On appeal from Board of Review, New Jersey Department of Education.
Before Judges Brody, Stern and Keefe.
The opinion of the court was delivered by
The Winslow Township Board of Education (Winslow) is one of seven local school districts that comprise the Lower Camden Regional School District (Regional). Regional is a "limited purpose" regional district because it does not provide all the school needs of its constituent local school districts. Each local school district has its own primary schools, K-6. Regional owns two high school buildings and two junior high school buildings, one of each being in Winslow Township. Winslow's student population, which constitutes 41% of Regional's students, is growing at a rate substantially exceeding that of Regional's other local school districts. As a result, Winslow considers that it has enough students to withdraw from Regional and provide its own more efficient K-12 program.
The tortuous procedure for withdrawing from a limited purpose regional district is found in N.J.S.A. 18A:13-51 to -65. The process begins when the withdrawing school district petitions the county superintendent of schools to "make an investigation as to the advisability of withdrawal," N.J.S.A. 18A:13-51, and ends with a special school election "at which time the question whether or not the withdrawing school district shall withdraw from the regional district . . . shall be submitted to the legal voters of the withdrawing district and to the legal voters within the remainder of the regional district[.]" N.J.S.A. 18A:13-57.
Before such an election may be held, the county superintendent must first prepare a detailed report of facts bearing on the financial and educational advisability of the withdrawal as it would affect the withdrawing and remaining local school districts. N.J.S.A. 18A:13-52. That report must then be submitted to an ad hoc "board of review," composed of the Commissioner of Education, a member of the State Board of Education to be appointed by its president, the State Treasurer or a designee, and the Director of the Division of Local Government Services in the Department of Community Affairs. The board must then conduct a public hearing on whether to grant the withdrawing district's petition. It must then decide the issue by majority vote. N.J.S.A. 18A:13-56. These procedures were followed and resulted in the board's authorizing a special school election.
Winslow appeals from the board's determination of a secondary but important issue. To induce the voters in the remaining local school districts to approve the withdrawal, Winslow wants to pay Regional approximately $5,000,000 if the vote is favorable. It needs to issue school bonds to finance the payment. That new indebtedness, if authorized, must be disclosed to the voters before the election as part of the total fiscal picture produced by the withdrawal. N.J.S.A. 18A:13-58. The board of review declined to permit Winslow to issue bonds for that purpose. In its written decision addressed to Winslow and signed by the Commissioner of Education as its Chairperson, the board addressed the issue as follows:
With regard to your proposal to issue general obligation bonds to provide a compensating payment to the remaining constituent districts, my office has consulted with the Office of the Attorney General and determined that there is no provision in the law or code which would permit such action to be taken. Since this is the case I am advising you that you may not issue school bonds in this manner.
Winslow finds authority for issuing the bonds in N.J.S.A. 18A:24-5, which permits a local school district to issue school bonds for the "acquisition or construction of buildings for any lawful purposes[.]" It will acquire the high school and junior high school buildings situated in the Township upon withdrawal under the provisions of N.J.S.A. 18A:13-61, which provides in relevant part:
The withdrawing district and the remaining districts . . . shall take title to and control of all school grounds and buildings, and the furnishings and equipment therein . . . situated in their respective districts on the effective date of withdrawal . . . as established by the commissioner [of education].
Winslow argues that it may lawfully compensate Regional for its acquisition of the two school buildings and grounds.
Before discussing the merits, we note our agreement with the parties that the appeal was properly taken to this court from the decision of the board of review. Ordinarily, we do not hear a school law matter until after the State Board of Education has rendered a decision. Dore v. Bedminster Tp. Bd. of Ed., 185 N.J. Super. 447, 452, 449 A.2d 547 (App. Div. 1982). However, the State Board has authority to review only a determination of the Commissioner of Education. N.J.S.A. 18A:6-27. Here the Commissioner has no authority to act alone on the matter because as a member of the board of review he or she has only one vote. Thus a ...