Sterling Education Association, individually and on behalf of member Simone Colancecco v. Board of Education of the Sterling Regional School District, Camden County, 4/23/19, (#108-19)

New Jersey Commissioner of Education
Final Decision
Sterling Education Association, individually
and on behalf of member Simone Colancecco,
Petitioner,
v.
Board of Education of the Sterling Regional
School District, Camden County,
Respondent.
Synopsis
Petitioner Sterling Education Association, on behalf of member Simone Colancecco, challenged the findings
of the respondent Board’s (Board) Affirmative Action investigation into an alleged violation of the Board’s
sexual harassment policy. 	Petitioner complained that the Board’s investigation – which did find that a
violation of the policy had occurred when Ms. Colancecco’s former male supervisor sent her emails and text
messages with sexual overtones – failed to substantiate an additional allegation that she had been groped.
Further, the investigation found that any conduct with respect to the groping allegation was not gender-based.
The Board’s investigation resulted in the perpetrator’s suspension from employment and subsequent
resignation. Here, the petitioner challenged the Board’s determination that the alleged groping incident did
not amount to sexual harassment. The Board filed a motion to dismiss in lieu of an answer to the petition.
The ALJ found, inter alia, that: Ms. Colancecco’s claim of sexual harassment was proven through the
investigation and accepted by the Board, so there is no actual controversy for the Commissioner to resolve
herein; the Commissioner need not consider appeals of a portion of a Board’s findings where the overall
decision has agreed with the complainant; in this case, the Board determined that petitioner had suffered
sexual harassment and sanctioned the perpetrator, who subsequently resigned from the Board’s employ; the
review requested by petitioner herein would involve the Commissioner and the OAL in proceedings that
would have no practical value in regard to school law, and would drain judicial and administrative resources
better reserved for controversies that involve actual disputes over outcomes that are meaningful in the
administrative context; if petitioners decide to pursue this matter further, they may choose to seek relief from
Public Employment Relations Commission and the federal Equal Employment Opportunity Commission
(EEOC). The ALJ concluded that the within petition before the Commission must be dismissed for failure to
state a claim for which any meaningful relief can be granted, and for mootness.
Upon comprehensive review, the Commissioner adopted the Initial Decision of the OAL with modification
and dismissed the petition. In so doing, the Commissioner noted, inter alia, that his jurisdiction is limited to
controversies and disputes arising under New Jersey school law. Petitioner’s contention – that this matter
arises out of school law because discrimination based on sex is prohibited by N.J.S.A. 18A:6-6 – is baseless,
as this statute does not apply to the sexual harassment alleged in this matter. N.J.S.A. 18A:6-6 prohibits
employment discrimination based on sex, and petitioner’s allegations do not pertain to her employment. As
the Commissioner does not have jurisdiction here, he need not reach the issue of whether an actual
controversy exists. 	Further, the Board’s policy prohibiting sexual harassment stipulates that the employee
may appeal the Board’s action or inaction to the New Jersey Division on Civil Rights or the EEOC; thus,
petitioner has recourse to pursue her claim in an appropriate venue.
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.
April 23, 2019
108-19

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OAL Dkt. No. EDU 00295-19
Agency Dkt. No. 277-11/18
New Jersey Commissioner of Education
Final Decision
Sterling 	Education 	Association, 	individually
and on behalf of member Simone Colancecco,
Petitioner,
v.
Board of Education of the Sterling Regional
School District, Camden County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed, as have the exceptions filed by petitioner pursuant to
N.J.A.C. 1:1-18.4, and the Board’s reply thereto.
In this matter, petitioner challenges the findings of the Board’s Affirmative
Action investigation regarding an alleged violation of the Board’s sexual harassment policy. The
investigation 	found 	that 	a 	violation 	of 	the 	policy 	had 	occurred 	involving 	inappropriate
communications from Simone Colancecco’s former male supervisor, including email and text
messages with sexual overtones. Petitioner’s allegation that she had been groped, however, was
not substantiated, and the investigation found that any conduct with respect to that allegation was
not gender-based. 	The perpetrator was suspended from his employment with the District and
subsequently resigned from his position. Petitioner challenges the Board’s determination that the
alleged groping did not amount to sexual harassment. 	The Administrative Law Judge (ALJ)

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granted the Board’s motion to dismiss the petition. The ALJ concluded that there was no actual
controversy for the Commissioner to resolve. Specifically, the ALJ found:
[I]t is not the case that the Commissioner need consider appeals of
a portion of a Board’s findings where the Board’s overall decision
has 	agreed 	with 	the 	complainant 	that 	she 	suffered 	sexual
harassment in violation of the Policy and the Board has acted to
sanction the perpetrator in a manner and to an extent that is not
contended to be legally insufficient. A review of this nature would
involve both the Commissioner and the OAL in proceedings that
would be of no practical value in regard to education law and
would involve a drain on judicial and administrative resources
better used for controversies that involve actual disputes over
outcomes that are, in the administrative context, meaningful.
(Initial Decision at 8)
In her exceptions, petitioner disagrees with the ALJ’s interpretation that the
requested relief is not meaningful or of practical value. 	Petitioner argues that this matter is not
moot because “an ultimate finding of sexual harassment on some, but not all, of [petitioner’s]
complaints does not put beyond review the [Board’s] actions, procedures and findings.”
(Petitioner’s exceptions at 6). Petitioner maintains that there is meaningful and practical value in
having all of the conduct of her harasser fairly investigated and condemned by her employer. By
carving out the alleged groping incident as not being gender-based, and by incorrectly stating
that the incident took place at a training, when it actually occurred separately from the training,
petitioner contends that the Board violated its own policy and acted arbitrarily and capriciously.
Petitioner also argues that the Commissioner has jurisdiction over this matter
pursuant to N.J.S.A. 18A:6-9 because it arises under the school laws of this State – specifically
under N.J.S.A. 18A:6-6, which provides that “[n]o discrimination based on sex shall be made in
the formulation of the scale of wages, compensation, appointment, assignment, promotion,
transfer, resignation, dismissal, or other matters pertaining to the employment of teachers in any
school . . . in this state.” 	Further, petitioner contends that while the Public Employment

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Relations Commission (PERC) and the Equal Employment Opportunity Commission (EEOC)
can review certain claims and issues, only the Commissioner has the authority to revise the
findings of an Affirmative Action Officer. 	Accordingly, if the Commissioner chooses not to
exercise jurisdiction, petitioner would be left without recourse.
Petitioner contends that there is a controversy and conflict about whether the
Board complied with its sexual harassment policy with respect to whether the Board provided the
applicable regulations to petitioner and complied with the timelines. 	A conflict also exists
regarding the findings and conclusions of the investigation that the groping incident was not
“gender based.” Finally, petitioner makes the policy argument that the Initial Decision sends the
wrong message to victims of sexual harassment.
In reply, the Board contends that the ALJ did not make a specific finding that the
matter was moot and instead based his decision on the lack of a controversy or dispute, as the
Board did find that petitioner had been sexually harassed. 	The Board maintains that the
Affirmative Action Officer thoroughly investigated the groping allegations, including multiple
witness interviews, and found that although it was inappropriate, it was not gender-based.
Regardless of the finding on that individual allegation, the overall outcome of the investigation
was 	that 	a sexual 	harassment 	violation 	had 	occurred. 	Accordingly, 	the outcome 	of 	the
investigation would not change if the specific finding was amended. 	Nevertheless, the Board
points out that it did allow petitioner to include her factual concerns about the groping allegation
in the investigatory file.
The 	Board 	argues 	that 	petitioner’s 	claim 	that 	the 	Commissioner 	has 	sole
jurisdiction over amending the Affirmative Action report, and that she otherwise has no recourse,

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is disingenuous. If the Commissioner had jurisdiction, he would not revise the report but instead
make determinations that certain findings were erroneous, which is within the EEOC’s purview.
The Board contends that petitioner’s argument that it failed to provide policies
and follow its own self-imposed timelines is not an issue of school law, so no relief can be
granted. Finally, the Board maintains that the Initial Decision is not contrary to public policy, as
the Board had already decided in petitioner’s favor. Overall, the Board urges the Commissioner
to adopt the Initial Decision.
Upon review, the Commissioner notes that he has jurisdiction over controversies
and disputes that arise under the school laws of this State. 	N.J.S.A. 18A:6-9. 	Petitioner argues
that this matter arises out of school law because discrimination based on sex is prohibited by
N.J.S.A. 18A:6-6. Pursuant to N.J.S.A. 18A:6-6:
No discrimination based on sex shall be made in the formulation of
the 	scale 	of 	wages, 	compensation, 	appointment, 	assignment,
promotion, 	transfer, 	resignation, 	dismissal, 	or 	other 	matter
pertaining to the employment of teachers in any school . . . in this
state, supported in whole or in part by public funds unless it is
open to members of one sex only, in which case teachers of that
sex may be employed exclusively.
[Emphasis added.]
The Commissioner finds that this statute applies to sexual discrimination in employment but
does not apply to sexual harassment, as alleged by petitioner in this matter. 	It is clear that this
statute prohibits discrimination based on sex by a Board when making employment decisions
regarding an employee; this matter, however, does not pertain to the employment of petitioner.
Further, the alleged harassment did not involve the Board, but rather an individual employee
over whom the Commissioner does not have jurisdiction.
The Commissioner may have jurisdiction to the extent that petitioner alleges that
the Board violated a Board policy. 	However, it is undisputed that the Board’s Affirmative

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Action Officer conducted an investigation, as required by the Board’s policy prohibiting sexual
harassment. Petitioner claims she was not provided with copies of the policies, but no relief can
be granted as petitioner has since received them. 	Petitioner’s remaining claims stem from the
substance 	of 	the 	investigation 	and 	its 	findings, 	which 	are 	beyond 	the 	Commissioner’s
jurisdiction.1 	Notably, the Board’s policy prohibiting sexual harassment indicates that the
employee may appeal the Board’s action or inaction to the New Jersey Division on Civil Rights
or to the United States Equal Employment Opportunity Commission. As such, petitioner is not
without recourse to pursue her claim.
Accordingly, the Initial Decision of the OAL is adopted – as modified herein – as
the final decision in this matter. The petition of appeal is hereby dismissed.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	April 23, 2019
Date of Mailing: 	April 23, 2019
1 As the Commissioner does not have jurisdiction over this matter, he need not reach the issue of whether
an actual controversy exists.
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
OAL DKT. NO. EDU 295-19
AGENCY DKT. NO. 277-11/18
STERLING EDUCATION ASSOCIATION,
INDIVIDUALLY AND ON BEHALF OF
MEMBER SIMONE COLANCECCO,
Petitioners,
v.
BOARD OF EDUCATION OF THE
STERLING REGIONAL SCHOOL DISTRICT,
CAMDEN COUNTY,
Respondent.
Matthew B. Wieliczko, Esq., for petitioners (Zeller & Wieliczko, attorneys)
Jeffrey R. Caccese, Esq. for respondent (Comegno Law Group, attorneys)
Record Closed: March 1, 2019 	Decided: March 14, 2019
BEFORE JEFF S. MASIN, ALJ (Ret., on recall):
The Sterling Education Association and one of its members, Simone Colancecco,
filed a Verified Petition of Appeal with the Commissioner of Education, seeking relief
from what the Petition describes as improper conduct by the Board in connection with
an Affirmative Action investigation of alleged improper conduct by its employee, Michael
Eckmeyer, Director of Student and Personnel Services/Special Services. This was

OAL DKT. NO. EDU 295-19
2
conduct 	directed 	toward 	Simone 	Colancecco, 	an 	Instructional 	Assistant 	and 	his
subordinate employee. The Affirmative Action Complaint claimed that Colancecco was
“continually harassed from the time of her hiring in August 2016 until January 2018.”
The actions included inappropriate text messages, email 	and in-person conversations,
unwanted sexual advances and sexually offensive groping and speech, and Eckmeyer’s
“overall attitude towards women.”
After Ms. Colancecco filed her complaint, Mr. Eckmeyer was suspended with pay
in accordance with N.J.S.A. 18A:25-6. After his suspension, Eckmeyer did not return to
work with the District and resigned his position effective September 1, 2018.
Although the Affirmative 	Action 	investigation 	led 	to a determination 	by the
Affirmative Action Officer that Eckmeyer did violate the Board’s Policy “4352-Sexual
Harassment,” by means of “inappropriate communication with sexual overtones, via
certain email and text messages”, the Petition claims that the determination improperly
failed to find that a portion of the complained conduct was “gender based.” This
specifically 	involved 	a 	claim 	of 	inappropriate 	“groping” 	that 	Colancecco 	claimed
occurred in December 2017. More specifically, she claimed that this incident took place
“outside of any training session” regarding “student restraint technique,” but instead
during “free time.” 	The Affirmative Action Officer’s, May 11, 2018, summary of her
findings reports that she found that the allegation that Colancecco was “groped during a
restraint training” was unsupported by the evidence adduced. 	Colancecco contends
that this finding is factually and legally false. 	Further, the Petition contends that the
Board 	failed 	to 	provide 	certain 	policies 	when 	requested 	and 	limited, 	or 	barred,
Association 	member 	witnesses, 	as 	well 	as 	Colancecco, 	from 	having 	legal
representation during the investigation. In addition, the Board improperly denied the
appeal from the Affirmative Action Officer’s findings when it concurred with those
findings. 	The Petition seeks referral to an administrative law judge for a hearing to
determine whether the Board improperly refused to revise the findings; to determine that
the Board acted arbitrarily and capriciously in denying the appeal at the superintendent
and Board level, in violation of applicable laws and in violation of the Collective
Bargaining Agreement; and that the Board deprived Colancecco of her right to have
counsel to assist her with the filing of 	the Affirmative Action Complaint and the

OAL DKT. NO. EDU 295-19
3
investigation thereof; as well as directing that the Board post all Board policies and
regulations on its website. 	Finally, it seeks to have the Board found to have deprived
Colancecco of her procedural rights by depriving her of all policies and regulations
applicable to her complaint, findings and appeal, and such other relief as may be
deemed appropriate.
In response to the Petition, the respondent filed a Motion to Dismiss in Lieu of
Answer. 	It notes that the petitioners failed to identify any school law that they assert
serves as grounds for invoking the jurisdiction of the Commissioner, in violation of
N.J.S.A. 18A-16.9. Further, it points out that the petitioners failed to note that they had
filed two other administrative matters, one with the Equal Employment Opportunity
Commission (EEOC) and the other with the Public Employment Relations Commission
(PERC), each involving a “similar issue of both fact and law,” in violation of N.J.A.C.
6A:3-1.5.3 	Finally, it argues that even if the Petition survives these challenges, the
petitioners’ claim is moot.
A Motion to Dismiss is recognized in the Administrative Code at N.J.A.C. 6A:3-
1.5(g). While the Commissioner may dismiss the petition based on such motion prior to
referral of the matter to the Office of Administrative Law, it is also the Commissioner’s
prerogative to transfer determination of the motion to the OAL. 	Lack of jurisdiction is a
classic basis for such a motion, see New Jersey Court Rule, R. 4:6-2(e), as is failure to
state a claim upon which relief can be granted. 	In assessing such a motion, the claims
made by the party who filed the petition must be deemed to be true and all reasonable
inferences such allegations may support must be accepted. 	The standard utilized by
the courts in judging such motion is traditionally quite liberal towards the non-moving
party. Green v. Morgan Props., 215 N.J. 431, 451 (2013).
3 N.J.A.C. 6A:3-1.5 provides “[a]ny party to a controversy or dispute before the Commissioner, who is a
party to another action before any other administrative agency . . . involving the same or similar issue of
fact or law, shall indicate the existence of such action or complaint with the petition of appeal.” Further,
“[f]ailure to so certify may be deemed sufficient cause for dismissal of the petition of appeal when . . .such
failures result in the duplication of administrative procedures for the resolution of a controversy or
dispute.” According to the respondent, the EEOC matter was initially filed with the United States
Department of Education, Office of Civil Rights, and was then transferred by the Office of Civil Rights to
the EEOC on August 7, 2018. Thus, that filing involves federal jurisdiction, and there is no indication of
any referral to or filing with the New Jersey Division on Civil Rights

OAL DKT. NO. EDU 295-19
4
As 	background, in response to Ms. 	Colancecco’s 	complaint, Vice 	Principal
Curriculum 	and 	Affirmative 	Action 	Officer 	Robynn 	Considine 	issued 	a 	letter 	to
Colancecco, dated May 11, 2018, in which Considine explained that the investigation
determined that a violation of Policy 4352-Sexual Harassment had occurred.4 This was
found to include “inappropriate communication with sexual overtones, via certain email
and text messages from Mr. Eckmeyer to” Colancecco. Considine continued
Although 	you alleged that Mr. 	Eckmeyer 	groped 	your 	(sic) 	during a
restraint training, the evidence adduced during the investigation did not
support that allegation. Although it was evident that the experience was
inappropriate and uncomfortable for you and several witnesses, it could
not be concluded that the conduct by Mr. Eckmeyer was gender based.
Nevertheless, the overall conduct by Mr. Eckmeyer violated the policy as
he was your supervisor.
When Ms. Colancecco sought to appeal Considine’s findings, Superintendent Mark
Napoleon found no grounds for appeal. 	He noted Considine’s findings, including the
denial of a gender-based element during what Considine styled as “restraint training.”
However, given Considine’s finding on this element of the complaint, and, to Napoleon,
the more significant finding that the Board’s sexual harassment policy had been violated
and “remedial steps have been taken, there is no grounds for an appeal.” 	However,
Napoleon added, “Regardless, after reviewing Ms. Considine’s report and your appeal
letter, I concur with Ms. Considine’s findings.” When the Board of Education next
considered Colancecco’s correspondence appealing the decisions of the Affirmative
Action Officer and the Superintendent, Board President Paul Sims wrote, on September
6, 2018, that the Board concurred in those findings, again noting that remedial steps
had been taken to address Eckmeyer’s conduct which found to have violated the Sexual
Harassment policy. President Sims added that Colancecco’s appeal of the investigation
findings would be included in the investigation file “to note the areas you feel there are
discrepancies.”
4 The Sexual Harassment policy defines “sexual harassment” as including “all unwelcome sexual
advances, requests for sexual favors and verbal or physical contacts of a sexual nature that would not
have happened but the employee’s gender.” As such, by definition, a violation of the policy must be
“gender based.” Here, Colancecco seeks to add to the already determined gender-based harassment an
additional episode of physical harassment that she claims was, despite the Board’s conclusion to the
contrary, also “gender based.”

OAL DKT. NO. EDU 295-19
5
In opposition to the motion to dismiss, counsel for the petitioners argues that the
Commissioner has the clear authority to review the “Board’s arbitrary and capricious
decision 	in 	applying 	its 	own 	policies 	and 	procedures.” 	He 	points 	out 	that 	the
Commissioner 	properly 	conducts 	such 	“first 	instance” 	review 	of 	Board 	action.
Discrimination based on sex is prohibited by N.J.S.A. 18A:6-6, a “school law,” which
makes 	such 	discrimination 	unlawful 	in 	matters 	“pertaining 	to 	the 	employment 	of
teachers in any school . . . of this state.” 	This Petition is filed pursuant to the general
authorization for such appeals under N.J.A.C. 18A:6-9 and N.J.A.C. 6A:7-1.10. The
failure of the Board to amend the findings of the Affirmative Action Officer to recognize
that the “groping incident” did not occur during “restraint training,” as the officer found,
and to characterize this incident as “gender based,” created a controversy under the
school laws and in regard to the proper application of the Sexual Harassment policy, a
policy arising out of a school law. As such, jurisdiction is established.
In regard to the separate filings with the Commissioner, EEOC and PERC,
counsel contends that the applicable provision of the Administrative Code, N.J.A.C.
6A:3-1.4(c) indicates that the existence of other actions involving the same or similar
issues of law and fact
shall indicate the existence of such action or complaint within the petition
of appeal 	. . . Failure to so certify may be deemed to be sufficient cause
for dismissal of the petition when, in the judgment of the Commissioner
and/or 	ALJ, 	such 	failure 	results 	in 	the 	duplication 	of 	administrative
procedures for the resolution of a controversy or dispute.
Counsel offers that the several filings in different “alternative venues” were made to
ensure that the “claims for relief and remedies sought in each matter can in fact be
awarded in a particular venue.” 	While not denying that the Petition failed to identify
these “alternative” proceedings, counsel asserts that petitioners are not seeking to have
the Commissioner duplicate actions in other administrative proceedings. 	However,
counsel then acknowledges that it might be necessary to consider the issues of
consolidation and predominant interest, presumably at least in regard to the current
petition and the pending PERC matter, as the EEOC matter lies with federal jurisdiction.

OAL DKT. NO. EDU 295-19
6
As for the claim that the Petition is moot, counsel points to the superintendent’s
letter, noting that while it acknowledges the discomfort that Colancecco no doubt
experienced, in 	regard to the “groping,” the determination was that it was not gender
based and therefore did not violate the sexual harassment policy. 	Clearly, this position
is in direct opposition to Ms. Colancecco’s understanding to the timing and nature of the
“groping” and thus, whether it somehow avoids the characterization of gender-based
sexual harassment or instead falls within that definition. And the various concerns about
the 	Board’s 	alleged 	failures 	to 	make 	available 	policies, 	procedures 	and 	to 	allow
representation 	of 	Colancecco 	and 	other 	union 	member 	witnesses 	during 	the
investigation are certainly not moot concerns.
In its response brief, the Board reasserts its earlier position. 	It offers that the
Board does not dispute that Ms. Colancecco was indeed a victim of gender-based
sexual harassment, and that to the extent she is appealing based upon an alleged
violation 	of 	the 	Board’s 	Sexual 	Harassment 	Policy, 	the 	Board did 	not 	deny that
Eckmeyer’s conduct violated that policy in relation to her, only that a portion of her
overall claim was not established as gender-based misconduct.
Discussion
Initially, it is clear that Ms. Colancecco claimed that Mr. Eckmeyer had engaged
in 	conduct 	that 	exposed 	her 	to 	inappropriate 	materials, 	conversations 	and
communications 	that 	were 	of 	a 	sexual 	nature. 	The 	Affirmative 	Action 	Officer
investigated and concluded that she had indeed been harassed and that the Sexual
Harassment Policy-4352 had been violated. 	That Policy defines “sexual harassment”
as “all unwelcome sexual advances, requests for sexual favors, and verbal or physical
contacts of a sexual nature that would not have happened but for the employee’s
gender.” 	By its very wording, as the portion here underlined makes abundantly clear,
this Policy defines any conduct found to have violated the Policy as necessarily gender
based. 	The actions violating the Policy must be such as would not have occurred “but
for” the victim’s gender. 	Thus, while the decisions of the Affirmative Action Officer,
Superintendent and Board all found that one element of the claimed harassment was
not proven to be gender based, the overall conclusion was that Eckmeyer engaged in

OAL DKT. NO. EDU 295-19
7
gender-based harassment of Colancecco. In light of the terms of the Policy, there is
simply no other way to understand the findings.
As 	the 	Board 	properly 	noted, 	Ms. 	Colancecco, 	the 	alleged 	and, 	in 	fact
determined, victim of the gender-based sexual harassment, had the right to appeal the
decisions of the Affirmative Action Officer and the Superintendent to the Board. In
general, decisions made by boards of education regarding violation of school laws are
appealable to the Commissioner of Education. 	Interestingly, the Board’s Policy on
Sexual Harassment, 5352, explains that an employee may appeal the Board’s action or
inaction on a claim of a violation of the Policy to “the New Jersey Division on Civil Rights
or to the United States Equal Employment Opportunity Commission.” 	There is no
mention of any appeal to the Commissioner.
The Board argues that there really is no dispute here for the Commissioner to
consider. 	In summary, Colancecco claimed to have been sexually harassed, the
Affirmative Action Officer, Superintendent, and, most importantly, the Board, all agreed
that she was. That harassment was by definition, “gender based.” That she disputes a
portion of the findings does not detract from the fact that all agree that Eckmeyer
violated the Policy, and that he sexually harassed her. 	Thus, what is there for the
Commissioner to consider? 	If the Commissioner were to determine that the “groping”
incident was actually gender based, that determination would not change the fact that
the Board has already agreed with the complainant that she was sexually harassed and
that by definition, that harassment was gender based. From the standpoint of education
law, and the role of the Commissioner, it is entirely unclear what the legal significance of
such a determination would be. While Ms. Colancecco may desire a finding of gender-
based misconduct regarding the “groping” incident for other legal purposes, I fail to see
that the Commissioner has anything to review here. And interestingly, the petitioners’
requests for relief does not suggest that a finding such as they seek regarding the
“groping” incident should result in any additional response by the Board vis-a-vis
Eckmeyer. 	He was suspended while the investigation was conducted, and he resigned
his position with the Board without ever resuming his work.

OAL DKT. NO. EDU 295-19
8
Reading the Petition with the liberality afforded in considering a motion to
dismiss, it may be that an appeal of a Board’s decision regarding an alleged violation of
the Board’s Sexual Harassment Policy does lie with the Commissioner. 	However, it is
not the case that the Commissioner need consider appeals of a portion of a Board’s
findings where the Board’s overall decision has agreed with the complainant that she
suffered sexual harassment in violation of the Policy and the Board has acted to
sanction the perpetrator in a manner and to an extent that is not contended to be legally
insufficient. 	A review of this nature would involve both the Commissioner and the OAL
in proceedings that would be of no practical value in regard to education law and would
involve a drain on judicial and administrative resources better used for controversies
that involve actual disputes over outcomes that are, in the administrative context,
meaningful. As such, I CONCLUDE that Ms. Colancecco’s claim of sexual harassment
by Eckmeyer has been proven and accepted by the Board, and that there is no actual
controversy for the Commissioner to resolve. 	While it may be that portions of the
complaint regarding representational rights, and the provision of policies are properly
considered by PERC in regard to the parallel Petition filed with it, given that the
Commissioner has nothing to resolve regarding the claim that sexual harassment
occurred, there is no need to consider consolidation and predominant interest. 	The
Petition filed with the Commissioner is DISMISSED for failure to state a claim for which
any meaningful relief can be granted and for mootness. The petitioners may choose to
continue to seek relief from PERC and the federal EEOC.
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 295-19
9
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 14, 2019
DATE 	JEFF S. MASIN, ALJ (Ret., on recall)
Date Received at Agency:
Date Mailed to Parties:
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