On appeal from the State Board of Education.
Before Judges Michels, Stern and Keefe.
The opinion of the court was delivered by
The Newark School District (District) appeals from a decision of the State Board of Education (Board) denying the District's request to allow its counsel and/or a stenographer to be present during compelled interviews of District personnel as part of the Board's comprehensive compliance investigation (CCI) of the Newark School District. The District maintains on appeal that the due process protections inherent in the New Jersey Constitution require that its attorney and a stenographer be allowed to be present at all compelled interviews of District personnel in connection with the CCI. We disagree and affirm.
The Commissioner of Education is charged with the responsibility of developing and administering a statewide system for evaluating the performance of school systems throughout the State in order to insure that the constitutional and legislative mandate of a thorough and efficient system of public education is achieved. N.J.S.A. 18A:7A-2a. School districts that do not satisfy basic valuative criteria are subject to heightened scrutiny known as
Level II monitoring. N.J.S.A. 18A:7A-14a(1). The Newark district was placed into Level II monitoring in 1984.
If a school district is thereafter unable to correct the deficiencies noted in the valuative process, it is then subject to increased scrutiny known as Level III monitoring. In that phase the Commissioner is authorized to direct the performance of a CCI followed by the issuance of a public report documenting the district's irregularities. N.J.S.A. 18A:7A-14b(2), c, e. A plenary hearing may then be held before the Office of Administrative Law. N.J.S.A. 18A;7A-14e. If, after the plenary hearing, the Commissioner determines that the district is unable to take the corrected actions necessary to establish a thorough and efficient system of education, the Commissioner is authorized to recommend to the Board that it is sue an administrative order creating a State-operated school district. N.J.S.A. 18A:7A-15.
In December 1987, Level III monitoring was directed for the District and, in April, 1993, an external review report prepared by independent professionals and community members was issued. N.J.S.A. 18A:7A-14c(2). Thereafter, the Commissioner directed the performance of a CCI, and retained the management consulting firm of Towers Perrin to perform an audit of the District's governance and management functions. Towers Perrin attempted to conduct valuative interviews with various District personnel but the District, in August, 1993, advised the consulting firm, as well as the Board, that it would not permit its officials and employees to submit to interviews without the presence of the District's counsel and a stenographic reporter or other recording device.
On August 12, 1993, the Commissioner issued an administrative decision and order in which she rejected the District's request in all respects. The District then filed a notice of appeal with the Board. On September 1, 1993, the Board issued a decision in which it affirmed the Commissioner's order. The District's application to the Board for a stay of this decision pending appeal was denied. The District then filed this appeal and a motion for a stay pending appeal. We denied the District's application for a stay.
In view of our decision denying the District's application for a stay, we assume that the interviews have taken place and that this matter is now rendered moot. However, since the issue is one capable of repetition yet evading review, and presents an issue of public importance, we will address the ...