TODDLER TOWN CHILD CARE CENTER v. BOARD OF EDUCATION OF THE TOWNSHIP OF IRVINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5749-07T25749-07T2

TODDLER TOWN CHILD CARE CENTER,

Petitioner-Appellant,

vs.

BOARD OF EDUCATION OF THE

TOWNSHIP OF IRVINGTON, ESSEX

COUNTY, and DIVISION OF EARLY

CHILDHOOD EDUCATION, NEW JERSEY

DEPARTMENT OF EDUCATION,

Respondents-Respondents.

__________________________________

 

Submitted: March 11, 2009 - Decided:

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from a Decision of the Commissioner of Education, Docket Nos. 58-2/07 and 129-5/07.

Taylor & Mitchell, L.L.C. and The Law Office of Kecia M. Clarke, attorneys for appellant (Eric Taylor, on the briefs).

Anne Milgram, Attorney General, attorney for respondent Department of Education, Division of Early Childhood Education (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Melissa T. Dutton, Deputy Attorney General, on the brief).

Trenk, DiPasquale, Webster, Della Fera & Sodono, P.C., attorneys for respondent Board of Education of the Township of Irvington (Sam Della Fera, Jr., and Jennifer M. Carrillo-Perez, of counsel and on the brief).

PER CURIAM

Toddler Town Child Care Center (Toddler Town) operated a preschool center in the Township of Irvington on behalf of respondent Board of Education of the Township of Irvington (Board) since 1999 pursuant to a series of one-year contracts. On February 23, 2007, the Board notified Toddler Town that its contract for the 2007-08 school year would not be renewed. On January 14, 2008, the Commissioner of the New Jersey Department of Education found that the Board substantially complied with the notice requirements of N.J.A.C. 6A:10A-2.3(b), and the Department of Education (DOE) did not err in affirming the Board's decision not to renew the Toddler Town contract. We affirm.

Toddler Town is a child care center and private preschool provider located in Irvington. The Board operates and oversees the Irvington Public School District and is responsible for providing a thorough and efficient education, including preschool services, to all age-eligible children and young adults residing within the District. The Division of Early Childhood Education is a division of the DOE and is charged with overseeing the Abbott Preschool programs by order of the New Jersey Supreme Court.

The Board is authorized to collaborate with private day care providers in order to make high quality preschool programs available for children who reside in Irvington. In addition, the DOE has promulgated regulations for the implementation of preschool programs in the Abbott districts and requires the Board to contract with community-based private day care providers, where practical, in furtherance of that objective. N.J.A.C. 6A:10A-2.2(b).

In 1999, Toddler Town entered into a one-year contract with the Board to provide Abbott preschool services for up to 150 children residing in Irvington. The contract outlines the steps the Board must take if it chooses not to renew the agreement with Toddler Town. Specifically, the Board must notify Toddler Town in writing on or before March 1 of each year if it does not wish to renew the contract. The contract does not require the Board to provide reasons for a nonrenewal decision. The contract was renewed annually through the 2006-07 school year.

DOE, however, adopted regulations governing retention of private preschool providers by local school boards. The regulation in effect in February 2007, N.J.A.C. 6A:10A-2.3(b), required a local school board to notify the provider in writing of its renewal decision and to provide reasons for nonrenewal. Here, Toddler Town received the written notice required by the contract and regulation but did not receive the reasons for non-renewal until April 13, 2007.

On appeal, Toddler Town argues that it did not receive the reasons for nonrenewal as required by the regulation, the facts adduced at the hearing do not support nonrenewal, and public policy considerations favor renewal of the contract. DOE responds that the notice provided by the Board substantially conformed to the regulatory requirement for a statement of reasons and the Commissioner's approval of the decision not to renew the Toddler Town contract is supported by the record.

The issue is whether the belated provision of the reasons for nonrenewal caused any prejudice to Toddler Town. Prejudice could be found if Toddler Town was unable to respond to and refute the stated bases for the decision by the Board. Based on the expansive record compiled before the Office of Administrative Law (OAL) and presented to the Commissioner, we discern no prejudice.

At the outset, we reject the contention that the series of letters exchanged between Toddler Town and the Board during the 2005-06 and 2006-07 school years provided sufficient notice of the reasons for the decision by the Board. A long-term provider of preschool services should not be required to review its relationship and comb through correspondence to divine which grievance formed the basis for the decision.

Here, however, by April 13, 2007, Toddler Town had a complete statement of reasons for the Board decision in the form of various submissions provided by the Board in response to Toddler Town's petition for emergent relief. Moreover, the plenary hearing conducted before the OAL did not commence until June 21, 2007, and concluded on August 10, 2007. Review of this proceeding demonstrates that Toddler Town had a full and fair opportunity to confront and refute the reasons advanced by the Board.

As to the merits of the nonrenewal, the Commissioner determined that there was sufficient evidence to support the Board decision. The Commissioner observed that the issue before her concerned nonrenewal, not termination of a contract. Therefore, the Board, DOE and the Commissioner simply needed to determine whether the Board had a reasonable basis not to renew, that alternate means existed to provide the preschool services, and that the Board was not duplicating community-provided services. The Commissioner then proceeded to find that in this case "legitimate [B]oard and [DOE] concerns [were] met with insistent denial, trivialization, misunderstanding or misrepresentation, and where compliance with the full range of stringent fiscal and accounting requirements associated with status as an Abbott provider is grudging at best and often open to question."

The Commissioner also found that Toddler Town made "inappropriate usage of budgeted staff positions or dilatoriness in compliance with [corrective action plan] directives and related Department or district requests, notwithstanding the absence of a fixed deadline."

 
This court will not disturb a final decision of the Commissioner unless it is arbitrary, capricious or unreasonable, or lacks fair support in the evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); Bd. of Educ. of Branchburg v. Bd. of Educ. of Somerville, 173 N.J. Super. 268, 274 (App. Div. 1980). We discern no basis to disturb the decision of the Commissioner.

Affirmed.

(continued)

(continued)

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A-5749-07T2

April 28, 2009