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  M.M. ON BEHALF OF MINOR CHILD,                         Petitioner, v.   BOARD OF EDUCATION OF THE TOWNSHIP OF LAFAYETTE, XXX COUNTY,                            Respondent. Respondent’s Attorney: Marc XXX   SUPERIOR COURT OF NEW XXX APPELLATE DIVISION   DOCKET NO.: XXX OPOSITION TO MOTION TO REMAND                 

            COMES NOW Appellant, proceeding pro se, and in opposition to Respondent’s Motion to Remand show the Court as follows.

INTRODUCTION

            This matter was properly brought to this Honorable Court vide Appellant’s Notice of Appeal dated December XXX. Appellee has since filed a Cross Motion to Remand that is replete with inaccuracies, misstatements, and misrepresentations.   

            Appellant opposes the said Cross Motion on the following grounds. First the agency was biased and did not address Appellant’s concerns over the denial of access to videos that would support her case. Next, if this case is remanded, the agency will have extreme latitude to carry forward its abuse of discretion and the Appellate Court will no longer have jurisdiction. Thirdly, the Commissioner cannot review the case justly without a review of the videos whose access was denied to the Appellant. when the case was at the agency level. Lastly, it is crucial the right students involved in the Harassment, Intimidation, and Bullying be identified.

RELEVANT FACTS AND PROCEDURAL HISTORY

            Afterschool, on XXX  Appellant’s child reported to Appellant in a breakdown that he had been bullied by a number of his classmates for an extended period of time. Appellant instructed him to report it to his teachers immediately the next morning.  Appellant’s son and a student (“A.M.”) who witnessed the acts of Harassment, Intimidation, and Bullying (hereinafter, “HIB”) over days then reported the HIB to two teachers on XXX.  First, they reported together in the morning to the classroom teacher who did not act under the policy but instead told Appellant’s child and witness “A.M.” to report it to a different teacher. Later that day, Appellant’s child and “A.M.” did indeed report the HIB to the (different) gym teacher. Again, no action was taken as per their policy and NJ-ABR N.J.S.A. 18A:37-13.  When Appellant picked her son up the afternoon of January 16, Appellant asked if he had reported the HIB because Appellant had not heard anything from the school regarding the incident yet.  He said no they did nothing.

            On XXX after no follow up from the school after Appellant’s son confirmed that he and “A.M.” told two teachers Appellant then contacted the HIB coordinator (Gerard Fazio) in the morning to find out the procedure to act herself and report it since no one was taking action.  Appellant was told to email him the “problem” and he again made no mention of my son and the other student’s previous report. Appellant then submitted a detailed report early afternoon JXXX of her son’s statements at the time. At pickup XXX  Appellant again asked her son “did anyone talk to you and help you”?  He said no.  Then he said he was bullied again that day (January 17) and that student witness “B.H” witnessed and told him who was doing it (it was acts from behind and behind his back so he couldn’t figure out exactly who it was at times).

            After an investigation was eventually conducted three days after the report of HIB by my son and other witnesses, it was determined there was no HIB XXX.  Appellant was provided a report on that day with a missing page, then when she received the missing page that day or the following one, the page had accusations about the events and her son’s behaviour, which were not true. It was also missing the student witnesses on behalf of my son and one that reported it with him. Some of the HIB acts (there were more than just one area and time as reported by my son) were in the gym. So, Appellant asked to see some video based on the short report she got just to verify events and decide if she did need to appeal the decision or not to be fair to all parties. Appellant’s son has known and diagnosed communication disabilities that prevents him from speaking up and providing details like his peers.  It took 5 days of bullying before he could even speak up to Appellant as his parent. Everything was agreeable and amicable at this point.

            Appellant picked just a few dates of video based on the short report and her son’s statements to review with the superintendent and she began watching some clips over a few scheduled days due to timing and other technical issues at the beginning of March 2020. While watching some short clips Appellant asked the superintendent more questions about the investigation particularly why the student witnesses on behalf of her son were “missing”, among other things Appellant started to see in the clips from the (two)reports she was given.  The superintendent then pulled out what now would be a third version or report to read to Appellant some statements to provide some answers.  Appellant immediately asked for a copy of that report to which she replied, “I’ll get it to you as soon as possible”. Appellant had one final day of video sheI had requested to see, again based on the short HIB report we were given after that meeting. 

            Appellant came back into the school to review the final day and it was this video that revealed blatant acts of HIB, clearly disputed the statements by the accused, and supported what Appellant’s son had reported to her. It also showed at least one part of the report was falsified.  Upon seeing this, instead of the superintendent speaking about it and discussing changing the report when Appellant asked why none of what we just saw together was not in the report (which she has the power to do without an appeal), she literally changed the whole demeanour of her communication and interaction with Appellant.  Appellant became upset over what she saw and left the meeting.  A few days after reporting and discussing with her husband she knew she had to appeal and politely indicated to Mrs. Cenatiempo in email on March 17, 2020 and asked that her husband and her be able to come back in to review and document and the videos because they decided they needed to appeal.  They (Appellant and her husband) were met with a hostile email from their attorney falsely accusing them and completely refusing to cooperation. Notably, the attorney “prohibiting” them from speaking to the superintendent at all.  Appellant’s child has a 504 plan that is not an option.  Appellant cannot be “forbidden” from talking to the persons involved in the care of her child.

            I Appellant continued to ask for the other report over approximately two weeks and was told she would have it “as soon as possible”.  They continued to refuse her access or answer any questions in cooperation with the HIB investigation and what happened to her child. Finally, on April 10, 2020 a month after she watched some short video clips and her request for the report, she was given a complete report. Appellant and her husband were alarmed to see that the report now had multiple falsified statements about events and their son’s actions and “role” in the HIB. Specifically, they accused him of “instigating” or “seeking” the abuse and their descriptions to his reactions to the acts, the frequency of the acts “admitted”. The student witnesses (one seen on a video clip they are preventing access to) that reported the HIB twice with Appellant’s son was removed.  Appellant’s son’s witnesses were removed.  One was seen on video yet was “removed” from the investigation.  They also blocked further access so Appellant could even verify the true extent of actions or non actions.

            After receiving this report, I immediately said that this new report has new information and I need access to new video and dates and requested access to those dates despite them still denying us any access at all.  I also asked the superintendent to tell me “which” report was presented to the board as per the policy. I needed to know “what”, or “which” report I would need to dispute in a board appeal logically since I was given “three versions”.  I was again refused an answer or any cooperation to be able to fairly prepare for a board appeal.

            While Appellant was being denied access to evidence or information about the investigation to go to a board appeal, the district repeatedly reminded her and warned her in letter and email that she had 60 days to request the appeal to the board as per their policy.  Appellant responded back each time that she needed access to evidence to fairly support her son’s case in the appeal and dispute the report as it was her burden of proof to show the investigation was improper or flawed leading to improper decision, before she could schedule an appeal. She reiterated her child cannot verbalize what is in the video and cannot verbalize details overally due to his disability.  And that those videos were his “voice” and he is protected because of his disabilities.  This is violation of his rights. They continued to refuse to comply.  They provided the date of the deadline to which she could not make because they were still refusing access.  Appellant could not go to an appeal without evidence to dispute the report simply.  She has no defense.  Her son is not there to speak for himself, nor can he do so due to his disability and Appellant also represents him as a minor. 

            Appellant’s deadline passed with a denial and/or no response from the district to provide access to the new video and review any documentation of all the video pertinent to her child and the HIB and answer, which report she would be defending. 

            On XXX, after multiple attempts to reach out to the NJDOE and the county superintendent’s office for help in the matter to avoid filing or missing her deadline to file if she had to, and continued refusals to cooperate without bias from the school district, Appellant filed a petition to the commissioner, not “to appeal the Anti-Bullying Coordinator’s (“ABC”) finding that her son was not the victim of HIB” as all parties have been presenting, but for “access to videos to present at an appeal” (Exhibit A) APa15[1].  Consequently, the Office of Controversies and Disputes (the commissioner) reviewed the case and accepted it as a “contested” or disputed case and subsequently transmitted the case to the OAL for a hearing under the matter of law “Petitioner seeks access to video recordings and in-person appeal before the BOE regarding a harassment, intimidation and bullying (HIB) decision” (Exhibit B) Apa18.

            After three phone calls with two judges (one involved a Motion to Disqualify on XXX  to prevent Appellant from placing her statements on the call she was recording for the record and for preference to the respondent in the case) to “discuss the case” in which Appellant (and her husband who was on the calls) was told a “zoom hearing would be scheduled” to decide Appellant’s access. Appellant was not granted a hearing as requested to argue her case, to her surprise and confusion.  Instead, on XXX, Appellant received a decision from the second judge (Tiscornia) suddenly dismissing her petition, indicating the respondent “motioned” and requested a summary and it was granted. Appellant asked the respondent for a copy of the Motion, but the respondent denied motioning or requesting what the judge indicates in the order, to dismiss Appellant’s Petition for Access to the videos under due process. On XXX, after attempts to resolve the true facts with the respondent and agency in regard to the “existence” of the motion indicated in the order, Appellant filed Motions to Vacate the order and a Motion to Strike the information submitted by the respondent.  The motions were not reviewed and decided despite Appellant’s requests for a grant or denial unjustly affecting Appellant’s case.

            On XXX  the commissioner adopted the initial decision of the ALJ, modifying it slightly to fit the erroneous statement of facts offered by stating that Appellant was appealing the HIB directly to the commissioner as her dispute when the record, petition, and transmittal sheet indicates otherwise.  Appellant was asking the commissioner and the courts to resolve her dispute with the school district to grant fair access for an appeal, at any level, whether it be an appeal before the Lafayette Township School Board, the Commissioner, or ultimately higher courts if necessary.

            On or about XXX, Appellant filed a Motion to Supplement the records to include documents in the case that were not included in the agency record before the Honorable Court. Respondent filed a Cross Motion for Remand in response to Appellant’s Motion to Supplement the Records, which Cross Motion Appellant vehemently opposes herein.

ARGUMENT

  1. THE AGENCY WAS BIASED AND FAILED TO ADDRESS THE “ACCESS” PORTION OF APPELLANT’S CASE WHEN THE CASE WAS AT THE AGENCY LEVEL.

            In reviewing an agency’s decision, an appellate court may “examine the record to determine whether sufficient or substantial credible evidence exists therein to support the agency decision.” Dore v. Bd. of Educ., 185 N.J. Super. 447, 453 (App. Div. 1982). The agency’s decision “will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.” In Re Herrmann, 926 A.2d 350 (N.J. 2007)

            The arbitrary, capricious, and unreasonable standard is generally understood to involve inquiry into whether the decision conforms with relevant law, whether there is substantial credible evidence in the record as a whole to support the agency’s decision, and whether in applying the relevant law to the facts, the agency clearly erred in reaching its conclusion. In re Carter, 191 N.J. 474, 482–83, 924 A.2d 525 (2007) (relying on Mazza v. Bd. of Trs., 143 N.J. 22, 25, 667 A.2d 1052 (1995)).

            Appellant avers that there was an abuse of discretion in the conduct of her case. Notably, Appellant was not granted a fair hearing to argue her case. The Respondent ignored facts of Appellant’s case of a withheld report and violations in N.J.S.A. 18A:37-13 et seq, and the need for access to these videos.  On or about August 7, 2020, Appellant received a decision from the Judge (Tiscornia) suddenly dismissing her petition, indicating that the respondent “motioned” and requested a summary judgment and it was granted.

            All attempts by Appellant to obtain a copy of Respondent’s Motion for Summary Judgment were futile. Further, on XXX, Appellant’s further Motions were not reviewed, and her case decided despite Appellant’s requests. Surprisingly, on or about XXX the Respondent adopted the erroneous decision of the Administrative Law Judge (ALJ), modifying it slightly to fit the erroneous statement of facts offered by stating that Appellant was appealing the HIB directly to the commissioner as her dispute when the record, petition, and transmittal sheet indicated otherwise. Nothing was further from the truth since Appellant was not appealing the entire HIB case, but only the agency’s decision to refuse access to the requested videos. All that conduct, Appellant avers, amounts to an abuse of discretion.

            It is highly unusual and suspicious that the school is not cooperating to provide access to the report and the videos. It also appears that the Respondent does not want Appellant to present the whole case and record on appeal, at the culmination of the decision(s). Therefore, Appellant is determined to obtain access to the videos and/or documents before the remand happens or Appellant will never ever have access to those videos again. Appellant maintains that her son should be allowed fairness at EACH step, from the school to the commissioner, and to the supreme court if necessary and his case should not be frustrated for lack of the report and/or videos.

  1. IF THIS CASE IS REMANDED, THE AGENCY WILL HAVE EXTREME LATITUDE TO CARRY FORWARD ITS ABUSE OF DISCRETION AND THE APPELLATE COURT WILL NO LONGER HAVE JURISDICTION.

            An abuse of discretion “‘arises when a decision is “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.”‘” XXX..

            When a court invalidates an agency’s action, the agency ‘s response on remand is often left open to the agency ‘s discretion. That is, agencies frequently have significant latitude in whether, how, and when (if ever) to remedy the initial flaw. In the absence of a court ‘s retaining jurisdiction or issuing a mandamus, the agency may fail to give due regard to the issues raised initially. This means, agencies have almost as much discretion as they would in the first instance, when deciding whether and how to regulate after a judicial remand[2]. It follows; an agency’s powers on remand depend upon the contents of the court’s remand order, which the agency must obey precisely; to that extent the court’s remand instructions become the “law of the case.” Lowenstein v. Newark Bd. of Educ., 35 N.J. 94, 116-17 (1961); In re Plainfield-Union Water Co., 14 N.J. 296, 302-03 (1954). To confine the discretion of the agency, the appellate court needs to either keep jurisdiction then remand or temporary remand with an order for mandatory or injunctive relief for the access portion.

            Appellant avers that ff the case gets remanded back now, Respondent will have extreme latitude with the case and Appellant will still not get access to the videos. From the history of this case, Respondent has ignored and/or refused to grant Appellant’s access to the report and the videos. It is highly reasonable that upon remand, the Respondent can easily make another decision, squashing Appellant’s access to the video. Thereby, Appellant would have insufficient evidence to go back to appeal. This can also be signified by Respondent’s insistence that Appellant’s instant appeal is on the HIB generally, which allegations are far from the truth. Appellant seeks to have this Honorable Court quash Respondent’s erroneous decision in failing to grant Appellant access to the videos, without which, Appellant’s would lack critical evidence to support her case.

            Appellant further avers that her son deserves a “fair process” at each administrative step, and he should have full chance to present his case at each one. Therefore, a denial of Appellant’s access to the videos would be depriving Appellant (and her son) of their due process rights. Second it is in the interest of justice to make sure all accused are actually involved in the case. The videos need to be reviewed to determine all the parties took part in the incidences complained about. Accordingly, no decision should be made until the videos are reviewed.

  1. THE COMMISSIONER CANNOT REVIEW THE CASE JUSTLY WITHOUT A REVIEW OF THE VIDEOS WHOSE ACCESS WAS DENIED TO THE APPELLANT

            The Respondent is statutorily mandated to develop a HIB policy through a process that includes representation of parents or guardians, school employees, volunteers, students, administrators and community representatives. See N.J.S.A. 18A:37-15a.

            Each school district is required to adopt a policy prohibiting HIB, and the policy must include a procedure for prompt investigation of reports of violations and complaints. Although the procedure is subject to certain minimum requirements as detailed in N.J.S.A. 18A:37-15b(6)(a)-(f), including a requirement for the principal or his/her designee to initiate an investigation within one school day of the report of the incident, each school district shall ultimately have local control over the content of the HIB policy (N.J.S.A. 18A:37-15b).           

            Because administrative regulations that apply to the regulated public have the force and effect of statutory law, an administrative agency ordinarily must enforce and adhere to, and may not disregard, the regulations it has promulgated. In re Waterfront Development Permit, 244 N.J. Super. 426, 434, 582 A.2d 1018 (App.Div. 1990) (quoting Pacific Molasses Co. v. F.T.C., 356 F.2d 386, 389-90 (5th Cir. 1966), for the proposition that when an agency “promulgates rules to govern its proceedings, these rules must be scrupulously observed… [O]nce an agency exercises its discretion and creates the procedural rules under which it desires to have its actions judged, it denies itself the right to violate these rules.”), certif. denied, 126 N.J. 320 , 598 A.2d 880 (1991); Monmouth v. Dep’t of Corrections, 236 N.J.Super. 525, 566 A.2d 543 (App.Div.1989) (stating in dicta that agency action in violation of its own regulations is arbitrary and capricious); 1 Charles H. Koch, Jr., Administrative Law and Practice § 3.73 (1985 Supp. 1997) (concluding that agency generally must follow its own legislative rules); 2 Kenneth C. Davis, Administrative Law Treatise § 7:21 (2d ed. 1979 Supp. 1989) (concluding that legislative rules are “clearly” binding on issuing agency because valid legislative rules have effect of a statute).

            The Respondent is bound by procedures and policies that govern its conduct. From the fact pattern, it is evident that Respondent disregarded its regulations and policies when it failed to grant Appellant access to the videos. Instead, surprisingly, Respondent went ahead to adapt the erroneous judgment from the ALJ. It follows; Respondent’s denial of Appellant’s access to justice and fair hearing is yet to continue in the event his Honorable Court remands this case without first ordering Appellant’s access to the said records.

            Most notably, Appellant’s son is communication impaired. He named a “group” of girls as his perpetrators. The “acts” were behind his back, so he had trouble determining who exactly was doing what. HIB issues are significant here in NJ in that it will go on a child’s permanent record. It is therefore imperative for both parties to have scrutiny of the records in the interest of justice and fairness. Without the videos, the events that led to the HIB will remain unclear and speculative. All Appellant wanted was fair access so she can support her child in an appeal. Appellant’s son will not be there to talk, and Appellant has essentially nothing but these videos to state her case.

  1. IT IS CRUCIAL THE RIGHT STUDENTS INVOLVED IN THE HARASSMENT, INTIMIDATION, AND BULLYING BE IDENTIFIED.

            Parents of alleged offenders and alleged victims must receive the following information: the nature of the investigation, whether the district found evidence of HIB, or whether discipline was imposed, or services provided to address the incident of HIB. This information must be provided in writing within five school days after the results of the investigation are reported to the board of education. (N.J.S.A. 18A:37-15b(6)).

            From the statutory provision above, it is evident that there is a presumption in favor of full disclosure of information in HIB cases. Besides, it is a violation of due process rights if a party to a case is denied full access to crucial information from evidence.

            In Appellant’s case, not all the girls her son named were acting all the time, and one act that is physical does not involve all girls. Therefore, it is important for the girls accused to access and review these videos. Access to these videos is very critical for a number of reasons. First, it will shed light on how Appellant’s son was a victim of HIB and provide sufficient facts to have this case (at whatever stage), be ruled in favor of Appellant. The videos are also especially important for any future actions Appellant may have to take on behalf of her son.

CONCLUSION AND PRAYER

            For the reasons stated above, this Court should deny Appellee’s Cross Motion to Remand this action. Appellant rightly brought this appeal to contest Respondent’s denial of Appellant’s access to crucial information in the videos withheld by the school. Contrary to Respondent’s assertions, the instant appeal does not seek to appeal the entire HIB case, but to seek this Court’s indulgence to issue an Order allowing Appellant access the videos.

            Accordingly, Appellant prays this Court denies Appellee’s Cross Motion in its entirety. Alternatively, this Honorable Court should retain jurisdiction, issue an Injunction against Appellee to grant Appellant access to the videos, and remand the case. 

                        Respectfully submitted,

                                                                        ______________________

                                                                                   XXX

                                                                        Pro Se

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served via [ENTER METHOD YOU SENT THIS DOCUMENT TO THE DEFENDANT] on [ENTER THE DATE YOU SERVED THIS DOCUMENT], to:

Respectfully submitted,

                                                                        ______________________

                                                                                   XX

                                                                        Pro Se


[1] APa refers to Appellant’s Appeal Brief.

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