J.G. on behalf of minor child, C.G v. NEW JERSEY DEPARTMENT OF EDUCATION

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6057-07T26057-07T2

J.G. on behalf of minor

child, C.G.,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

EDUCATION AND GALLOWAY

COMMUNITY CHARTER SCHOOL,

ATLANTIC COUNTY,

Respondents-Respondents.

________________________________________________________________

 

Argued March 30, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Commissioner of Education, Docket No. 185-7/07.

Alan W. Lesso argued the cause for appellant (South Jersey Legal Services, Inc., attorneys; Mr. Lesso, of counsel and on the brief).

Amy L. Houck argued the cause for respondent Galloway Community Charter School (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; William S. Donio, of counsel; Ms. Houck, on the brief).

Anne Milgram, Attorney General, attorney for respondent Commissioner of Education (Bryant Lawrence Horsley, Jr., Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant, J.G., acting on behalf of her son, C.G., appeals from the January 11, 2008 final decision of the Commissioner of Education (Commissioner), which affirmed the initial decision of the Administrative Law Judge (ALJ), dismissing as untimely appellant's petition to expunge student records of C.G. From our review of the record, we are satisfied that the Commissioner's decision was supported by substantial credible evidence in the record, was not arbitrary, capricious or unreasonable, and was in compliance with the controlling legal principles. Accordingly, we affirm.

Appellant and her son were residents of Pleasantville. The Galloway Community Charter School (GCCS), a kindergarten through eighth grade school, is located in Galloway Township. After initially attending Pleasantville public schools, C.G. transferred to GCCS in the 2004-2005 school year, when he entered the sixth grade. C.G. is a special needs student. His Individual Education Plan (IEP) provided for an "inclusion setting," by which he would participate in regular classroom instruction.

While in the seventh grade, C.G. encountered disciplinary issues. He was suspended for one day on September 29, 2005 for taking pictures of a boy at the urinal in a school bathroom. On May 25, 2006, he received a nine-day suspension, resulting from a series of very disturbing comments he made to or in the presence of other students. We need not repeat the comments here. It is sufficient to say they were of a graphic sexual and violent nature.

Appellant has not denied that the events for which he was disciplined occurred. Appellant never filed any appeal of the discipline that was imposed. It is the refusal of GCCS and the Commissioner to expunge from C.G.'s file the records of these incidents that is in dispute.

In June 2006, J.G. filed a due process request, which was settled on July 11, 2006. The settlement provided for development of a new IEP. After the settlement was effected, in July 2006, all of C.G.'s records were furnished to J.G. With the assistance of counsel, she sought removal of these materials from C.G.'s file. According to GCCS, it informed J.G. on or about August 15, 2006 that it would not remove the records from C.G.'s file. This notice was purportedly by virtue of an August 15, 2006 letter, which is not part of the record on appeal, from GCCS's attorney to J.G. At oral argument before us, counsel for GCCS represented that the same message was communicated to J.G. by telephone.

On August 21, 2006, J.G. wrote a letter to GCCS. She expressed her disappointment in not being able to resolve the primary issue of placement of C.G. for the upcoming school year. And, with reference to removal of the records, she wrote: "So I do hereby give notice to GCCS Board of Trustees, that I do fully appeal their decision to keep certain records in my son's files." Therefore, although the appellate record does not contain the purported August 15, 2006 letter or evidence of the purported telephone communication with J.G., J.G.'s statement in her August 21, 2006 letter confirmed that she had been told of GCCS's "decision to keep certain records in [her] son's files." In her August 21, 2006 letter, J.G. further expressed her belief that C.G. needed "new and independent evaluations done, and a new IEP performed by an independent team."

J.G. filed a second due process complaint, which resulted in a September 18, 2006 settlement providing for home instruction while alternative education was explored. According to J.G., the parties also agreed to preserve any records issue, which J.G. had raised in her pleading, for future consideration.

In September 2006, J.G. filed a third due process complaint and sought emergent relief. The matter came before an ALJ on October 4, 2006. At that time, a consent order was entered, which provided for homebound instruction, followed by home instruction. The order further provided that new psychological evaluations would be performed, and upon their completion and issuance of reports, an IEP meeting would be held. The order contained this final provision: "The Petitioner reserves all rights to future action with respect to any program, placement, and record issues." (emphasis added). By March 28, 2007, the psychological evaluations were completed, the IEP meeting was conducted, and C.G. was readmitted to GCCS.

On June 29, 2007, appellant filed her petition with the Commissioner seeking expungement of C.G.'s records. Appellant moved for partial summary disposition. In its response, GCCS argued that summary disposition in J.G.'s favor was not warranted, and, further, that her petition should be dismissed as untimely.

On November 29, 2007, the ALJ issued his initial decision. On the substantive issues, he concluded that material issues of fact precluded summary disposition. However, relying on N.J.A.C. 6A:3-1.3(i), which requires filing of a petition "no later than the 90th day from the date of receipt of the notice of a final order, ruling or other action by the district board of education," he found the petition untimely. He noted that appellant received a complete copy of C.G.'s file on July 19, 2006, and that on August 21, 2006, appellant wrote to GCCS acknowledging receipt of notice of its decision not to remove certain documents from C.G.'s file. Accordingly, the ALJ concluded that J.G. should have filed her petition for expungement within ninety days of August 21, 2006. He ordered that the expungement petition be dismissed.

J.G. filed an administrative appeal with the Commissioner. In her exceptions to the ALJ's initial decision, she referred to the October 4, 2006 consent order and stated: "The parties subsequently agreed to, and caused to have entered, a Consent Order which, among other things, preserved the records issue for future consideration." J.G. argued that the ninety-day clock never began running against her because there was never any formal notice of decision issued denying her request to expunge the records. She further argued that even if the clock began running, the time was indefinitely tolled by virtue of the October 4, 2006 consent order.

The Commissioner rejected J.G.'s arguments. After outlining the sequence of events leading up to the October 4, 2006 consent order, she stated:

The Commissioner finds that it is not unreasonable to regard the limitations period as having been consensually extended for the time period required for the terms of the "Consent Order" to be effectuated. However, the facts show that those terms - i.e., completion of evaluations and the scheduling of an IEP meeting - appear to have been accomplished before March 28, 2007, when C.G. returned to school. Thus, even if the Commissioner deemed the appeal deadline to have been deferred until after the agreed upon evaluations were completed and an IEP meeting was held, the petition was still not timely filed.

The Commissioner concluded:

The general language in the last paragraph of the Consent Order cannot serve as a proper basis upon which to indefinitely defer the filing before the Commissioner of petitioner's claims. Accordingly, the Commissioner denies petitioner's motion for partial summary decision and dismisses the petition for untimeliness.

The Commissioner entered her final order on January 11, 2008 dismissing J.G.'s petition. This appeal followed.

Our role in reviewing an agency decision is very limited. In re Taylor, 158 N.J. 644, 656 (1999). We will defer to such a decision unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. Id. at 656-57. We must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will not substitute our independent judgment for that of an agency because of any difference of opinion we may have with the persuasiveness of the evidence. First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967). We will intervene only if the agency's findings are clearly mistaken and so plainly unwarranted that the interests of justice demand our intervention and correction. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001).

Further, we attribute substantial discretion to the administrative agency's expertise in its field. Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 469 (1985). We therefore attribute great weight to the interpretation of legislation by an administrative agency to which its enforcement is entrusted. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 69-70 (1978). The agency interpretation of a statute should prevail "so long as it is not plainly unreasonable." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984).

Applying these standards, we reject appellant's arguments. The ninety-day time period prescribed in N.J.A.C. 6A:3-1.3(i) has gained judicial sanction. Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 582-83 (1993). The factual finding by the ALJ, adopted by the Commissioner, that GCCS informed J.G. of its decision denying her request to expunge records prior to August 21, 2006 is supported by the record evidence. In analyzing the timeliness issue further, the Commissioner, at least for purposes of analysis, gave J.G. the benefit of any doubt in finding that it was reasonable to conclude that the time for appealing the decision not to expunge the records was tolled by the October 4, 2006 consent order. However, the Commissioner's interpretation of that order in the context of this factual complex and the ninety-day limitation period, led her to the ultimate conclusion that, even giving J.G. the benefit of that analysis, her petition, filed on June 29, 2007, remained untimely. In doing this analysis, the Commissioner rejected the notion, advanced by J.G., that the October 4, 2006 consent order indefinitely tolled the time limitation and, for all practical purposes, eliminated any time constraints. This was a rational and reasonable interpretation and conclusion, which we have no occasion to disturb.

Appellant's remaining arguments are (1) that the contents of the synopsis of the Commissioner's final decision undermine any deference ordinarily owed to her findings, (2) that GCCS and the Commissioner violated J.G.'s due process rights by failing to follow procedures for requesting, deciding and providing notice of any decision in an expungement matter, and (3) that we should reach the substantive merits and reverse the order denying J.G.'s summary disposition. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Kaprow construed the application of N.J.A.C. 6:24-1.2(c), which required that a petition challenging "a final order, ruling or other action by the district board of education" be filed no later than ninety days from the date of receiving notice of the action. Id. at 575-76. Chapter 24 was readopted as R.2000 d.137, effective April 3, 2000, and recodified as N.J.A.C. 6A:3, which includes the ninety-day petition timeline as N.J.A.C. 6A:3-1.3(i).

(continued)

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10

A-6057-07T2

RECORD IMPOUNDED

 

May 15, 2009