BOARD OF EDUCATION OF THE BOROUGH OF TINTON FALLS v. BOARD OF EDUCATION OF THE TOWNSHIP OF COLTS NECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1908-11T1

BOARD OF EDUCATION OF THE

BOROUGH OF TINTON FALLS,

MONMOUTH COUNTY,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

TOWNSHIP OF COLTS NECK,

MONMOUTH COUNTY,

Respondent-Respondent,

and

BOARD OF EDUCATION OF THE

MONMOUTH REGIONAL HIGH SCHOOL

DISTRICT, MONMOUTH COUNTY,

Petitioner-Intervenor,

and

BOARD OF EDUCATION OF THE

FREEHOLD REGIONAL HIGH SCHOOL

DISTRICT, MONMOUTH COUNTY,

Respondent-Intervenor-Respondent.

______________________________________

October 22, 2012

Argued September 27, 2012 - Decided

Before Judges Simonelli and Accurso.

On appeal from the New Jersey Commissioner of Education, Docket No. 165-6/08.

Martin M. Barger argued the cause for appellant (The Reussille Law Firm, LLC, attorneys; Mr. Barger, on the brief).

Cherie L. Adams argued the cause for respondent, Board of Education of the Township of Colts Neck (Adams, Stern, Gutierrez & Lattiboudere, LLC, attorneys; Ms. Adams, of counsel and on the brief).

Andrew W. Li argued the cause for respondent, Board of Education of the Freehold Regional High School District (Schwartz, Simon, Edelstein & Celso, attorneys; Mr. Li, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent, Commissioner of Education (Diana C. Sierotowicz, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The Board of Education of the Borough of Tinton Falls (Tinton Falls) appeals the final decision of the Commissioner of Education (Commissioner), adopting an initial decision of Administrative Law Judge (ALJ) Ana Viscomi, rejecting Tinton Falls's request for declaratory judgment that Tinton Falls is responsible for educating only those children of Navy personnel residing at Naval Weapons Station Earle (NWS Earle). Because N.J.S.A. 18A:38-7.8 does not limit Tinton Falls's obligation to only Navy dependants but requires the district to educate all children residing at NWS Earle, we affirm.

The facts before the ALJ were essentially undisputed. NWS Earle straddles the school districts of Tinton Falls and Colts Neck. In the mid-1980s, the Department of the Navy (Navy) began "homeporting" additional naval ships at NWS Earle creating the need for an additional 500 units of military housing. Respondent Board of Education of the Township of Colts Neck (Colts Neck) objected to the expansion, and, in 1987, brought suit in federal court seeking to enjoin construction. The federal district court entered a preliminary injunction against the Navy. The Navy then turned to Tinton Falls. After Tinton Falls expressed its willingness to accommodate the additional Navy children expected to reside at NWS Earle, the Navy settled the federal action filed by Colts Neck. The Settlement Agreement (Agreement) noted that legislation had been introduced providing "that Navy dependents living in the Colts Neck section of Earle may be educated in a different school district" if the receiving school district's board of education passed "a resolution indicating [its] desire to receive the Navy dependents" and the County Superintendent of Schools designated the district "to receive the Navy dependents." The Agreement also noted that Tinton Falls had expressed its desire "to receive . . . Navy dependents living in the Colts Neck Section of Earle" and "to adopt a resolution to that effect," and that the Navy "agreed to provide funding for the temporary facilities to accommodate the arrival of Navy dependent children in the Tinton Falls system."

On February 8, 1988, a bill was introduced in the New Jersey Assembly, which was ultimately approved and signed into law on April 7, 1988, as "An Act concerning the education of persons of school age who reside on certain federal property and supplementing chapter 38 of Title 18A of the New Jersey Statutes." L. 1988, c. 12. The text of the legislation provides:

a. After July 1, 1988, persons of school age who reside on federal property which is located entirely within the geographic boundaries of two or more school districts, one of which is a constituent district of a limited purpose regional district with more than six constituent districts in a county of the fifth class shall be deemed to be domiciled in a district to be designated by the county superintendent of schools. These persons shall attend the schools of the designated district and the designated district shall count these pupils in the resident enrollment of the district for all State aid and all federal funds provided under Pub. L. [No.] 81-874, 20 U.S.C. 236 et seq.

b. The designated district shall be a district that contains within its boundaries a portion of the federal property on which the pupils reside. Not later than 10 days after the effective date of this act, the board of education of any school district that seeks to be designated by the county superintendent of schools pursuant to this section shall adopt a resolution by majority vote of its members indicating its interest and the resolution shall be forwarded to the county superintendent. Based on a determination of the best interests of the pupils residing on federal property and pupils residing in the districts seeking designation, the county superintendent shall, within 30 days of the effective date of this act, certify to the Commissioner of Education which local school district, if any, shall be the designated district. Once the county superintendent has certified the designated district, the county superintendent may not revoke or alter that certification. In the event that no board of education adopts a resolution indicating an interest in being designated pursuant to this section, the county superintendent shall not designate a district and the pupils residing on the federal property shall attend the schools of the district in which they reside.

c. Notwithstanding the provisions of this section, those pupils residing on federal property prior to October 1, 1987 shall be permitted at the option of each pupil to continue in the school they were attending on September 30, 1987 until graduation from the school. For the purpose of calculating State and federal aid, each pupil who elects to remain shall continue to be included in the resident enrollment of the district in which they reside.

[N.J.S.A. 18A:38-7.8.]

After the statute was enacted, Tinton Falls unanimously adopted a cross-districting plan resolution on April 11, 1988, directing the superintendent of Tinton Falls to apply to the county superintendent to assign the "children of all Naval personnel at Earle" to Tinton Falls. The request was made, and Tinton Falls was designated as the "district to receive pupils residing on the federal property known as NWS Earle."

The Navy and Tinton Falls entered into a Memorandum of Agreement on June 16, 1988 (MOA), noting that legislation had been recently enacted allowing "Navy dependent children residing on NWS Earle to attend Tinton Falls Schools," and that Tinton Falls was designated as the school district "required by the laws of the State of New Jersey to provide free public education to the children residing on NWS Earle." The MOA addressed the education of the additional students, installation of temporary classrooms, and funding to be provided by the Navy. Once the construction was complete, the Navy began to occupy the new housing units.

Several years later, in 1994, Tinton Falls began to question both the wisdom of its earlier cross-districting plan resolution and the legality of the district's designation under N.J.S.A. 18A:38-7.8. Tinton Falls was concerned about the presence of non-Navy military personnel residing at NWS Earle, and questioned its obligation to educate the children of non-Navy children residing there. In the years that followed, Tinton Falls pursued several different strategies designed to ensure that it was obligated to educate only those students of Navy families residing at NWS Earle. Those efforts included the introduction of a bill in the Assembly in 2005 to amend N.J.S.A.18A:38-7.8 to clarify the statutory language that "persons of school age" specifically referred to only those who "are the dependents of military personnel of the United States Navy." No action was taken on the bill.

On December 18, 2006, Tinton Falls adopted a resolution that "only Navy dependent children residing at NWS Earle shall be permitted to attend Tinton Falls Schools," and noting that the education of "non-Navy dependent children was never contemplated in [the MOA]." The Monmouth County Superintendent responded with a determination letter on January 17, 2007, stating that the "Tinton Falls School District was designated as the district to receive students residing on federal property" and that the language of N.J.S.A.18A:38-7.8 clarifies that Tinton Falls would be the district "responsible for children of branches of the armed forces other than the Navy."

Although the number of Naval personnel assigned to NWS Earle rose significantly after the housing was built in 1994, eventually rising to over 1800 active duty personnel, those numbers declined significantly during the last decade as the Navy drew down its force at the weapons station. Tinton Falls claimed that it was shocked to learn in February 2007, that the Navy intended to turn over some of the now-vacant housing for lease to non-military personnel whose children would attend school in Tinton Falls. The Navy proceeded with its plans to allow civilians to reside at NWS Earle in 2008.

Tinton Falls filed its petition for declaratory relief on June 9, 2008, and the matter was transmitted to the Office of Administrative Law as a contested case for initial disposition. The Board of Education of the Monmouth Regional High School District and the Board of Education of the Freehold Regional High School District, the receiving districts for Tinton Falls and Colts Neck, respectively, were granted leave to intervene on the side of their respective sending district. All parties filed cross-motions for summary disposition.

ALJ Viscomi determined the "[t]he language of N.J.S.A. 18A:38-7.8 simply and plainly reads that once a district is appropriately designated, it shall be the district of domicile for 'persons of school age who reside on federal property' partly located in that district[,]" and, "[t]herefore, once Tinton Falls became the designated district under N.J.S.A. 18A:38-7.8 for NWS Earle, it became the district of domicile for all children residing on NWS Earle." The ALJ rejected the notion that the clear and unambiguous language of the statute could be read to suggest that Tinton Falls's obligation was limited to educating only a subset of the school-aged children residing at NWS Earle. She further found that the statute was consistent with the legislative purpose of ensuring that a free public education is provided to "all persons of school age who reside on federal property located within [the] state," pursuant to N.J.S.A. 18A:38-7.7, and that there was no evidence in the legislative history limiting the children to be educated to only those of Navy or other military personnel.

ALJ Viscomi acknowledged that undisputed evidence in the record made plain that Tinton Falls intended to be designated as the district to educate only the Navy-dependent children residing at NWS Earle. She found, however, that the plain language of the statute demonstrates that the designation would be "beyond the scope that Tinton Falls's intended," and that a review of the legislative history, while likewise demonstrating that the Legislature "created and passed the legislation with Tinton Falls and the future NWS Earle children in mind," does not support "that the designation made pursuant to N.J.S.A. 18A:38-7.8 was one for the education of Navy-dependent children only." Accordingly, she concluded that because the plain reading of N.J.S.A. 18A:38-7.8 would not lead to an absurd result and was sensible when read in the context of the rest of the statute, the interpretation Tinton Falls suggested, limiting the children in question to only those of Navy personnel, was without basis.

The Commissioner adopted ALJ Viscomi's Initial Decision as the final decision in the matter on November 17, 2011. This appeal followed.

Our review of administrative agency actions is limited. In re Herrmann, 192 N.J. 19, 27 (2007). We will not upset an agency's final quasi-judicial decision absent a "clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. "In construing the meaning of a statute, our review is de novo." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).

Here, we are satisfied that ALJ Viscomi and the Commissioner are correct that the language of N.J.S.A. 18A:38-7.8 is clear and unambiguous, and thus once Tinton Falls became designated under that provision, it became obligated to provide a free public education to all school age children residing on NWS Earle, regardless of any intent Tinton Falls might have harbored to limit its responsibility to Navy dependents. Any

relief to be afforded to Tinton Falls must come from the

Legislature and not from the Commissioner or the courts.

Affirmed.