Board of Education of the Borough of Kinnelon, Morris County v. Karen D’Amico, 4/1/2022, (#58-22)

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58-22

New Jersey Commissioner of Education

Final Decision
Board of Education of the Borough of Kinnelon,
Morris County,

Petitioner,

V.

Karen D’Amico,

Respondent.

Synopsis

In this matter on remand, the petitioning Board contended that respondent — a member of the Kinnelon
Board of Education — violated N.J.S.A. 18A:12-2, which mandates that no one may serve on a board of
education if they have a direct or indirect interest in a claim against the board on which he/she sits. The
Board argued that respondent is disqualified from serving as a member because of a special education
due process petition that respondent’s husband filed against the Board, asserting that their child was
being denied educational services for the 2020-2021 school year and seeking reimbursement for the
cost of the child’s attendance at a private school. Also at issue is a letter sent by respondent to the
Board on August 13, 2021, notifying the Board of her intent to unilaterally place her child in a private
school and reserving the right to seek reimbursement for the costs of that placement if the dispute
between the parties over the child’s services was not resolved amicably within 10 days. The parties filed
cross motions for summary decision. Following an Initial Decision in December 2021, the Commissioner
found that the status of the dispute between the parties was unclear, and remanded the matter to the
OAL for further fact-finding.

On remand, the ALJ found, inter alia, that: the parties stipulated to a single fact, that respondent had
unilaterally placed her child in a private school, and the parties further agreed to forego any additional
briefs or submissions to the OAL on remand of this matter. The ALJ concluded that the 10-day letter did
not violate N.J.S.A. 18A:12-2; accordingly, the ALJ granted the respondent’s motion for summary
decision and denied the Board’s cross motion.

Upon review, the Commissioner, inter alia, disagreed with the AL’s finding that the 10-day letter cannot
be considered a “claim” against the Board, as the letter indicated that respondent would unilaterally
place her child in a private school if the dispute over the child’s educational placement was not resolved;
further, the letter reflected respondent’s intent to seek reimbursement for the cost of her child’s
placement, i.e., a specific request for monetary relief in violation of N.J.S.A. 18A:12-2; the record shows
that respondent followed through with the unilateral private school placement; therefore, the
respondent has a claim for monetary relief against the Board that precludes her continued service as a
Board member. Accordingly, the Commissioner granted the Board’s motion for summary decision and
denied the respondent’s cross motion. The respondent was removed from the Board.

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.

OAL Dkt. No. EDU 04830-21, 10023-21 (on remand)
Agency Dkt. No. 43-3/21
New Jersey Commissioner of Education
Final Decision
Board of Education of the Borough of
Kinnelon, Morris County,
Petitioner,
v.
Karen D’Amico,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL), the
exceptions filed by the Board pursuant to N.J.A.C. 1:1-18.4, and respondent’s reply thereto, have
been reviewed and considered.
In this matter, the Board contends that respondent, who is a member of the Board, has a
direct or indirect interest in a substantial financial claim against the Board in violation of N.J.S.A.
18A:12-2 and is therefore disqualified from serving as a Board member. At issue is a letter sent by
respondent to the Board on August 13, 2021, in which respondent notified the Board of her intent
to unilaterally place her child in a private school while reserving the right to seek reimbursement for
the costs of that placement if the dispute between the parties over the child’s special education
services was not resolved amicably within 10 days (10-day letter). The Commissioner previously
found that the status of the dispute between the parties was unclear and remanded the matter to
the Office of Administrative Law for further fact-finding. Commissioner Decision No. 307-21 (Dec. 3,
2021). On remand, the parties stipulated to a single fact: that respondent had unilaterally placed
58-22

2
her child in a private school. The ALJ concluded that the 10-day letter did not violate N.J.S.A.
18A:12-2. Accordingly, the ALJ granted respondent’s motion for summary decision and denied the
Board’s motion for summary decision.
In its exceptions, the Board argues that the ALJ’s authority on remand was limited to fact-
finding regarding the status of the dispute, and the ALJ exceeded that authority by making legal
findings. Furthermore, the Board contends that the ALJ failed to follow the Commissioner’s
directive in Commissioner Decision No. 307-21, which clearly stated that if respondent followed
through with the unilateral placement, respondent would have a claim for monetary relief that
precludes her continued service as a board member. Finally, reiterating arguments made in prior
stages of the proceedings, the Board argues that the 10-day letter created a claim resulting in a
disqualifying conflict of interest.
In reply, respondent argues that the ALJ appropriately sought facts and applied those facts.
Respondent contends that her 10-day letter did not make any specific monetary demands of the
Board, nor has she filed a due process petition for reimbursement of her child’s private school
placement. Therefore, according to respondent, there is no disqualifying conflict.
Upon review, the Commissioner disagrees that the 10-day letter cannot be a “claim” against
the Board. The Commissioner has previously held that a Notice of Tort Claim filed against a board
of education constitutes a claim. Bd. of Educ. of the Borough of Berlin, Camden Cty. v. Charlotte Lee,
Commissioner Decision No. 238-02 (June 14, 2002). In that matter, the Commissioner affirmed the
Initial Decision, in which the ALJ noted that a “notice of tort claim is not merely an inchoate claim
that may be pursued at some future date, but represents an actual claim against a public entity
which may be subject to settlement and, failing that, may be the subject of a future court action
against the public entity.” Bd. of Educ. of the Borough of Berlin, Camden Cty. v. Charlotte Lee,

3
EDU 6050-01 (Apr. 29, 2002). Just as the law requires a Notice of Tort Claim to be filed prior to
commencing legal action against a public entity, the law also requires parents seeking
reimbursement from a board of education for a unilateral placement to send a 10-day letter.
N.J.A.C. 6A:14-2.10. Such reimbursement is obtainable through litigation at the OAL. Ibid. While
the requirements for a Notice of Tort Claim are more specific than those for a 10-day letter, the
Commissioner does not find this distinction consequential. In both documents, one party is alerting
another to the existence of a claim and fulfilling legal requirements necessary as a precondition to
filing a formal action to pursue that claim. A 10-day letter, just like a Notice of Tort claim, is a claim
that is subject to settlement and may be the subject of a future court action. Bd. of Educ. of the
Borough of Berlin, supra.
The Commissioner is mindful of the findings of the New Jersey Supreme Court concerning
disputes about special education services for the children of board of education members. In Bd. of
Educ. of City of Sea Isle City v. Kennedy, 196 N.J. 1 (2008), the Court concluded that a board member
should not be removed from office merely because she advanced a claim against the board
involving her or her immediate family member’s interest. Id. at 17-18. The Court recognized that
disagreements between parents of special education students and the board of education may
require effort to resolve, and multiple meetings or even mediation following the filing of a due
process hearing request may not always be the type of conflict that requires removal. Id. at 21-22.
The Court instructed the Commissioner to examine the nature of the dispute to determine “when a
conflict over a child’s educational program becomes so substantial that removal from office is
required.” Id. at 22. Finally, the Court concluded that when a due process claim includes a specific
request for monetary relief, a substantial conflict has occurred, and removal is appropriate. Ibid.

4
Here, the 10-day letter indicated that respondent would unilaterally place her child in a
private school if the matter was not resolved, and the record now reflects that respondent followed
through with that placement. The letter also reflected respondent’s intent to seek reimbursement
for the cost of her child’s placement – a specific request for monetary relief.1 Accordingly,
respondent has a claim for monetary relief against the Board that precludes her continued service
as a board member.2
Accordingly, the Board’s motion for summary decision granted, and respondent’s motion
for summary decision is denied. Respondent is hereby removed from the Board.
IT IS SO ORDERED.3
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 If respondent did not intend to pursue her claim for monetary relief, she could have executed a release of her
claim. However, a status update provided by the parties following the Initial Decision demonstrates that
respondent did not execute any release.
2 The Commissioner disagrees with the ALJ that a disqualification in the absence of a pending due process petition
would disqualify any parent of a child with disabilities from being a member of a board of education, as a parent
always has the right to file a due process petition. First, case law holding that a Notice of Tort Claim is sufficient to
disqualify a board member, as discussed herein, demonstrates that the filing of a formal action – a complaint or a
due process petition – is not required for disqualification. Second, disqualifications are examined on a case by case
basis, and here, respondent has asserted a specific request for monetary relief – conduct that the Supreme Court
has found to be disqualifying.
3 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.
April 1, 2022
April 1, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 10023-21
AGENCY DKT. NO. 43-3/21
ON REMAND
OAL DKT. NO. EDU 04830-21
BOARD OF EDUCATION OF THE BOROUGH
OF KINNELON, MORRIS COUNTY,
Petitioner,
v.
KAREN D’AMICO,
Respondent.
_______________________________________
Jarrid H. Kantor, Esq., for petitioner (Antonelli Kantor, attorneys)
Hillary D. Freeman, Esq., for respondent (Freeman Law Offices, attorneys)
Record Closed: February 8, 2022 Decided: February 18, 2022
BEFORE KELLY J. KIRK, ALJ:

OAL DKT. NO. EDU 10023-22
2
STATEMENT OF THE CASE
Petitioner, Kinnelon Board of Education (Board or KBOE) requests, inter alia, that
the Commissioner of Education construe the provisions of N.J.S.A. 18A:12-2 and
determine and declare that Board Member Karen D’Amico has “a direct or indirect interest
in a substantial financial claim” against the Board and is disqualified from serving as a
member of the Board as a result of said financial claims, pursuant to N.J.S.A. 18A:12-2.
PROCEDURAL HISTORY
On or about April 13, 2021, the Board filed with the New Jersey Department of
Education an amended Verified Petition for a Declaratory Ruling Pursuant to N.J.A.C.
6A:3-2.1 (Verified Petition).1 On or about May 4, 2021, respondent filed an answer to the
Verified Petition, which includes an affirmative defense that the Verified Petition “fails to
state a claim upon which relief may be granted against Respondent.”
By letter dated June 1, 2021, the Acting Commissioner of Education notified the
parties as follows:
I have reviewed the petition for declaratory ruling in the above-
captioned matter, together with the respondent’s answer.
Upon such review I have determined to exercise my discretion
to decline the request pursuant to N.J.S.A. 52:14B-8 and
N.J.A.C. 6A:3-2.1(a)1, and instead direct that the matter shall
proceed as a petition of appeal pursuant to N.J.A.C. 6A:3-1.1
et seq.
Accordingly, petitioner’s request for a declaratory ruling is
declined and this matter shall be transmitted to the Office of
Administrative Law.
The Department of Education (Department) transmitted the case to the Office of
Administrative Law (OAL) where it was filed on June 11, 2021. The transmittal noted that
1 Per Mr. Kantor’s April 12, 2021, letter to the Department of Education, it was amended to incorporate
additional redactions and to remove the Board’s request for attorneys’ fees.

OAL DKT. NO. EDU 10023-22
3
“Petitioner filed motion for summary decision following filing of answer (hard copy to follow
due to size),” but the hard copy of the motion was not transmitted. On June 30, 2021,
petitioner submitted a copy of the motion directly to the OAL, consisting of a statement of
material facts and brief. On July 29, 2021, respondent filed a response/cross-motion for
summary decision, consisting of a brief. Petitioner filed a reply letter brief on August 20,
2021. On August 25, 2021, petitioner supplemented its filing with a letter and attachment.
On August 26, 2021, respondent replied thereto by way of an email.
An Initial Decision–Summary Decision denying petitioner’s cross-motion for
summary decision, granting respondent’s cross-motion for summary decision, and
dismissing the petition was issued on October 19, 2021. The Commissioner’s Final
Decision, dated December 2, 2021, remanded the matter to the OAL “for further fact-
finding regarding the current state of the dispute between the parties identified in the
August 13, 2021 10-day letter sent by respondent to the Board.”
On February 8, 2022, the parties submitted a joint stipulation of facts, dated
February 7, 2022, and waived submission of briefs.
JOINT STIPULATION OF FACTS
The parties’ joint stipulation of facts states as follows:
That, in connection with Respondent’s “10-Day” Letter to the
Kinnelon Board of Education dated August 13, 2021, as
referenced the Commissioner’s Final Decision dated
December 2, 2021, that respondent Karen D’Amico has
unilaterally placed S.D. in a private school.
The Parties further stipulate and agree to forego of any further
briefs and/or submissions with the Office of Administrative
Law on remand of this matter.
[J-1.]

OAL DKT. NO. EDU 10023-22
4
LEGAL ANALYSIS AND CONCLUSION
This matter was transmitted to the OAL by the Department of Education Office of
Controversies and Disputes, not the School Ethics Commission, and the statute at issue
is N.J.S.A. 18A:12-2, which states:
No member of any board of education shall be interested
directly or indirectly in any contract with or claim against the
board, nor, in the case of local and regional school districts,
shall he hold office as mayor or as a member of the governing
body of a municipality, nor, in the case of county special
services school districts and county vocational school
districts, shall he hold office as a member of the governing
body of a county.
Thus, the pivotal issue is whether D’Amico, indisputably a Board member, was in
violation of N.J.S.A. 18A:12-2 by being interested directly or indirectly in any claim against
the Board2.
The Commissioner’s Final Decision, dated December 2, 2021, remanded the
matter to the OAL “for further fact-finding regarding the current state of the dispute
between the parties identified in the August 13, 2021 10-day letter3 sent by respondent
to the Board.” In this regard, the Final Decision stated, in pertinent part:
The Commissioner is unable to conclude, based on the
current record, whether there is currently a substantial conflict
between the parties. The 10-day letter indicates that
respondent will unilaterally place her child in a private school
if the matter is not resolved, but there is no further information
regarding whether a resolution occurred. If a resolution did
occur, then the dispute may not be substantial enough to
warrant respondent’s removal from the board. If a resolution
did not occur, and respondent followed through with the
unilateral placement, respondent has a claim for monetary
relief against the Board that precludes her continued service
as a board member.
2 Per Respondent’s attorney, D’Amico has been removed from the Board.
3 The Verified Petition was filed in April 2021, months before the 10-day letter was sent.

OAL DKT. NO. EDU 10023-22
5
However, even though D’Amico unilaterally placed her child in a private school and
despite the fact that the Final Decision states that the “Commissioner has previously held
that a Notice of Tort Claim filed against a board of education constitutes a claim,” for the
reasons that follow, my decision on the merits remains unchanged.
It is the public policy of the State of New Jersey that public entities are only liable
for their negligence within the limitations of N.J.S.A. 59:1-1 et seq., the “New Jersey Tort
Claims Act.” Regarding the time for presentation of a claim against a public entity,
N.J.S.A. 59:8-8 (emphasis added) states, in pertinent part:
A claim relating to a cause of action for death or for injury or
damage to person or to property shall be presented as
provided in this chapter not later than the 90th day after
accrual of the cause of action. After the expiration of six
months from the date notice of claim is received, the claimant
may file suit in an appropriate court of law. The claimant shall
be forever barred from recovering against a public entity or
public employee if:
a. The claimant failed to file the claim with the public entity
within 90 days of accrual of the claim except as otherwise
provided in N.J.S.A. 59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or the claimant’s authorized representative
entered into a settlement agreement with respect to the claim.
A claim against a public entity must be presented by the claimant or by a person
acting on his behalf and must include: (a) the name and post office address of the
claimant; (b) the post-office address to which the person presenting the claim desires
notices to be sent; (c) the date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted; (d) a general description of the injury,
damage or loss incurred so far as it may be known at the time of presentation of the claim;
(e) the name or names of the public entity, employee or employees causing the injury,
damage or loss, if known; and (f) the amount claimed as of the date of presentation of the
claim, including the estimated amount of any prospective injury, damage, or loss, insofar

OAL DKT. NO. EDU 10023-22
6
as it may be known at the time of the presentation of the claim, together with the basis of
computation of the amount claimed. N.J.S.A. 59:8-4.
Thus, a notice of tort claim against a public entity is not the equivalent of a 10-day
letter. Pursuant to 20 U.S.C. § 1412(a)(10)(C)(i), and subject to 20 U.S.C. §
1412(a)(10)(A), a board of education is not required to pay for the cost of education,
including special education and related services, of a child with a disability at a private
school if the board of education made free, appropriate public education (FAPE) available
to the child and the parents elected to place the child in such private school. See also
N.J.A.C. 6A:14-2.10(a). However, if the parents enrolled the child in a private school
without the consent of or referral by the board of education, an administrative law judge
may require the agency to reimburse the parents for the cost of that enrollment if the
administrative law judge finds that the board of education has not made FAPE available
to the child in a timely manner prior to that enrollment. 20 U.S.C. § 1412(a)(10)(C)(ii);
see also N.J.A.C. 6A:14-2.10(b). The parents must provide notice to the board of
education of their concerns and intent to enroll their child in a nonpublic school at public
expense. N.J.A.C. 6A:2.10(c). Reimbursement may be reduced or denied for the
reasons set forth at N.J.A.C. 6A:2.10(d), which include “If, at least 10 business days
(including any holidays that occur on a business day) prior to the removal of the student
from the public school, the parents did not give written notice to the district board of
education of their concerns or intent to enroll their child in a nonpublic school.” N.J.A.C.
6A:2.10(d).
Unlike a 10-day letter, which is a notice of concerns or intent to enroll in a private
school to avoid reduction or denial of reimbursement for the private school in the event a
due process petition alleging a denial of a FAPE is ever filed, a notice of tort claim is a
“claim” against a public entity, the entirety of which–including the specifics of the
transaction which gave rise to the claim, a general description of the injury, damage or
loss incurred and a computation of the amount claimed–must be filed within ninety days,
or the claimant is barred from filing suit in an appropriate court of law.

OAL DKT. NO. EDU 10023-22
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All children with disabilities have the right to a FAPE and parents of a child with
disabilities may file a claim against the board of education if the child was denied a FAPE.
Further, if the child was denied a FAPE there are various other bases for financial claims
for which no 10-day letter is required. Thus, to disqualify a parent of a student with
disabilities from the board of education based upon N.J.S.A. 18A:12-2 only4, in the
absence of a pending due process petition alleging a denial of FAPE and claim for
reimbursement, would essentially disqualify any parent of a child with disabilities from
being a board of education member, as the parent always has the right to file a due
process petition.
For the reasons set forth hereinabove and in the Initial Decision, dated October
19, 2021, incorporated herein by reference, I CONCLUDE that the 10-day letter is not a
violation of N.J.S.A. 18A:12-2, and further CONCLUDE that petitioner’s motion should be
denied, respondent’s cross-motion should be granted, and the Verified Petition should be
dismissed.
ORDER
It is hereby ORDERED that the petitioner’s motion for summary decision is
DENIED, the respondent’s cross-motion for summary decision is GRANTED, and the
Verified Petition is 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
4 Although petitioner argued “a disqualifying conflict of interest under the School Ethics Act (“SEA”), N.J.S.A.
18A:12-2,” this statute does not fall under the School Ethics Act, N.J.S.A. 18A:12-21 to -34, and the matter
was transmitted to the OAL by the Department of Education Office of Controversies and Disputes, not the
School Ethics Commission. Accordingly, this decision is limited to violation of N.J.S.A. 18A:12-2 and no
determination is made as to conflict of interest or ethics.

OAL DKT. NO. EDU 10023-22
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Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the
judge and to the other parties.
February 18, 2022
______________________ ________________________________
DATE KELLY J. KIRK, ALJ
Date Received at Agency: _______________________________
Date Mailed to Parties: ____________________________
db

OAL DKT. NO. EDU 10023-22

APPENDIX

Exhibits in Evidence

J-1 Joint Stipulation of Facts