On appeal from the State Board of Education.
King, Gaulkin and Gruccio. The opinion of the court was delivered by Gaulkin, J.A.D.
[225 NJSuper Page 223] Petitioner Elizabeth Balsley appeals from a final decision of the State Board of Education (State Board) denying her application
for counsel fees in connection with her successful petition challenging the refusal of respondents North Hunterdon Regional High School District Board of Education and Robert Hopek to allow her to try out for the school football team. She contends that the Commissioner of Education (Commissioner) had, and should have exercised, authority to award counsel fees either under the Education Law, N.J.S.A. 18A:1-1 et seq., or under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq.
Petitioner, then a 15-year old student at North Hunterdon Regional High School, filed a verified petition with the Commissioner asserting that her request to try out for the football team had been improperly denied on the basis of her sex. She alleged that respondents' actions
Because football tryouts were about to commence, the matter was immediately referred to the Office of Administrative Law as a contested case, which promptly heard petitioner's application for interim relief. An Administrative Law Judge (ALJ) issued an initial decision ordering that, pending a plenary hearing, petitioner was to be permitted "to compete, tryout and qualify for membership" on the football team.
Shortly thereafter, the parties consented to an order which made the interim restraints permanent and allowed petitioner to submit her motion for attorney's fees. Before filing that motion, however, petitioner moved to amend her petition "to include as a basis for the award of relief the provisions of New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 et seq. " Over respondents' objections, the ALJ granted the motion. Petitioner then filed the motion for fees. Concluding that the Commissioner "has ancillary authority to award counsel fees to
prevailing parties in contested cases adjudicated by him," the ALJ recommended the award of a $5343.75 fee.
The Commissioner rejected the ALJ's recommended decision, stating that "until such time as he is granted statutory authority or the imprimatur of the Courts of New Jersey to do so, the Commissioner declines to grant counsel fees." The State Board affirmed that decision for the reasons expressed by the Commissioner. Petitioner appeals.
The Commissioner correctly concluded that he does not have plenary authority to award counsel fees in determining "controversies and disputes" presented to him under N.J.S.A. 18A:6-9.
The fact that Title 18A does not specifically authorize any award of such counsel fees is not dispositive. The statutory powers accorded to an administrative agency are to be "'liberally construed to permit the agency to achieve the task assigned to it, and . . . such administrative agency has such implied incidental powers as may reasonably be adapted to that end.'" In re Suspension of Heller, 73 N.J. 292, 303 (1977) (quoting In re Comm'r of Banking & Ins. v. Parkwood Co., 98 N.J. Super. 263, 271-72 (App.Div.1967)). Administrative agencies thus have been empowered to award certain kinds of monetary relief not expressly authorized by statute. See, e.g., Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399 (1973) (allowing Division on Civil Rights to award compensatory damages for pain and suffering); Jackson v. Concord Co., 54 N.J. 113 (1969) (allowing Division on Civil Rights to award compensatory damages for out-of-pocket losses); ...