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DOCKET NO. A-1584-11T2










December 12, 2012


Argued October 17, 2012 - Decided


Before Judges Grall and Simonelli.


On appeal from the Department of

Education, State of New Jersey.


Rebecca D. Boudwin argued the cause for

appellant (Comegno Law Group, P.C., attorneys; John B. Comegno II and Ms. Boudwin, of counsel and on the brief).


Angela L. Velez, Deputy Attorney General,

argued the cause for respondent (Jeffrey S.

Chiesa, Attorney General, attorney; Melissa

H. Raksa, Assistant Attorney General, of

counsel; Ms. Velez, on the brief).


This appeal concerns the Commissioner of Education's administration of N.J.S.A. 18A:36B-21, a provision of the Interdistrict Public School Choice Program Act (the Act), N.J.S.A. 18A:36B-14 to -24. The focus is on a statute that allows a board of education to adopt a resolution, subject to approval by the Commissioner, limiting the percentage of its students that may enroll in a choice district. N.J.S.A. 18A:36B-21(a)(1).

The questions presented are whether the Commissioner has the authority to condition approval of a school board's restricting resolution on the board's submission of evidence supporting it and, if so, whether the Commissioner may deny approval for lack of evidential support without giving prior notice of the obligation to submit supporting evidence. We conclude that the Commissioner has the authority to require the information but not without giving prior notice of the obligation.



The Act was approved on September 9, 2010, and took effect immediately. L. 2010, c. 65, 1-13. At that point in time, an interdistrict public school choice program had been under consideration and development for years, and a limited choice program had been in place since 1999. From its inception, the purpose of the choice program has been to improve educational opportunities by increasing options for parents and students in selecting a school which best meets the students' needs, improving achievement and efficiency through voluntary redistribution of students and healthy competition among school districts. N.J.A.C. 6A:12-1.1; see also 30 N.J.R. 1485(a) (May 4, 1998); 31 N.J.R. 1664(a) (July 6, 1999); 44 N.J.R. 2085(a) (Aug. 20, 2012). The program was authorized in furtherance of the Legislature's constitutional obligation to "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, 4, 1.

The Legislature impliedly authorized the Commissioner to establish choice districts in the "Comprehensive Educational Improvement and Financing Act of 1996," L. 1996, c. 138.1 Acting on that authorization, the State Board of Education proposed regulations establishing an interdistrict choice program in April 1998. Following a series of public hearings, modifications and re-proposals, the State Board adopted regulations establishing an interdistrict public school choice program of limited scope in September 1999. See 31 N.J.R. 1664(a) (July 6, 1999) (discussing the process).

In January 2000, the Governor signed legislation directing the Commissioner to proceed with a choice program consisting of no more than ten choice districts statewide in the first year, no more than fifteen in the second year, and no more than twenty-one in the third, fourth and fifth years. L. 1999, c. 413, 3 (codified as N.J.S.A. 18A:36B-3 until repealed by section 12 of this Act).2 The 1999 law required the Commissioner to annually report to the State Board and the Legislature on the effectiveness of the program, and it required the Legislature's Joint Committee on Public Schools to commission an independent study of the first two years of operation. L. 1999, c. 413, 10 (N.J.S.A. 18A:36B-11). Despite the legislative oversight, the 1999 law provided for continuation of the limited program unless the Legislature acted to rescind it. Ibid. Thus, the limited program continued for more than five years.

This Act, effective September 9, 2010, repeals the limited interdistrict school choice program authorized by the 1999 law and replaces it with a substantially similar program that does limit the number of choice districts the Commissioner may establish. N.J.S.A. 18A:36B-14 to -24 (L. 2010, c. 65, 1-13).3 Without limitation, it directs the Commissioner to implement a choice program through "the creation of choice districts." N.J.S.A. 18A:36B-16; cf. L. 1999, c. 413, 3 (N.J.S.A. 18A:36B-3) (providing for a gradual increase in choice districts from ten to twenty-one). Despite this broad grant of authority, the Act continues the Commissioner's obligation to provide annual reports on the effectiveness of the choice program to the State Board of Education, the Legislature and its Joint Committee on Public Schools. N.J.S.A. 18A:36B-24.

A "choice district" is a district authorized to open one or more schools to students residing in sending districts. N.J.S.A. 18A:36B-15. A "sending district" is the district in which a choice student resides. Ibid.

Several provisions of the Act address the impact on sending districts. For example, a district seeking authorization to operate as a choice district must apply to the Commissioner to obtain authorization and obtain the approval of the State Board of Education. N.J.S.A. 18A:36B-17. A district applying for such authorization must provide "an analysis of the potential impact of the program on student population diversity" in its district and "all potential participating districts." Ibid. In approving a choice district, the Commissioner must consider its impact on diversity in the choice district, the fiscal impact on the district, the quality and variety of the proposed academic programs, and the procedures and standards for its admission of choice students. N.J.S.A. 18A:36B-18(a) to (d). But the Commissioner cannot ignore the impact on the sending district; he must consider "the degree to which the program will promote or reduce educational quality in the choice district and the sending districts." N.J.S.A. 18A:36B-18(e).

Other provisions of the Act reflect concern for the sending district's need to plan for its students. For example, a sending district must be notified when one of its students applies to enroll in a choice district and when one of its students is accepted. N.J.S.A. 18A:36B-20(a), (g).

The provision of the Act at issue here also recognizes the interests of sending districts and the students who will not participate in the choice program. N.J.S.A. 18A:36B-21 gives a sending district authority to adopt a resolution restricting the number of its students participating in a choice district.

The sending district's authority to limit participation in choice districts is not absolute, however. N.J.S.A. 18A:36B-21 limits the scope of the permissible restriction to a maximum percentage of the sending district's students, and it requires the sending district to obtain the Commissioner's approval. In pertinent part, N.J.S.A. 18A:36B-21 provides:

a. (1) The school board of a sending district may adopt a resolution to restrict enrollment of its students in a choice district to a maximum of 10% of the number of students per grade level per year limited by any resolution adopted pursuant to this paragraph and 15% of the total number of students enrolled in the sending district, provided that the resolution shall be subject to approval by the commissioner . . . .


The standard the Commissioner must apply in granting approval focuses on the sending district's interests. N.J.S.A. 18A:36B-21(a)(1) provides for a grant of approval

upon a determination that the resolution is in the best interest of the district's students and that it will not adversely affect the district's programs, services, operations, or fiscal conditions, and that the resolution will not adversely affect or limit the diversity of the remainder of the student population in the district who do not participate in the choice program.

Under the 1999 law, boards of sending districts had broader authority. Without approval of the Commissioner, a sending district could adopt a resolution to "restrict enrollment of its students in a choice district to 2% of the number of students per grade level per year" or "7% of the total number of students." L. 1999, c. 413, 7(b)(1)-(2) (N.J.S.A. 18A:36B-8(b)(1) to (2)). Moreover, the Commissioner's approval was not required unless the resolution exceeded the foregoing "enrollment restriction percentages . . . to a maximum of 10% of the number of students per grade level per year . . . and 15% of the total number of students enrolled in the sending district." L. 1999, c. 413, 7(b)(3) (N.J.S.A. 18A:36B-8(b)(3)). That approval was to be granted under a standard identical to that stated in N.J.S.A. 18A:36B-21(a)(1). See L. 1999, c. 413, 7(b)(3) (N.J.S.A. 18A:36B-8(b)(3)).

This Act complements the Commissioner's general authority and responsibility. The Commissioner is responsible for "supervision of all schools of the state receiving support or aid from state appropriations, except institutions of higher education." N.J.S.A. 18A:4-23. To that end, the Commissioner is authorized to "inquire into and ascertain the thoroughness and efficiency of operation of any of the schools of the public school system of the State . . . by such means as to him seem proper." N.J.S.A. 18A:4-24; see also N.J.S.A. 18A:4-31 (authorizing the Commissioner to "examine witnesses under

oath . . . upon any matter pertaining to the schools under his jurisdiction, supervision or control"); N.J.S.A. 18A:4-29 (authorizing the Commissioner to meet with superintendents to discuss "ways and means for promoting a thorough and efficient system of education").


The Milford Borough Board of Education (Board) passed its resolution restricting participation of its students in choice districts on October 13, 2010, and transmitted it to the Commissioner for approval on October 21, 2010. The resolution, memorialized in the minutes of a Board meeting, stated: "A motion was made . . . and seconded . . . to restrict enrollment of the students of Milford School District in a choice district to a maximum of 10% of the number of students enrolled per grade level per year enrolled in the sending district." The Board did not submit any other information.

The regulation addressing such limiting resolutions at that time is still in place; it does not address the need for a board to submit information justifying a limiting resolution.4 N.J.A.C. 6A:12-4.1 provides:

(a) A district board of education shall not prevent or discourage students from participating in the school choice program. However, upon adoption of a resolution, the district board of education of a sending district may limit the number of its students participating in the choice program.


. . . .


2. The school board of a sending district may adopt a resolution [limiting enrollment] to:


i. A maximum of 10 percent of the number of students per grade per year . . . ; and/or


ii. A maximum of 15 percent of the total number of students enrolled in the sending district, provided that the Commissioner determines that the resolution:


(1) Is in the best interest of the district's students;


(2) Will not adversely affect the district's programs, services, operations, or fiscal conditions; and


(3) Will not adversely affect or limit the diversity of the remainder of the student population in the district that do not participate in the choice program.

. . . .


In contrast, Subsection (b) of the same regulation, which authorizes a "sending district's board of education [to] restrict enrollment of a student on the basis of an exceptional circumstance that would affect the sending district's instructional program," expressly requires "adoption of a resolution detailing the reason for th[at] restriction." N.J.A.C. 6A:12-4.1(b) (emphasis added).5

Ten months after the Board submitted its resolution for approval by the Commissioner, on August 11, 2011, Milford's superintendent wrote to the Commissioner and advised that the Executive County Superintendent had told him that the Board's resolution for the 2011-2012 school year had not been approved. After reporting what he had heard about the fate of the Board's resolution, the superintendent explained and offered assistance:

The Board is very concerned that by not placing a limit on the number of its students allowed to participate in the Choice School Program, as expressly permitted by the Act, there will be an adverse impact on the school district's "programs, services, operations, or fiscal conditions." A large number of students could potentially leave the Board's school district to attend a choice school if a cap on the number of students is not authorized by DOE.


Upon receipt of this letter, would you kindly provide guidance as to the status of the review of the Board's Resolution? If any additional information is required, please let me know and we will immediately provide same.


Your time and consideration is greatly appreciated.

Although the Commissioner did not respond for two months, on October 18, 2011, he denied approval. He explained, "the resolution is not accompanied by any credible evidence that supports the assertion that allowing unrestricted student participation in the [choice program] would have a negative impact on the students, operations, programs or fiscal condition of your district."6

This appeal followed.


The Commissioner raises a preliminary question about exercise of this court's jurisdiction. Asserting that the Board's resolution pertained only to the 2011-2012 school year, the Commissioner contends that the appeal is moot and should be dismissed. The Board impliedly acknowledges that "no judicial relief can be granted under the facts presented." But relying on Plainfield v. Department of Health, 412 N.J. Super. 466, 483-84 (App. Div.), certif. denied, 203 N.J. 903 (2010), the Board urges us to consider this "important matter of public interest" that is "capable of repetition." It is clear that when a question of public importance is posed on appeal and likely to arise again and evade review, our courts address the merits even though no relief can be granted. See Clymer v. Summit Bancorp., 171 N.J. 57, 65-66 (2002); State v. Hackett, 166 N.J. 66, 70 (2001); Zirger v. General Acc. Ins. Co., 144 N.J. 327, 330 (1996).

This case meets that standard. The questions concern public education and the fairness and propriety of official action matters of sufficient importance to be addressed in our Constitution. N.J. Const. art. VI, 5, 4 (providing a right to challenge official action); N.J. Const. art. VIII, 4, 1 (requiring the Legislature to provide a system of thorough and efficient education). Moreover, it appears that these issues are highly likely to arise in future cases that will be moot by the time of appeal. Approval of this resolution was denied for lack of supporting evidence a year after the Board submitted it for review, and the Commissioner now contends that he need not give prior notice of the obligation to provide supporting information. Indeed, the Commissioner argues that his denial gave the Board all the notice it needs to gain approval of future resolutions.


Turning to the merits, we reject the Board's claim that the Commissioner has no authority to require the board of a sending district to submit information supporting a resolution limiting its students' participation in the choice program. Well-settled principles guide our consideration of the issue. Although the Act does not expressly require a board to submit anything other than a resolution cast in the terms it authorizes, that does not end the inquiry.

The Supreme Court "has held that the grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities and that the courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent." N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978). When considering claims that an agency's action exceeds its authority, the Court has consistently followed those guiding principles.

The Legislature's intent and purpose are critical to the analysis. Thus, in deciding whether an administrative officer has exceeded his or her express and implied authority, courts look to the general and specific responsibilities and authority the Legislature has delegated, the factual circumstances or problem that led to the delegation, express statements of legislative purpose, and legislative purpose that can be inferred from the provisions of the act at issue and related statutes. See, e.g., In re Request for Solid Waste Util. Customer Lists, 106 N.J. 508, 514-16 (1987).

From the history of the interdistrict public school choice program discussed in Part I of this opinion, it is apparent that the Legislature has given the Commissioner broad responsibility and authority to enhance an interdistrict school choice program that has complex implications financial and educational for a thorough and efficient education of the students of choice and sending districts alike. That task requires the expertise of the Department of Education and its consideration of whether the information in the application meets the statutory standard for approval. N.J.S.A. 18A:36B-17 to -18. In approving formation of a new choice district, the Legislature has required the Commissioner to take account of all those implications. N.J.S.A. 18A:36B-18.

In approving a limiting resolution, however, the Legislature has required the Commissioner to focus on the interests of the sending district. The Legislature itself has accounted for the interests of the choice districts by capping the limit on participation a sending district may impose.7 Notably, as the program has developed and been expanded by the Legislature, the Legislature has restricted a sending district's ability to limit participation of its students.

The role the Legislature has assigned the Commissioner in approving a sending district's limiting resolution is focused on the impact of the resolution on the sending district and its students. The standard, set forth in full above, requires the Commissioner to approve the resolution when the resolution is in the best interest of the sending district's students and will not adversely affect either diversity in the sending district or the sending district's programs, services, operations or fiscal conditions. N.J.S.A. 18A:36B-21(a)(1).

Because the sending district's board presumably is in a position to provide information explaining why its resolution is in the best interest of its students and why the resolution will not adversely affect the district, the Commissioner's request for pertinent information from the sending district is well within the scope of the authority expressly granted in N.J.S.A. 18A:4-24 and in furtherance of his responsibility obligation to ensure that the resolution meets the statutory standard for his approval under N.J.S.A. 18A:36B-21.

To the extent that the Commissioner's letter of denial suggests a demand for "credible evidence" supporting approval, it appears to be at odds with the Commissioner's position on appeal. Relying on decisions of this court, the Commissioner asserts that his "denial of approval was a legislative, not adjudicative function." See In re Renewal Application of Red Bank Charter Sch., 367 N.J. Super. 462, 474-76 (App. Div.) (holding the Commissioner's grant or denial of a charter school's renewal application as legislative and not adjudicative in nature), certif. denied, 180 N.J. 457 (2004); In re Charter School Application of Englewood, 320 N.J. Super. 174, 217 (App. Div. 1999) (same for initial charter application), aff'd, 164 N.J. 316 (2000); E. Windsor Reg'l Bd. of Educ. v. State Bd. of Educ., 172 N.J. Super. 547, 551-52 (App. Div. 1980) (same for school board's requested budget increase). To the extent the Commissioner argues that his obligation to approve a resolution requires him to review a board's resolution and the adequacy of the supporting evidence, we disagree. The obligation is the Commissioner's; it requires an independent judgment based on his expertise.

The Board's argument, which is related to the nature of the Commissioner's authority and role, has no merit. It contends that the Commissioner failed to provide findings of fact and reasons supporting the denial. The Commissioner denied approval simply because the Board had not supplied information, and the Board admittedly provided none. The Commissioner's determination required no additional factual findings.


The Board's objection to the Commissioner's failure to give prior notice of its obligation to present information supporting its resolution is well-taken. "Subject to the strictures of due process and of the Administrative Procedure Act," an agency has discretion to select procedures "'appropriate to enable the agency to implement legislative policy.'" In re Solid Waste, supra, 106 N.J. at 519 (quoting Texter v. Dep't of Human Servs., 88 N.J. 376, 385 (1982)).

The Board does not contend that the Commissioner was required to adopt a regulation requiring the board of a sending district to submit information supporting approval of its resolution in order to obtain approval. See N.J.S.A. 52:14B-2(e); N.J.S.A. 52:14B-3(2); N.J.S.A. 52:14B-4(a)(1). Thus, the question whether rulemaking or a less formal type of notice would suffice is not before us.

The Board's objection is based on the fact that it had no notice, formal or informal, that the Commissioner would deny approval if no information was submitted and no notice of what information was required. Given the letter Milford's superintendent wrote during the year the Board's resolution was pending before the Commissioner for approval a letter that stated the district's willingness to provide "any additional information . . . required" a denial based on failure to supply supporting information bespeaks arbitrariness.

Arbitrariness of this sort is in conflict with the general principle that "[p]ersons subject to regulation are entitled to something more than a general declaration of statutory purpose to guide their conduct before they are restricted or penalized by an agency for what it then decides was wrong from its hindsight conception of what the public interest requires in the particular situation." Boller Beverages, Inc. v. Davis, 38 N.J. 138, 152 (1962). The premise of reasonable official action is that those subject to it "know in advance all the rules of the game, so to speak, and may act with reasonable assurance." Ibid. This fundamental component of administrative fairness adequate prior notice of what is expected applies to procedural as well as substantive standards set by an agency. See Crema v. N.J. Dept. of Envtl. Prot., 94 N.J. 286, 301 (1983); Historic Green Springs, Inc. v. Bergland, 497 F. Supp. 839, 854 (E.D.Va. 1980).

The Commissioner argues that the standard for his approval set forth in N.J.S.A. 18A:36B-21(a)(1) provides "guidelines [that] instruct a school district seeking to adopt a limiting resolution on the requirements for such a resolution" and asserts that "Milford failed to follow these guidelines." While the standard for the Commissioner's approval is stated in the statute, the obligation for a board to provide supporting information to the Commissioner is not.

Moreover, the pertinent regulation suggests that no supporting information is required. As noted above, the regulation, which is still in effect, notes the need for information justifying a resolution restricting a particular student's participation in a choice district but does not indicate that information justifying a limiting resolution authorized by N.J.S.A. 18A:36B-21(a)(1) is required. N.J.A.C. 6A:12-4.1(a) to (b).8 See generally N.J.S.A. 52:14B-2(e) (defining the terms "Administrative rule" and "rule" to include an agency statement describing the "procedure or practice requirements of any agency"); N.J.S.A. 52:14B-4(a) (requiring rulemaking prior to the amendment or repeal of any rule).

Without prior notice of the obligation to provide supporting information, the Commissioner may not deny approval of a limiting resolution solely on the ground that none was provided.

Affirmed in part, and reversed in part.


1 The implied authorization was given in Section 3 of the 1996 law. It provided that a district's "resident enrollment" would include nonresidents enrolled in a "program of interdistrict public school choice approved by the commissioner." The Statement accompanying the bill explained that Section 3 was included "in the event the commissioner establishes an interdistrict school choice program at a subsequent date."

S. Educ. Comm., Statement to S. Bill No. 40 (Nov. 21, 1996).

2 This Act repealed Sections 1 through 10 and 14 through 17 of Chapter 413 of the Laws of 1999. For ease of reference, hereinafter we use a citation to Chapter 413 to indicate the repealed statutes and provide a citation to the repealed statute in a parenthetical without reiterating the fact that it is now repealed.


N.J.S.A. 18A:36B-19 provides that a choice district established by the Commissioner prior to the effective date of the Act shall continue in operation as if approved pursuant to this Act.

4 An amendment to this regulation has been proposed but not adopted. 44 N.J.R. 2085(a) (Aug. 20, 2012). Like the current regulation, it does not include any guidance as to the content of a district's resolution or direction concerning factual information a board must supply to obtain the Commissioner's approval. Ibid.

5 The proposed amendment to N.J.A.C. 6A:12-4.1(b) omits this provision addressing a particular student. 44 N.J.R. 2085(a) (Aug. 20, 2012).

6 The Board does not contend that the Commissioner's statement of the standard for approval deviates from the standard set forth in N.J.S.A. 18A:36B-21(a)(1), which is quoted above.

7 Because the Board's resolution closely tracks the statutory language "a maximum of 10% of the number of students per grade level" the meaning of that phrase is not at issue. Given the history of the development of this provision, the phrase "restrict enrollment of its students . . . to a maximum of 10% of the number of students" is best understood to mean that it cannot restrict enrollment to a number less than 10% of its students.

8 The proposed amendments to this regulation are also silent on a board's obligation to provide support for a limiting resolution. 44 N.J.R. 2085(a) (Aug. 20, 2012).

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