R.G., on behalf of minor child, R.G. v. Board of Education of the Township of Florence, Burlington County, 4/11/2023, (#112-23)

OAL Dkt. No. EDU 10557-22
Agency Dkt. No. 310-11/22
New Jersey Commissioner of Education
Final Decision
R.G., on behalf of minor child, R.G.,
Petitioner,
v.
Board of Education of the Township of
Florence, Burlington 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.
Petitioner filed the instant petition on or after November 5, 2022, challenging the
Board’s May 11, 2022, denial of his request to expunge his son’s records concerning speech and
language assessments that petitioner contends were incorrectly administered and scored. The
Administrative Law Judge (ALJ) found that the petition should be dismissed as it was filed
outside the 90-day limitation period set forth in N.J.A.C. 6A:3-1.3(i). The ALJ also found that the
circumstances do not warrant relaxation of the filing timeframe.
Upon review, the Commissioner concurs with the ALJ that this matter was filed more
than 90 days after the Board denied petitioner’s request to expunge his son’s student records.
As such, the Commissioner agrees with the ALJ that this matter is barred by the 90-day statute
112-23

2
of limitations set forth in N.J.A.C. 6A:3-1.3(i). The Commissioner further agrees that relaxation
of the limitations period is not warranted.
Accordingly, the Initial Decision of the OAL 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:
Date of Mailing:
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.
April 11, 2023
April 12, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
MOTION TO DISMISS
OAL DKT. NO. EDU 10557-22
AGENCY DKT. NO. 310-11/22
R.G. ON BEHALF OF MINOR CHILD, R.G.,
Petitioner,
v.
TOWNSHIP OF FLORENCE BOARD
OF EDUCATION, BURLINGTON COUNTY,
Respondent.
R.G., petitioner, pro se
Sanmathi Dev, Esq. and Joseph F. Betley, Esq., for respondent (Capehart &
Scatchard, P.A., attorneys)
Record Closed: January 10, 2023 	Decided: March 10, 2023
BEFORE JUDITH LIEBERMAN, ALJ:
STATEMENT OF THE CASE
Petitioner R.G. appealed the denial, by respondent Board of Education of the
Township of Florence, Burlington County (Board), of his request for the expungement of

OAL DKT. NO. EDU 10557-22
2
records, pursuant to N.J.S.A. 6A:32-7.7(a)1. The Board filed a motion to dismiss based
upon the failure of petitioner to file his petition within ninety days, pursuant to N.J.A.C.
6A: 3-3.1(i).
PROCEDURAL HISTORY
On or about November 5, 2022, petitioner filed a petition with the Commissioner
of the Department of Education (Commissioner), in which he appeals the Board’s denial
of his expungement request. 	On November 18, 2022, respondent filed a motion to
dismiss in lieu of an answer. Petitioner filed an opposition brief on November 19, 2022,
and respondent filed a reply brief on November 23, 2022. The matter was transmitted to
the Office of Administrative Law (OAL) November 22, 2022. 	During a January 9, 2023,
prehearing conference, it was determined that the reply brief was not submitted to the
OAL along with the petition, the motion to dismiss and the opposition brief. Respondent
submitted its reply brief to the OAL on January 10, 2023. The record for the motion closed
that day.
FACTUAL DISCUSSION
The following, taken from the petition and documents appended to the petition, are
treated as undisputed for the purpose of this motion.1 I therefore FIND the following as
FACT:
On 	or 	about 	November 	5, 	2022, 	petitioner 	R.G. 	filed 	a 	petition 	with 	the
Commissioner, in which he seeks the expungement of records concerning his son. The
records concern speech and language assessments that petitioner contends were
incorrectly administered and scored. 	He described the purported errors in his petition.
Petition at ¶¶1–5.
1 Because the matter arises on defendants’ motion to dismiss, [the court must] accept as true the facts
alleged in the complaint. . . . Plaintiffs are entitled to every reasonable inference in their favor.” Craig v.
Suburban Cablevision, Inc., 140 N.J. 623, 625-26 (1995) (citations omitted); see also Maeker v. Ross, 219
N.J. 565, 569 (2014).

OAL DKT. NO. EDU 10557-22
3
Petitioner first requested expungement of his son’s records on March 30, 2022.
Id. at ¶6. School district personnel denied his request, and he appealed the denial to the
Board. 	Ibid. 	On May 11, 2022, he was advised by the Board that it had reviewed and
denied his request. 	Ibid. 	The Board further advised that it found that all but one of the
assessments at issue were properly conducted. 	However, having found that one
assessment was inaccurately scored, it directed that an addendum concerning that
assessment would be included in the student’s file. Ibid. The Board further advised that
petitioner’s communications and the documents that he submitted in support of his
expungement request would be made part of the student’s educational record. 	Id.
(referring to attached undated letter from Board Secretary Luis Valencia).
On November 18, 2022, respondent filed a motion to dismiss in lieu of an answer.
It contends that petitioner’s complaint is untimely, as he was required to appeal the denial
of his expungement request within ninety days of the Board’s denial of his request.
In opposition to the motion, petitioner does not dispute more than ninety days
passed since the Board denied his expungement request. He asserts that his failure to
file his complaint in a timely manner was an oversight. 	He noted that he is proceeding
pro se; has no legal education or background and is responsible for a child who has
special needs. Pet. Reply Brf. at 1. He asserted that the Commissioner should relax the
filing deadline pursuant to N.J.A.C. 6A:3-1.16.
LEGAL ANALYSIS AND CONCLUSION
The analysis required when considering a motion to dismiss is “whether a cause
of action is suggested by the facts.” 	Velantzas v. Colgate-Palmolive Co., 109 N.J. 189,
192 (1988)(citations omitted). “A reviewing court must search the complaint in depth and
with liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim[.]” Craig v. Suburban Cablevision, Inc., 140 N.J.
at 625-26 (1995)(citations omitted). 	A motion to dismiss should only be granted in the
rarest of instances. 	Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772
(1989). In reviewing the complaint, the question is not whether the petitioner can prove
the allegations, but whether the facts alleged are sufficient to state a cause of action. Id.

OAL DKT. NO. EDU 10557-22
4
at 746. See also F. G. v. MacDonell, 150 N.J. 550, 556 (1997) (“If a generous reading of
the allegations merely suggests a cause of action, the complaint will withstand the
motion.”).
N.J.A.C. 6A:32-7.7 addresses requests for expungement of student records. 	It
provides:
(a) Student records are subject to challenge by parents and
adult 	students on grounds 	of inaccuracy, irrelevancy,
impermissible 	disclosure, 	inclusion 	of 	improper
information, 	or 	denial 	of 	access 	to 	organizations,
agencies, and persons. 	The parent or adult student may
request:
1. 	Expungement of inaccurate, irrelevant, or otherwise
improper information from the student record;
2. 	Insertion of additional data, as well as reasonable
comments regarding the meaning and/or accuracy of
the student record;
3. 	The 	immediate 	stay 	of 	disclosure 	pending 	final
determination 	of 	the 	challenged 	procedure 	as
described in this subchapter; and/or
4. 	Immediate access to student records for organizations,
agencies, and persons denied access, pending final
determination 	of 	the 	challenged 	procedure, 	as
described in this subchapter.
(b) To request a change in the student record or to request a
stay 	of 	disclosure 	pending 	final 	determination 	of 	the
challenged procedure, a parent or adult student shall
notify, in writing, the chief school administrator of the
specific issues relating to the student record.
1. 	Within 10 school days of notification, the chief school
administrator, 	or 	the 	chief 	school 	administrator's
designee, shall notify the parent or adult student of the
school 	district's 	decision. 	If 	the 	school 	district
disagrees 	with 	the 	request, 	the 	chief 	school
administrator, 	or 	the 	chief 	school 	administrator's
designee, shall meet with the parent or adult student to
resolve the issues set forth in the request.

OAL DKT. NO. EDU 10557-22
5
2. 	If the matter is not satisfactorily resolved, the parent or
adult student has 10 school days to appeal the school
district's decision.
2. 	If an appeal is made to the district board of education,
the district board of education shall render a decision
within 20 school days.
3. 	The decision of the district board of education may be
appealed to the Commissioner pursuant to N.J.S.A.
18A:6-92 	and 	N.J.A.C. 	6A:3, 	Controversies 	and
Disputes. 	At all stages of the appeal process, the
parent or adult student shall be afforded a full and fair
opportunity to present evidence relevant to the issue.
4. 	A record of the appeal proceedings and outcome shall
be made a part of the student record with copies made
available to the parent or adult student.
(c) Appeals 	relating 	to 	student 	records 	of 	students 	with
disabilities shall be processed in accordance with the
requirements of (b) above.
(d) Regardless of the outcome of an appeal, a parent or adult
student shall be permitted to place in the student record a
statement commenting upon the information in the student
record or setting forth any reasons for contesting a portion
of the student record, including the decision made in the
appeal. The parent's or adult student's statement shall be
maintained as part of the student record, as long as the
contested portion of the student record is maintained. 	If
the contested portion of the student record is disclosed to
any party, the statement commenting upon the information
shall also be disclosed to that party.
[Emphasis added.]
2 The commissioner shall have jurisdiction to hear and determine, without cost to the parties, all
controversies and disputes arising under the school laws, excepting those governing higher education, or
under the rules of the State board or of the commissioner. For the purposes of this Title, controversies and
disputes concerning the conduct of school elections shall not be deemed to arise under the school laws.
N.J.S.A. 18A:6-9.

OAL DKT. NO. EDU 10557-22
6
N.J.A.C. 6A:3-1.3(i) requires that appeals from final decisions of district boards of
education must be filed with the Commissioner within ninety days:
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 board of education, individual party,
or agency, that is the subject of the requested contested case
hearing. This rule shall not apply in instances where a specific
statute, regulation, or court order provides for a period of
limitation shorter than 90 days for the filing of a particular type
of appeal.
“The ninety-day rule has been strictly followed and applied almost without
exception. D.Q. o/b/o S.Q. v. Sch. Dist. of Newark, 2009 N.J. AGEN LEXIS 640 (Jan. 21,
2009). In Dreher v. Jersey City Bd. of Educ., a petition filed only two days after the ninety-
day period was dismissed as untimely. 1987 S.L.D. 1706, aff’d, 1988 S.L.[D]. 2439 (State
Bd. of Educ. 1988), rev’d on other grounds, A-6120-82 (App. Div. 1989), cert. denied, 117
N.J. 138 (1989).” Hendrickson v. Board of Education of the City of Rahway, Union County
and Ray Lopez, Board Member, 2018 N.J. AGEN LEXIS 164, *13-14 (March 5, 2018),
adopted, Comm’r, (April 13, 2018), Commissioner of Education Decision (rutgers.edu).3
Relaxation of the rule may be permissible if exceptional circumstances have been
demonstrated.
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.
[N.J.A.C. 6A:3-1.16.]
3 This decision and other unpublished and administrative decisions cited here are not binding. They are
referenced because they provide relevant guidance.

OAL DKT. NO. EDU 10557-22
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However, this relief has been rarely granted.
“Such authority is rarely invoked unless strict adherence to the
rule would be inappropriate, unnecessary or where injustice
would occur, or where the Commissioner finds the presence
of 	a 	substantial 	constitutional 	issue 	or 	other 	issue 	of
fundamental public interest beyond that of concern only to the
parties themselves.” 	[Snow v. Bd. of Educ. of the Twp. of
Moorestown, 2007 N.J. AGEN LEXIS 312 (April 20, 2007).] In
fact, this extraordinary relief has been reserved only for those
situations 	where 	a 	substantial 	constitutional 	issue 	is
presented or where a matter of significant public interest is
involved, beyond that of concern only to the parties. 	AAA
School LLC v. Passaic Cnty. Educ. Servs. Comm'n, Passaic
Cnty, 2014 N.J. AGEN LEXIS 397 (June 18, 2014).
[Hendrickson v. Board of Education of the City of Rahway,
Union County and Ray Lopez, Board Member, 2018 N.J.
AGEN LEXIS at *13-14.]
Here, there is no dispute that petitioner received the Board’s denial of his
expungement request on May 11, 2022. 	He served his petition appealing this decision
upon school district personnel on October 31, 2022, and filed his complaint with the
Commissioner on or after November 5, 2022. This is well beyond the ninety-day deadline.
It is also undisputed that the Board included petitioner’s request for expungement, his
communications about the request and the documents he submitted in support of his
request in his son’s student file. 	The Board thus ensured that there is a clear record of
his objection to the documents at issue. 	In support of his plea for relaxation of the
controlling regulation, petitioner cites his pro se status and his obligations to his child.
Notwithstanding these circumstances, he properly pursued his application before the
school and the Board, as he detailed in his petition. 	For these reasons, I CONCLUDE
that petitioner has not presented exceptional circumstances for the Commissioner to relax
the ninety-day deadline.

OAL DKT. NO. EDU 10557-22
8
ORDER
For the foregoing reasons, I ORDER that respondent’s motion to dismiss the
petition is GRANTED.
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, 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.
March 10, 2023
DATE 	JUDITH LIEBERMAN, ALJ
Date Received at Agency:
Date Mailed to Parties:
JL/jm