BOARD OF EDUCATION OF THE BOROUGH OF MAGNOLIA, CAMDEN COUNTY v. BOARD OF EDUCATION OF THE TOWNSHIP OF DEPTFORD GLOUCESTER COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4942-08T34942-08T3

BOARD OF EDUCATION OF THE

BOROUGH OF MAGNOLIA, CAMDEN

COUNTY,

Petitioner-Respondent,

v.

BOARD OF EDUCATION OF

THE TOWNSHIP OF DEPTFORD,

GLOUCESTER COUNTY,

Respondent-Appellant,

and

A.D. and T.D.

ON BEHALF OF MINOR CHILDREN,

C.V., H.L., J.D., J.D., and C.D.,

Respondents.

and

BOARD OF EDUCATION OF THE

TOWNSHIP OF DEPTFORD,

GLOUCESTER COUNTY,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF EDUCATION,

OFFICE OF SCHOOL FUNDING, BOARD

OF EDUCATION OF THE BOROUGH OF

MAGNOLIA, CAMDEN COUNTY, and

BOARD OF EDUCATION OF THE TOWNSHIP

OF MOORESTOWN, BURLINGTON COUNTY,

Respondents-Respondents.

___________________________________

 

Argued February 9, 2010 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from the New Jersey Department of Education, Commissioner of Education, Nos. 439-11/06 and 246-8/07.

Kelly Estevam argued the cause for appellant Board of Education of the Township of Deptford, Gloucester County (Capehart & Scatchard, P.A., attorneys; Joseph Betley and Ms. Estevam, on the brief).

Jane B. Capasso argued the cause for respondent Board of Education of the Borough of Magnolia, Camden County (Lipman, Antonelli, Batt, Gilson, Malestein, Rothman & Capasso, attorneys; Ms. Capasso, on the brief).

Kimberly A. Sukinik argued the cause for respondent Board of Education of the Township of Moorestown, Burlington County (Comegno Law Group, P.C., attorneys; Arthur F. Risden and Ms. Sukinik, on the brief).

Paula T. Dow, Acting Attorney General, attorney for respondent New Jersey Commissioner of Education (Jennifer L. Campbell, Deputy Attorney General, on the statement in lieu of brief).

Respondents A.D. and T.D. on behalf of the minor children have not filed a brief.

PER CURIAM

This appeal concerns the homelessness status of the D. family's children and the New Jersey Department of Education's (Department) apportionment of the children's educational expenses among three local boards of education: the Board of Education of the Borough of Magnolia, Camden County (Magnolia); the Board of Education of Deptford Township, Gloucester County (Deptford); and the Board of Education of Moorestown Township, Burlington County (Moorestown). Appellant Deptford appeals from that part of the May 5, 2009 final decision of the Commissioner of Education, determining that effective January 5, 2005, Deptford became the district of residence for the D. children "and, as such, was and continues to be responsible for providing them with a free public education from that point until such time as the family establishes a fixed residence in another school district." We affirm.

In 2003, A.D. and his wife, T.D., resided with their children in a single-family home in the Borough of Magnolia. While there, five of their children attended schools operated by Magnolia. On an unspecified date in the winter of 2003, the family became homeless. For the next several months, the Camden County Board of Social Services placed the family in a succession of motels.

In February 2004, the D. Family, with the assistance of Social Services, rented a home from Mr. D's uncle in Moorestown Township, Burlington County, and their children enrolled in Moorestown's schools. In the fall of 2004, because of the need to return to his own home, Mr. D.'s uncle filed eviction proceedings against the D. Family. The uncle evicted the D. family in December of that year, relegating the family again to living in motels with the assistance of social service agencies.

On January 5, 2005, a real property developer, having read of the D. family's plight in a local newspaper, permitted the family to occupy one of his vacant homes in Deptford Township, Gloucester County, advising the family they could stay there as long as needed. On moving into the home, the D. children enrolled in Deptford's schools.

On January 11, 2005, contending that the D. family was homeless, Deptford made a demand upon Moorestown as the school district of origin to be reimbursed for the cost of the children's educations. Moorestown complied and reimbursed Deptford, not only for the balance of the 2005 school year tuition costs, but also for the educational costs for the 2005-2006 school year.

On May 1, 2006, Moorestown, contending that Magnolia was the school district of origin, demanded that Deptford seek reimbursement for the children's educational costs from Magnolia. Because a conflict existed among the three boards of education concerning which board was responsible for the costs of the children's educations, Deptford requested that the Burlington, Camden and Gloucester County Offices of Education intervene in the dispute.

On August 31, 2006, H. Mark Stanwood, the Gloucester County Superintendent of Schools, issued a collaborative determination on behalf of the three County Superintendents regarding the homeless status and district of origin for the children. In that letter, the three Superintendents determined that the children's district of origin was Magnolia, and that the family remained homeless as it had not established a permanent residence. Accordingly, the three Superintendents "determined that Magnolia continues to be the district responsible for the provision of educational services to these children under the revisions of N.J.A.C. 6:24-1.1 [et seq.]."

On November 22, 2006, Magnolia filed an appeal petition with the Commissioner of Education (Agency Dkt. No. 439-11/06) challenging the three Superintendents' determination regarding the children's district of origin and present district of residence, contending that Magnolia was "not the district of origin for the D. Family" and that the "D. Family is domiciled and resides . . . in Deptford."

On November 29, 2006, the Department's Bureau of Controversies and Disputes advised Magnolia that several deficiencies existed in its appeal petition. Specifically, the Bureau explained that disputes "as to a homeless child's district of origin must first be filed with and heard by the Department's Division of Finance," pursuant to N.J.A.C. 6A:23-5.2, before an appeal can be brought before the Commissioner. Additionally, the Bureau explained that regarding the appeal challenging the residential status of the D. Family -- that the family was not then homeless but was domiciled in Deptford Township -- Magnolia needed to name the children's parents rather than the three County Superintendents as respondents in the appeal. Accordingly, the Bureau directed Magnolia to file an amended petition of appeal if it intended to proceed.

On December 14, 2006, Magnolia filed an appeal with the Division of Finance, Office of School Funding, from the August 31, 2006 decision of the three Superintendents' determining that Magnolia was the district of origin for the D. children. On the same day, Magnolia filed an amended petition of appeal with the Bureau of Controversies and Disputes, seeking a determination that the D. Family was not homeless, but rather resided in Deptford Township.

On February 5, 2007, Deptford filed an answer to the amended appeal petition, together with a counterclaim, not only contending that Magnolia was the district of origin for the D. children, but also demanding reimbursement from Magnolia for the children's educational costs for the 2005-2006 and 2006-2007 school years. The Commissioner transferred Magnolia's appeal to the Office of Administrative Law (OAL) as a contested case.

On May 21, 2007, Deptford filed a third-party petition against Moorestown seeking reimbursement for the D. children's educational expenses. On June 11, 2007, Moorestown filed an answer and counterclaim seeking reimbursement from Deptford for the educational costs it paid to Deptford when the family moved from Moorestown to Deptford. Moorestown also filed a counterclaim against Magnolia seeking reimbursement for the children's educational costs during their enrollment in the Moorestown district, contending that Magnolia was the district of origin for the children, and Moorestown was merely a temporary placement for the family while the family was homeless.

On August 7, 2007, the Assistant Commissioner of Education, Division of Finance, reversed the Superintendents' August 31, 2006 decision regarding the D. children's district of origin. The Assistant Commissioner determined that: 1) the D. family was homeless when evicted from their home in Magnolia Borough until they moved into a residence in Moorestown Township on February 1, 2004; 2) Magnolia was responsible for the children's education costs until February 1, 2004; 3) the family was temporarily homeless from approximately December 15, 2004 until January 5, 2005, when the family moved into the Deptford Township residence; 4) Moorestown was responsible for the children's educational expenses from February 1, 2004 until January 5, 2005; and 5) Deptford was responsible for the children's educational costs commencing January 5, 2005, and continuing as long as the family resided in Deptford Township.

On August 31, 2007, Deptford appealed that decision to the Commissioner (Agency Dkt. No. 246-8/07). On September 6, 2007, Moorestown filed a cross-appeal. Moorestown also filed a motion to dismiss the petition of appeal in lieu of an answer on September 18, 2007, contending that Magnolia's appeal from the August 31, 2006 Superintendents' decision was untimely, and thus, the Division of Finance's decision of August 7, 2007, was void. Moorestown requested that the August 31, 2006 decision "be deemed the final determination in the matter, and that the Deptford Board's Petition of Appeal be dismissed in its entirety." The motion to dismiss the petition was denied. In May 2008, the parties filed cross-motions for summary decision.

On March 27, 2009, the Administrative Law Judge (ALJ) issued his initial summary decision. The ALJ concluded that Magnolia's appeal to the Division of Finance concerning the district of origin of the D. children should be dismissed as untimely under N.J.A.C. 6A:23-5.2(d) [recodified as N.J.A.C. 6A:23A-19.2(d)]. As such, he upheld the three Superintendents' decision that the children's district of origin was Magnolia, and thus, required Magnolia to reimburse Moorestown and Deptford for the children's educational expenses through January 5, 2005. Further, he concluded that Magnolia's challenge to the Assistant Commissioner's decision regarding the children's homelessness status was "ripe for Summary Decision." The ALJ determined that the children were not homeless as of January 5, 2005, because they had established a fixed residence in Deptford Township on that date.

After review of the record, the Commissioner adopted the decision of the ALJ and issued a final decision on May 5, 2009. The Commissioner declared that: 1) Magnolia's appeal of the Superintendents' August 31, 2006 decision regarding the children's district of origin was untimely and dismissed it; 2) Magnolia was the district of origin for the children until January 5, 2005, making Magnolia responsible for the children's educational costs until that date; and 3) after January 5, 2005, Deptford became the district of residence for the children as they were no longer homeless as of that date.

On appeal, Deptford argues:

POINT I.

THE COMMISSIONER ERRED BY ALLOWING MAGNOLIA BOARD'S CLAIM OF CURRENT RESIDENCY TO BE CONSIDERED AS A SEPARATE ISSUE FROM ITS APPEAL OF THE HOMELESS/DISTRICT OF [ORIGIN] DETERMINATION BY THE COUNTY SUPERINTENDENTS.

POINT II.

AT ALL RELEVANT TIMES, THE D. FAMILY IS AND REMAINS HOMELESS, AND THEREFORE, MAGNOLIA, AS THE DISTRICT OF ORIGIN, IS RESPONSIBLE FOR THE D. CHILDREN'S EDUCATIONAL COSTS.

POINT III.

THE COMMISSIONER ERRED WHEN SHE DETERMINED THAT THE DEPTFORD BOARD IS RESPONSIBLE FOR THE D. CHILDREN'S EDUCATIONAL COSTS AS OF JANUARY 5, 2005.

"In administrative law, the overarching informative principle guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). Accordingly, "an appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Ibid; see also Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9-10 (2009). Thus, "[w]e will reverse an agency decision if it is arbitrary, capricious, or unreasonable or if it is not supported by credible evidence in the record." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003).

Courts "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result." Ibid. Simply stated, "we are obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." Ibid. However, it is equally well settled that an appellate court is not bound by the agency's interpretation of a statute or legal issue. In re Taylor, 158 N.J. 644, 658 (1999).

We have considered each of Deptford's arguments in light of the record and applicable principles of law. We conclude that the Commissioner's decision is correct. Accordingly, we affirm substantially for the reasons expressed by the Commissioner in her May 5, 2009 decision. R. 2:11-3(e)(1)(D).

 
Affirmed.

In its opposition brief, Magnolia challenges that part of the final decision dismissing its appeal from the August 31, 2006 decision of three County Superintendents of Schools that determined that Magnolia was the district of origin during the D. family's period of homelessness from when the family left the Magnolia school district in 2003 to January 5, 2005, when the family relocated to Deptford Township. However, Magnolia did not file an appeal from the May 5, 2005 final decision. Accordingly, the issue concerning the dismissal of Magnolia's appeal from the August 31, 2006 decision of the County Superintendents of Schools is not properly before us. State v. Elkwisini, 190 N.J. 169, 175 (2007).

N.J.A.C. 6A:17-2.2 defines a "homeless child" as "a child or youth who lacks a fixed, regular and adequate residence, pursuant to N.J.S.A. 18A:7B-12 and N.J.A.C. 6A:17-2.3." N.J.S.A. 18A:7B-12 provides in part:

The district of residence for children whose parent or guardian temporarily moves from one school district to another as the result of being homeless shall be the district in which the parent or guardian last resided prior to becoming homeless. For the purpose of this amendatory and supplementary act, "homeless" shall mean an individual who temporarily lacks a fixed, regular and adequate residence.

[N.J.S.A. 18A:7B-12c.]

N.J.A.C. 6A:17-2.2 defines the "school district of origin" as "the school district in which the parent last resided prior to [the child] becoming homeless."

Noting that the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6, do not recognize third-party practice, the ALJ determined that Deptford's third-party petition, Moorestown's answer and counterclaim, and Deptford's answer to the counterclaim were improperly accepted and filed as supplemental pleadings in the action. However, because Moorestown did not object to the third-party petition and the ALJ was recommending that all claims against Moorestown be dismissed, he determined that no corrective measures needed to be taken.

Although the ALJ never consolidated Magnolia's appeal and Deptford's appeal by order, he did consider the summary decisions simultaneously and issued a single opinion under the consolidated caption.

(continued)

(continued)

13

A-4942-08T3

June 28, 2010