School Ethics Act

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. D’Amico in which it reversed the final decision of the New Jersey Commissioner of Education (“Commissioner”) 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 D’Amico (“D’Amico”) was sworn in as a member of the Board of Education of the Borough of Kinnelon (“Board”).  D’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 parent’s right to reimbursement for private school placements for special education students. Following her election to the Board, on February 1, D’Amico’s husband re-filed a prior due process petition seeking tuition reimbursement; D’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 D’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 D’Amico.  The Commissioner denied the Board’s request for declaratory relief and transmitted the matter to the Office of Administrative Law, where D’Amico filed a cross-motion for summary decision.  While her cross-motion was pending, D’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 (“ALJ”) issued an initial decision in favor of D’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 D’Amico’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 ALJ’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, D’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 Court’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 “request for monetary relief.”  Rather, the language used by the D’Amicos, as evidenced by the ten-day letters submitted prior to D’Amico’s appointment to the Board, only served to alert the Board that the D’Amicos intended to “seek reimbursement from the District” in the future. 

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