On appeal from the State Board of Education and the Commissioner of Education.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.
In 1975, as a result of the concerted effort of the Legislature, the Governor and the Commissioner of Education, the State, by the enactment of N.J.S.A. 18A:17A-1, et seq., responded to the increasingly intolerable chaos infecting the Newark public school system. The legislative scheme created for Newark was the so-called unit control system, achieved by the creation of the unique office of executive superintendent exclusively responsible for the day-to-day educational, fiscal and operational activities of the district and the concomitant allocation to the Newark Board of Education (Newark Board) of a role limited to policy-making. See N.J.S.A. 18A:17A-3 and -7. These consolidated cases raise significant and novel questions respecting the relationship and respective powers of the Newark Board and its executive superintendent pursuant to that statute.
Our review of the record, considered in light of counsel's argument, now persuades us that the issues raised by this appeal so intimately affect educational policy, practice and organizational structure as to require their prior consideration by the State Board of Education, which has not yet addressed the substantive questions on their merits. We therefore remand to the State Board for that purpose.
Explanation of the present posture of this litigation requires reference to its procedural history. On August 8, 1983, petitioner Daniel W. Gibson, Jr., then a member of the Newark Board, filed with the Commissioner of Education a verified petition whose gravamen was the claim that the Newark Board, by various of its official actions, was attempting to subvert the fundamental legislative scheme of N.J.S.A. 18A:17A-1, et seq.
The specific areas of controversy include the Newark Board's attempt to hire a lobbyist/consultant to perform duties allegedly assigned by statute to the executive superintendent; its attempt to remove the Office of Board Affairs, the executive director of Board Affairs and the Office of General Counsel from the general supervisory authority of the executive superintendent; and its retention of outside counsel to provide it and its individual members with legal services beyond those available from general counsel for the district. The petition also alleged that the Newark Board had conducted several meetings in violation of the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq., thereby requiring the nullification of actions taken at those meetings respecting the approved contract for the lobbyist/consultant.
The matter was referred by the Commissioner of Education to the Office of Administrative Law for hearing, and the administrative law judge issued an initial decision on February 2, 1984, which sustained Gibson's position with respect to the Open Public Meetings Act but which otherwise approved the challenged actions of the Newark Board as within its policy-making function. In short, it was the view of the administrative law judge that the Office of Board Affairs and the Office of General Counsel were, as a matter of statutory interpretation, subject neither to supervision by the executive superintendent nor to any obligation to report to him. The administrative law judge further concluded that outside legal counsel was appropriately available to respond to requests for legal opinions by individual board members as well as the board collectively and indeed that the retention of outside counsel without recommendation by the executive superintendent was within its inherent power. Finally, the administrative law judge was satisfied that as a matter of concept the Newark Board was also within its power in contracting with the lobbyist/consultant, the only legal defect in the contracting process having been the Open Public Meetings Act violation.
Following his receipt of exceptions from the parties and after considering the record in the matter, the Commissioner of Education issued his determination on March 30, 1984, concurring with the administrative law judge only in respect of the Open Public Meetings Act issue and disagreeing with all of his substantive conclusions. In addition to setting aside the findings of the administrative law judge which had approved of the specific Newark Board actions challenged by Gibson, the Commissioner issued the following directives to the Newark Board in an evident attempt to resolve for the future potential areas of jurisdictional conflict between it and its executive superintendent.
2. The Board shall promulgate the necessary Board rules with sufficient specificity pertaining to the employment of outside consultants which shall be in compliance with N.J.S.A. 18A:17A-3 et seq. and N.J.A.C. 6:20-8.1 et seq.
3. The Board shall promulgate the necessary rules specifying the manner and circumstances under which outside counsel is to be retained by the Board without compromising or diminishing the effectiveness of those powers and duties of the Executive Superintendent or the Office of General Counsel.
4. The Board shall further clarify through its rule-making authority the manner and conditions under which legal advice of Board counsel is to be ...