BOARD OF EDUCATION TOWNSHIP OF NEPTUNE, MONMOUTH COUNTY v. NEW JERSEY STATE DEPARTMENT OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1783-03T11783-03T1

BOARD OF EDUCATION OF THE

TOWNSHIP OF NEPTUNE,

MONMOUTH COUNTY,

Petitioner-Appellant,

v.

NEW JERSEY STATE DEPARTMENT

OF EDUCATION,

Respondent-Respondent.

____________________________________________________________

 

Submitted November 1, 2005 - Decided November 17, 2005

Before Judges Coburn and Lisa

On appeal from the Final Decision of the

Commissioner of Education, 46-2/03 and 122-4/02.

Richard E. Shapiro, attorney for appellant

(Mr. Shapiro, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Michael C.

Walters, Deputy Attorney General, on the brief).

PER CURIAM

This Abbott case concerns the budget of the Board of Education of the Township of Neptune for the 2002-2003 school year, and in particular the funding of the second half-day of kindergarten. The Board appeals from one aspect of the final decision of the Commissioner of Education, namely, the Commissioner's determination that the second half-day of kindergarten need not be funded entirely by the State.

Although time has rendered the issue moot, the Board asks for review because the question "'is both important to the public and likely to recur.'" Clymer v. Summit Bancorp., 171 N.J. 57, 65-66 (2002).

The Board's sole argument is that the Commissioner's decision violated the Supreme Court's decisions in Abbott v. Burke, 153 N.J. 480 (1998) ("Abbott V"), and Abbott v. Burke, 172 N.J. 294 (2002) ("Abbott IX").

The Commissioner reached his decision on the following reasoning:

On the question of additional State aid for the second-half of full-day kindergarten, so as to cover its entire cost, the Commissioner reads the controlling language of the Court to require not that a district's presumptive amount of aid will be increased by the dollar amount of prior-year expenditures, but that these expenditures must be included in the base budget on which aid is reckoned. The Court directed:

[T]he DOE's request for authorization to preclude any district appeals seeking supplemental funding . . . is denied subject to the DOE's authority presumptively and preliminarily to establish districts' supplemental funding for 2002-2003 at the level of expenditures contained in the 2001-2002 K-12 DOE approved district budget, as increased by actual and documented 2001-2002 expenditures for the second half of kindergarten, as modified by DOE to take into account 2001-2002 actual expenditures and available revenues based on the district annual audits . . . .

[Abbott IX, supra, 172 N.J. at 297.]

To read this language in the manner suggested by the Board and the ALJ would, as claimed by the Department, result in "double-counting" full-day kindergarten costs for aid purposes, a result surely not intended by the Court. As the Commissioner has found elsewhere, the Court has not held that required Abbott programs must be funded exclusively by the State, but rather that the State must ensure that sufficient monies are available to fully fund required programs; thus, in the present context, the State's clear obligation is to provide additional funds so as to bring district revenues to the level necessary to support expenditures, including expenditures for full-day kindergarten, at 2001-02 levels as required by the Court. While the Commissioner, like the Court, recognizes adequate funding as critical to achievement of a thorough and efficient system of public education in Abbott districts, he also recognizes, as did the Court, that such funding is a shared responsibility between the State and local district, and that he has an obligation to ensure that State and local resources are allocated as efficiently and effectively as possible in meeting that responsibility.

After carefully considering the briefs and record, particularly in light of the Supreme Court's decision in Board of Education of the City of Millville v. Department of Education, 183 N.J. 264 (2005), we are satisfied that the Board's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.

In the Millville case, the Court noted that in Abbott V, it had said the "'Commissioner must ensure that such programs [referring to half-day preschool for three- and four-year olds] are adequately funded . . . .'" 183 N.J. at 277. Then, the Court held that "[a] requirement that the Commissioner ensure adequate funding is not the same as a requirement that the Commissioner provide that funding." Ibid. (emphasis added). Finally, it held that the Commissioner could rely on available funds other than State aid, including the local budget, to ensure adequate funding. Id. at 277-78.

The Board claims that the Commissioner's decision violates that portion of the Abbott IX order directing the Department of Education to "establish districts' supplemental funding for 2002-2003 at the level of expenditures contained in the 2001-2002 K-12 DOE approved district budget, as increased by actual and documented 2001-2002 expenditures for the second half of kindergarten, as modified by DOE to take into account 2001-2002 actual expenditures and available revenues based on the district annual audits." Abbott IX, supra, 172 N.J. at 297 (emphasis added).

We see nothing in that quote suggesting that the sole source of the kindergarten funding is to be the State. Indeed, it appears to say the contrary. Furthermore, there is no logical basis for treating the funding of kindergarten differently from the funding of the pre-school programs. Therefore, this case is governed by Millville, and the Commissioner's decision must be affirmed.

 
Affirmed.

(continued)

(continued)

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A-1783-03T1

November 17, 2005