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indirect interest

By: Eric Richwine, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On November 9, 2023, the New Jersey Appellate Division issued a published decision in Board of Education of the Borough of Kinnelon v. Dโ€™Amico in which it reversed the final decision of the New Jersey Commissioner of Education (โ€œCommissionerโ€) to remove a parent from her duly elected school board position for a purported conflict of interest following the submission of a ten-day letter on behalf of her special education child.

In January of 2021, Ms. Karen Dโ€™Amico (โ€œDโ€™Amicoโ€) was sworn in as a member of the Board of Education of the Borough of Kinnelon (โ€œBoardโ€).  Dโ€™Amico was noted as having a history of filing a series of ten-day letters on behalf of her child with special needs enrolled in private education and several due process requests primarily for tuition reimbursement purposes throughout 2018 to 2020.  Ten-day letters are used in special education cases to preserve a parentโ€™s right to reimbursement for private school placements for special education students. Following her election to the Board, on February 1, Dโ€™Amicoโ€™s husband re-filed a prior due process petition seeking tuition reimbursement; Dโ€™Amico withdrew the petition within an hour after her husband filed it.

Soon after, in April, the Board filed an amended verified petition with the Commissioner asking for a declaratory ruling that Dโ€™Amico was disqualified from serving on the Board, reasoning that she had a direct or indirect interest in substantial financial claim against it.  The Board also moved for a summary judgment decision against Dโ€™Amico.  The Commissioner denied the Boardโ€™s request for declaratory relief and transmitted the matter to the Office of Administrative Law, where Dโ€™Amico filed a cross-motion for summary decision.  While her cross-motion was pending, Dโ€™Amico submitted a ten-day letter on August 13, 2021, notifying the Board of her intent to unilaterally place her child in a private school for the following school year and reserving the right to seek reimbursement for the placement costs.

The Administrative Law Judge (โ€œALJโ€) issued an initial decision in favor of Dโ€™Amico, finding that after her husband re-filed the due process petition, she quickly remedied the violation by immediately withdrawing it.  The ALJ also found that, as no due process petition was filed relative to Dโ€™Amicoโ€™s ten-day letter dated August 13, 2021, the letter served as a notice, not a claim, and it therefore was permissible under the School Ethics Act.  The Board filed exceptions, and on December 2, 2021, the Commissioner adopted the ALJโ€™s decision with respect to the due process petition but found that the ten-day letter constituted a claim for monetary relief against the Board that precluded her continued service as a member; as a result, Dโ€™Amico was removed from the Board.  This appeal followed.

The issue before the Appellate Division was whether the submission of a ten-day letter raises a substantial conflict of interest as to warrant the removal of a school board member.  In making its determination, the Appellate Division referred to the New Jersey Supreme Courtโ€™s holding in Bd. of Ed. of City of Sea Isle City v. Kennedy, where the Court determined a due process claim that included a request for specific monetary relief to be a substantial conflict between a board member and the board, requiring removal.  However, the Appellate Division determined that, in contrast to Kennedy, the letter here did not assert a โ€œrequest for monetary relief.โ€  Rather, the language used by the Dโ€™Amicos, as evidenced by the ten-day letters submitted prior to Dโ€™Amicoโ€™s appointment to the Board, only served to alert the Board that the Dโ€™Amicos intended to โ€œseek reimbursement from the Districtโ€ in the future. 

The Board argued that the ten-day letter โ€œportends the likelihood of protracted, and intractable, litigation between the parties,โ€ per the Kennedy decision, but the Appellate Division disagreed, finding there was no evidence to suggest that the Dโ€™Amicos signaled an intention to commence litigation against the Board.  Although the Appellate Division contended that if the Dโ€™Amicos filed a timely due process request for tuition reimbursement, then Dโ€™Amicoโ€™s removal from the Board would be proper under Kennedy โ€“ but this โ€œline had not yet been reachedโ€.  As such, the Appellate Division reversed and remanded.  

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