PISCATAWAY TOWNSHIP BOARD OF EDUCATION v. A.V.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PISCATAWAY TOWNSHIP BOARD OF

EDUCATION,

Plaintiff-Respondent,

v.

A.V. and S.S.1,

Defendants-Appellants.

____________________________________________

June 11, 2015

Before Judges Messano and Tassini.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6170-11.

Ralph Gerstein argued the cause for appellants.

David B. Rubin argued the cause for respondent.

PER CURIAM

This case involves issues "arising under the school laws." N.J.S.A. 18A:6-9. Plaintiff Piscataway Board of Education (the BOE) alleges that, for several months during the 2010-11 school year, defendants A.V. and S.S. were "not domiciled within [its] school district," but that their children attended its schools. The BOE claims that defendants owe tuition for the period of their children's "ineligible attendance" in its schools. N.J.S.A. 18A:38-(b)(2). The BOE filed a complaint in the Law Division where, after a bench trial, in which the BOE had counsel and defendants were pro se, judgment was entered against defendants in the amount of $21,480. Defendants, now with counsel, appeal.

The issues of domicile and tuition, if due, are intertwined. The amount of the judgment was not adequately supported and addressed below. Accordingly, we reverse, remand to the Law Division to vacate the judgment, and transfer the matter to the commissioner, who has "jurisdiction to hear and determine" issues "arising under the school laws" and who has specialized expertise in such matters, for administrative adjudication. N.J.S.A. 18A:6-9.

The Parties and Their Circumstances

The BOE operates the public school system serving the Piscataway Township school district and attendance in such a school system is "free" for school-age children "domiciled within the district." N.J.S.A. 18A:38-1(a).

During the 2009-10 school year, defendants were domiciled in the BOE s district and their children attended the BOE s schools. The BOE s claim relates to defendants younger children: T.V. and N.V.

David Ford supervised the BOE's enrollment center and he assisted in homeless situations and in investigations as to whether children were attending the BOE's schools consistent with statutory standards. Ford testified during the trial that enrollment center records showed that defendants' family had several changes of address as of May 2010.

N.R., the children's maternal grandmother, has had a home in the BOE's district. On or about May 14, 2010, N.R., as property owner or lease holder, and S.S., as parent, signed the BOE's affidavit of residency form, wherein they represented that S.S. and the three children were residing in N.R.'s home. Terry Briggs, secretary of the enrollment center, notarized their signatures and the enrollment center maintained that affidavit. The affidavit form stated, "I UNDERSTAND IT IS MY RESPONSIBILITY TO IMMEDIATELY REPORT TO THE BOARD OF EDUCATION ANY CHANGE OF RESIDENCE WHICH OCCURS FOR THE ABOVE-MENTIONED INDIVIDIALS." The affidavit form also stated that submission of "knowingly inaccurate information" on the form may subject the signers to consequences, including a "money judgment from the court." The affidavit form was intended to obtain compliance with N.J.S.A. 18A:38-1.

In the spring of 2010, A.V. accepted employment as a superintendent in a housing complex in Raritan Borough (which was not in the BOE's district) and an apartment in the complex was a benefit of employment. There was trial testimony that, during the summer (of 2010), the family lived in the apartment in Raritan where there was a pool.

N.R. testified that, during the period from September to December 2010, defendants and their children resided in her home. During this period, T.V., then an eighth grader, and N.V., then a sixth grader, continued to attend the BOE's schools. N.R. also acknowledged that, during that period of time, the defendants lost the Raritan apartment and moved into a motel, and she helped pay the bill for the motel.

T.V. testified that, in the year and a half before her November 26, 2012 testimony, she and her parents lived in her grandmother's household where she was sleeping on the floor. She did not want to continue to sleep on the floor, so during the period from September to December 2010, she stayed with T.B., a school friend, whose mother was close with her mother. She also testified that, during or about that period, her father became sick and she and her mother visited her father in the Somerset Medical Center. Her father lost his job and was evicted, and they could no longer stay in the apartment. She also testified that, during that period, the family was homeless and lived in a motel for a couple of weeks. Because of the financial problems, the family was living with her grandmother (within the district)

S.S. testified that, during the summer of 2010, she, A.V. and the children lived in the apartment. After leaving the apartment, she resided in N.R.'s home and that, after A.V. left the apartment, A.V. and their dogs went to stay in a motel. S.S. testified that T.V. resided in N.R.'s home until there was an argument and T.V. then left to reside with T.B., a student who lived in the district.

In November 2011, during a regular counseling session with Allison Brown, the school psychologist and case manager of T.V.'s child study team (CST), T.V. said that the family had been living in an apartment in Raritan where her father had been working, her dad had been sick, her family was having "money problems," and the family was no longer living with her grandmother.

Mary Juffey, T.V.'s math teacher, testified during the trial that, in December 2010, T.V., told her that she was upset because her father was sick and the family was being evicted from their home. Ms. Juffey brought T.V. to Ms. Brown. During a meeting among Ms. Juffey, Ms. Brown and T.V., Ms. Juffey asked T.V. where she had been living and T.V. started to cry. T.V. then described the family's living circumstances.

Ms. Brown testified that, on or about December 21, 2011, Ms. Juffey brought T.V. to her office. T.V. was very upset. They had a conversation during which T.V. stated that her dad had been sick, that they could no longer stay in the apartment in Raritan, and that they were being evicted. T.V. also stated that she was staying with a school friend. A.V. was also part of Ms. Brown's (CST) caseload and, at that point, having concern for the children's wellbeing and to see what the school staff might do to help the family, she spoke to the school principal; Mawiyah Husband, a school counselor; and Diane Janson, D.Psy., the director of BOE school personnel services and the district's homeless liaison. BOE staff were concerned that the children appeared to be living in the district without either parent. BOE administrators advised Ms. Brown to call and advise the family that, for families who were displaced from their homes while their children were attending school, there were laws to protect them, and that services were available and that she should arrange a meeting with S.S. Thereafter, Ms. Brown, Ms. Husband, Dr. Janson, and S.S. participated in a meeting intended to support the family.

Dr. Janson testified that, during the above-described meeting, S.S. stated that the family had been living in the apartment in Raritan, but that they had been evicted, and that they were living in a motel. Dr. Janson and Ms. Husband reported the circumstances to Mr. Ford, who called A.V. and asked him to bring in documentation related to his homelessness.

Mr. Ford testified that he talked with A.V. who stated that he and S.S. were living in the apartment in Raritan and that that the apartment was too small for all of them, so that the children were living in Piscataway. A.V. showed Ford documents, including a memorandum dated September 31, 2010, notifying him that his employment was terminated and that he must quit the apartment; a notice to quit, dated December 8, 2010; and a warrant for removal, dated December 8, 2010, notifying him that he must vacate the apartment by December 20, 2010. A.V. stated that the family had been homeless and in a motel in Piscataway. Mr. Ford advised A.V. that that the children were unlawfully enrolled in the BOE's school system, since defendants had not given guardianship to N.R. and they had not filed papers in support of a hardship exemption as allowed by N.J.S.A. 18A:38-(b.)(1). Mr. Ford told A.V. that, since he was homeless from Raritan, he should take his eviction papers to the Bridgewater-Raritan school system and register his children there. Mr. Ford also told A.V. that he should apply for social services in Somerset County (where Raritan Borough is located).

It is undisputed that by January 2011, the family was again residing in the BOE's district.

On August 25, 2011, the BOE filed its complaint in the Law Division, Civil Part, Middlesex County, demanding judgment in the amount of $21,480 for tuition for the period from September through December 2010.

During the trial, the BOE offered for admission into evidence its Business Administrator's letter dated February 15, 2011, to defendants. The letter stated that N.V.'s tuition was $1,990 per month and that for N.V.'s ineligible attendance in the BOE's schools for the four months: September 3, to December 21, 2010, the defendants owed the BOE $7,960. ($1,990 x 4 = $7,960) The letter stated that T.V.'s tuition was $1,390 per month and that for T.V.'s ineligible attendance in the BOE's schools for the same four months, the defendants owed the BOE reimbursement of $13,520. The letter stated that the total due for both children was $21,480. The letter did not show, e.g., "the total annual per pupil cost to the district or the number of ineligible days" of the defendants' children. N.J.S.A. 18A:1-(b)(2). The letter did not show any basis for the rates of tuition per month or that the rates were consistent with costs prescribed by the Commissioner of Education and/or approved by the State Board of Education. See N.J.S.A. 18A:38-19, N.J.A.C. 6A:23A-17.1.

The trial transcript shows BOE's counsel's statements and questions on the matter of tuition and Mr. Ford's responses

Q. Okay. I show you what's been marked P-9 for identification, which appears to be a letter sent from the business administrator . . . to [defendants]. . . . And according to this letter, the tuition amount for [N.V.], $1,990 a month at four months coming to $7,960 and for [T.V.], $1,390 per month for four months coming to $13,520 for a total of $21,480.

Have you personally verified through the business office that these are the correct tuitions for the children involved?

A. Yes, sir.

Q. And does the discrepancy between the two amounts have to do with the particular level of services being delivered to each of the children?

A. Yes, sir.

Q. I have no more questions.

$1,390 x 4 = $5,560 and $7,960 + $5,560 = $13,520. The record does not otherwise support the judgment amount of $21,480.

A.V. presented correspondence in support of his position that he was domiciled within the district. The BOE's counsel, during summation, acknowledged that the BOE did not have a "videotape" of the family living in the apartment in Raritan and that its case depended on "direct admissions and concessions by the family." The BOE's counsel stated that it was "a matter of public knowledge" that the district was "surrounded by towns" whose residents "frequently try to creep into our school system and this is a matter of great urgency." No evidence had been admitted, nor should it have been, to support that improper remark.

The Law Division judge delivered his decision on the record. The judge recounted the exhibits and testimony and found the BOE's witnesses' testimony to be credible. The judge found the defense witnesses to be incredible. The judge found that the defendants were not domiciled within the district and found that they failed to notify the BOE that they were no longer in the district, as required for the children to attend the BOE's schools for "free." N.J.S.A. 18A:38-1. Accordingly, the judge entered judgment for the BOE. The judge did not compute tuition due "on the basis of 1/180 of the total annual per pupil cost to the local district multiplied by the number of days of ineligible attendance," N.J.S.A. 18A:38-1b.(2), but rather accepted the conclusory testimony of Ford.

On December 6, 2012, the judge filed the Final Judgment in favor of the BOE for $21,480, plus costs.

Conclusions of Law

New Jersey's Constitution states, "The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." N.J. Const., Art. VIII, IV. Consistent with the Legislature's constitutional duty, statutes provide for the system of free public schools and empower local school boards to operate public schools for their respective districts, consistent with law. See N.J.S.A. 18A:8-1; N.J.S.A. 18A:10-1; N.J.S.A. 18A:11-1.

New Jersey s Department of Education is "a principal department of the executive branch of the state government." N.J.S.A. 18A:4-1. The commissioner is "[t]he chief executive and administrative officer of the department," with "general charge and supervision of the work of the department." N.J.S.A. 18A:4-22. See also N.J.S.A. 18A:4-21. The Commissioner has "jurisdiction to hear and determine, . . . all controversies and disputes arising under the school laws," with the exception of such school laws not relevant here. N.J.S.A. 18A:6-9.

The Legislature, in carrying out its above-cited constitutional duty, has stated, "Public schools shall be free to . . . persons over five and under 20 years of age" who are "domiciled within the school district" or are "kept in the home of another person domiciled within the school district and supported by such other person gratis as if he were such other person's own child," subject to the filing of a sworn statement with the board. N.J.S.A. 18A:38-1.

When a district school superintendent or administrator "finds that the parent or guardian of a child who is attending the schools of the district is not domiciled within the district and the child is not kept in the home of another person domiciled within the school district" in compliance with N.J.S.A. 18A:38-1(b)(1), the superintendent or administrator "may apply to the board of education for the removal of the child." N.J.S.A. 18A:38-1(b)(2)(emphasis added). In such circumstances, the parent or guardian is "entitled to a hearing before the board." Ibid.

If the board decides that a child is not domiciled within the district, a parent or guardian may "contest the board's decision before the commissioner within 21 days of the date of the decision and shall be entitled to an expedited hearing before the commissioner." Ibid. "No child shall be removed from school during the 21-day period in which the parent may contest the board's decision or during the pendency of the proceedings before the commissioner." Ibid. In "the proceedings before the commissioner," the parent or guardian "shall have the burden of proof by a preponderance of the evidence that the child is eligible for a free education" under N.J.S.A. 18A:38-1(b)(2). Ibid.

"If in the judgment of the commissioner the evidence does not support the claim of the parent or guardian, the commissioner shall assess the parent or guardian tuition for the student prorated to the time of the student's ineligible attendance in the schools of the district." Ibid. Relative to the commissioner's assessment of tuition, N.J.S.A. 18A:38-1(b)(2) states, "Tuition shall be computed on the basis of 1/180 of the total annual per pupil cost to the local district multiplied by the number of days of ineligible attendance and shall be collected in the manner in which orders of the commissioner are enforced." Ibid.

We have noted "our institutional respect for the Department's subject matter interest and for the Commissioner's first-instance jurisdiction 'to hear and determine . . . all controversies and disputes arising under the school laws[.]'" Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 424 (App. Div. 2002) (quoting N.J.S.A. 18A:6-9). We have noted further, "The Commissioner's authority is plenary." Archway Programs, supra, 352 N.J. Super., at 424 (citing Abbott v. Burke (I), 100 N.J. 269, 301 (1985)).

Woodbury Hts. Bd. of Educ. v. Starr, 319 N.J. Super. 528 (App. Div. 1999), provides an example of a case involving issues related to domicile, proposed removal of a student from a public school, and tuition for alleged "ineligible attendance." N.J.S.A. 18A:38-1b.(2). Communication from a member of the child's family was accepted as a request for the Commissioner of Education to provide administrative due process. The Commissioner referred the matter to the Office of Administrative Law where an administrative law judge (ALJ) held a hearing and issued an initial decision (ID), concluding that there was "ineligible attendance" for which tuition was due. Ibid. See N.J.S.A. 52:14F-10(c). The commissioner adopted the ID, determined the amount of tuition due, and directed the family member to pay that amount. The family member did not properly appeal from the commissioner's decision to the State Board of Education and did not appeal from the final administrative adjudication to the Appellate Division. See N.J.S.A. 18A:4-10. After the administrative adjudication was final and unappealed, the board of education filed its complaint in the Law Division, which properly granted judgment for the amount due for tuition. Affirming, we concluded that the issue of domicile during the subject period had been administratively "determined" and "closed" and we concluded that there was ample basis for charging tuition. Woodbury Hts., supra, 319 N.J. Super., at 536, 538. We affirmed the Law Division's judgment for tuition for one school year.

In Somerville Bd. of Educ. v. Manville, 332 N.J. Super. 6, 9 (App. Div. 2000), aff'd, 167 N.J. 55 (2001), a child's divorced parents each had joint legal and physical custody and were domiciled in different districts and the child lived with each parent in alternate weeks. The Superior Court decided that the school districts should share equally in the special education responsibilities for tuition. The court did not decide the amount of tuition due. Affirming, we wrote that we presumed that the Department of Education would promulgate regulations to address responsibility of boards of education for the various custody arrangements for children or divorced or separated parents. The Supreme Court also recognizing that a regulation adopted in the future would supersede the court's disposition of the issue of domicile for such children. Somerville Bd. of Educ., supra, 167 N.J., at 59.

Here, the BOE did not demand "removal" of the children from its schools, so the defendants were not afforded a hearing before the BOE. N.J.S.A. 18A:38-1(b)(2). As the BOE has pointed out, the statute states "[n]othing shall preclude a board from collecting tuition from the parent or guardian for a student's period of ineligible attendance in the schools of the district where the issue is not appealed from the board to the commissioner." Ibid. However, the issues of domicile and tuition are intertwined and

where resolution of a contested legal issue properly brought before a court necessarily turns on factual issues within the special province of an administrative agency, the court should refer the factual issues to that agency. The trial court should accept the factual determinations of the agency and lay them against the legal issues to be resolved and enter its final judgment resolving the mixed questions of law and facts based upon the agency fact finding.

[Boss v. Rockland Elec. Co., 95 N.J. 33, 42 (1983).]

"Under the doctrine of primary jurisdiction, when enforcement of a claim requires resolution of an issue within the special competence of an administrative agency, a court may defer to a decision of that agency." Campione v. Adamar, Inc., 155 N.J. 245, 263 (1998) (citations omitted). "Thus, it may be appropriate, in order to avoid piecemeal adjudication or duplicative, anomalous or contradictory results, for a court to defer in its jurisdictional exercise, even if only temporarily, while the administrative agency with the primary interest sorts out the issues and the claims." Archway Programs, supra, 352 N.J. Super. at 425 (citations omitted).

The doctrine of primary jurisdiction is designed to foster "the resolution of technical questions of facts through the agency's specialized expertise, prior to judicial consideration of the legal claims." Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State, 375 N.J. Super. 330, 345-46 (App. Div.) (citations and quotations omitted), certif. denied, 184 N.J. 210 (2005). However, under the doctrine of primary jurisdiction, the court is not divested of its jurisdiction ultimately to decide the legal claims plaintiff has raised based, in theory, upon the agency fact-finding. Boss, supra, 95 N.J. at 42.

Additionally, we note that the record does not show competent proof of the amount due for tuition. Answering the BOE's counsel's leading questions, not objected to by the pro se defendants, Mr. Ford provided only general acceptance of the statements in the letter from the BOE's business administrator, who did not testify to support the amount of tuition claimed. The rates of tuition per month, as described in the letter and accepted by Mr. Ford multiplied by the months of unlawful attendance do not add up to the total set forth in the judgment. The record does not show that the BOE established bases for tuition for the defendants' children. The record does not show, e.g., that tuition was consistent with cost prescribed by the commissioner of education and/or approved by the State Board of Education. See N.J.S.A. 18A:38-19, N.J.A.C. 6A:23A-17.1. Accordingly, we reverse and remand the matter to the Law Division for an order vacating the judgment and referring the matter to the Commissioner of the Department of Education for administrative adjudication on the issue of domicile, the issue of whether tuition is due, and, if tuition is due, the amount of tuition due.

Reversed and remanded. We do not retain jurisdiction.

1 Mindful that our opinion will be posted on the internet, we have omitted the full names of the parties to protect their privacy.