N.J. Admin. Code § 6A:3-1.3

Current through Register Vol. 56, No. 11, June 3, 2024

Section 6A:3-1.3 - Filing and service of petition of appeal

(a) To initiate a contested case for the Commissioner's determination of a controversy or dispute arising pursuant to the school laws, a petitioner shall prepare a petition of appeal conforming to the requirements at N.J.A.C. 6A:3-1.4 and serve such petition upon each respondent, together with any supporting papers the petitioner may include with the petition. The petitioner then shall file proof of service on each respondent, the telephone numbers and email addresses, where available, of the petitioner and each respondent, and the petition and supporting materials, if any, by emailing the documents to the email address designated by the Office of Controversies and Disputes or mailing the documents to the Commissioner c/o the Director, Office of Controversies and Disputes, New Jersey Department of Education, 100 River View Plaza, PO Box 500, Trenton, New Jersey 08625-0500. In no case shall a petitioner submit materials to the Commissioner that have not been served upon each respondent.

1. Any petition filed jointly by three or more petitioners, where the petitioners are pro se, shall designate one petitioner as a representative of the group for purposes of receipt of service for answer(s), initial correspondence, pretransmittal notices, and other communications prior to the agency's determination that the matter is a contested case. Petitioners acting as a groupshall comply with applicable rules of the OAL regarding representation in subsequent proceedings.

2. A petition on behalf of a minor shall be filed by the parent or legal guardian of the minor. Once such a petition is filed, the matter shall be subsequently identified by the initials of petitioner(s) and the child(ren).

3. A petitioner shall notify the Office of Controversies and Disputes of any change in address, telephone number, or email address prior to transmittal of a matter to the OAL.

(b) A petitioner shall name as a party any person or entity indispensable to the hearing of a contested case. Failure to name an indispensable party may be grounds for dismissal of the petition pursuant to N.J.A.C. 6A:3-1.10.

1. In the case of petitions by unsuccessful bidders challenging an award of bid by a district board of education pursuant to N.J.S.A. 18A:18A-1 et seq., the Public School Contracts Law, the successful bidder shall be named as a respondent.

(c) A petitioner claiming benefits pursuant to N.J.S.A. 18A:30-2.1 shall include a copy of the ruling or settlement agreement issued by the Division of Workers' Compensation (Division) with respect to the injury underlying the claim or provide reasons why the matter constitutes an exception to the requirement that the Commissioner refrains from exercising jurisdiction until the Division makes a determination of work-related injury.

(d) A petitioner claiming that their employment was nonrenewed for reasons that are statutorily or constitutionally proscribed shall set forth in the petition at least a minimal factual basis for such allegation(s), consistent with New Jersey Court Rules at R.4:5-2.

(e) Where a petition is filed by or on behalf of a student who is, or who may be as a result of a pending evaluation, subject to the provisions of an individualized education program (IEP) or an accommodation plan pursuant to Section 504 of the Rehabilitation Act, the petition shall so indicate. The petition shall further indicate whether the matter has been concurrently filed with the Department's Office of Special Education.

1. If a petition appears to raise, in addition to issues within scope of the Commissioner's authority, issues requiring a determination pursuant to State statutes or rules governing special education, the Individuals with Disabilities Education Act (IDEA), or Section 504 of the Rehabilitation Act, and the petition has not been concurrently filed with the Office of Special Education, it will be docketed by the Office of Controversies and Disputes in accordance with this chapter and also forwarded to the Office of Special Education for docketing as a special education matter pursuant to N.J.A.C. 6A:14-2.7. The two offices shall concurrently transmit the matter to the OAL with a request that the OAL initially docket and review the matter as a special education (EDS) case and issue a final decision pursuant to N.J.A.C. 6A:14-2.7, except that if the ALJ finds that some or all of the issues raised are within the authority of the Commissioner, the OAL shall additionally or instead, as the case may be, docket the matter as an education (EDU) case and the ALJ shall render an initial decision on such issues as are within the authority of the Commissioner and forward it to the Commissioner for agency review pursuant to applicable rules of the OAL.

2. If a petition appears solely to raise issues requiring a determination pursuant to State statutes or rules governing special education, the Individuals with Disabilities Education Act (IDEA), or Section 504 of the Rehabilitation Act, it may, after notice to the parties and opportunity to be heard, be dismissed in accordance with the provisions at N.J.A.C. 6A:3-1.10.

(f) If a matter is transferred to the Commissioner by a court, the parties shall be responsible for ensuring that the order of transfer, pleadings, and any other pertinent papers are forwarded to the Commissioner, c/o the Director, Office of Controversies and Disputes, New Jersey Department of Education, 100 River View Plaza, PO Box 500, Trenton, New Jersey 08625-0500, either by the court or by the parties themselves. Where the documents filed do not sufficiently conform to the requirements of this section and N.J.A.C. 6A:3-1.4, the complainant(s) will be asked to re-submit the matter to the Commissioner in the form of a duly conformed petition of appeal, to which the respondent(s) will then be directed to file an answer in accordance with N.J.A.C. 6A:3-1.5.

(g) Consistent with the provisions of N.J.A.C. 1:10A-14, where a petition, or tenure charge pursuant to N.J.A.C. 6A:3-5, is filed in a matter involving allegations of child abuse and neglect reported to or investigated by the Department of Children and Families (DCF), the record of the matter shall be sealed to the extent necessary, pending further action by the ALJ or arbitrator to whom a matter is subsequently assigned, to protect all DCF records and reports regarding such abuse and neglect.

1. The final agency decision in any dispute as to the confidentiality of records or reports of child abuse or neglect shall be made by DCF in accordance with N.J.S.A. 9:6-8.10a and N.J.A.C. 3A:3.

(h) Proof of service shall be in the form of one of the following:

1. An acknowledgment of service signed by the attorney or the attorney's designee for each respondent or signed and acknowledged by the respondent or agent thereof, indicating the address at which each respondent was served;

2. An affidavit of the person making service indicating the address at which each respondent was served;

3. A certification meeting the requirements of New Jersey Court Rules at R. 1:4-4(b) and indicating the address at which each respondent was served and the date and manner of such service; or

4. A copy of petitioner's receipt for certified mailing or delivery by messenger to each respondent. The return receipt card ("green card") is not required for proof of service by certified mailing.

(i) The petitioner shall file a petition no later than the 90th day from the date of receipt of the notice of a final order, ruling, or other action by the district board of education, individual party, or agency, that is the subject of the requested contested case hearing. This rule shall not apply in instances where a specific statute, regulation, or court order provides for a period of limitation shorter than 90 days for the filing of a particular type of appeal.

1. Any petitioner claiming benefits under 18A:30-2.1 shall file a petition within 90 days of the date of the determination by the Division of Workers' Compensation that either finds the employee to have sustained a compensable injury or settles the compensation claim without a determination of work-related causation, unless the claim constitutes an exception to the requirement that the Commissioner refrain from exercising jurisdiction until the Division has made a determination on the underlying injury, in which case the petition shall be filed within 90 days of receipt of notice of the district board of education's action, or of the action of the district board of education's agent, which has the effect of denying such benefits.

2. Pursuant to N.J.S.A. 18A:29-14 and 34:13A-27.d, where an increment withholding dispute has been submitted to the Public Employment Relations Commission (Commission) for determination of whether the withholding was predominantly disciplinary and the Commission determines that the withholding was predominantly for reasons of teaching performance, the teaching staff member's petition shall be filed within 90 days of notice of the Commission's decision, or of the final judicial decision in any appeal from the decision of the Commission, whichever is later.

3. A petitioner seeking to be heard as to why the petitioner's endorsement to operate a school bus should not be suspended or revoked pursuant to N.J.S.A. 18A:39-28 et seq., because a child was found to have been left on the school bus to which the petitioner was assigned, shall file a petition within 10 business days of the date of the Department's written notice to petitioner of such finding.

(j) When the Department, or one of its agents, the State Board of Examiners, or other entity located within the Department, is named as a party, proof of service on the Attorney General of the State of New Jersey is required. A petitioner shall direct such service to Department of Law and Public Safety, Division of Law, PO Box 112, Trenton, New Jersey 08625-0112, Attention: Education Section. When another agency of the State of New Jersey is named as a party, service on the Attorney General is also required, and a petitioner shall effect service as set forth in this subsection, but to the attention of the appropriate section of the Division of Law.

N.J. Admin. Code § 6A:3-1.3

Amended by 49 N.J.R. 2516(b), effective 8/7/2017

Amended by 56 N.J.R. 766(b) effective 5/6/2024