Robert Curcio v. Board of Education of the South Orange-Maplewood School District, Essex County, 6/24/2024, (#239-24)

239-24
New Jersey Commissioner of Education
Final Decision
Robert Curcio,
Petitioner,
v.
Board of Education of the South Orange-
Maplewood School District, Essex County,
Respondent.
Synopsis
Petitioner, a former employee of the respondent Board, filed a petition requesting that the South
Orange-Maplewood Board of Education provide him with full indemnification in a lawsuit filed
against him in Superior Court. 	The Board has retained an attorney, who filed an answer to the
lawsuit on the Board’s and petitioner’s behalf, but there have yet to be any other proceedings in
the Superior Court case. The Board filed a motion to dismiss the petition, 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 Board from August 1974 to August 2003,
and served as the Director of Athletics and Student Activities from January 1984 until his retirement
from the District; 	in 2023, a lawsuit was filed in Superior Court alleging that between 1982 and
1986, two former students were sexually abused by a track coach who worked under the
supervision of the petitioner when he served as Director of Athletics for the school district; 	the
lawsuit alleges that petitioner negligently supervised the track coach, thereby enabling the abusive
conduct to occur; N.J.S.A. 18A:16-6 addresses indemnification for school employees, holding that a
board of education must defray all costs for any civil action brought against an employee for any act
or omission arising out of the performance of the duties of the employee’s position; here, it is not
yet possible to know whether petitioner was acting within the scope of his duties as more than 40
years have elapsed since the alleged incidents occurred, and there has been no discovery or hearing
to date; 	the Board has already provided petitioner with a defense in this matter, and he has
suffered no harm, and is not likely to suffer any harm in the future as long as the Board maintains
the status quo. The ALJ concluded that petitioner’s request for full indemnification is not yet ripe
for determination, and the Board is entitled to summary decision as a matter of law. Accordingly,
the Board’s motion to dismiss was granted without prejudice, and the petition was dismissed.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusion, and adopted the
Initial Decision as the final decision in this matter.
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.

239-24
OAL Dkt. No. EDU 04142-24
Agency Dkt. No. 40-2/24
New Jersey Commissioner of Education
Final Decision
Robert Curcio,
Petitioner,
v.
Board of Education of the South Orange-
Maplewood School District, Essex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law have
been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge that the issue
of petitioner’s entitlement to indemnification is not ripe for review, because the facts have yet
to be developed and it is not possible at this stage in the proceedings to determine whether
petitioner was acting within the scope of his employment. While Azzaro v. Bd. of Educ. of the
City of Trenton, 477 N.J. Super. 427 (App. Div. 2023), requires an employee to provide notice to
the board of education that he is seeking indemnification within a reasonable time after the
initiation of an action against him, it does not require that the Commissioner decide the question
of entitlement to indemnification prior to the conclusion of the action filed against the employee.

2
Accordingly, the Initial Decision is adopted as the final decision in this matter, and the
petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	June 24, 2024
Date of Mailing: 	June 26, 2024
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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 04142-24
AGENCY DKT. NO. 40-2/24
ROBERT CURCIO,
Petitioner,
v.
SOUTH ORANGE MAPLEWOOD
BOARD OF EDUCATION,
Respondent.
__________________________________
Vito Gagliardi, Esq., for petitioner (Porzio, Bromberg & Newman, P.C., attorneys)
Patrick Carrigg, Esq., for respondent (Lenox Law Firm, attorneys)
Record Closed: May 14, 2024 	Decided: May 22, 2024
BEFORE ANDREA PERRY VILLANI, ALJ:
STATEMENT OF THE CASE
Robert Curcio, former school employee, asks the South Orange Maplewood Board
of Education (Board) to indemnify him in a lawsuit. The Board retained an attorney and
filed an answer on his behalf, but there have been no other proceedings in the case. Is
Curcio’s request for full indemnification ripe for determination? 	No. A case is not ripe
when there’s no hardship to the parties and the issues are not yet fit for judicial review.
K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1,
9 (App. Div. 2005).

OAL DKT. NO. EDU 04142-24
2
PROCEDURAL HISTORY
On February 26, 2024, Curcio filed a petition of appeal with the Commissioner of
the New Jersey Department of Education seeking an order requiring the Board to
indemnify him under N.J.S.A. 18A:16-6.
On March 20, 2024, the Board filed a Motion to Dismiss.
On March 22, 2024, the Department of Education transmitted the case to the Office
of Administrative Law (OAL) under the Administrative Procedure Act, N.J.S.A. 52:14B-1
to -15, and the act establishing the OAL, N.J.S.A. 52:14F-1 to -23, for a hearing under the
Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.
On March 28, 2024, Curcio filed Opposition to the Motion to Dismiss, and on April
10, 2024, the Board filed a Reply to Curcio’s Opposition.
On April 15, 2024, I held a prehearing telephone conference. Counsel agreed that
no material facts are in dispute, and that I should render a decision as a matter of law.
On May 14, 2024, counsel submitted a Joint Statement of Material Facts, and I
closed the record.
FINDINGS OF FACTS
Counsel submitted a Joint Statement of Material Facts as follows and, as such, I
FIND as FACT:
1. 	Respondent South Orange Maplewood Board of Education (Board)
is established under the laws of the State of New Jersey and is the
governing body of the South Orange Maplewood School District.

OAL DKT. NO. EDU 04142-24
3
2. 	The Board supervises, controls, and regulates each of the public
schools located within the District, including Columbia High School
(CHS).
3. 	Curcio was the former Director of Athletics and Student Activities at
the District.
4. 	Curcio was employed by the Board from August 1974 to August
2003.
5. 	Curcio served as the Director of Athletics and Student Activities from
January 1984 until his retirement from the District.
6. 	On July 24, 2023, an individual identified only as “Jane Doe” filed suit
against the District, the former principal of CHS, and a former CHS
teacher 	and 	track 	coach 	named 	Leonard 	Klepack 	(Defendant
Klepack) in the Superior Court of New Jersey, Mercer County, Law
Division, Civil Part under docket number MER-L-1412-23 (Superior
Court Action). (J-1.)
7. 	In the Superior Court Action, Jane Doe alleged that Defendant
Klepack abused her from 1982 to 1986 while he was her track coach.
(J-1.)
8. 	On November 6, 2023, a First Amended Complaint was filed in the
Superior Court Action with leave of the Superior Court. (J-2.)
9. 	The First Amended Complaint added a second plaintiff (Plaintiff Two)
to the Superior Court Action and re-designated Jane Doe as “Plaintiff
One.” (J-2.)
10. 	The First Amended Complaint also named Curcio as a defendant in
the Superior Court Action. (J-2.)
11. 	The 	First 	Amended 	Complaint 	alleges 	that 	Curcio 	“negligently
supervised Defendant Klepack and lacked or failed to comply with
rules, policies, guidelines or regulations which enabled Defendant
Klepack to sexually abuse Plaintiff One.” (J-2.)

OAL DKT. NO. EDU 04142-24
4
12. 	The First Amended Complaint further alleges that Curcio “failed to
supervise Defendant Klepack in school and when he took Plaintiff
Two to track meets and competitions alone” and “exercised no
oversight or supervision of Defendant Klepack and failed to request
or require permission or authorization by Plaintiff Two’s parents to
allow Plaintiff Two to travel to track meets alone with Defendant
Klepack.” (J-2.)
13. 	The First Amended Complaint also alleges that Curcio “lacked or
failed to comply with policies, rules, guidelines or regulations when
Defendant Klepack took Plaintiff Two to multiple track events and
sexually abused her in motels and hotels.” (J-2.)
14. 	The First Amended Complaint in the Superior Court Action alleges
that Curcio negligently supervised Defendant Klepack. (J-2.)
15. 	On December 4, 2023, Curcio’s counsel wrote to counsel for the
Board demanding that the Board provide Curcio with full indemnity
pursuant to N.J.S.A. 18A:16-6. (J-3.)
16. 	On December 11, 2023, the New Jersey Schools Insurance Group
(NJSIG) issued a coverage and reservation of rights letter and
agreed to provide the District and Curcio with a defense in the
Superior Court Action. (J-4.)
17. 	The NJSIG letter disclaimed coverage for any claims by Plaintiff One
occurring prior to July 1, 1985 because the policies it issued only
covered the period from July 1, 1985 to July 1, 1988. (J-4.)
18. 	Furthermore, the NJSIG letter disclaimed coverage for any claims by
Plaintiff Two occurring after July 1, 1988 for the same reason. (J-4.)
19. 	On December 19, 2023, the District’s insurance carrier, Chubb,
issued a Coverage and Reservation of Rights letter and agreed to
provide the District and Curcio with a defense in the Superior Court
Action. (J-5.)

OAL DKT. NO. EDU 04142-24
5
20. 	Chubb expressly disclaimed coverage of any claims asserted by
Plaintiff Two because her alleged injuries occurred outside the
policy’s coverage period. (J-5.)
21. 	Chubb also determined 	that “the 1986-1987 	INA Policy 	would
likewise not apply to Plaintiff Two’s claims of negligent supervision
against Curcio.” (J-5.)
22. 	Chubb 	further 	determined 	that, 	notwithstanding 	its 	decision 	to
provide 	a 	defense 	to 	Curcio, 	it 	“may 	nevertheless 	owe 	no
indemnification to Curcio under the 1986-1987 INA Policy.” (J-5.)
23. 	On December 28, 2023, the undersigned counsel for Curcio again
wrote to counsel for the Board demanding that the Board provide full
indemnity, pursuant to N.J.S.A. 18A:16-6, irrespective of whether
insurance coverage was available (J-6). 	Neither the Board nor any
attorney acting on its behalf responded to this letter or the prior letter.
24. 	On January 9, 2024, the law firm of Anderson & Shah, LLC filed an
Answer to the First Amended Complaint on behalf of the District and
Curcio in the Superior Court Action. (J-7.)
CONCLUSIONS OF LAW
Summary decision may be rendered if the papers and discovery, which have been
filed, together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and the moving party is entitled to prevail as a matter of law.
N.J.A.C. 1:1-12.5(b). Even where a hearing is required by statute, a court or agency may
dispense with the hearing and render summary decision if no dispute as to any material
fact exists. 	See Contini v. Newark Bd. of Educ., 286 N.J. Super. 106, 120 (App. Div.
1995) (quoting In re Farmers' Mut. Fire Assurance Ass'n of N.J., 256 N.J. Super. 607, 618
(App. Div. 1992) ("[a]n evidentiary hearing is mandated only when the proposed
administrative action is based on disputed adjudicatory facts”)).

OAL DKT. NO. EDU 04142-24
6
In this case, summary decision is appropriate because no genuine issue of
material fact exists. 	Indeed, the parties agree on the most important fact: the Board is
already providing Curcio with a defense in the lawsuit filed against him. 	This key fact
establishes that there has been no harm to Curcio in the case thus far. 	Therefore, the
question of whether Curcio is entitled to “full indemnity,” including a “commitment [by the
Board] to defend him in the future” (J-8, p.4, emphasis added), is not yet ripe for
determination, and the Board is entitled to summary decision as a matter of law.
The ripeness doctrine is rooted in prudential limitations on the exercise of judicial
authority. Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005). The
general inquiry is whether the court would benefit from deferring initial review until the
claims presented for resolution have arisen in "a more concrete and final form." Ibid. The
doctrine's "basic rationale is to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements.” 	Ibid. 	A case's
ripeness depends on two factors: (1) the fitness of issues for judicial review and (2) the
hardship to the parties if judicial review is withheld at this time. K. Hovnanian Cos. of N.
Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 9 (App. Div. 2005)
(quoting 966 Video, Inc. v. Mayor & Tp. Comm. of Hazlet Tp., 299 N.J. Super. 501, 515-
16 (Law Div. 1995)).
Most importantly, Curcio’s request for full indemnification is not yet ripe for review
because the Board has already provided him with a defense in the lawsuit filed against
him and, consequently, he has suffered no hardship under factor two of the ripeness test.
As set forth above, it is undisputed that: 	the Board retained an attorney through their
insurance carriers; the attorney filed an answer to the complaint on Curcio’s behalf; and
the Board’s attorney continues to represent Curcio. Curcio has suffered no harm, and he
is likely to suffer no harm in the future as long as the Board maintains the status quo.
Curcio’s claim for full indemnification also fails factor one of the ripeness test
because it is not fit for judicial review at this time. In determining whether an issue is fit
for 	judicial 	review, 	we 	consider 	whether 	review 	would 	require 	additional 	factual
development. 	966 Video, Inc., 299 N.J. Super. at 516. 	In this situation, proper judicial
review requires additional factual development around one very important question:
whether Curcio was acting within the scope of his employment when he committed the

OAL DKT. NO. EDU 04142-24
7
acts alleged in the complaint. 	Indeed, New Jersey law is clear that this is the crucial
determination that must be made on an indemnification claim.
N.J.S.A. 	18A:16-6 	is 	the 	statute 	that 	addresses 	indemnification 	for 	school
employees. 	N.J.S.A. 18A:16-6 holds, in pertinent part, that a board of education must
defray all costs for any civil action that has been brought against a board employee for
any act or omission arising out of the performance of the duties of such employment. The
New Jersey Supreme Court has further stated that “[t]he only question to be answered
when a school board employee seeks civil indemnification under N.J.S.A. 18A:16–6 is
whether the employee was acting within the scope of his or her employment duties.” L.A.
v. Bd. of Educ. of Trenton, 221 N.J. 192, 205-6 (2015).
In this case, we do not yet know whether Curcio was acting within the scope of his
employment during the incidents alleged in the complaint. The plaintiffs added Curcio to
their lawsuit a mere six months ago. There have been no court proceedings. There has
been no discovery. 	The alleged incidents occurred about forty years ago, back in the
1980s. 	As a result, few facts are known at this time, but more will likely emerge in
discovery. It is possible that those facts will reveal Curcio was not acting within the scope
of his employment and is not entitled to indemnification.
Also, it is not possible to gather and have a hearing on those facts at the present
time. 	Many of the relevant facts are known only to the plaintiffs in the Superior Court
Action. For instance, of particular importance to the plaintiffs’ case against Curcio will be
the observations of witnesses (e.g. school staff, coaches, other students, etc.) who have
first-hand knowledge of Curcio’s relationship and interactions with Defendant Klepack.
While the Board may have some knowledge of who those potential witnesses are, the
plaintiffs in the lawsuit are in the best position to identify who was present at the alleged
incidents. But, again, we do not have the plaintiffs’ evidence as there has not been any
discovery or court proceedings in the Superior Court Action. As such, it would be highly
impractical, if not impossible, to have a hearing at this time.
The most recent reported decision on the issue of indemnification for a school
employee supports the notion that a hearing at this early stage of litigation would be
premature. See Azzaro v. Bd. of Educ. of City of Trenton, 477 N.J. Super. 427 (App. Div.

OAL DKT. NO. EDU 04142-24
8
2023). 	In Azzaro, the Appellate Division held that an employee must provide a school
board with reasonable notice after the initiation of a proceeding that she is seeking
indemnification. 	Id. at 2. 	However, that does not mean that a school board must fully
indemnify an employee immediately at the start of the proceeding. 	Azzaro further held
that, even though N.J.S.A. 18A:16-6 suggests a board's obligation to provide a defense
arises when the action is instituted, “a board may initially deny defense costs” and “will
ultimately be responsible for reasonable legal fees if it is later determined that the
employee was, in fact, working within the scope of their employment.” 	Id. at 10, 16-17
(emphasis added).
Likewise, in this case, it should later be determined – when more facts are available
– if Curcio was, in fact, working within the scope of his employment. 	It should also be
emphasized that, although Azzaro contemplates, “a board may initially deny defense
costs,” the Board in this case has not denied Curcio defense costs. Thus, he has suffered
no harm. 	For all of the foregoing reasons, I CONCLUDE that Curcio’s request for full
indemnification is not yet ripe for determination, and the Board is entitled to summary
decision as a matter of law.
ORDER
Given my Findings of Fact and Conclusions of Law, I ORDER that the Board’s
Motion 	to 	Dismiss 	is 	GRANTED, 	and 	that 	the 	petitioner’s 	petition 	of 	appeal 	is
DISMISSED, WITHOUT PREJUDICE, subject to petitioner’s right to re-file when the issue
of indemnification is ripe for adjudication.
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 is authorized by law
to make a final decision in this case. If the Commissioner of the Department of Education
does not adopt, modify, or reject this decision within forty-five days, and unless such time

OAL DKT. NO. EDU 04142-24
9
limit is otherwise extended, this recommended decision shall become a final decision
under 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.
May 22, 2024
DATE 	ANDREA PERRY VILLANI, ALJ
Date Received at Agency 	May 22, 2024
Date Mailed to Parties: 	May 22, 2024
sej

OAL DKT. NO. EDU 04142-24
10
APPENDIX
WITNESSES
For Petitioner:
None
For Respondent:
None
EXHIBITS
Joint
J-1 	July 24, 2023 Complaint
J-2 	November 6, 2023 First Amended Complaint
J-3 	Curcio’s December 4, 2023 Letter
J-4 	NJSIG’s December 11, 2023 Letter
J-5 	Chubb’s December 19, 2023 Letter
J-6 	Curcio’s December 28, 2023 Letter
J-7 	January 9, 2024 Answer to First Amended Complaint
J-8 	Curcio’s February 26, 2024 Verified Petition of Appeal
J-9 	Board’s March 20, 2024 Motion to Dismiss, Curcio’s March 28, 2024 Opposition,
and Board’s April 10, 2024 Reply
For Petitioner:
None
For Respondent:
None