NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2764-21

BOARD OF EDUCATION OF 

THE BOROUGH OF KINNELON, 

MORRIS COUNTY, 

 Petitioner-Respondent, 

v.

KAREN D'AMICO, 

 Respondent-Appellant. 

_____________________________ 

Submitted October 3, 2023 – Decided November 9, 2023 

Before Judges Whipple, Mayer and Paganelli. 

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). 

APPROVED FOR PUBLICATION 

November 9, 2023 

APPELLATE DIVISION 
A-2764-21 2 

The opinion of the court was delivered by 

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 
A-2764-21 3 

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 
A-2764-21 4 

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, 
A-2764-21 5 

efficiently and quickly, special education disagreements, by encouraging 

mediation of disputes." Ibid. (citing N.J.A.C. 1:6A–4.1 ("Upon receipt of a 

hearing request, the Department of Education shall promptly contact the 

parties to offer mediation.")). 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 IEP1 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 

1

 "IEP" refers to a student's "Individualized Education Program" which is a 

written plan that "establish[es] the rationale for the student's educational 

placement, serve[s] as the basis for program implementation, and compl[ies] 

with the mandates set forth in this chapter." N.J.A.C. 6A:14-1.3. 
A-2764-21 6 

"[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. 
A-2764-21 7 

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 ("We leave open the possibility that the 

Commissioner may view differently claims involving de minimis amounts in 

controversy."). 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. 

Through that lens we address the case at hand. D'Amico and her husband 

are parents of two children in the Kinnelon School system. Beginning in 

November 2018, the D'Amicos filed a total of four ten-day letters pertaining to 

one of their children who was enrolled in a private school to address special 

needs. Only three of the letters are included in the record: 2

2

 The Commissioner and ALJ did not base their decisions on any of these 

three letters. The ALJ's Initial Decisions from October 19, 2021, and February 

18, 2022, and the Acting Commissioner's Final Decisions from December 2, 

2021, and April 1, 2022, instead focused on a ten-day letter filed on August 

13, 2021, a full four months after the Board filed their initial verified petition. 

This letter addressed the child's unilateral placement for the 2021-22 school 

year but is not included in the record. 
A-2764-21 8 

November 2, 2018, regarding the child's unilateral 

placement for the 2018-19 school year. 

June 25, 2019, regarding the child's unilateral 

placement for the 2019-20 school year. 

July 7, 2020, regarding the child's unilateral placement 

for the 2020-21 school year. 

 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 process request with prejudice, subsequent to the ALJ's Letter 

Order dated November 17, 2020. 

In January 2021, D'Amico was sworn in as a member of the Board. On 

February 1, 2021, D'Amico's husband re-filed the due process petition seeking 

tuition reimbursement for the 2020-21 school year. D'Amico withdrew the 

petition within an hour after her husband filed it. 
A-2764-21 9 

In April 2021, 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 because she had a direct or indirect interest in a 

substantial financial claim against it; the Board also moved for a summary 

decision against D'Amico. The Commissioner denied the Board's request for a 

declaratory ruling and transmitted the matter (including the Board's pending 

motion) to the Office of Administrative Law (OAL). D'Amico cross-moved 

for summary decision in July 2021. While her cross-motion was pending, on 

August 13, 2021, D'Amico sent a ten-day letter, notifying the Board of her 

intent to unilaterally place her child in a private school for the 2021-22 school 

year and reserving the right to seek reimbursement for the costs of the 

placement. 

On October 19, 2021, the ALJ issued an initial decision in D'Amico's 

favor, granting her cross-motion and denying the Board's motion and request 

for a declaratory ruling. The ALJ found, although D'Amico violated N.J.S.A. 

18A:12-2 when her husband filed the due process petition while she was 

serving as a Board member, she remedied the violation by withdrawing it one 

hour after it was filed. The ALJ also ruled, as no due process petition was 

filed relative to D'Amico's August 13, 2021 ten-day letter, the letter did not 
A-2764-21 10

violate N.J.S.A. 18A:12-2; it merely served as notice relating to 

reimbursement and was not a claim for reimbursement. 

The Board filed exceptions, and the Commissioner issued a decision on 

December 2, 2021, adopting the ALJ's decision with respect to D'Amico's due 

process petition, but remanding for further proceedings on the issue of the ten -

day letter. Although the Commissioner agreed with the ALJ's conclusion that 

D'Amico remedied a violation of N.J.S.A. 18A:12-2 by withdrawing her due 

process petition one hour after her husband had filed it, the Commissioner 

disagreed with the premise that the ten-day letter was not a claim against the 

Board. 

The Commissioner compared the circumstances here to those in which 

New Jersey laws require a notice of tort claim be filed prior to the initiation of 

legal action against a public entity, N.J.S.A. 59:8-8; such a notice of tort claim 

constitutes a conflicting claim, Kennedy, 196 N.J. at 15 (citing Bd. of Educ. of 

Borough of Hawthorne v. Taliaferro, 94 N.J.A.R.2d (EDU) 197). Because 

New Jersey law similarly requires parents to send a ten-day letter prior to 

seeking reimbursement from a board of education for unilateral placement of 

their child in private school, N.J.A.C. 6A:14-2.10, the Commissioner found 

"[b]y sending the letter, [D'Amico] has asserted a claim against the Board that 

has the potential to disqualify her from serving as a Board member." 
A-2764-21 11

However, because the Commissioner was unable to determine from the record 

whether a substantial conflict existed at that time between the parties, citing to 

Kennedy, the Commissioner remanded the matter to the OAL for further factfinding on whether there was a resolution of the August 13, 2021 ten-day letter 

issue. 

Upon the remand, the parties stipulated that D'Amico unilaterally placed 

her child in a private school for the 2021-22 school year. The ALJ issued an 

initial decision reaffirming the original initial decision and stating that her 

"decision on the merits remains unchanged." Although D'Amico unilaterally 

placed her child in a private school, the ALJ still held the ten-day letter was 

not, and could not, serve as a claim against the Board; it was different from a 

notice of tort claim; and, thus, it did not violate N.J.S.A. 18A:12-2. 

The ALJ stated a ten-day letter served as a "notice of concerns or intent 

to enroll in a private school to avoid reduction or denial of reimbursement for 

the private school in the event a due process petition alleging a denial of a 

FAPE is ever filed . . . ." The ALJ concluded, in contrast, a notice of tort 

claim constitutes a "claim" because it includes the specifics of the transaction 

giving rise to the claim, a description of the injury, and the damage or loss 

incurred, as well as the amount claimed; further, the failure to file one 

completely bars the potential tort claimant from filing a lawsuit. 
A-2764-21 12

The Board once again filed exceptions, and, on April 1, 2022, the 

Commissioner issued a final decision rejecting the ALJ's conclusion that the 

ten-day letter did not constitute a claim against the Board. Although a notice 

of tort claim has some more specific requirements than a ten-day letter, the 

Commissioner "[did] not find this distinction consequential." Rather, she 

reasoned, "[i]n both documents, one party is alerting another to the existence 

of a claim and fulfilling legal requirements necessary as a precondition to 

filing a formal action to pursue that claim." She continued, "[a] [ten]-day 

letter, just like a Notice of Tort claim, is a claim that is subject to settlement 

and may be the subject of a future court action." 

Relying on Kennedy, the Commissioner recognized that a board member 

should not be removed from office merely because she advanced a claim 

against the board involving her or her immediate family member's interest. 

See 196 N.J. at 17-18. Kennedy did instruct, however, that "the Commissioner 

. . . examine the nature of the dispute to determine 'when a conflict over a 

child's educational program becomes so substantial that removal from office is 

required.'" Id. at 22. 

Applying that instruction, the Commissioner noted D'Amico's ten-day 

letter indicated she would unilaterally place her child in private school, and 

she followed through with that placement. Moreover, the letter reflected a 
A-2764-21 13

specific intent to seek reimbursement for the costs of the placement; D'Amico 

has never waived nor executed a release for such reimbursement. 

The Commissioner, therefore, concluded D'Amico has a claim for 

monetary relief against the Board that precludes her continued service as a 

board member. The Commissioner granted the Board's motion for summary 

decision and denied D'Amico's cross-motion, thereby removing D'Amico from 

the Board. 

This appeal followed. 

D'Amico argues on appeal the Commissioner's decision "would preclude 

any parent of a child entitled to special education from serving on the [Board] 

at any time," and such a blanket prohibition is a substantive violation of the 

IDEA. She contends the Commissioner's decision "significantly impedes a 

parent's opportunity to participate in the decision-making process regarding the 

provision of an appropriate education," as is guaranteed by the IDEA. Instead, 

D'Amico asserts the "inchoate rights to enforce the statute" that such parents 

possess instead qualify as disputes "concerning a child's education program" 

that should not "require a sitting board of education member's removal from 

office." See Kennedy, 196 N.J. at 8. 

D'Amico further argues the Commissioner erred in deciding that 

D'Amico's ten-day letter was a "substantial, disqualifying conflict of interest" 
A-2764-21 14

because the Commissioner "failed to engage in [the] fact-specific inquiry" 

required by Kennedy. D'Amico asserts the holding in Kennedy mandates that 

a "due process request" is necessary to trigger the "extreme sanction of 

removal from the Board." Instead, D'Amico argues her ten-day letter is simply 

"a reservation of rights to assert a claim, potentially, at some point in the 

future." 

 "Judicial review of agency determinations is limited." Allstars Auto 

Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (citing 

Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). 

"An administrative agency's final quasi-judicial 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, 192 N.J. 19, 27-28

(2007). While "[c]ourts afford an agency 'great deference' in reviewing [the 

agency's] 'interpretation of statutes within its scope of authority,'" N.J. Ass'n of

Sch. Adm'rs v. Schundler, 211 N.J. 535, 549 (2012) (quoting N.J. Soc'y for the 

Prevention of Cruelty to Animals v. N.J. Dep't. of Agric., 196 N.J. 366, 385 

(2008)), "when an agency's decision is based on the 'agency's interpretation of

a statute or its determination of a strictly legal issue,' we are not bound by the 

agency's interpretation," In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 17

(2020) (quoting Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 
A-2764-21 15

369, 380 (2014)). This appeal presents a purely legal question that requires us

to interpret N.J.S.A. 18A:12-2 and N.J.S.A. 18A:12-24(j). Our review, 

therefore, is de novo. See, e.g., Castriotta v. Bd. of Educ. of Twp. of Roxbury, 

427 N.J. Super. 592, 600 (2012) (noting that when "the core question is one of

statutory construction" we do not defer to the agency's interpretation). 

"Our primary goal in interpreting a statute 'is to discern and effectuate 

the intent of the Legislature.'" Shipyard Assocs., LP v. City of Hoboken, 242 

N.J. 23, 38 (2020) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581,

592 (2012)). We "first consider[] 'the statute's plain language, ascribing to the 

words used their ordinary meaning and significance.'" Ibid. (quoting Murray, 

210 N.J. at 592). "If the plain language leads to a clear and unambiguous 

result, then [the] interpretative process is over." Johnson v. Roselle EZ Quick 

LLC, 226 N.J. 370, 386 (2016) (quoting Richardson v. Bd. of Trs., Police & 

Firemen's Ret. Sys., 192 N.J. 189, 195 (2007)). 

In the School Ethics Act, N.J.S.A. 18A:12-21 to -34, "the Legislature 

declared its intention 'to ensure and preserve public confidence' in local school 

board members . . . by providing local board members with advance guidance 

on ethical conduct so that such members might conduct their personal affairs 

appropriately and within the bounds ethically expected." Kennedy, 196 N.J. at

16. Accordingly, N.J.S.A. 18A:12-24(a) to - 24(g) list seven specific 
A-2764-21 16

prohibitions applicable to all school officials, including members of boards of

education. Nonetheless, N.J.S.A. 18A:12-24(j) provides 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." 

Under this provision, determining whether D'Amico's removal from the 

Board is appropriate requires a case-specific analysis of the circumstances 

surrounding her purported dispute with the Board. We must consider whether 

the underlying facts represent "substantial and deeply antagonistic interests," 

id. at 17, and "portend[] the likelihood of protracted, and intractable, litigation 

between the parties," id. at 21. 

The only potential dispute here arises from the ten-day letter filed on 

August 13, 2021. We first must address what a ten-day letter is and what it is 

not. 

The ten-day letter arises in the portion of New Jersey's Administrative 

Code that pertains to Special Education, N.J.A.C. 6A:14, which aims to, 

among other things, "[e]nsure that all students with disabilities . . . have 

available to them a free, appropriate public education [(FAPE)], [and] . . . 

[e]nsure the provision of special education and related services." N.J.A.C. 

6A:14-1.1(b)(1) & (6). N.J.A.C. 6A:14-2.10 provides the right of parents to 
A-2764-21 17

unilaterally "enroll their child in a nonpublic school at public expense" if the 

district board of education "had not made a free appropriate public education 

available to the student in a timely manner prior to enrollment" and if "the 

private placement is appropriate." N.J.A.C. 6A:14-2.10(b)–(c). 

To seek full tuition reimbursement for such a unilateral nonpublic 

placement, "at least [ten] business days (including any holidays that occur on a 

business day) prior to the removal of the student from the public school," the 

parents must "give written notice to the district board of education of their 

concerns or intent to enroll their child in a nonpublic school." N.J.A.C. 6A:14 -

2.10(c). This written notice is commonly referred to as a "ten-day letter." 

 The ten-day letter serves to notify the district board of education of the 

parents' "concerns or intent," ibid., such that the board has an opportunity to 

correct deficiencies in the child's educational program prior to the child's 

removal from public school. There are no prescribed content requirements for 

this letter, aside from the parents' "concerns or intent to enroll their child in a 

nonpublic school." Ibid. Notably, the regulation does not require the ten-day 

letter to include notice to the board that the parents intend to seek tuition 

reimbursement.3

3

 Federal regulations do require that parents give notice of intent to seek public 

payment for their child's education: the parents must "give written notice to the 
A-2764-21 18

The regulation does, however, allow a family's tuition reimbursement to 

be reduced or denied if the parents neglect to file a ten-day letter, thereby 

failing to give the board a final opportunity to cure shortcomings in the child's 

education plan. Other conditions that may lead to reduced or denied 

reimbursement are: 

1. If, at the most recent IEP meeting that the parents 

attended prior to the removal of the student from the 

public school, the parents did not inform the IEP team 

that they were rejecting the IEP proposed by the 

district board of education; 

. . . .

3. If, prior to the parents' removal of the student from 

the public school, the district board of education 

proposed a reevaluation of the student and provided

notice pursuant to N.J.A.C. 6A:14-2.3(g) and (h), but 

the parents did not make the student available for the 

reevaluation; or 

4. Upon a judicial finding of unreasonableness with 

respect to actions taken by the parents. 

[N.J.A.C. 6A:14-2.10(c).] 

Each of the above conditions that trigger the potential for reduction or denial 

of tuition reimbursement relates to good faith efforts, on the parts of both the 

parents and the district board of education, to provide "students with 

public agency" of "their concerns and their intent to enroll their child in a private 

school at public expense." 34 CFR § 300.148(d)(1).
A-2764-21 19

disabilities [with] . . . a free, appropriate public education." See N.J.A.C. 

6A:14-1.1(b)(1). 

 To request tuition reimbursement from a board of education, parents 

must also request a due process hearing, which is "an administrative hearing 

conducted by an administrative law judge." N.J.A.C. 6A:14-2.7(a). A request 

for a due process hearing "shall be filed within two years of the date the party 

knew, or should have known, about the alleged action that forms the basis for 

the due process petition." N.J.A.C. 6A:14-2.7(a)(1). This two-year limitation 

period may be extended at the discretion of an administrative law judge, under 

limited circumstances of misconduct by the board of education. Ibid. The 

written request for the due process hearing must include the following 

information: "the student's name, student's address, the student's date of birth, 

. . . the name of the school the student is attending, . . . the specific issues in 

dispute, relevant facts, and the relief sought and, in the case of a homeless 

child, available contact information for the child . . . ." N.J.A.C. 6A:14-2.7(c) 

(emphasis added). 

 A request for a due process hearing triggers the need for a written 

response from the board of education, "specifically addressing the issue(s) 

raised in the request for a due process hearing." N.J.A.C. 6A:14-2.7(d). "A 

request for a due process hearing . . . serves as notice to the [board of 
A-2764-21 20

education] of the issues in the due process complaint." N.J.A.C. 6A:14-2.7(f). 

Following this request, the issues in the due process complaint may be 

resolved between the parties, prior to proceeding to a full due process hearing. 

N.J.A.C. 6A:14-2.7(h). 

 In comparison, the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, 

limits the liability of public entities and public employees in New Jersey for 

tort claims made against them, except under strictly prescribed circumstances. 

To file suit against a public entity or public employee "relating to a cause of 

action for death or for injury or damage to person or to property," a claimant 

must file a notice of claim "not later than the [ninetieth] day after accrual of 

the cause of action." N.J.S.A. 59:8-8. If this notice of claim is filed after 

ninety days, but before one year has passed since accrual of the claim, it is 

within the discretion of a Superior Court judge to decide whether the notice of 

claim will be accepted. N.J.S.A. 59:8-9. Such an exception will only be 

permitted absent substantial prejudice against the public entity or employee. 

Ibid. 

 Thus, the notice of tort claim requirement shortens to ninety days the 

window a claimant has to provide a defendant with the specific information 

required to file suit, including: 

a. The name and post office address of the claimant; 
A-2764-21 21

b. The post-office address to which the person 

presenting the claim desires notices to be sent; 

c. The date, place and other circumstances of the 

occurrence or transaction which gave rise to the claim 

asserted; 

d. A general description of the injury, damage or loss 

incurred so far as it may be known at the time of 

presentation of the claim; 

e. The name or names of the public entity, employee 

or employees causing the injury, damage or loss, if

known; and

f. The amount claimed as of the date of presentation 

of the claim, including the estimated amount of any

prospective injury, damage, or loss, insofar as it may 

be known at the time of the presentation of the claim, 

together with the basis of computation of the amount 

claimed. 

[N.J.S.A. 59:8-4 (emphasis added).] 

"After the expiration of six months from the date notice of claim is received," 

the claimant is then permitted to file their suit in "an appropriate court of law." 

N.J.S.A. 59:8-8. 

The notice of claim is a procedural pre-requisite to filing a tort suit 

against a public entity. It serves no purpose other than to notify the public 

entity or public employee that the claimant intends to file suit. If this notice of 

claim is not submitted, a claimant "shall be forever barred from recovering 

against a public entity or public employee." Ibid. Such a claim is likewise 
A-2764-21 22

barred if "two years have elapsed since the accrual of the claim," or a 

settlement was reached on the claim. N.J.S.A. 59:8-8(b)–(c). 

 In our view, a due process request and a notice of tort claim do serve 

similar functions of notifying the opposing party of the issues to be addressed 

as well as the relief sought by the claimant. Once the issues and requested 

remedies are clear between the parties, a conflict may be settled through 

mediation or a similar non-litigious intervention. The ten-day letter, on the 

other hand, only notifies the district board of education of the parents' 

concerns with their child's education plan. The settlement that may occur after 

a ten-day letter, the reason for the ten-day letter, is the proposal by the board—

and acceptance by the parents—of an adequate education plan to provide the 

child with a free, appropriate public education. The ten-day letter is not 

required to include any remedy sought other than a FAPE. 

 The ten-day requirement affords the board of education the opportunity 

to address the parents' concerns before the parents take unilateral action. The 

time limit associated with a ten-day letter specifically delays the parents' 

opportunity to take action. The time limit associated with a Notice of Tort 

Claim, on the other hand, shortens to ninety days the window of opportunity 

that a claimant has in which to take action. Further, a ten-day letter portends 

the mere possibility of future legal action; it does little to indicate the 
A-2764-21 23

likelihood of protracted and intractable litigation between the parties. We 

reject a broad rule that a ten-day letter is similar to a notice of tort claim and 

establishes a per se incompatible interest. 

Here, specifically, the ten-day letters in the record all include a 

statement indicating that the D'Amicos "will seek reimbursement from the 

District for all costs associated with this placement," (Nov. 2, 2018, Letter) 

(emphasis added), or "will seek reimbursement from the District for all costs 

associated with [the child's] placement including transportation," (June 25, 

2019, and July 7, 2020, Letters (emphasis added)). The record does not 

include the ten-day letter dated August 13, 2021. 

The text of these earlier letters does not assert a "request for specific 

monetary relief." No specific amount of requested reimbursement is provided; 

no demand for payment is made. The language in those letters only alerts the 

Board that, since a resolution with regard to the child's education plan has not 

been reached, the D'Amicos intend to seek reimbursement in the future. This 

is not an open-ended intention, nor is it a definite request. The D'Amicos 

cannot seek reimbursement without requesting a due process hearing and are 

limited to seeking this remedy only within a two-year window from when they 

removed their child from public school and unilaterally placed the child in a 

nonpublic school. See N.J.A.C. 6A:14-2.7(a)(1). 
A-2764-21 24

 In arguing this ten-day letter "portends the likelihood of protracted, and 

intractable, litigation between the parties," see Kennedy, 196 N.J. at 21, the 

Board points to D'Amico's history of filing three ten-day letters4, filing three 

due process requests, and threatening to file a notice of tort claim. The record 

demonstrates, however, the D'Amico's only had one partial due process 

hearing, abandoned some of their earlier "claims," and never filed a notice of 

tort claim. Not only does this past behavior show a likelihood of litigation 

avoidance, but also the Commissioner found these arguments irrelevant, 

stating that "[w]hether a conflict between a board member and a board is 

substantial enough to warrant removal must be considered on a case-by-case 

basis, with an analysis of the dispute at issue at the time."

Moreover, absent from this record is evidence of substantial and deeply 

antagonistic interests that portend the likelihood of protracted and intractable 

litigation between the parties. Indeed, although the D'Amicos have put the 

Board on notice that they retain an intention to seek reimbursement for their 

child's private school costs, they have done little else to follow through with 

that intent. 

In the event the D'Amicos filed a timely due process request for tuition 

reimbursement, we conclude, as the Supreme Court did in Kennedy, that a line 

4

 November 2, 2018; June 25, 2019; August 13, 2021. The Board's list did not 

include the ten-day letter filed on July 7, 2020. 
A-2764-21 25

would be crossed requiring disqualification from the Board. Under the 

circumstances on this record, though, that line has not yet been reached. 

Reversed and remanded, consistent with this opinion. We do not retain 

jurisdiction.