Kenya Moncur v. Board of Education of the City of East Orange, Essex County, 7/12/2021, (#146-21)

146-21
New Jersey Commissioner of Education
Final Decision
Kenya Moncur,
Petitioner,
v.
Board of Education of the City of East Orange
Essex County,
Respondent.
Synopsis
Petitioner, formerly employed by the respondent Board as a non-tenured Supervisor of
Mathematics, appealed the non-renewal of his employment. Petitioner contended that the
Board’s stated reasons for his termination were specious, rendering its actions arbitrary,
capricious, and unreasonable, and sought reinstatement and back pay. Specifically, petitioner
argued that the Board failed to properly and timely conduct state-mandated evaluations of his
performance, and that evaluations that were completed rated his work as effective and never
addressed the issue of low student test scores. The Board filed a motion for summary decision.
The ALJ found, inter alia, that: there are no material facts at issue in this case, and the matter is
ripe for summary decision; pursuant to N.J.S.A. 18A:28-5(b)(1), a teaching staff member earns
tenure upon completion of four years of consecutive employment, together with reemployment
for the fifth year; petitioner had not yet earned tenure when his employment was terminated; it is
well established that a local school board has virtually unlimited discretion in hiring or renewing
non-tenured teaching staff; and the Board has engaged in no conduct that violated petitioner’s
constitutional or legislatively conferred rights. Accordingly, the ALJ granted the Board’s motion
for summary decision and dismissed the petition.
Upon comprehensive review of the record, the Commissioner concurred with the ALJ that
summary decision is appropriate, and that petitioner is not entitled to the relief he sought because
the Board’s actions did not violate petitioner’s rights. Accordingly, the Initial Decision of the
OAL was adopted as the final decision in this matter, and the petition was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 10105-20
Agency Dkt. No. 135-6/20
New Jersey Commissioner of Education
Final Decision
Kenya Moncur,
Petitioner,
v.
Board of Education of the City of
East Orange, Essex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), and the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4 have been reviewed.1
Petitioner, a former non-tenured Supervisor of Mathematics, alleges that his non-
renewal by the East Orange Board of Education (Board) was improper. Following the Board’s
motion for summary decision, the Administrative Law Judge (ALJ) concluded that the Board’s
actions did not violate petitioner’s constitutional or legislatively-conferred rights. The ALJ
further concluded that even if petitioner was correct that the Board failed to properly or timely
complete petitioner’s evaluations, petitioner would not be entitled to reinstatement or a financial
award.
In his exceptions, petitioner argues that the Board gave a reason for his non-
renewal – his failure to improve math scores on standardized assessments – that was not
1 The Board did not file a reply to petitioner’s exceptions.
146-21

2
supported by the facts and was, therefore, arbitrary and capricious. Petitioner claims that he was
not charged with improving test scores and that no concerns were ever raised by the
administration regarding test scores during his employment; in fact, he received evaluations
indicating that he was highly effective. Petitioner asserts that summary decision was
inappropriate because of this dispute regarding the facts, and that he should have the opportunity
to rebut the Board’s stated reason for his non-renewal.
Upon a comprehensive review of the record, the Commissioner concurs with the
ALJ that summary decision is appropriate, and that petitioner is not entitled to relief because the
Board’s actions did not violate petitioner’s rights. A board of education has virtually unlimited
discretion in hiring or renewing non-tenured staff members absent constitutional constraints or
legislatively-conferred rights. Dore v. Bedminster Twp. Bd. of Ed., 185 N.J. Super. 447, 456
(App. Div. 1982). Accordingly, when a non-tenured staff member challenges a board’s decision
to terminate his employment on the grounds that the reasons provided by the board are not
supported by the facts, he is entitled to litigate that question only if the facts he alleges, if true,
would constitute a violation of constitutional or legislatively-conferred rights. Jamie Truncellito
v. Bd. of Educ. of the Twp. of Lyndhurst, Bergen Cty., Commissioner Decision No. 271-19+
(December 3, 2019) (citing Guerriero v. Bd. of Ed. of the Borough of Glen Rock, decided by the
State Board of Education February 5, 1986, aff’d Docket #A-3316-85T6 (App. Div. 1986)). As
the ALJ noted, petitioner has not asserted any constitutional claims or alleged a violation of
legislatively-conferred rights. Furthermore, any violations by the Board regarding petitioner’s
evaluations do not entitle him to the relief he is seeking. Dore, supra. The Commissioner does
not find petitioner’s exceptions persuasive, as they improperly attempt to place the burden on the
Board to demonstrate a justification for the non-renewal, when the well-established standard

3
clearly requires petitioner to demonstrate a violation of his constitutional or legislatively-
conferred rights – which he has failed to do.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter. The Board’s motion for summary decision is granted and its decision to not renew
petitioner’s contract is affirmed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
2 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.
July 12, 2021
July 19,2021

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 10105-2020
AGENCY DKT. NO. 135-6/20
KENYA MONCUR,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF
EAST ORANGE, ESSEX COUNTY,
Respondent.
________________________________________
Robert M. Schwartz, Esq., for petitioner (Schwartz Law Group, attorneys)
Ramon Rivera, Esq., for respondent (Scarinci and Hollenbeck, attorneys)
Record Closed: May 14, 2021 	Decided: May 26, 2021
BEFORE ELLEN S. BASS, ALJ:
STATEMENT OF THE CASE
Petitioner, Kenya Moncur, a former non-tenured Supervisor of Mathematics for
the East Orange School District, challenges the non-renewal of his employment. 	He
urges that the reasons offered for his termination were specious, rendering the actions
of 	the 	East 	Orange 	Board 	of 	Education 	(“the 	Board”) 	arbitrary, 	capricious, 	and
unreasonable. Moncur seeks reinstatement and back pay.

OAL DKT. NO. EDU 10105-20
2
PROCEDURAL HISTORY
This matter arose with the filing of a petition of appeal with the Commissioner of
Education (“the Commissioner”) on June 19, 2020. 	An answer was filed by the Board
on September 18, 2020, and the matter was transmitted to the Office of Administrative
Law (“OAL”) as a contested case on October 20, 2020. 	The Board filed a Motion for
Summary Decision on April 15, 2021. 	Moncur opposed the Motion via brief and
certification filed on April 22, 2021. 	The Board replied to the opposition on May 14,
2021, at which time the record closed.
FINDINGS OF FACT
The salient facts are uncontroverted, and I FIND:
Moncur began his employment with the Board in or about August 2016, when he
was retained to serve as an Elementary Math Supervisor. 	He remained continuously
employed in this capacity through the end of the 2019-2020 school year. 	On April 27,
2020, 	Moncur 	received 	a 	letter 	from 	Assistant 	Superintendent 	of 	Schools, 	Anita
Champagne advising that a recommendation for nonrenewal had been forwarded to
Labor Relations “based on but not limited to your overall performance, professionalism,
and/or attendance.” 	On April 28, 2020, Superintendent of Schools Kevin West wrote to
Moncur and advised that his employment would not be renewed. 	On May 1, 2020, in
response to Moncur’s request for a statement of reasons for his nonrenewal, West
advised that District mathematics scores under Moncur’s leadership had “not shown
significant improvement on State Standardized Assessments aligned to the [District’s]
expectations and standards of excellence.” 	Moncur requested and was granted an
appearance before the Board. 	By letter dated May 14, 2020, he was advised that the
Board 	had 	declined 	to 	overturn 	the 	Superintendent’s 	decision 	to 	non-renew 	his
employment.
A chart attached to the Board’s submission reveals that in the third, fourth and
fifth grades, grades under Moncur’s leadership, the percentage of students who met or
exceeded expectations on Standardized Tests remained low; less than 50% in all the

OAL DKT. NO. EDU 10105-20
3
grades, and as low as 38% in third grade.1 	Moncur does not challenge these figures,
but argues that he received no indication that his supervisors were dissatisfied with his
performance generally; or were specifically unhappy with that performance relative to
the test scores achieved by elementary age students in East Orange. 	Moncur notes
that throughout his employment with the Board he received evaluations that rated his
work as effective or highly effective; none contained any criticism of his work relative to
student 	test 	scores. 	And 	he 	points 	out 	that 	Standardized 	Test 	Scores 	remain
unimproved in East Orange in the higher grades as well.
In March 2020, schools throughout New Jersey moved to remote instruction due
to the COVID-19 pandemic. 	East Orange closed its doors to in-person instruction
effective March 17, 2020. 	Guidance from the Department of Education provided that
non-tenured educators were to earn a summative evaluation rating based only on
observations completed prior to school closure. 	The guidance document also provided
for a minimum of two observations; if two were not completed prior to COVID, the
district was to reach out to the Department for further guidance. Although Moncur urges
that he received no evaluations or observations for 2019-2020 school year prior to the
closing of school in March 2020, he did receive an evaluation for the period from July 1,
2019 through November 30, 2019, although it was finalized on March 20, 2020. And on
March 20, 2020, he also received a composite evaluation score for the period ending on
December 5, 2019. Moncur likewise received an observation finalized on April 7, 2020,
for the period ending on March 24, 2020, thus encompassing a few days after school
was closed.
CONCLUSIONS OF LAW
N.J.A.C. 1:1-12.5(b) provides that summary decision should 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 that the moving
party is entitled to prevail as a matter of law.” Our regulation mirrors R. 4:46-2(c), which
1 The Board’s brief cites different, lower percentages. I have relied on the figures in the exhibit attached to
the Board’s submission, which counsel certifies is an accurate copy of an excerpt from the 2018-2019
New Jersey School Performance Report for the East Orange schools.

OAL DKT. NO. EDU 10105-20
4
provides 	that 	“[t]he 	judgment 	or 	order 	sought 	shall 	be 	rendered 	forthwith 	if 	the
pleadings, depositions, answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a matter of
law.”
A determination whether a genuine issue of material fact exists that precludes
summary decision requires the judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor
of the non-moving party. Our courts have long held that “if the opposing party . . . offers
. . . only facts which are immaterial or of an insubstantial nature, a mere scintilla,
‘Fanciful, frivolous, gauzy or merely suspicious,’ he will not be heard to complain if the
court grants summary judgment.” 	Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
529 (1995) (citing Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)).
The “judge’s function is not himself [or herself] to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” 	Brill, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). When the evidence “is so one-sided that one party must prevail as a matter of
law,” the trial court should not hesitate to grant summary judgment. 	Liberty Lobby, 477
U.S. at 252. 	I CONCLUDE that this matter is ripe for summary decision, and that the
Board is entitled to judgment as a matter of law.
In accordance with N.J.S.A. 18A:28-5(b)(1), a teaching staff member will earn
tenure upon employment for four consecutive years, together with reemployment for the
fifth year. 	Moncur had not yet earned tenure when his employment was terminated.
But having commenced his employment with the 2016-2017 school year, he would have
done so had he been reemployed for the 2020-2021 school year. Moncur’s demand for
reinstatement is thus tantamount to a request that the Commissioner afford him that
which the Board declined to give, tenured employment in the East Orange Public
Schools.

OAL DKT. NO. EDU 10105-20
5
It is axiomatic that a local school board has virtually unlimited discretion in hiring
or renewing non-tenured teaching staff members. RaShawn Adams v. Trenton Board of
Educ., Comm’r (August 13, 2008), <http://njlaw.rutgers.edu/collections/oal/>, citing Dore
v Bedminster Bd. of Educ., 185 N.J. Super. 447 (App. Div. 1982). 	As the Appellate
Court held in Dore, “absent constitutional constraints or legislation affecting the tenure
rights of [teaching staff members], local boards of education have an almost complete
right to terminate the services of a [teaching staff member] who has no tenure and is
regarded as undesirable by the local board.” Dore v. Bedminster Bd. of Educ., 185 N.J.
at 456. Indeed, “a non-tenured teaching staff member challenging a board’s decision to
terminate his employment on the grounds that the reasons given by the board are not
supported by the facts is entitled to litigate that question only if the facts he alleges, if
true, would constitute a violation of constitutional or legislatively conferred rights.”
Adams v. Trenton Bd. of Educ., citing Guerriero v Board of Education of the Borough of
Glen Rock, State Board, (February 5, 1986), aff’d Docket #A-3316-85T6 (App. Div.
1986) <http://njlaw.rutgers.edu/collections/oal/>; John Kufel, Jr. v Board of Education of
the Union County Vocational-Technical School District, 96 N.J.A.R. 2d (EDU) 446;
Randy Pratt v Board of Education of the Borough of Butler, Morris County, State Board,
(January 6, 1999) <http://njlaw.rutgers.edu/collections/oal/>.
Moncur has raised no claims of constitutional dimension, nor has he alleged a
violation of legislatively conferred rights. 	Rather, he is aggrieved because he was
terminated after receiving good evaluations, none of which raised a concern about low
test grades. I CONCLUDE that even if the allegations of the petition are true, the Board
has engaged in no conduct that allegedly violated Moncur’s constitutional or legislatively
conferred rights. The Board is entitled to the relief it seeks via this Motion.
The argument that some relief should flow from the Board’s failure to comply with
either statute, regulation, or informal Department of Education guidance relative to the
evaluations and observations of Moncur’s performance is a nonstarter. The school laws
include requirements for evaluation of staff. 	See: N.J.S.A. 18A:27-3.1; N.J.A.C. 6A:10-
2.4; N.J.A.C. 6A: 10-6.2. 	But it is well-established that a lack of strict compliance with
these requirements does not give rise to reinstatement or a financial award. 	Dore v.

OAL DKT. NO. EDU 10105-20
6
Bedminster Bd. of Educ., 185 N.J. at 455. See also: Tuck-Lynn v. The State Operated
School District of the City of Newark, 201 NJ Unpub. LEXIS 518 (App. Div., March 3,
2011). 	I thus CONCLUDE that, even if assuming for argument’s sake that the Board,
through its administration, failed to properly or timely complete Moncur’s evaluations,
such a failure would not give rise to the relief sought by Moncur via this petition.
ORDER
Based on the foregoing, it is ORDERED that Summary Decision is granted in
favor of the Board, and that the petition of appeal is DISMISSED.
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 10105-20
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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, 4 th Floor, P.O. 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 26, 2021
_______________________________
DATE 	ELLEN S. BASS, Acting Director & Chief ALJ
Date Received at Agency: 	May 26, 2021
Date Mailed to Parties: 	May 26, 2021
sej