BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY MIDDLESEX COUNTY v. NEW JERSEY DEPARTMENT OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1916-10T4

BOARD OF EDUCATION OF

THE TOWNSHIP OF PISCATAWAY,

MIDDLESEX COUNTY,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

EDUCATION, OFFICE OF SCHOOL

FUNDING, AND BOARD OF EDUCATION

OF THE BOROUGH OF DUNELLEN,

MIDDLESEX COUNTY,

Respondents-Respondents.

_______________________________________

April 19, 2012

Argued September 27, 2011 - Decided

Before Judges Reisner, Simonelli and Hayden.

On appeal from the New Jersey Department of Education, Docket No. 39-3/10.

David B. Rubin argued the cause for appellant.

Marc H. Zitomer argued the cause for respondent Board of Education of the Borough of Dunellen (Schenck, Price, Smith & King, L.L.P., attorneys; Mr. Zitomer, of counsel and on the brief).

ChristopherT. Huber,Deputy Attorney General, argued the cause for respondent New Jersey Department of Education (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Bryant Lawrence Horsley, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Piscataway, the Board of Education of the Township of Piscataway (Piscataway), appeals from the November 8, 2010 final decision of the Commissioner of Education that Piscataway is responsible for the educational costs of pupil B.S. at a residential facility in Pennsylvania for the entire 2007-2008 school year. Piscataway contends that the Commissioner's interpretation of the State Facilities Education Act of 1979 (SFEA), N.J.S.A. 18A:7B-1 to -13, that the district of residence for a child the State places in a State facility remains the same for the entire school year, is inconsistent with both the statutory language and the "bedrock" educational principle that children must be educated by the district in which they are domiciled. Respondents New Jersey Department of Education (NJDOE) and the Board of Education of the Borough of Dunellen (Dunellen) argue that the language of the SFEA and its implementing regulations, read in pari materia, clearly require that the district of residence for a State-placed child be determined for the entire academic year at one point in time. Because in the context of the statutory scheme of the SFEA, we find that the Commissioner's interpretation of the statute and implementing regulation is reasonable, we affirm.

I.

The facts giving rise to this controversy are not in dispute. A.J., the mother of B.S., lived in Piscataway on September 27, 2007, when the New Jersey Department of Children and Families placed B.S. in an out-of-state educational facility. Sometime in November 2007, A.J. moved to Dunellen without notifying Piscataway. This dispute arose after Director of the NJDOE Office of School Funding (OSF) determined that Piscataway was B.S.'s district of residence for the 2007-2008 academic year and Dunellen was his district of residence for the following academic year "in accordance with N.J.S.A. 18A:7B-12, N.J.A.C. 6A:23-5.21, N.J.A.C. 6A:23-5.3."

On December 21, 2009, Piscataway notified the NJDOE of its intent to appeal the Director's determination, arguing that it was only financially responsible for the cost of B.S.'s education until A.J. moved to Dunellen in November 2007. The Director responded as follows:

The [OSF] only makes district of residence determinations when requested to do so by the Department of Children and Families because there is a dispute as to which school district, if any, is responsible for the educational costs of a child that is placed by a state agency. The determinations by our office are for an entire academic year. If the child's parent or guardian moves to another school district during that year, then the district originally made responsible for the child's educational costs must work with the new district to have the child registered in the new school district. Otherwise, the original determination remains in effect for the entire academic year.

Piscataway filed an appeal, which the Commissioner transferred to the Office of Administrative Law (OAL) on April 19, 2010. The Director of the OSF filed a certification affirming that "[c]onsistent with the statutory and regulatory scheme, the NJDOE-OSF makes only one district of residency determination based on one point in time that remains in effect for the entire year. See N.J.S.A. 18A:7B-12(b); N.J.A.C. 6A:23A-19.2(a)." All parties agreed that no material facts were in dispute and the matter was appropriate for summary decision. On October 4, 2010, the Administrative Law Judge (ALJ) issued a written decision upholding the OSF's residency determination. She reasoned:

While N.J.S.A. 18A:38-1 governs the education of typical children, a separate statutory enactment, N.J.S.A. 18A:7B-1 [to -13], specifically governs the education of children who have been placed residentially by State agencies. The [SFEA] and the regulations that interpret it, make it clear that for this latter group of children, a determination of residence is made only once annually. . . . These enactments clearly and unequivocally set a point in time, the date of placement, as determinative for the initial residency determination, and go on to provide that the parent's domicile as of the last school day prior to October 16 will be determinative "[i]n subsequent school years." N.J.A.C. 6A:23A-19.2(a)(2).

On November 8, 2010, the Commissioner adopted the ALJ's initial decision. This appeal followed.

II.

We begin with a review of well-settled principles governing this case. Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "We accord a strong presumption of reasonableness to such decisions and do not substitute our judgment for the wisdom of agency action if the action is statutorily authorized and not arbitrary and unreasonable." A.M.S. ex rel A.D.S. v. Bd. of Educ. of City of Margate, 409 N.J. Super. 149, 159 (App. Div. 2009). As long as an agency decision is contemplated under its enabling legislation, the action must be accorded a presumption of validity and regularity. Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 485 (2006).

However, we are not bound by the agency's statutory interpretations "because it is the responsibility of a reviewing court to ensure that an agency's administrative actions do not exceed its legislatively conferred powers." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). Nonetheless, we must give "substantial deference" to an agency's interpretation of a statute it is charged with enforcing. Id. at 423 (quoting St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005)).

The issue raised in this appeal concerns the reasonableness of the Commissioner's interpretation of the SFEA and its implementing regulations. We begin with a brief overview of the statutory scheme at issue here. In proposing to readopt and amend N.J.A.C. 6A:17, which pertains to "Education for Homeless Children and Children in State Facilities," the NJDOE described the purpose of the SFEA:

The State Facilities Education Act (SFEA) of 1979 (N.J.S.A. 18A:7B-1 et seq.) was enacted for the purpose of providing a through and efficient education to all eligible students in State facilities. The law established a funding mechanism that assessed the district board of education tuition costs of children served by the Department of . . . Human Services . . . Juvenile Justice Commission [and Department of Children and Families]. . . . These three State agencies serve thousands of New Jersey public school students on an annual basis. They are referred through the courts and social service provider agencies as well as through public schools. These specialized settings by their very nature are required to operate on a year round basis with specific limits on class size, as each enrolls and may discharge students with disparate educational abilities at any point in the school year . . . . In 1996, the adoption of N.J.S.A. 18A:7F-1 to -63, the Comprehensive Educational Improvement Financing Act (CEIFA), reaffirmed the Department's responsibility for oversight of these programs. . . . Under CEIFA, the funding formula was changed from a categorical aid-based process to an annual cost per pupil basis.

[ 38 N.J.R. 5217(a) (April 11, 2007).]

State facilities are defined in the SFEA implementing regulations as "residential and day programs operated by or contracted with the Department of Human Services, the Department of Corrections, the Department of Children and Families or the Juvenile Justice Commission." N.J.A.C. 6A:17-3.2.

Under the SFEA, the Commissioner of Education is charged with oversight of the educational programs in the State facilities, N.J.S.A. 18A:7B-5, empowered to make regulations to effectuate the Act, ibid., and required to report annually to the Legislature concerning the efforts made by the state agencies to provide a thorough and efficient education in those facilities, N.J.S.A. 18A:7B-13.

The Legislature also established a funding mechanism for these facilities:

For each State-placed child who is resident in a district and in a State facility on the last school day prior to October 16 of the prebudget year . . . the Commissioner of Education shall deduct from the State aid payable to that district an amount equal to the approved per pupil cost established pursuant to the provisions of [N.J.S.A. 18A:7F-24].

[N.J.S.A. 18A:7B-2a.]

The amount deducted is forwarded directly to the agency placing the child to be used solely for the purpose of supporting educational programs. N.J.S.A. 18A:7B-2c.

To determine districts of residence for children in State facilities, N.J.S.A. 18A:7B-12(b) provides in pertinent part:

The district of residence for children who are in . . . out-of state facilities, shall be the present district of residence of the parent or guardian with whom the child lived prior to his most recent admission to a State facility or most recent placement by a State agency.

N.J.A.C. 6A:23A-19.2, which establishes a specific method of determining the district of residence for school funding purposes, provides that the present district of residence "referred to in the first paragraph of N.J.S.A. 18A:7B-12b means the New Jersey district of residence of the child's parent(s) or guardian(s) as of the last school day prior to October 16," N.J.A.C. 6A:23A-19.2(a)1, or the district of residence "as of the date of the most recent placement," N.J.A.C. 6A:23A-19.2(a)2.

In this appeal, Piscataway argues that the Commissioner erred in finding that it was the district of residence for the entire 2007-2008 academic year. First, Piscataway contends that the plain language of N.J.S.A. 18A:7B-12b, by referring to the "present" district of residence of the parent, clearly places responsibility for educational costs on the parent's current district of residence at any time. Hence, Piscataway argues, the plain language of the statute standing alone does not support a yearly determination but requires a redetermination of responsibility for educational costs with every change in residence. Piscataway also submits that, despite this clear requirement in N.J.S.A. 18A:7B-12b, the "loose draftsmanship" of N.J.A.C. 6A:23A-19.2 mistakenly links "present" district to the last school day before October 16 of each year, thereby wrongly assigning responsibility, if a parent has changed districts, to the parent's "prior" district. Moreover, Piscataway submits, nothing in the Act or the regulation prevents the present district from changing after it is set on October 16 of each year.

When we interpret statutes, the ultimate goal is to give effect to legislative intent. TAC Assocs. v. N.J. Dep't of Env. Protection, 202 N.J. 533, 540 (2010); Bosland v. Warnock Dodge, 197 N.J. 543, 554 (2009). First, we must look to the plain meaning of the statute to discern the Legislature's intent. Praxair v. Div. of Taxation, 201 N.J. 126, 136 (2009); Marino v. Marino, 200 N.J. 315, 329 (2009). If the text is susceptible to different interpretations, the court considers extrinsic factors to determine the legislative intent. Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J.251, 264 (2008); Wingate v. Estate of Ryan, 149 N.J. 227, 236 (1997). Again, in the context of statutory interpretation, we will give substantial deference to the interpretation of an agency empowered to enforce the statute or regulation at issue. Matturri v. Bd. of Trs., Judicial Ret. Sys., 173 N.J.368, 381 (2002).

Arguably, the language in N.J.S.A.18A:7B-12(b), that "present district of residence of the parent or guardian with whom the child lived prior to his most recent admission to a State facility," is capable of yielding more than one interpretation. It could refer, as respondents argue, to a specific point in time, i.e., the "present" residence at the time of placement or last school day before October 16. On the other hand, as Piscataway argues, it could mean varying points in time, i.e., the current district of residence where the parent lived any time during the school year.

Due to this lack of clarity in the statute, we can look to the meaning ascribed to a statute by the agency responsible for its implementation, including in its implementing regulations. SeeTAC Assocs., supra, 202 N.J.at 541 (citing Matturri, supra, 173 N.J.at 382). We are mindful that in the context of regulations interpreting statutes, we should make every effort to harmonize the regulation and the statute when possible. Lacy, supra, 185 N.J. at 14. We are satisfied that, reading the SFEA and the applicable regulation together, any uncertainty in the SFEA is clarified by N.J.A.C. 6A:23A-19.2, which establishes the "present district of residence" as the date of a child's placement for the first school year or the last school day before October 16 for subsequent years. Further, that interpretation is consistent with the funding scheme the SFEA creates, which determines a deduction in State aid to the child s present district of residence as of October 16. See N.J.S.A. 18A:7B-2a. Thus, we agree with the Commissioner that the plain language of the SFEA and its regulation clearly and unequivocally specify a point in time as determinative of residence for the entire year. We find no merit to Piscataway's claim that the Director of OSF's suggestion, that Piscataway and Dunellen could work out an informal arrangement to shift responsibility for B.S's educational cost, alters the plain language of the regulation.

Next, Piscataway argues that the Commissioner's decision turns well-established principles of domicile and enrollment on their head. Piscataway maintains that any enactment setting one yearly district of residence for these children is contrary to N.J.S.A. 18A:38-1, which makes the district where a child is domiciled responsible for the education of the child. In support of this argument, Piscataway relies on Roxbury Bd. Of Ed. v. West Milford Bd. Of Ed., 283 N.J. Super. 505 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). In that case, which concerned a child placed in an out-of-state facility by the school district, we held that the district where the custodial parent moved during the year was responsible for educational costs. However, the case provides no support whatsoever for Piscataway's position as we also held that, because the placement in question was not a state placement, the SFEA did not apply. Id. at 514.

We must read statutes dealing with the same subject matter in pari materia and construe them together as a "unitary and harmonious whole." Lacy, supra, 185 N.J. at 14-15 (quoting In re Adoption of a Child by W.P. and M.P., 163 N.J. 158, 182-83 (2000)). Contrary to Piscataway's contention, we do not perceive any conflict between N.J.S.A. 18A:38-1, the general statute controlling the responsibility of districts to educate children domiciled in their districts, and the SFEA, a statute addressing a distinct group of students whose education is being handled directly by the State "in specialized settings [which] . . . are required to operate on a year round basis with specific limits on class size." 38 N.J.R. 5217(a). Furthermore, even if there were any inconsistency between N.J.S.A. 18A:38-1 and the SFEA, we are mindful that "[w]here there is any conflict between a general and specific statute covering a subject in a more minute and definite way the latter will prevail over the former." Vicoa v. Dir., Div. of Taxation, 166 N.J. Super. 496, 502 (App. Div. 1979) (quoting Hackensack Water Co. v. Tax Appeals Div., 2 N.J. 157, 165 (1949)).

We agree with respondents that, in order to address the needs of a small defined group of children, the SFEA created a distinct statutory scheme. The Legislature and the agency charged with overseeing the legislation determined this scheme to be reasonable. Further, we note that N.J.A.C. 6A:23A and its predecessor, N.J.A.C. 6A:23, were in effect since at least 2002, see 36 N.J.R. 1313(a), without intervention from the Legislature. We can infer from that lack of intervention that the Legislature acquiesced in NJDOE's longstanding interpretation of the "present" district of residence. TAC Assocs., supra, 202 N.J. at 545. Piscataway has failed to identify any concrete manner in which this interpretation was arbitrary, capricious, unreasonable or failed to further the purpose of the SFEA, which is to provide children placed by the State in state facilities with a thorough and efficient education.

Given the deference to the agency we are required to afford, we are satisfied that the Commissioner's construction of the statute and regulation is reasonable in the context of the SFEA statutory scheme. Accordingly, we affirm the decision of the Commissioner determining that Piscataway was B.S.'s district of residence for the 2007-2008 academic year.

Affirmed.

1 During the 2007-2008 academic year, the controlling regulation was N.J.A.C. 6A:23-5.2, which was amended and recodified as N.J.A.C. 6A:23A-19.2 in 2009, but the pertinent language remained unchanged. We will refer to the current regulation in this opinion.