E.M., ON BEHALF OF MINOR CHILD J.B - v. BOARD OF EDUCATION OF THE CITY OF EAST ORANGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1348-08T31348-08T3

E.M., ON BEHALF OF MINOR CHILD,

J.B.,

Petitioner-Respondent,

v.

BOARD OF EDUCATION OF THE CITY

OF EAST ORANGE,

Respondent-Appellant,

and

STATE-OPERATED SCHOOL DISTRICT OF

THE CITY OF NEWARK, AND BOARD OF

TRUSTEES OF THE GREATER NEWARK

CHARTER SCHOOL, ESSEX COUNTY,

Respondents-Respondents.

_____________________________________________________________

 

Submitted June 3, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from a final decision of the

New Jersey Department of Education, Agency

Docket No. 291-10/08.

Schwartz Simon Edelstein Celso & Kessler, LLC, attorneys for appellant East Orange Board of Education (Stephen J. Edelstein, of counsel; Andrew W. Li, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Department of Education (Sookie Bae, Deputy Attorney General, of counsel; Christopher Huber, Deputy Attorney General, on the brief).

Rutgers School of Law, Special Education Clinic, attorney for respondent E.M. (Esther Canty-Barnes, of counsel and on the brief).

Arsen Zartatarian, Interim General Counsel, attorney for respondent State-Operated School District of the City of Newark.

Adams Stern Gutierrez & Lattiboudere, LLC, attorneys for respondent Greater Newark Charter School (Derlys Maria Gutierrez, on the brief).

PER CURIAM

The Board of Education of the City of East Orange (the Board) appeals from the Commissioner of Education's (the Commissioner) final order compelling it to pay the costs associated with the "special education placement" of petitioner J.B. "for as long as petitioner is a resident of East Orange or until further order[.]" The Board contends the Commissioner erred in ordering this relief because J.B. failed to meet the standards for emergent relief enunciated in Crowe v. DeGioia, 90 N.J. 126 (1982), and N.J.A.C. 6A:3-1.1. For the reasons that follow, we dismiss the appeal, finding the emergent issues that caused our grant of leave to appeal in the first instance to have become moot, and further finding that the only remaining issue for resolution is presently pending before the Office of Administrative Law (OAL), and the interests of justice would be better served by awaiting the agency's final action.

The controversy arose in the following context. On October 15, 2007, E.M., on behalf of her son J.B., who was born on July 11, 1995, filed with the Department of Education a request for a due process hearing and mediation pursuant to the Individuals with Disabilities Education Act, 20 U.S.C.A. 1400 through 1482 (IDEA). The matter was transferred to the OAL as a contested case and heard by an administrative law judge (ALJ). E.M. alleged that in 2006, while she and J.B. were residents of Newark, she enrolled her son in the Greater Newark Charter School (GNCS). The Individualized Education Program (IEP) team at GNCS determined J.B. was eligible for special education and related services. In May 2007, after determining it could not meet J.B.'s individualized special needs, GNCS placed him in the private North Hudson Academy (NHA), located in Jersey City. The costs associated with the placement and J.B.'s transportation were paid for by respondent, State-Operated School District of the City of Newark (Newark).

In August 2007, however, E.M. and J.B. moved to East Orange. Wanting her son to remain at NHA, and based upon advice she claimed she received from Newark and GNCS, E.M. registered her son with the Board, believing it would now be responsible for the costs associated with his continued placement and transportation. The Board instead sought to place J.B. in an in-district program. As a result, E.M. began transporting her son to NHA herself, and the tuition associated with his enrollment went unpaid. Before the ALJ, the Board argued, among other things, that it did not have to honor the placement made by GNCS at NHA, and that it had the authority to determine what, if any, special needs placement was required for J.B. under the IDEA.

On June 26, 2008, the ALJ issued a final decision, holding that because of administrative miscues, J.B.'s status as a GNCS student was never properly terminated under the Charter School Program Act, N.J.S.A. 18A:36A-1 to 18A:36A-18 (the Act). The ALJ concluded that the "[Board] has no authority to prevent J.B. from enrolling and/or remaining enrolled in the GNCS[.]" She further determined that the due process hearing "[wa]s not the proper forum [for the Board] to challenge J.B.'s placement and/or costs." Pursuant to the IDEA, the Board then filed a complaint on September 24, 2008 in the Federal District Court of New Jersey, seeking to modify the ALJ's decision. This case is still pending.

On September 26, 2008, E.M. filed a petition for declaratory and emergency relief with the Commissioner. She claimed that because of her employment situation, transporting her son to NHA was problematic. Additionally, because J.B.'s tuition remained unpaid, NHA was threatening to discharge him from the school.

Once again, the matter was transferred to the OAL as a contested case, and on October 9, 2008, another ALJ issued an opinion denying the request for emergent relief. He concluded that E.M. had failed to establish "the necessary elements to grant emergency relief" under N.J.A.C. 6A:3-1.6(b). The Commissioner, however, rejected the ALJ's order, finding that E.M. had "satisfied the requisite standards for the granting of emergent relief" pursuant to Crowe. She ordered the Board to pay the costs associated with J.B.'s placement at NHA. The Commissioner recognized the temporary nature of her order, noting that the Board, "either in the context of the within matter or another action [it may] commence[][,]" was entitled to a determination whether "another entity is responsible for some or all of the costs related to the period of time J.B. has attended [NHA]."

The Board sought reconsideration and a stay of the Commissioner's order, which was subsequently denied. It also filed this appeal. E.M., meanwhile, sought relief in the Superior Court, Law Division by filing an order to show cause asking the Court to compel the Board to make the ordered payments. When the Law Division judge entered the order, the Board moved for a stay before us. We granted a stay and accelerated the pending appeal by order dated December 17, 2008.

Since the entry of our order, however, in April 2009, J.B. and E.M. relocated to North Carolina, thus ending any obligation the Board would otherwise have had under the Commisioner's order to continue paying for the costs of J.B.'s transportation to, and enrollment at, NHA. Thus, the reason for entry of the Commissioner's emergent order, i.e., J.B. would suffer irreparable harm, no longer exists. The issue is moot as a result of E.M.'s and J.B.'s relocation, something the Board concedes in its reply brief.

The only unresolved issue is who should be held responsible for the costs associated with J.B.'s placement at NHA after he moved to East Orange and before he left for North Carolina. The Board argues that pursuant to the definition of "district of residence" contained in the Act's implementing regulations, Newark is responsible because that is where GNCS is located. Newark counters by arguing the Board's construction of the regulations leads to an absurd result, and that the intention of the statutory and regulatory scheme is that the school district in which the child is domiciled, here, East Orange, is responsible. The Commissioner simply argues that her decision to grant emergent relief was appropriate. GNCS takes no position on the issue, nor does E.M.

The Board's challenge to the Commissioner's decision remains pending in the OAL and has not been finally determined. We have not been apprised of any developments in that case while this appeal was pending. We assume, based in part on the Commissioner's decision, that the Board is free to advance the arguments it raises before us now regarding the appropriate interpretation of the legislative and regulatory scheme.

We, of course, accord great weight to the interpretation of a statute made by the administrative agency charged with enforcing it. Nelson v. Bd. of Educ., 148 N.J. 358, 364 (1997). Though the Commissioner clearly determined in the context of the emergent relief petition that the Board should be responsible for J.B.'s costs, it is equally clear that she did not decide the issue of whether the Board, or Newark, should ultimately be the responsible party. Her decision remanded the matter to the OAL for a resolution of the issue on the merits. To our knowledge, the case is still pending before the ALJ. The Commissioner further noted the possibility that the Board could
"commence an action with the Office of Special Education Programs if it wished to challenge [GNCS's] determination that [NHA] was an appropriate placement" in the first instance. We have not been apprised whether or not the Board accepted that invitation.

We recognize that the record is largely based upon undisputed facts, and, thus the board seeks determination of issues that are primarily legal in nature. Under such circumstances, the failure to completely exhaust administrative remedies frequently has not barred our review. See Pressler, Current N.J. Court Rules, comment 3.5 on R. 2:2-3 (2009). However, in this matter, which involves interpretation of the Act, its implementing regulations, and its interplay with the IDEA, we believe "the available 'agency expertise, policy, discretion or judgment'" is critical, and that the public interest is better served by allowing the administrative proceedings to complete their full and final course. Essex Council No. 1, N.J. Civil Serv. Ass'n. v. Gibson, 118 N.J. Super. 583, 586 (App. Div. 1972) (quoting Roadway Express, Inc. v. Kingsley, 37 N.J. 136, 141 (1962)). We therefore dismiss the appeal.

 
Dismissed.

(continued)

(continued)

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A-1348-08T3

August 4, 2009