Fabbo who refused to change the teacher’s decision. 	The letter also
said that Fabbo was disrespectful and dismissive to her. 	According to
B.K. she then met with the district superintendent who reversed the
theatre teacher’s decision to remove L.P from her class. 	B.K. insisted
also that Principal Fabbo lied to her regarding the extent of his role in

5
this incident. 	The Superintendent assured B.K. that Fabbo would be
disciplined. 	However, months went by and no discipline was imposed
on Fabbo. 	Further, the Superintendent had resigned, replaced by an
acting Superintendent.
4. 	In April 2020 another two incidents involving Fabbo and L.P. occurred.
In one, Principal Fabbo had mockingly pretended to “clunk” together
L.P.’s head with another student’s head. In another L.P.’s behavior was
reported to Fabbo by staff members. L.P. was acting “strange.” He had
been in a bathroom for an unusual amount of time and emerged looking
nervous and unsteady. 	It was reported to him that a little earlier L.P.
had been joking with other students about “4-20,” a mock “holiday”
celebrating using marijuana. 	Fabbo had brought L.P. to the nurse’s
office partly to have a witness when he asked L.P. to empty his pockets.
While in the nurse’s office, the nurse performed a cursory exam,
including shining a light into L.P’s eyes, while Fabbo watched. 	L.P.’s
parent’s had not been informed before the search took place and exigent
circumstances to justify a search were lacking. However, two teachers
had independently told L.P’s guidance counselor on the date of the
marijuana incident that they noticed L.P. acting unusually in class and
verified 	the 	“4-20” 	reference 	that 	occurred 	before 	the 	search.
Nevertheless, B.K. that Principal Fabbo lied to the BOE regarding the
extent of his role in this incident and the reason for the search.
5. 	Because of continual dissatisfaction with the BOE and Superintendent
DeMarco, the Board directed its Affirmative Action Officer, Dr. Mamman
to investigate B.K.’s complaints against Demarco to determine 1) if
Fabbo discriminated against L.P. on the basis of his disability; 2) if
Fabbo have inappropriate physical contact with L.P. and 3) if Fabbo
subjected L.P. to an improper, unauthorized search.
6. 	Dr. Mamman interviewed eight employees, including the school nurse,
guidance counselor, the theater teacher and others having personal

6
knowledge of the incidents, plus Fabbo and L.P. Mamman determined
that: Regarding possible discrimination in the removal of Fabbo had no
role in changing L.P.’s schedule with the theatre class. 	Regarding
inappropriate conduct toward L.P. Fabbo had only responded regarding
the possible vaping or marijuana complaint to concerns expressed to
him by the guidance counselor and two teachers. 	The search by the
nurse checked L.P.’s eyes, tried to detect the odor of marijuana and
assess his level of consciousness. Fabbo never touched L.P. although
he touched his jacket. Accordingly, Dr. Mamman found no impropriety
in any of Fabbo’s conduct. 	After B.K. reviewed a summary of the
investigation 	and 	complained 	it 	was 	not 	completely 	accurate,
Superintendent DeMarco amended the report but did not modify the
essential findings of no inappropriate behavior by Fabbo.
7. 	B.K. 	appealed 	Superintendent 	Demarco’s 	findings 	and 	specifically
complained on four counts: 1) Fabbo had L.P. removed from the drama
class based on a false claim that L.P. had been a behavior problem for
years. 2) Fabbo inappropriately touched L.P. when he pretended to that
he was going to “clunk” his head together with another student’s. 3. The
search incident was conducted in violation of various school policies. 4.
The BOE erred in not disciplining Fabbo for his infractions; specifically
B.K. 	Contended 	tenure 	charges 	should 	be 	preferred 	and 	Fabbo
removed 	as 	principal. 	Like 	Superintendent 	DeMarco, 	the 	BOE
disagreed with all of B.K.’s contention. They found Fabbo had nothing
to do with L.P.’s removal from the theatre class and it was irrelevant he
believed L.P. had a greater behavioral history than he in fact did. 	The
BOE believed the incident of the pantomiming knocking the heads
together was an attempt to engage the students and had to malicious
notice. 	Finally Fabbo’s conduct during the marijuana check at the
nurse’s office was completely appropriate and within his authority as
principal. Also, much of B.K.’s evidence didn’t complain so much as to

7
what Fabbo did, but what Fabbo had said about his actions which was
not always accurate.
8. 	The BOE could find no basis for any action against Principal Fabbo.
They summarized that B.K.’s allegations “reflect a misunderstanding of
a school principal and the broad discretion to act in what he/she
considers, in their professional opinion to be the best interests of an
individual student or the school as a whole…”
9. 	The current appeal to the State Commissioner repeats the same
allegations against Fabbo, noting that the pantomime striking of the two
student’s heads together was an offensive touching of a student even
though no harm was intended, citing BOE policy 3217. Further, Fabbo’s
conduct during the marijuana investigation did not comply with NJSA
18A:40A-12 and N.J.A.C.6A:16-4.3. She again seeks Fabbo’s discipline
including possible removal and asks that the BOE issue an apology for
its conduct in these proceedings.
10. 	The overwhelming evidence based on the investigation conducted
under the auspices of the school BOE and their Superintendent’s report
is that: Fabbo did not interfere with the decision to remove L.P. from
theatre class. 	Further, no harm was intended or done to L.P. with the
pantomime incident; whether his behavior was appropriate on that point
is a determination to be made at the sound discretion of the NJBOE.
Similarly, the BOE is vested entirely with the authority to discipline its
employees including a school principal over whether his conduct in
investigating a possible drug incident based entirely on their judgment
of whether his conduct was appropriate based on the circumstances.
There certainly was no offensive touching by Fabbo when the nurse
conducted the check for possible marijuana use and there is no
evidence of any ill motive in Fabbo’s behavior.

8
11. The BOE is vested entirely with the authority to discipline its employees
including a school principal over whether his conduct in investigating a
possible drug incident or similar incidents, and can be based entirely on
the BOE’s sole judgment of whether his conduct was appropriate based
on the facts and circumstances as they determine. The petitioner does
not argue the BOE abused its 	discretion. 	Rather, the petitioner asks
that the Commissioner or the OAL substitute its judgement for the
judgement of the BOE.
LEGAL ANALYSIS AND CONCLUSION OF LAW
The issue is whether petitioner has any cognizable right to seek from the BOE, the
Commissioner of Education, or the Office of Administrative Law to discipline a school
principal for perceived misdeeds. 	The answer must be a resounding “No!” 	Although I
find that petitioner has not met its burden to withstand the motion for dismissal, 	in its
allegations against respondent, in any event, the petitioner has failed to file a claim upon
which relief may be lawfully granted.
As correctly stated by respondent, the local Board of Education is vested with the
discretion to accept or reject tenure charges. Galante v. Board of Education of the City
of North Arlington, Bergen County, OAL Docket No. 11479-06 (Final Decision August 21,
2008.) Further the Commissioner of Education may not impose other discipline such as
suspension, or decrease of pay of a principal as demanded by petitioner. The legislature
has 	vested 	that 	authority 	to 	make 	and 	enforce 	rules 	governing 	tenure 	terms 	of
employment dismissal and discipline of its employees. It is untenable, if not impossible
to accept as a working principal of governing school board business that an aggrieved
parent could compel a Board of Education to discipline one of its principles or other
employees. N.J.S.A. 18A:27-4 et. seq.

9
Petitioner also asks that the BOE be compelled to issue an apology for its actions.
Quite apart that petitioner has not, and cannot, meet its burden of proof to warrant any
such apology based on the manner in which it conducted the investigation that the
petitioner herself demanded, such a decision to apologize is at the sound discretion of
the BOE. There has not been given an iota of proof that the Boards actions in its failure
to issue an apology was “patently arbitrary, without rational basis or induced by improper
motives.” Parsippany-Troy Hills Education Assoc. v. BOE of Parsippany-Troy Hills Twp.,
188 N.J. Super, 161, 167 (App. Div. 1983).
Summary decision may be granted when the papers and discovery that have been
filed show that there is no genuine issue as to any material fact challenged and the moving
party is entitled to prevail as a matter of law. N.J.A.C. 1:1-12.5(b). No evidentiary hearing
need be held if there are no disputed issues of material fact. Frank v. Ivy Club, 120 N.J.
73, 98, cert. denied, 498 U.S. 1073 (1991). “When the evidence is so one-sided that one
party must prevail as a matter of law, the [tribunal] should not hesitate to grant summary
[decision].” 	Della Vella v. Bureau of Homeowner Prot., New Home Warranty Program,
CAF 17020-13, Initial Decision (March 31, 2014), adopted, Comm’r (May 12, 2014),
http://njlaw.rutgers.edu/collections/oal/ (quoting Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 529 (1995)).
Further, 	the 	non-moving 	party 	has 	the 	burden 	“to 	make 	an 	affirmative
demonstration . . . that the facts are not as the movant alleges.” 	Spiotta v. William H.
Wilson, Inc., 72 N.J. Super. 572, 581 (App. Div. 1962). This requirement, however, does
not relieve the moving party from having to initially establish in its moving papers that
there was no genuine issue of fact and that they were entitled to prevail as a matter of
law. It is the “movant’s burden to exclude any reasonable doubt as to the existence of any
genuine issue of fact.” Conti v. Board of Education, 286 N.J. Super. 106 (App. Div. 1995)
(quoting Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 74 (1954)). Here
the respondent has demonstrated there is no reasonable doubt as to the existence of any
genuine issue of fact.

10
Accordingly, I FIND that petitioner has failed to state a claim upon which relief can
be granted. This is sufficient to hold that respondent’s motion to dismiss must be granted.
Accordingly, as petitioner has set forth no cause of action against respondent, this
matter is ripe for summary decision.
ORDER
I hereby ORDER that respondent’s motion to dismiss is GRANTED, and this
matter is hereby 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.

11
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.
December 18, 2020
DATE 	ERNEST M. BONGIOVANNI, ALJ
Date Received at Agency: 	12/18/20
Date Mailed to Parties: 	12/18/20
EMB/id

12
APPENDIX
EXHIBITS
For Petitioner:
1. 	Petitioner’s Verified Petition, dated January 26, 2019
For Respondent:
1. 	Motion for Summary Decision and brief, dated March 27, 2018
2. 	Brief, dated November 30, 2018