SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3421- 21
BOARD OF EDUCATION OF THE BOROUGH OF MILLTOWN, MIDDLESEX COUNTY, Petitioner-Respondent,

v. EGNITA PARDO, Respondent-Appellant.

____________________________ NEW JERSEY COMMISSIONER OF EDUCATION, Respondent.

____________________________

Argued November 15, 2023

– Decided May 15, 2024 Before Judges Accurso and Gummer. On appeal from the New Jersey Commissioner of Education, Docket No. 237- 12/21. Nicholas J. Repici argued the cause for appellant (Lenox, Socey, Formidoni, Giordano, Lang, Carrigg &

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3421

- 21 Casey, LLC, attorneys; Nicholas J. Repici, of couns el and on the briefs). Aron Grant Mandel argued the cause for respondent Board of Education of the Borough of Milltown, Middlesex County (The Busch Law Group, LLC, attorneys; Ellen Bass and Aron Grant Mandel, of counsel and on the brief). Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Commissioner of Education (Carolyn G. Labin, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Egnita Pardo appeals a final decision of the Acting Commissioner of Education, denying her claim pursuant to N.J.S.A. 1 8A:12- 20 for indemnification of her legal fees and costs from the Borough of Milltown Board of Education. Because the Commissioner's decision was not arbitrary, capricious, or unreasonable and was legally correct and factually supported by the record, we affirm.
I. In November 2021, Pardo was elected to serve as a m ember of the Board. She was scheduled to be sworn into office and seate d on January 4, 2022. She had run for office even though she and her husband had a p ending claim against the Board on behalf of their child , who was a minor , as memorialized in a May3 A- 3421

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2, 2017 letter from their attorney providing notice to the Board and others of th at tort claim. They sought in their claim, among other things, mon ey for reimbursement of medical bills. After the election, the Superintendent of Milltown Public Schools verbally informed Pardo that the Board viewed the pending to rt claim as a disqualifying interest under N.J.S.A. 18A:12 -2, which provides that "[n]o member of any board of education shall be interested directly or indirectly in any . . . claim against the board . . . ." After an exchange of correspondence between Pardo's and the Board's attorneys , counsel for Pardo and her husband sent a letter to the Board stating they were withdrawing and retracting the 2017 tort-claim notice. The Board's counsel acknowledged the withdrawal but found it insufficient, asserting "a release of all of her family's pending claims against the Board and the Board's employees" would need to be judicially approved under Rule 4:44

- 3 to resolve the conflict of interest. On December 16, 2021, the Board filed with the Comm issioner a petition of appeal, seeking a determination of whether Pardo had a disqualifying conflict of interest preventing her from becoming a Board me mber, and a motion for emergent relief, seeking to prevent Pardo from bein g sw orn in and seated as a Board member while its petition was pending. The matter was transmitted to4 A- 3421

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the Office of Administrative Law. Pardo submitted opposition and a crossmotion for indemnification. After hearing argument, an administrative law judge (ALJ) issued an order on December 29, 2021 , grant ing the Board's requested emergent relief. The ALJ found Pardo had an interest in the claim involving her child, specifically reimbursement of medical expenses incurred on the c hild's behalf. The ALJ held Pardo consequently had a disqualifying conflic t of interest she had to resolve before she could become a member of the Boa rd. The ALJ did not decide the cross-motion. The Commission er subsequently adopted the ALJ's recommended order on January 19, 2022, precluding P ardo from being sworn in as a Board member and the Board from filling the open seat while the matter was pending. Pardo filed a verified complaint and an application for an order to show cause with the Chancery Division of the Superior Co urt, seeking injunctive relief in the Chancery Division to prevent the Board from filling the open seat and for judicial approval of the release proposed by Pardo. After issuing an order to show cause temporarily enjoining the Board from fil ling the seat and after conducting an evidentiary hearing, the judge entere d an order on January 28, 2022, approving the proposed release pursuant to Ru le 4:44 -3. Pardo then5 A- 3421

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submitted a proposed form of order pursuant to Rule 4:37 -1(b) for voluntary dismissal of any remaining claims pending in the Ch ancery Division but expressly reserv ing her indemnification and Board-membership claims for determination in the pending administrative matter. The judge entered the order on January 31, 2022. The Board moved for a summary decision in the administrative matter. Pardo opposed the motion and cross-moved for indemn ification of her legal fees and costs. On February 28, 2022, the ALJ issued an order and de cision granting the Board's motion and denying Pardo's cross motion . The ALJ found that although Pardo had not cured her conflict so that s he could be sworn in and seated on the Board timely , she had since cured the conflict and could then be seated as a Board member. He concluded she was not entitled to indemnification because "[t]he right to indemnification is designed to provide protection from actions taken while a Board Member" and her "expenditures "

– incurred in an action "she instituted to resolve h er conflict" and in opposing the "proper" actions of the Board "in d enying Pardo the position as she had a conflict"

– "[did] not fall in that category." Pardo was subs equently sworn in and seated on the Board.6 A- 3421

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Both parties filed exceptions to the ALJ's decision pursuant to N.J.A.C.
1:1 -18.4. Pardo took exception to the decision as it re lated to her "counterclaim for indemnification for her counsel fees and expens es under N.J.S.A. 18A:12- 20 associated with her defense of the administrativ e action initiated against her b y [the Board]." On May 25, 2022, the Commissioner is sued a final decision adopting the ALJ's decision, finding Pardo then eli gible to be sworn in as a Board member and dismissing her indemnification cla im. The Commissioner found the indemnification provided in N.J.S.A. 18A: 12-20 does not extend to "those who are not yet sworn in as board members" a nd that Pardo was "not entitled to indemnification because she was not a s worn board member who was serving in the position, nor was she qualified to b ecome a Board member " and "her defense of this administrative matter did not arise from her duties as a board member." This appeal followed.
II. Our role in review ing an agency decision is "limited." Bd. of Educ. of Kinnelon v. D'Amico, 477 N.J. Super. 184, 195 (App. Div. 2023) (quoting Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm 'n, 234 N.J. 150, 157 (2018) ). "We review a decision made by an administrative a gency entrusted to7 A- 3421

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apply and enforce a statutory scheme under an enhan ced deferential standard." E. Bay Drywall, LLC v. Dep't of Lab. & Workforce De v., 251 N.J. 477, 493 (2022). Accordingly, we will disturb an agency's a djudicatory decision only on "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." D'Amico, 477 N.J. Super. at 195 -96 (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).
In making that determination, we "must examine: '(1) whether the agency's decision conforms with relevant law; (2) w hether the decision is supported by substantial credible evidence in the r ecord; and (3) whether, in applying the law to the facts, the administrative a gency clearly erred in reaching its conclusion.'" In re Y.L., 437 N.J. Super 409, 412 (App. Div. 2014 ) (quoting Twp. Pharmacy v. Div. of Med. Assistance & Health S ervs., 432 N.J. Super. 273, 283-84 (App. Div. 2013)). We are not bound by an agency's statutory interpretation or determination of a purely legal i ssue. D'Amico, 477 N.J. Super. at 196. "The burden of proving that an agency action is arbitrary, capricious, or unreasonable is on the challenger." Parsells v. Bd . of Educ. of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022). Pardo has n ot met that burden. The paramount goal of "statutory interpretation is to 'determine and give effect to the Legislature's intent.'" State v. A.M ., 252 N.J. 432 , 450 (2023)8 A- 3421

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(quoting State v. Lopez-Carrera, 245 N.J. 596, 612 (2021)). To achieve that goal, we "begin with the language of [the] statute, 'which is typically the best indicator of intent.'" Ibid. (quoting State v. McCray , 243 N.J. 196, 208 (2020)). "We must presume that every word in [the] statute h as meaning and is not mere surplusage." Cast Art Indus., LLC v. KPMG LLP, 209 N.J. 208, 222 (2012) (quoting In re Att'y Gen.'s "Directive on Exit Poll ing: Media & Non-Partisan Pub. Int. Grps.", 200 N.J. 283, 297- 98 (2009)) ; see also N.J. Div. of Child Prot. & Permanency v. A.P., 475 N.J. Super. 472, 488 (App . Div. 2023) (same)

. We also "cannot presume the Legislature 'intended a re sult different from what is indicated by the plain language or add a qualificat ion to a statute that the Legislature chose to omit.'" Simadiris v. Paterson Pub. Sch. Dist., 466 N.J. Super. 40, 49 (App. Div. 2021) (quoting Tumpson v. Farina, 218 N.J. 450, 467- 68 (2014)).
Our function is not "to 'rewrite a plainly-written ena ctment of the Legislature []or presume that the Legislature inten ded something other than that expressed by way of the plain language.'" DiProspe ro v. Penn, 183 N.J. 477, 492 (2005) (quoting O'Connell v. State, 171 N.J. 48 4, 488 (2002) (alteration in the original)). "Our duty is to construe and apply the statute as enacted." Ibid. (quoting In re Closing of Jamesburg High Sch. , 83 N.J. 540, 548 (1980) ). "If a9 A- 3421

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statute's plain language is clear, we apply that pl ain meaning and end our inquiry." Garden State Check Cashing Serv., Inc. v . Dep't of Banking & Ins. , 237 N.J. 482, 489 (2019). Pardo contends the indemnification conferred by N. J.S.A. 18A:12- 20 "applies to individuals in their capacity as a boar d member-elect." The problem with her argument is that the statute doesn't say t hat. The statute provides in relevant part:

Whenever a civil, administrative, criminal or quasi

criminal action or other legal proceeding has been or shall be brought against any person for any act or omission arising out of and in the course of the performance of his duties as a member of a board ofeducation, and in the case of a criminal or quasicriminal action such action results in final dispos ition in favor of such person, the board of education sha ll defray all costs of defending such action, includin g reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save harmless an d protect such person from any financial loss resulti ng therefrom. . . . [N.J.S.A. 18A:12

- 20 (emphasis added).] Under the plain language of the statute, the Legisl ature intended to provide indemnification to "a member of a board of educatio n," not "a board member-elect." See also N.J.A.C. 6A:28 -1.2 (defining "Board member" as "any10 A- 3421

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person holding membership, whether by election or a ppointment, upon being sworn in, on any district board of education"). Pardo relies on three published cases to support her indemnification claim. 1 In each of those cases , the courts held board members, not board members-elect, were entitled to indemnification und er N.J.S.A. 18A- 12

- 20 . See Quick v. Bd. of Educ. of Old Bridge, 308 N.J. Super. 338, 342 (App. Div. 1998) (finding board member was entitled to reimbursement of counsel fees under
N.J.S.A. 18A- 12

- 20 ); Jones v. Kolbeck, 119 N.J. Super. 299, 301 (App. Div. 1972) (finding defendants who were "members of the board of education . . . sued by reason of such membership" were entitled to indemnification under
N.J.S.A. 18A- 12

- 20 ) ; Suruda v. Jersey City Bd. of Educ., 167 N.J. Super. 331, 334 (Law Div. 1979) (finding parties who had been "carr[ ying ] out the duties of their non-pay positions" as board members were enti tled to indemnification). Pardo seems to argue she is entitled to indemnific ation because the letter from counsel for Pardo and her husband stating they were withdrawing the 2017 tort-claim notice was sufficient to cure any confli ct she had, thereby rendering her eligible to become a Board member. We disagree . Pardo and her husband

1 Unpublished cases are not prec edent, are not binding on any court, and, except under circumstances not applicable here, cannot be cit ed by a court. R. 1:36

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could not release their minor child's claim without court approval. Judicial approval must be obtained in order to bind a minor to his parents' dismissal of his claim. See R. 4:44 -3; Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377 (App. Div. 1986) ("It is long out of doubt that a parent . . . cannot dispose of a child's cause of action without statutory auth ority or judicial approval. ")

. Without court approval determining the release of the claim was reasonable and in the child's best interests, Pardo's and her husb and's withdrawal of their child's claim would have been legally meaningless, and thei r child as an adult could assert his parents withdrew the claim not in his best interests but to enable Pardo to clear her conflict so she could become a member of the Board. See Moscatello ex rel. Moscatello v. Univ. of Med. & Dentistry of N.J. , 342 N.J. Super. 351, 361 (App. Div. 2001 ) (finding court approval of resolution of a minor' s claim protects and binds the minor). The Commissioner's decision was legally correct a nd was factually supported by the record. It was not arbitrary, cap ricious, or unreasonable

. Accordingly, we affirm. Affirmed.