Bd. of Educ. v. D'Amico
| Docket Number | A-2764-21 |
| Decision Date | 09 November 2023 |
| Parties | BOARD OF EDUCATION OF THE BOROUGH OF KINNELON, MORRIS COUNTY, Petitioner-Respondent, v. KAREN D'AMICO, Respondent-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Submitted October 3, 2023
On appeal from the New Jersey Commissioner of Education, Docket No. 43-3/21.
Freeman Law Offices, LLC, attorney for appellant (Hillary D Freeman, on the briefs).
Antonelli Kantor Rivera, PC, attorney for respondent Board of Education of The Borough of Kinnelon, Morris County (Jarrid H. Kantor, of counsel and on the brief; Gregory D. Emond and Michael A. Sabony, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent Commissioner of Education (Joshua P. Bohn, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Whipple, Mayer and Paganelli.
WHIPPLE, J.A.D.
Karen D'Amico appeals from the final agency decision of the Commissioner of Education (Commissioner), rejecting the initial decision of the Administrative Law Judge (ALJ) and granting the Board of Education (Board) of the Borough of Kinnelon's motion for summary decision, denying D'Amico's cross-motion for summary decision, and removing D'Amico from her position on the Board.
The Commissioner ruled that a ten-day letter filed by a parent of a child in need of special education services constituted a substantial conflict of interest sufficient to remove the parent from her duly elected position on the Board. Our Supreme Court of New Jersey previously addressed circumstances wherein a due process claim that included a request for specific monetary relief was determined to be a substantial conflict between a board member and the board, requiring removal. Bd. of Educ. of City of Sea Isle City v. Kennedy, 196 N.J. 1, 22 (2008). The question we consider here is whether the submission of a ten-day letter raises a similarly substantial conflict of interest. We conclude, based on the record before us, it does not.
The federal Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-09 (IDEA) seeks to "ensure that all children with disabilities have available to them a free appropriate public education [(FAPE)] that emphasizes special education and related services . . . and to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1). New Jersey's analogous law, N.J.A.C. 6A:14, allows parents to seek tuition reimbursement for a private school placement if they believe the public schools are not providing their child a FAPE. N.J.A.C. 6A:14-2.10(b). To be eligible for reimbursement, before making the placement, parents must give the school district ten business days to correct any deficiencies in the student's educational program. N.J.A.C. 6A:14-2.10(c)(2).
Regarding qualifications for members of boards of education, N.J.S.A. 18A:12-2 states "[n]o member of any board of education shall be interested directly or indirectly in any . . . claim against the board." A later sub-chapter, N.J.S.A. 18A:12-24(j), provides, however, that "[n]othing shall prohibit any school official, or members of his immediate family, from representing himself, or themselves, in negotiations or proceedings concerning his, or their, own interests." The interplay of these two provisions was explored in Kennedy, 196 N.J. 1 (2008). There, the Court acknowledged "that having an inconsistent claim can be additional cause for removal," but questioned "whether removal is the only remedy when a board member has an interest in a claim against the board." Id. at 15. The Court emphasized that determining how these two statutes should interact in a given case requires a "fact-sensitive [analysis] for substantial and deeply antagonistic interests that would call into question a board member's ability to perform public duties and the public's confidence in that ability of the member to perform his or her office, notwithstanding the advancement of a personal interest through negotiations or a 'proceeding.'" Id. at 17.
Of particular relevance, the Kennedy Court was careful to consider how a board member's interest in their child's right to the due process guaranteed by the IDEA requires that the Court analyzes "how special education controversies and disputes fit between the type of substantial disqualifying interest prohibited by N.J.S.A. 18A:12-2 and the exception provided by N.J.S.A. 18A:12-24(j) for advancing family member interests through proceedings with the board." Id. at 20. The important goals of the IDEA, in combination with its preference for pre-litigation dispute resolution, suggest parents who are advocating for their IDEA-eligible children are especially likely to fit into the N.J.S.A. 18A:12-24(j) exception. "[S]pecial education 'disputes' are unique and deserve special consideration in light of the parties' shared goal" "of an appropriate education for the child." Ibid. "Moreover, it is the policy of this state to encourage less-adversarial means to resolve, efficiently and quickly, special education disagreements, by encouraging mediation of disputes." Ibid. (citing N.J.A.C. 1:6A-4.1 ()). The Court announced that "[b]oard members who have handicapped children should not have to fear loss of their elected office as a condition of questioning, or if necessary pursuing through the initiation of proceedings, the appropriateness of their child's education." Id. at 21.
In particular, the Court made clear that not "every due process request to resolve specific issues regarding a child's classification or IEP[1] should result in the automatic disqualification of a board member." Ibid. In cases where the Commissioner is called upon to decide whether a board member should be removed pursuant to N.J.S.A. 18A:12-2's prohibition against inconsistent interests, the Court instructed the Commissioner to consider the "Legislature's exemption allowing participation in certain 'proceedings,'" pursuant to N.J.S.A. 18A:12-24(j). Id. at 17. The Court then "recognize[d] . . . that shall require careful case development." Ibid. So that the Commissioner can provide the public with clear guidance and advice, the Court suggested that "[s]ubstantial, disqualifying conflicts of interest should be identified either by type of claim, i.e. specific monetary claims by the member or a family member as in a tort claim, or by type of proceeding." Id. at 21.
Balancing a respect for the voters' choice of their board of education representatives against a need to protect the integrity of and public's confidence in that same board, the Kennedy Court announced removal was only appropriate when "substantial and deeply antagonistic interests . . . would call into question a board member's ability to perform public duties and the public's confidence in that ability of the member to perform his or her office." Id. at 17. As such, the "Commissioner should examine the nature of the dispute and establish a more careful and fact-specific explanation of when a conflict over a child's educational program becomes so substantial that removal from office is required." Id. at 22. "The Commissioner should review the claim in question to determine whether it portends the likelihood of protracted, and intractable, litigation between the parties." Id. at 21. On the other hand, if "case-specific examination" showed that a particular dispute "could be quickly and easily resolved between the parties," then that conflict would be less likely to involve such substantial and deeply antagonistic interests as to require removal. Id. at 22.
Under the facts of Kennedy, the Court found a due process request that included a demand for "specific monetary relief" could be considered "a substantial conflict between a board member and the board." Id. at 22. The Court specifically did not mandate, however, all claims mentioning financial remedies automatically equate to interests inconsistent with sitting on a board of education. Id. at 22 n.7 (). Thus, a full examination of all circumstances surrounding the dispute between the board member and the board is necessary to balance the member's individual rights as a parent with the needs of the board to maintain integrity.
The D'Amicos submitted a due process request on August 7 2019, to pursue tuition reimbursement, among other things, relating to the 2018-19 and 2019-20 school years. Just prior to the beginning of that hearing, they filed another due process request on September 1, 2020, regarding tuition reimbursement for the 2020-21 school year and sought to consolidate the issues in that request with those included in their initial request. After their motion to consolidate was rejected, the D'Amicos withdrew the September 1, 2020 due process request, with the intent to refile. After two days of the requested due process hearing were held, the D'Amicos withdrew the August 7, 2019 due...
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