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D.S. v. Board of Education of Township of East Brunswick

Decided: February 15, 1983.


On appeal from the State Board of Education.

Ard, King and McElroy. The opinion of the court was delivered by King, J.A.D.


[188 NJSuper Page 595] The sole issue remaining on this appeal is the validity of a regulation of the State Board of Education, N.J.A.C. 6:28-4.3(g). This regulation relates to payment of residential costs incurred by placement of a child in residence at a special education facility. The regulation states

(g) Residential costs shall be assumed by the public agency which places a pupil in a residential school. A local school district shall not be responsible for residential costs when reason for placement is due to home conditions or parental choice and a free and appropriate education can be made available in a nonresidential school. Placements of pupils in residential schools by public agencies other than local school districts shall be subject to regulations governing such agencies and these regulations. These provisions do not eliminate the responsibility of a local school district to pay the day school education cost portion of a handicapped pupil's special education in a residential program when the pupil has been placed under the authority of a public agency empowered to make such placement.

The child, D.S., and his parents moved to East Brunswick in 1975 when he was five years old. In September 1976 he entered a class for trainable mentally-retarded children in East Brunswick. Upon the recommendation of the school district's child study team, he was placed in the American Institute for Mental Studies (AIMS), a private residential school in Vineland, in January 1977. The East Brunswick School Board (Board) paid his tuition fees pursuant to N.J.S.A. 18A:46-14 from that date but refused to pay his residential costs.*fn1

In July 1977 the parents of D.S. started an action against the Board in the Chancery Division seeking reimbursement for residential costs: room, board and the like. The questioned regulation, N.J.A.C. 6:28-4.3(g), became effective on August 11, 1978. In February 1978 the Chancery Division judge refused to entertain the action for failure to exhaust administrative remedies and transferred the case to the State Board of Education for a determination of the board's challenge to the educational necessity of the placement.

A hearing in the Department of Education before a chief classification officer was held in the fall of 1978. In February 1979 the officer issued extensive findings of fact and conclusions of law. He concluded that the placement of D.S. at AIMS was educationally justified and not due to home conditions or parental

choice. He said, "D.S. shall remain in his current educational placement with both tuition and residential costs provided by respondent [Board]. . . . Reimbursement for residential costs shall be subject to current practices of the New Jersey Department of Education for pupils placed in residential settings from January 1977 to the present."

The board appealed to the Commissioner of Education, claiming (1) the decision was against the weight of the evidence, (2) certain hearing procedures were defective and (3) residential costs were wrongfully imposed. On the issue before us the Commissioner rendered a decision holding the school district responsible for residential costs from the effective date of N.J.A.C. 6:28-4.3(g) -- August 11, 1978. The board appealed to the State Board, contending that subsection (g) was ultra vires and unenforceable. The State Board summarily affirmed the Commissioner and upheld its regulation.

Against this background we examine whether N.J.A.C. 6:28-4.3(g) is an ultra vires and unenforceable exercise of regulation by the State Board of Education. Administrative agencies have limited jurisdiction; actions of an agency beyond its jurisdiction are ultra vires and void. Swede v. Clifton, 22 N.J. 303, 312 (1956). In reviewing agency action this court's function is to determine whether the agency's decision is within legislatively delegated authority. Bergen Cty. Freeholders Bd. v. Bergen Cty. Prosecutor, 172 N.J. Super. 363, 369 (App.Div.1980). The authority possessed by an administrative agency consists of powers expressly granted plus those which are reasonably necessary or appropriate to effectuate the specific delegation. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978).

In New Jersey administrative regulations are accorded a rebuttable presumption of validity. A finding that a regulation is ultra vires is disfavored. Id. at 561. A grant of authority to an administrative agency is to be liberally construed to permit the agency to accomplish its statutory responsibilities. Sheeran v. Progressive Life Ins. Co., 182 N.J. Super. 237, 248

(App.Div.1981). See United Bldg. & Constr. Trades Council v. Camden, 88 N.J. 317, 325 (1982), app. pending 51 U.S.L.W. 3024 (1982).

To determine whether statutory authorization for a particular administrative action exists, the reviewing court may look beyond the specific language of the delegating statute to the objective of the statute. We may examine the entire statute in light of its surroundings and objectives to ascertain whether authority is implicitly granted. N.J. Guild, supra, 75 N.J. at 562. Agency action is not precluded where it can be said to promote or advance policies and findings that served as the driving force for the legislation. A.A. Mastrangelo, Inc. v. Environmental Protec. Dep't, 90 N.J. 666, 683-684 (1982). The delegated authority should be construed to permit the fullest realization of legislative intent. Cammarata v. Essex Cty. Park Comm ', 26 N.J. 404, 411 (1958). A court may readily imply any incidental powers necessary to implement such legislative intent. Hillman/Kohan Eyeglasses, Inc. v. N.J. Optometrists Bd., 169 N.J. Super. 259, 266 (App.Div.1979).

The liberal interpretation in which the court may engage is limited by a duty to restrain agency action where there is reasonable doubt that a particular power resides in an agency. Mastrangelo, supra, 90 N.J. at 684; In re Jamesburg High School Closing, 83 N.J. 540, 549 (1980). The regulation must be within the fair contemplation of the delegation of the enabling statute. N.J. Guild, supra, 75 N.J. at 561-562.

N.J.A.C. 6:28-4.3(g) was promulgated by the New Jersey State Board, effective on August 11, 1978. The State Board enjoys broad legislative rule-making powers. See In re Upper Freehold Reg'l School Dist., 86 N.J. 265, 277 (1981). The Legislature has expressly delegated these broad powers to the State Board. N.J.S.A. 18A:4-15 provides:

The state board shall make and enforce, and may alter and repeal, rules for its own government and for implementing and carrying out the school laws of this state under which it has jurisdiction. [Emphasis supplied]

N.J.S.A. 18A:4-16 provides:

The state board shall have all powers, in addition to those specifically provided by law, requisite to the performance of its duties. [Emphasis supplied]

Its specific express duties include in pertinent part the general supervision of public education and the distribution of federal funds. N.J.S.A. 18A:4-10 provides:

The general supervision and control of public education in this state, except higher education, and of the state department of education shall be vested in the state board, which shall formulate plans and make recommendations for the unified, continuous and efficient development of public education, other than higher education, of people of all ages within the state. [Emphasis supplied]

N.J.S.A. 18A:59-1 provides:

Whenever moneys are made available for school purposes by any act of congress, except the act of congress referred to in article 2 of this chapter, or any agency of the federal government, or made available or deposited in any manner in accordance with any law enacted by the congress of the United States, such moneys shall be apportioned by the commissioner under plans approved by the state board, if said moneys are for use in the public school system, or by the chancellor, under plans approved by the board of higher education, if said moneys are for use in higher education. Such moneys shall be distributed as aid to the several districts or in any other manner designated for any educational purpose defined in the federal statutes or in the regulations of federal agencies making allotments or in the laws of this state. [Emphasis supplied]

The State Board argues that its express power under N.J.S.A. 18A:59-1 to accept and allocate federal funds implies a mandate to take the necessary steps to qualify for such funding. The State Board also argues that the regulation falls within its general power to supervise and control public education under N.J.S.A. 18A:4-10. It contends that N.J.A.C. 6:28-4.3(g) was enacted to qualify this State for federal ...

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