NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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 responden t 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 DIVISIONA- 2764

- 21 2 The opinion of the court was delivered by WHIPPLE, J.A.D. Karen D'Amico appeals from the final agency decisio n 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 sum mary decision, denying D'Amico's cross-motion for summary decision, and re moving 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 d uly 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 co nsider here is whether the submission of a ten-day letter raises a similarly s ubstantial 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 d isabilities haveA- 2764

- 21 3 available to them a free appropriate public educati on [(FAPE)] that emphasizes special education and related services . . . and to ensure that the rights of children with disabilities and parents of such chil dren 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, b efore making the placement, parents must give the school district te n business days to correct any deficiencies in the student's educational progr am. 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 educat ion shall be interested directly or indirectly in any . . . claim against t he 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 proceedi ngs concerning his, or their, own interests." The interplay of these two provisi ons was explored in Kennedy, 196 N.J. 1 (2008). There, the Court ackno wledged "that having an inconsistent claim can be additional cause for remo val," but questioned "whether removal is the only remedy when a board me mber has an interest in aA- 2764

- 21 4 claim against the board." Id. at 15. The Court em phasized that determining how these two statutes should interact in a given c ase 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 inter est through negotiations or a 'proceeding.'" Id. at 17. Of particular relevance, the Kennedy Court was care ful 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 spec ial education controversies and disputes fit between the type of substantial disqualifying interest prohibited by N.J.S.A. 18A:12-2 and the ex ception provided by N.J.S.A. 18A:12-24(j) for advancing family member i nterests through proceedings with the board." Id. at 20. The impor tant 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) except ion. "[S]pecial education 'disputes' are unique and deserve special considera tion in light of the parties' shared goal" "of an appropriate education for the c hild." Ibid. "Moreover, it is the policy of this state to encourage less-adversar ial means to resolve,A- 2764

- 21 5 efficiently and quickly, special education disagree ments, 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 announce d that "[b]oard members who have handicapped children should not have to fe ar loss of their elected office as a condition of questioning, or if necessa ry pursuing through the initiation of proceedings, the appropriateness of t heir child's education." Id. at
21. In particular, the Court made clear that not "ever y due process request to resolve specific issues regarding a child's classif ication or IEP 1 should result in the automatic disqualification of a board member." Ibid. In cases where the Commissioner is called upon to decide whether a boa rd 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 'procee dings,'" 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 Educati on Program" which is a written plan that "establish[es] the rationale for the student's educational placement, serve[s] as the basis for program implem entation, 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 fa mily 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 integ rity of and public's confidence in that same board, the Kennedy Court an nounced removal was only appropriate when "substantial and deeply antag onistic interests . . . would call into question a board member's ability to perf orm public duties and the public's confidence in that ability of the member t o perform his or her office." Id. at 17. As such, the "Commissioner should exami ne the nature of the dispute and establish a more careful and fact-speci fic 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 porte nds the likelihood of protracted, and intractable, litigation between the parties." Id. at 21. On the other hand, if "case-specific examination" showed t hat a particular disput e "could be quickly and easily resolved between the p arties," then that conflict would be less likely to involve such substantial an d deeply antagonistic interests as to require removal. Id. at 22.A- 2764

- 21 7 Under the facts of Kennedy, the Court found a due p rocess request that included a demand for "specific monetary relief" co uld be considered " a substantial conflict between a board member and the board." Id. at 22. The Court specifically did not mandate, however, all cl aims mentioning financial remedies automatically equate to interests inconsis tent with sitting on a board of education. Id. at 22 n.7 ("We leave open the po ssibility that the Commissioner may view differently claims involving de minimis amounts in controversy."). Thus, a full examination of all ci rcumstances surrounding the dispute between the board member and the board is n ecessary to balance the member's individual rights as a parent with the nee ds of the board to maintain integrity. Through that lens we address the case at hand. D'Am ico 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 t en-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 t he record: 2

2 The Commissioner and ALJ did not base their decisio ns on any of these three letters. The ALJ's Initial Decisions from Oc tober 19, 2021, and February 18, 2022, and the Acting Commissioner's Final Decis ions from December 2, 2021, and April 1, 2022, instead focused on a ten-d ay 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 placem ent 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 plac ement for the 2020-21 school year. The D'Amicos submitted a due process request on Au gust 7, 2019, to pursue tuition reimbursement, among other things, r elating 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, r egarding tuition reimbursement for the 2020-21 school year and sough t to consolidate the issues in that request with those included in their initial request. After their motion to consolidate was rejected, the D'Amicos wi thdrew 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'Amic os withdrew the August 7, 2019 due process request with prejudice, subsequ ent to the ALJ's Letter Order dated November 17, 2020. In January 2021, D'Amico was sworn in as a member o f the Board. On February 1, 2021, D'Amico's husband re-filed the du e 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 a lso moved for a summary decision against D'Amico. The Commissioner denied the Board's request for a declaratory ruling and transmitted the matter (incl uding 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, not ifying the Board of her intent to unilaterally place her child in a private school for the 2021-22 schoo l year and reserving the right to seek reimbursement for the costs of the placement. On October 19, 2021, the ALJ issued an initial deci sion in D'Amico's favor, granting her cross-motion and denying the Bo ard'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 pet ition while she was serving as a Board member, she remedied the violati on 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 notA- 2764

- 21 10 violate N.J.S.A. 18A:12-2; it merely served as noti ce relating to reimbursement and was not a claim for reimbursement

. The Board filed exceptions, and the Commissioner is sued a decision on December 2, 2021, adopting the ALJ's decision with respect to D'Amico's due process petition, but remanding for further proceed ings 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 b y withdrawing her due process petition one hour after her husband had fil ed 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 f iled 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 det ermine from the record whether a substantial conflict existed at that time between the parties, citing to Kennedy, the Commissioner remanded the matter to th e OAL for further factfinding on whether there was a resolution of the Au gust 13, 2021 ten-day letter issue. Upon the remand, the parties stipulated that D'Amic o unilaterally placed her child in a private school for the 2021-22 schoo l year. The ALJ issued an initial decision reaffirming the original initial d ecision and stating that her "decision on the merits remains unchanged." Althou gh 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 Bo ard; 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 petit ion 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 inju ry, and the damage or loss incurred, as well as the amount claimed; further, t he failure to file one completely bars the potential tort claimant from fi ling a lawsuit.A- 2764

- 21 12 The Board once again filed exceptions, and, on Apri l 1, 2022, the Commissioner issued a final decision rejecting the ALJ's conclusion that the ten-day letter did not constitute a claim against t he Board. Although a notice of tort claim has some more specific requirements t han a ten-day letter, the Commissioner "[did] not find this distinction conse quential." Rather, she reasoned, "[i]n both documents, one party is alerti ng another to the existence of a claim and fulfilling legal requirements necess ary 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 clai m that is subject to settlement and may be the subject of a future court action." Relying on Kennedy, the Commissioner recognized tha t a board member should not be removed from office merely because sh e advanced a claim against the board involving her or her immediate fa mily member's interest. See 196 N.J. at 17-18. Kennedy did instruct, howev er, that "the Commissioner . . . examine the nature of the dispute to determin e '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 c hild in private school, and she followed through with that placement. Moreover , the letter reflected aA- 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 re imbursement. The Commissioner, therefore, concluded D'Amico has a claim for monetary relief against the Board that precludes he r 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 decisio n "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 s ubstantive violation of the IDEA. She contends the Commissioner's decision "si gnificantly impedes a parent's opportunity to participate in the decision -making process regarding the provision of an appropriate education," as is guara nteed by the IDEA. Instead, D'Amico asserts the "inchoate rights to enforce the statute" that such parents possess instead qualify as disputes "concerning a c hild's education program" that should not "require a sitting board of educati on member's removal from office." See Kennedy, 196 N.J. at 8. D'Amico further argues the Commissioner erred in de ciding that D'Amico's ten-day letter was a "substantial, disqua lifying 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 i n Kennedy mandates that a "due process request" is necessary to trigger the "extreme sanction of removal from the Board." Instead, D'Amico argues h er ten-day letter is simply "a reservation of rights to assert a claim, potenti ally, at some point in the future." "Judicial review of agency determinati ons 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 de cision 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 r equires 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, a scribing 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 publ ic confidence' in local school board members . . . by providing local board members with advance guidanc e

on ethical conduct so that su ch members might conduct their personal affairs appropriately and within the bounds ethically expec ted." Kennedy, 196 N.J. at 16. Accordingly, N.J.S.A. 18A:12-24(a) to - 24(g) list seven specificA- 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 imm ediate family, from representing himself, or themselves, in negotiation s 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 analy sis of the circumstances surrounding her purported dispute with the Board. We must consider whether the underlying facts represent "substantial and dee ply antagonistic interests," id. at 17, and "portend[] the likelihood of protrac ted, 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 Jer sey's Administrative Code that pertains to Special Education, N.J.A.C. 6 A:14, which aims to, among other things, "[e]nsure that all students wit h disabilities . . . have available to them a free, appropriate public educat ion [(FAPE)], [and] . . . [e]nsure the provision of special education and rel ated services." N.J.A.C. 6A:14-1.1(b)(1) & (6). N.J.A.C. 6A:14-2.10 provide s the right of parents toA- 2764

- 21 17 unilaterally "enroll their child in a nonpublic sch ool at public expense" if the district board of education "had not made a free ap propriate public education available to the student in a timely manner prior t o 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 unila teral nonpublic placement, "at least [ten] business days (including any holidays that occur on a business day) prior to the removal of the student f rom the public school," the parents must "give written notice to the district b oard of education of their concerns or intent to enroll their child in a nonpu blic 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 b oard of education of the parents' "concerns or intent," ibid., such that the board has an opportunity to correct deficiencies in the child's educational pro gram prior to the child's removal from public school. There are no prescribe d content requirements for this letter, aside from the parents' "concerns or i ntent to enroll their child in a nonpublic school." Ibid. Notably, the regulation does not require the ten-da y letter to include notice to the board that the pare nts 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 theA- 2764

- 21 18 The regulation does, however, allow a family's tuit ion 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 cu re 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 par ents attended prior to the removal of the student from t he public school, the parents did not inform the IEP t eam that they were rejecting the IEP proposed by the district board of education;

. . . . 3. If, prior to the parents' removal of the studen t 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), b ut the parents did not make the student available for the reevaluation; or 4. Upon a judicial finding of unreasonableness wit h respect to actions taken by the parents. [N.J.A.C. 6A:14-2.10(c).] Each of the above conditions that trigger the poten tial for reduction or denial of tuition reimbursement relates to good faith effo rts, on the parts of both the parents and the district board of education, to pro vide "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 publi c education." See N.J.A.C. 6A:14-1.1(b)(1). To request tuition reimbursement from a board of e ducation, 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 tw o years of the date the party knew, or should have known, about the alleged actio n 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 admi nistrative law judge, under limited circumstances of misconduct by the board of education. Ibid. The written request for the due process hearing must in clude the following information: "the student's name, student's address , the student's date of birth, . . . the name of the school the student is attendi ng, . . . 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 n eed 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 n otice to the [board ofA- 2764

- 21 20 education] of the issues in the due process complai nt." N.J.A.C. 6A:14-2.7(f). Following this request, the issues in the due proce ss complaint may be resolved between the parties, prior to proceeding t o 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 strictl y prescribed circumstances. To file suit against a public entity or public empl oyee "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 [ni netieth] day after accrual of the cause of action." N.J.S.A. 59:8-8. If this no tice of claim is filed after ninety days, but before one year has passed since a ccrual 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 shorten s to ninety days the window a claimant has to provide a defendant with t he specific information required to file suit, including:

a. The name and post office address of the claiman t;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 cl aim 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, employe e or employees causing the injury, damage or loss, if known; and f. The amount claimed as of the date of presentati on 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 cla im, together with the basis of computation of the amoun t claimed. [N.J.S.A. 59:8-4 (emphasis added).] "After the expiration of six months from the date n otice of claim is received," the claimant is then permitted to file their suit i n "an appropriate court of law." N.J.S.A. 59:8-8. The notice of claim is a procedural pre-requisite t o filing a tort suit against a public entity. It serves no purpose othe r 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 foreve r barred from recovering against a public entity or public employee." Ibid. Such a claim is likewiseA- 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 o f 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 edu cation of the parents' concerns with their child's education plan. The se ttlement 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. T he ten-day letter is not required to include any remedy sought other than a FAPE. The ten-day requirement affords the board of educa tion the opportunity to address the parents' concerns before the parents take unilateral action. The time limit associated with a ten-day letter specifi cally delays the parents' opportunity to take action. The time limit associa ted with a Notice of Tort Claim, on the other hand, shortens to ninety days t he 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 doe s little to indicate theA- 2764

- 21 23 likelihood of protracted and intractable litigation between the parties. We reject a broad rule that a ten-day letter is simila r to a notice of tort claim and establishes a per se incompatible interest. Here, specifically, the ten-day letters in the reco rd all include a statement indicating that the D'Amicos "will seek r eimbursement from the District for all costs associated with this placeme nt," (Nov. 2, 2018, Letter) (emphasis added), or "will seek reimbursement from the District for all costs associated with [the child's] placement including t ransportation," (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 tho se letters only alerts the Board that, since a resolution with regard to the c hild's education plan has not been reached, the D'Amicos intend to seek reimburse ment in the future. This is not an open-ended intention, nor is it a definit e request. The D'Amicos cannot seek reimbursement without requesting a due process hearing and are limited to seeking this remedy only within a two-ye ar window from when they removed their child from public school and unilater ally 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 likel ihood of protracted, and intractable, litigation between the parties," see K ennedy, 196 N.J. at 21, the Board points to D'Amico's history of filing three t en-day letters 4 , filing three due process requests, and threatening to file a not ice of tort claim. The record demonstrates, however, the D'Amico's only had one p artial 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 ar guments irrelevant, stating that "[w]hether a conflict between a board member and a board is substantial enough to warrant removal must be consi dered 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 su bstantial and deeply antagonistic interests that portend the likelihood of protracted and intractable litigation between the parties. Indeed, although t he D'Amicos have put the Board on notice that they retain an intention to se ek 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 proces s request for tuition reimbursement, we conclude, as the Supreme Court di d 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 th e 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 retai n jurisdiction.