Y.E., ON BEHALF OF MINOR CHILD, E.E. v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6009-06T36009-06T3

Y.E., ON BEHALF OF

MINOR CHILD, E.E.,

Petitioner-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT OF

THE CITY OF NEWARK, ESSEX COUNTY,

Respondent-Respondent.

__________________________________

 

Argued May 19, 2008 - Decided

Before Judges Gilroy and Baxter.

On appeal from a Final Decision of the State Board of Education, Docket No. EDU-10085-06.

Michaelene Loughlin argued the cause for appellant (Loughlin & Latimer, attorneys; Stephen M. Latimer, of counsel and on the brief; Ms. Loughlin, on the brief).

Arsen Zartarian argued the cause for respondent The Newark Public Schools (Perry L. Lattiboudere, General Counsel; Mr. Zartarian, Senior Associate Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent State Board of Education (Jennifer L. Campbell, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Y.E., on behalf of her minor son, E.E., appeals from the June 6, 2007 final decision of the State Board of Education (State Board), affirming that part of the January 8, 2007 decision of the Commissioner of Education (Commissioner), which: 1) determined that E.E. was not domiciled in the City of Newark (City) from January 2006 through June 2006; and 2) ordered petitioner to reimburse respondent State-Operated School District of the City of Newark (the District), $4,478.88 for E.E.'s tuition for that period of time. We reverse and remand the matter to the State Board for further proceedings consistent with this opinion.

Y.E. and C.H. are the mother and father, respectively, of E.E., an eleven-year old boy. Y.E. is the owner of two residential properties located at North 17th Street in East Orange. On September 27, 2005, C.H. filed an affidavit with the District stating that he could no longer care for E.E., and that E.E. was residing in the City with his aunt, J.H. On the same day that C.H.'s affidavit was filed, J.H. filed a guardian affidavit with the District, pursuant to N.J.S.A. 18A:38-1(b), stating that she: 1) resided at Broadway, Third Floor, in the City; 2) was supporting E.E. "gratis and [would] assume all personal obligations for [E.E.] relative to the requirements of the [District]"; and 3) "intend[ed] to keep and support [E.E.] gratuitously for a period of time that is not solely bound by the school year." Relying on these two affidavits, the District approved E.E.'s attendance at a school within the City.

On a date not disclosed in the record, it came to the District's attention that E.E. may not have been residing with J.H., but rather with petitioner in East Orange. Consequently, the District commenced an investigation into E.E.'s domicile, which determined that E.E. was not domiciled within the City. On March 3, 2006, the District sent petitioner a notice of initial determination of E.E.'s ineligibility, stating that he was not entitled to a free education in the District.

On April 5, 2006, a residency hearing was held, but petitioner did not attend, because she had not learned of the hearing until April 27, 2006. On April 5, 2006, a notice of final ineligibility was sent to petitioner. The notice stated that the District based its determination of ineligibility on the following facts:

The guardianship affidavit issued [to] the district on September 27, 2005 for guardianship of [E.E.] by [J.H.] residing at Broadway, Newark, New Jersey is no longer in force due to the fact that [J.H.] has renounced further guardianship of [E.E.] and your son no longer resides with [J.H.].

The residence where student [E.E.] is domiciled is North 17th Street, East Orange, New Jersey. The district has video and photographic evidence of you and your child [E.E.] leaving your East Orange residence on four consecutive days during the month of March. The car that you use to transport your child [E.E.] to [the Newark school] is registered to you with an East Orange address.

After receiving the April 5, 2006 notice, petitioner submitted documentation to the District demonstrating her residence at South 10th Street in the City. The additional information provided by petitioner included: a copy of a lease between Frank Hodges, as landlord, and petitioner, as tenant, for premises at South 10th Street for the term commencing August 1, 2005, and ending August 1, 2006; a copy of petitioner's New Jersey driver's license dated April 27, 2006, indicating her residence at South 10th Street; and a sworn statement of J.H. dated April 28, 2006, which provided, "I [J.H.] state[] that the child [E.E.] does not reside in my home as of 12-25-05. I released him . . . in the custody of his natural mother [petitioner]. You can reach me at [telephone number] after 4:00 p.m. with any concerns."

On May 8, 2006, the District sent a letter to petitioner advising that it had reviewed the additional residency information she had provided, and that the District had reaffirmed its prior decision contained in the April 5, 2006 notice of final ineligibility. The letter rejected the authenticity of the apartment lease the petitioner had provided for South 10th Street. "Your residence is not in Newark, New Jersey. The apartment lease which you presented for [] South 10th Street, Newark, New Jersey, is not a valid lease. Landlord Frank Hodges admitted to investigator Manual Guinones that the lease was fictitious and stated that you reside in East Orange, New Jersey."

On May 10, 2006, petitioner sent a notice of appeal from the District's April 5, 2006 notice of final ineligibility to the Bureau of Controversies and Disputes (Bureau), explaining that the reason petitioner filed the appeal past the twenty-one-day time period contained in N.J.S.A. 18A:38-1(b)(2) was because she had not received the final notice until April 27, 2006. On May 12, 2006, J.H. filed a residency appeal on behalf of E.E. with the Bureau.

On May 19, 2006, the District received a notarized statement from J.H., which stated in pertinent part: 1) . . . ; 2) "while my nephew, [E.E.], resided in my home in the beginning of the 2005-06 school year, [E.E.] has not resided in my home since December 25, 2005. At that time, I released him to the custody of his natural mother, [petitioner]"; 3) "[a] petition of appeal was filed in my name on behalf of [E.E.] with the Department of Education on or about May 12, 2006, claiming that [E.E.] resides with me and seeking [E.E.'s] continued attendance in Raphael Hernandez School"; 4) "I wish to acknowledge that I was unaware of the language specifically stating that [E.E.] resides with me at [] Broadway, Newark, New Jersey"; 5) "[E.E.] does not reside with me, and I am not responsible for his education"; 6) "[t]o the best of my knowledge, [E.E.] resides with his mother in East Orange, New Jersey"; and 7) "[t]herefore, I hereby withdraw my petition of appeal claiming residency for [E.E.] submitted under my signature dated May 12, 2006." On June 14, 2006, the Bureau marked J.H.'s petition as withdrawn.

During the summer of 2006, the District's child study team evaluated E.E., and after finding him eligible for special education services, developed an individualized education program (IEP) for him. Thereafter, the District placed E.E. at one of its schools where he began receiving special education services in September 2006 until he was removed from the District.

On September 11, 2006, petitioner filed a pro se appeal of the District's determination of ineligibility. On September 15, 2006, the Bureau sent petitioner a letter advising that, although the appeal was untimely, the appeal would be processed. The letter provided in pertinent part:

The 21-day time period set forth in N.J.S.A. 18A:38-1(b)(2) for appealing the above referenced Final Notice of Ineligibility to the Commissioner has expired. If you nonetheless wish to challenge the District's determination of ineligibility, your petition may be processed. However, due to the expiration of the appeal period, E.E. may not automatically attend school in the District during the pendency of such an appeal.

If you seek a determination from the Commissioner that E.E. may attend school in the [D]istrict while an appeal of his ineligibility is pending you must file a motion for emergent relief, pursuant to N.J.A.C. 6A:3-1.6, explaining why you believe the Commissioner should grant such relief . . . .

On September 22, 2006, petitioner filed a request for emergent relief, alleging, among other matters, that she had not known that J.H.'s May 12, 2006 appeal had been withdrawn. On September 25, 2006, petitioner's application for emergent relief was forwarded by the Bureau to the Office of Administrative Law (OAL), pursuant to N.J.A.C. 6A:3-1.6(c).

On September 29, the District filed its answer to the appeal and counterclaimed for: (1) tuition for the period of E.E.'s ineligible enrollment in the District school; and (2) "reimbursement for the professional time of all child study team personnel who participated in the evaluation, testing, preparation of reports, eligibility determination, and IEP meetings, and preparation of appropriate IEP to meet the needs of E.E." The District also filed a motion to dismiss the appeal as untimely.

On October 2, 2006, a hearing on petitioner's application for emergent relief and on the District's motion seeking to dismiss the appeal commenced before the assigned Administrative Law Judge (ALJ), with petitioner proceeding pro se. Prior to commencement of any testimony in the matter, the ALJ requested the District's counsel to state the District's position on the issues presented. Counsel stated:

It's our understanding that there is no current lease. That Petitioner is unable to show any credit card statements, or checking account, or address for the South 10th Street address. We have sent out an investigator who can verify today what his investigation was and that the South 10th Street address is not currently utilized by Petitioner. Petitioner, in fact, owns properties in East Orange. Our investigation showed . . . the Petitioner actually[] leaving the house in East Orange and at one time this investigator, . . . indicated that the Petitioner was leaving East Orange and dropping off her children at [the District's school] last spring.

Additionally, Petitioner had several complaints filed with the administration at the school which she actually had at one point [] Silver (phonetic) Street, Newark. Another time she actually had an East Orange address on her parental complaint, filed . . . by herself.

Furthermore, Your Honor, we could produce evidence that says, yes, it's true that apparently on April 27, 2006[,] Petitioner went to the Division of Motor Vehicles and registered her license with the South 10th Street, Newark address. Apparently, that's the same exact day that a letter was sent to her indicating--referencing a notice [of] ineligibility by the school; coincidentally, the same exact day.

Furthermore, Your Honor, we would introduce at the hearing evidence that says the man who purportedly owns the building [at the 10th Street address], Mr. [Hodges], does not own the building anymore[.] [I]t has been foreclosed on by the bank.

When the ALJ asked whether counsel intended to produce any witnesses on behalf of the District in support of his argument, counsel stated that the District "would have a rebuttal witness to any claim that [petitioner] would make." However, the District never produced any witnesses or other evidence in support of its argument, despite the claims petitioner asserted during her testimony.

Following counsel's statement of what the District intended to establish at the hearing, the ALJ inquired of petitioner whether she would "like to testify on your own behalf now? And this is just on the motion for emergent relief, and the standards . . . you have to show" on the emergent application to keep E.E. in the District's school. The ALJ informed petitioner that she would have to prove irreparable harm to E.E. if her application for emergent relief was denied; that a balance of the equities and hardships favored the grant of the emergent relief requested; and that petitioner had a reasonable probability of success on the merits, "that you are going to win on the merits of whether or not you live in Newark . . . . You have to prove that you live in Newark."

Petitioner testified at the hearing as follows. As to irreparable harm, petitioner testified that E.E. would suffer harm by removing him from the school where the District had placed him because E.E. and his teacher had become comfortable with each other. Concerning her residence, petitioner testified that she owns two properties on North 17th Street in East Orange. One property was purchased in 1998; the other was purchased in 2004. Petitioner stopped living at the East Orange properties because her tenants in those buildings had made threats against her. In support of her assertion that she did not reside at either of the East Orange properties, petitioner produced copies of leases, evidencing that the properties were occupied by third-party tenants, not her and E.E.

Petitioner denied the District's claim that her lease for the South 10th Street address in Newark was fictitious. In support of her claim that the lease was valid, petitioner produced a notarized, written letter from landlord Frank Hodges dated September 24, 2006, which stated in relevant part: "[t]his letter will serve as proof of residency for [petitioner]. I, Frank Hodges, owner of [] So. 10th St.[,] Newark[,] NJ 07107, here do state[] the following: [petitioner] resides at [] So. 10th St.[,] Newark[,] NJ 07107." Following petitioner's testimony, the ALJ adjourned the hearing on petitioner's request for her to retain counsel.

The hearing resumed on October 17, 2006, with petitioner continuing to represent herself pro se. Although the District did not offer any evidence to refute petitioner's prior testimony, its counsel argued that petitioner did not present affirmative evidence that she resided at South 10th Street, Newark. In further support of her position, petitioner submitted a letter dated September 27, 2006, from an attorney who represented "M Credit, Inc.," the new record owner of the premises at South 10th Street, Newark, advising that petitioner was to forward all monthly rental payments to the corporation at a specific address in Florida. The letter further provided that if petitioner failed to make timely rental payments she would be evicted from the property. Following petitioner's argument that she had presented sufficient proof of her residency at the South 10th Street address, the ALJ reserved decision on the matters.

On November 22, 2006, the ALJ issued her initial decision on the District's motion seeking to dismiss the appeal and on petitioner's application for emergent relief. The ALJ impliedly denied the District's motion, determining that the Bureau had accepted the appeal on September 15, 2006, and had informed petitioner that the appeal would be processed because petitioner was unaware that J.H.'s appeal had been withdrawn and her appeal of May 10, 2006, had not been filed by the Bureau.

The ALJ denied petitioner's application for emergent relief, determining that petitioner had not satisfied the four prongs of Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982), codified in N.J.A.C. 6A:3-1.6(b). However, contrary to the ALJ's advice that the hearing was going to be limited to petitioner's application for emergent relief and to the District's motion seeking to dismiss the appeal, the ALJ also decided the merits of petitioner's appeal and the District's counterclaim for tuition reimbursement. The ALJ concluded that petitioner and E.E. were not domiciled in Newark as of January 2006. Accordingly, the ALJ granted the District's counterclaim for tuition reimbursement for the period of E.E.'s ineligible enrollment in the District school, subject to the District submitting appropriate documentation to the Department to compute the tuition owed. In support of her initial decision, the ALJ made the following findings of fact and conclusions of law:

Although petitioner presented an "apartment lease" purporting to rent the premises at S. 10th Street, Newark, the District's investigation determined that the lease was "fraudulent". Indeed, the document was not notarized and bore no seal.

. . . .

Based on the whole of the evidence, I FIND petitioner's evidence to be incredible and her testimony unbelievable.

. . . .

Based on the relevant evidence, I am persuaded that petitioner has not demonstrated the requirements for emergency relief. At the hearing, petitioner acknowledged owning propert[ies] in East Orange. The District conducted an investigation showing [petitioner] and E.E. leaving the East Orange premises on four consecutive days and driving to the school in Newark. Further, the District explained that petitioner must enroll her child in the East Orange school district. The District also noted that the new school district would address E.E.'s recent classification for special education. Further, the Department made clear in its letter dated September 15, 2006 that "due to the expiration of the appeal period, E.E. may not automatically attend school in the District during the pendency of such appeal."

Thus, I CONCLUDE that petitioner has not demonstrated E.E. will suffer irreparable harm from the enrollment and placement in the school district of East Orange, the District of domicile.

I CONCLUDE that the underlying issue[] of petitioner's claim, domicile[,] has been settled by the evidence presented.

Accordingly, I CONCLUDE that petitioner has failed to establish a likelihood of prevailing on the merits of the underlying claim.

. . . .

Based on the whole of the evidence, I CONCLUDE that petitioner has failed to establish the grounds for emergency relief in this matter. Moreover, this proceeding has addressed the underlying issue for emergent relief on matters that have been addressed at the hearing. Petitioner's evidence that she is domiciled in Newark is rejected as incredible. Indeed, the District presented credible evidence that E.E. no longer resides in the home of J.H. In addition to the Affidavit of J.H., the District investigated the alleged lease[d] premises where petitioner claimed to reside and discovered her residence there is non-existent. The District provided further support for its determination through video and photographic evidence of petitioner and E.E. leaving the East Orange residence on four consecutive days during the month of March. The car that petitioner used to transport E.E. to [the District school] is registered to petitioner with an East Orange address.

On January 8, 2007, the Commissioner issued her decision, adopting in part and rejecting in part, the ALJ's recommendation. The Commissioner: 1) adopted the ALJ's conclusion that petitioner had failed to prove that the District was arbitrary and capricious in determining that E.E. was ineligible to receive a free public education in the City from January through June 2006; 2) adopted the ALJ's determination that petitioner was not entitled to emergent relief; and 3) rejected the ALJ's conclusion that the proofs at the October hearing showed that petitioner's current domicile was not in the City.

The Commissioner determined that petitioner was not entitled to emergent relief because she had failed to prove that E.E. would suffer "imminent harm" if the relief requested was denied. The Commissioner agreed with the ALJ's determination "that petitioner did not meet her burden to show that [the District's] ineligibility determination for January through June 2006 was arbitrary or capricious." The Commissioner stated that she could not fault the ALJ for determining that petitioner's credibility was "poor" regarding E.E.'s domicile during that time, because petitioner's assertions in her answer to the District's counterclaim that E.E. had resided in Newark with J.H. ran contrary to the facts evidenced by J.H.'s May 19, 2006 affidavit, wherein J.H. had stated that E.E. had not resided with her since December 25, 2005. However, the Commissioner limited her finding concerning petitioner's credibility on the issue of domicile to the period from January through June 2006.

The Commissioner rejected the ALJ's determination that petitioner had failed to present sufficient evidence of her residency in Newark at the time of the OAL hearing to warrant a full, evidentiary hearing on that issue. The Commissioner stated:

In her papers and at the October hearing, petitioner not only presented the lease indicating her residence on South 10th Street, Newark, from August 2005 to August 2006, but also produced: a notarized letter dated September 24, 2006 from the previous owner of those premises stating that she resided there; her driver's license showing the South 10th Street address; and a letter dated September 27, 2006 from the new owner of those premises asking that she contact its representative or be evicted . . . .

By way of contrast, at the October 2006 hearing, [the District's] counsel - who is unable to testify about the actions of [the District's] employees or investigators - referred to a district investigation from the 2005-2006 school year which allegedly rebutted petitioner's evidence, but did not produce it or any sworn testimony about it. In turn, the ALJ relied on this non-produced evidence to conclude that "the underlying issues of petitioner's claim [i.e.,] domicile has [sic] been settled by the evidence presented.". . . Unfortunately, there is no indication in the audiotapes of the October 2 and 17, 2006 hearings that any of the 'credible evidence' referenced by the ALJ was presented at the hearing, either by way of the testimony of an investigator, or by way of authenticated documentation. Nor is said "evidence" - which in any event pertains only to January through June 2006 - in the record provided to the Commissioner.

It is undisputed that [the District] performed an evaluation on E.E. over the summer of 2006, and enrolled him in special education classes at [the District school] on September 6, 2006. E.E.'s subsequent removal from [the District school] was timely challenged, pursuant to N.J.A.C. 6A:3-1.3(i), by Y.E.'s petition dated September 11, 2006. The Commissioner finds that while petitioner is not entitled to emergent relief, she did present evidence at the OAL hearing which suggests that she may reside in Newark. Since respondent did not rebut petitioner's proofs with competent evidence, the Commissioner remands the matter to the OAL for a plenary hearing on petitioner's current domicile.

The Commissioner stated her conclusions as follows:

In summary, the Commissioner: 1) adopts the ALJ's conclusion that the petitioner did not prove that respondent was arbitrary and capricious in determining that E.E. was ineligible to receive a free public education in Newark during January through June 2006; (2) adopts the ALJ's determination that petitioner is not entitled to emergent relief; and (3) rejects the ALJ's conclusion that the proofs at the October hearing showed that petitioner's current domicile is not in respondent's school district.

The Commissioner accordingly directs that: (1) petitioner pay respondent $4,478.88 for E.E.'s tuition for the period from January through June 2006; (2) the matter be remanded to the OAL for a plenary hearing on E.E.'s current domicile, including the issues of petitioner's custody of E.E. and petitioner's current domicile; and (3) petitioner ensures that E.E. attends school pending the resolution of this matter.

On June 8, 2007, the State Board affirmed the Commissioner's decision.

On appeal, petitioner argues:

POINT I.

THERE IS NO SUBSTANTIAL EVIDENCE IN THE RECORD THAT Y.E. WAS NOT DOMICILED IN NEWARK FROM JANUARY TO JUNE[] 2006.

POINT II.

THE DECISION OF THE COMMISSIONER THAT Y.E.'S EVIDENCE WAS NOT CREDIBLE IS ARBITRARY, CAPRICIOUS AND UNREASONABLE.

The State Board affirmed the Commissioner's determination that the ALJ had mistakenly found that petitioner was not residing within the City at the time of the October 2006 hearing. The State Board affirmed the Commissioner's conclusion that petitioner had presented sufficient, credible evidence that she resided within the City during that time to warrant a plenary hearing. Because the District did not cross-appeal from that part of the State Board's final decision and petitioner does not challenge the State Board's decision denying her application for emergent relief for failing to prove that E.E. would suffer "imminent harm," we confine our opinion to the State Board's decision that the petitioner pay the District $4,478.88 tuition for the period from January through June 2006.

Appellate courts have a limited role in reviewing decisions of administrative agencies. In re Taylor, 158 N.J. 644, 656 (1999). Our review of a final agency decision and of an appeal in a non-jury case is the same, that is, "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

As recently described by the Supreme Court in In re Application of Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008), "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." Accordingly, we will reverse an agency decision that is arbitrary, capricious, or unreasonable, or that 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).

N.J.S.A. 18A:38-1(a) provides that a public school district shall provide a free education to "[a]ny person who is domiciled within the school district." "'Domicile'" is the place where an individual has his or her "'true, fixed, permanent home and principal establishment,'" and to which, whenever the person is absent, "'he [or she] has an intention of returning.'" D.L. v. Bd. of Educ. of Princeton, 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting T.B.W. ex rel. A.W. v. Bd. of Educ. of Belleville, Essex County, EDU 5959-96, Initial Decision, (April 30, 1998), adopted, Comm'r. (June 18, 1998) . Simply stated, "[a] student is domiciled in the school district when he or she is living with the parent or legal guardian whose permanent home is located within the . . . district." N.J.A.C. 6A:22-3.1(a)1. "A home is permanent when the parent or guardian intends to return to it when absent and has no present intent of moving from it, notwithstanding the existence of homes or residences elsewhere." Ibid.

A superintendent or administrative principal of a school district may apply to the local board of education for the removal of a child "[i]f the superintendent or administrative principal . . . finds that the parent or guardian of [the] child . . . is not domiciled within the district." N.J.S.A. 18A:38-1(b)(2). On such application, parents have the burden of establishing domicile in the school district by a preponderance of the evidence. Ibid.

Petitioner argues that the Commissioner erred in accepting the ALJ's determination that she was not credible concerning her domicile from January through June 2006. Petitioner contends that the ALJ's determination was not entitled to deference because her decision was arbitrary, capricious and unreasonable, having based her determination not on competent evidence in the record, but on argument of counsel. We agree.

Rules of Evidence do not apply to administrative hearings. N.J.S.A. 52:14B-10(a); Weston v. State, 60 N.J. 36, 50-51 (1972). Accordingly, administrative agencies frequently admit hearsay evidence at their hearings. In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980). "[N]evertheless, the rule in this State is that a factfinding or legal determination cannot be based on hearsay alone. Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony." Ibid. "But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it." Weston, supra, 60 N.J. at 51; accord, N.J.S.A. 52:14B-10(c) (requiring that an ALJ's recommended report and initial decision contain findings of fact and conclusions of law that are based "upon sufficient, competent, and credible evidence" (emphasis added)). The same principle applies to an agency head when rejecting or modifying the ALJ's finding of fact or conclusions of law:

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious, or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modify findings supported by sufficient, competent, and credible evidence in the record."

[N.J.S.A. 52:14B-10(c) (emphasis added).]

Here, petitioner appealed the District's final determination of ineligibility. After petitioner filed an application for emergent relief to stay E.E.'s removal from school, the matter was assigned to the OAL pursuant to N.J.A.C. 6A:3-1.6(c). At the outset of the hearing, petitioner was informed that the hearing was limited to resolution of her application for emergent relief, and of the District's motion to dismiss the appeal.

Petitioner proceeded pro se and presented the following evidence in support of her contention that she resided at the South 10th Street residence during the time challenged by the District: 1) the lease for the South 10th Street residence commencing August 1, 2005, and ending August 1, 2006; 2) a notarized letter dated September 24, 2006, from Frank Hodges, the prior owner of the South 10th Street property; 3) a copy of her driver's license, showing South 10th Street as her residence; and 4) a letter dated September 27, 2006, from the new owner of record from the South 10th Street premises, indicating that she was a tenant at the premises and that she was to forward all future rental payments to the new owner in Florida.

Although the petitioner presented the above evidence to the ALJ, the ALJ determined that petitioner's testimony and evidence was not credible because not only was the lease not notarized or sealed, but also because petitioner's testimony ran contrary, not to competent evidence presented by the District, but to the comments made by its counsel during opening and closing statements. As noted by the Commissioner, counsel's unsworn comments, referencing hearsay statements of the District's investigator, do not constitute competent evidence on which an ALJ may base his or her initial decision.

In addition, the Commissioner found that petitioner had presented sufficient, credible evidence to warrant a plenary hearing concerning her residence within the City as of the hearing date in the fall of 2006. We are satisfied that the same unrefuted evidence warrants a plenary hearing on the merits concerning petitioner's residence within the City from January through June 2006. Although the Commissioner determined that petitioner's contention that E.E. had resided with her at the South 10th Street residence was contrary to the statements contained in the May 19, 2006 affidavit of J.H., we conclude otherwise. J.H.'s statement that E.E. stopped residing with her during the winter holiday season in December 2005 and that he resided with his mother from that time forward is not inconsistent with E.E. residing with petitioner at the South 10th Street property.

Lastly, we question the propriety of the ALJ in deciding the issue of petitioner's residency and the District's counterclaim for tuition on the merits, having previously informed petitioner that the hearing was limited to her application for emergent relief and to the District's motion to dismiss. Although the ALJ adjourned the hearing for petitioner to retain counsel, petitioner decided not to and continued to represent herself pro se. It is unknown whether petitioner would have decided differently if she had been made aware that the ALJ was going to rule on the merits of the issue of residency and the District's counterclaim.

We acknowledge that the ALJ proceeded to a final decision on the merits of petitioner's residency claim and the District's counterclaim as a matter of judicial economy and efficiency, recognizing that petitioner's proofs would probably be duplicative, at least in part, of any proofs that she would present at a plenary hearing. However, it is unknown whether petitioner would have retained counsel for a plenary hearing and have presented additional proofs, or questioned the basis of the ALJ accepting counsel's comments as evidence. As recently stated by another panel of this court in Waste Mgmt. v. Union County Utils., 399 N.J. Super. 508, 518 (App. Div. 2008), "[a]ccordingly, we do not intend to preclude pragmatism in the resolution of disputes, but we must insist that such an approach is only appropriate when the parties understand and consent to a summary disposition of their disputes. Otherwise, the process would possess only the qualities of simplicity and efficiency, not fairness or justice."

The determination of the State Board that petitioner reimburse the District $4,478.88 in tuition for the period from January 2006 through June 2006 is reversed, and the matter is remanded to the State Board for referral to the OAL for a plenary hearing on that issue.

Reversed and remanded for further proceedings consistent with this opinion.

We have omitted the street addresses of the various residences contained in this opinion for anonymity of the parties.

Petitioner's May 10, 2006 appeal to the Commissioner was not docketed because J.H.'s appeal was received first by the Bureau.

It is unclear from the record as to how many days of special education E.E. received in September 2006, before he was removed.

(continued)

(continued)

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A-6009-06T3

June 24, 2008