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Contini v. Board of Educ. of Newark

December 22, 1995

PETER B. CONTINI, ASSISTANT COMMISSIONER, DIVISION OF FIELD SERVICES, NEW JERSEY, DEPARTMENT OF EDUCATION, PETITIONER-RESPONDENT,
v.
BOARD OF EDUCATION OF NEWARK, RESPONDENT-APPELLANT.



On appeal from the State Board of Education.

Approved for Publication December 22, 1995. As Corrected March 20, 1996.

Before Judges Petrella, Skillman and P.g. Levy. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by SKILLMAN, J.A.D.

The primary issue presented by this appeal is whether the Commissioner of Education (the Commissioner) is required under the provisions of the Public School Education Act of 1975, L. 1975, c. 212, as amended in 1987, L. 1987, c. 398, N.J.S.A. 18A:7A-1 to -52, which authorize the removal of a local board of education and the creation of a state-operated school district, to conduct an evidentiary hearing even though there is no dispute regarding the facts relied upon to support this proposed administrative action.

This administrative proceeding was initiated by respondent Peter B. Contini, an Assistant Commissioner of the Department of Education, filing a petition which alleged that the appellant Board of Education of Newark (Newark Board) had failed or been unable to provide a thorough and efficient system of public education in Newark. The petition further alleged that the Department of Education had been monitoring the operation of the Newark schools for a period of ten years pursuant to the monitoring system established under N.J.S.A. 18A:7A-14. This monitoring, which is conducted in all public school districts, consists of periodic evaluations based on general "elements" and "indicators" of the thoroughness and efficiency of each district's educational system. N.J.A.C. 6:8-4.3 to 4.10; see Abbott v. Burke, 119 N.J. 287, 350-52, 575 A.2d 359 (1990). The Essex County Superintendent of Schools conducted an initial review of the Newark district, called level I, between March and August 1984, which resulted in unacceptable ratings on seven of ten elements and thirteen of fifty-one indicators. The Newark school district then moved into the level II monitoring process, which involved the development and implementation of an improvement plan to correct the deficiencies identified in level I. The Essex County Superintendent of Schools conducted level II monitoring between August 1986 and February 1987, which resulted in unacceptable ratings on seven of ten elements and sixteen of fifty-one indicators. A level III Verification Review was conducted during October and November 1992, which resulted in a report to the Commissioner that identified conditions that continued to prevent the Newark school district from achieving certification. Subsequently, the Commissioner determined that conditions existed within the Newark school district that precluded the successful implementation of a corrective action plan. Consequently, the Commissioner initiated a Comprehensive Compliance Investigation which revealed numerous deficiencies and irregularities and resulted in the petition for removal of the Newark Board and creation of a State-operated district.

The Commissioner referred the petition to the Office of Administrative Law (OAL), which assigned the matter to an Administrative Law Judge (ALJ). After a period for discovery, respondent moved for a summary decision approving the removal of the local school board and the establishment of a state-operated district or, in the alterative, a declaration that the Department of Education had made out a prima facie case as to all or substantially all of the facts alleged in the petition. Extensive documentary material was submitted in support of and in opposition to this motion, and oral argument was conducted.

The ALJ issued a fifty-eight page decision, which concluded that "there are no material facts genuinely in dispute as to petitioner's determination ... that ... respondent failed to take or is unable to take the corrective action necessary to establish a thorough and efficient system of public education for its 48,000 students." The ALJ rejected the Newark Board's argument that a motion for a summary decision could not be granted even though the proposed administrative action was based on undisputed facts. The ALJ concluded that even though the Public School Education Act establishes a right to a "plenary hearing" before any "corrective action" may be ordered, including the creation of a State-operated school district, this right is subject to the provisions of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, and its implementing regulation, N.J.A.C. 1:1-12.5, which authorize a summary decision when there is no material disputed issue of fact. The ALJ further concluded that the removal of the Newark Board was justified by the low level of school attendance in Newark, the high level of students who "drop out" after eighth grade, the inordinately high level of non-instructional employees, the "deplorable condition of some of the physical facilities," the unavailability of textbooks, workbooks and other vital instructional materials in many schools and the "abysmal record of performance by Newark's students as measured on standardized tests."

The Commissioner adopted the findings and Conclusions of the ALJ, observing that the Newark Board's exceptions to the ALJ's initial decision did not "specifically identify any material factual disputes." The Commissioner observed that the photographs and videotape submitted in support of the motion for summary decision "vividly depict schools with crumbling ceilings, warped floors, unlocked supply closets, overflowing sinks, inoperable toilets, exposed wires and filthy grounds." The Commissioner also observed that "pupil performance data indicates ... an utter failure by the Board to prepare its students to function as citizens and workers in society." The Commissioner further indicated that "the historic failure of the district to achieve certification through the monitoring process, the exceedingly low test scores of the students ... and the Board's inability to meet its affirmative obligation to ensure safe and clean facilities in the district ... is made all the more troubling by the proofs submitted ... regarding the expenditures by Board members for meals, trips, cars and flowers." The Commissioner concluded that the undisputed facts demonstrate a "decade of failure" by Newark "to meet the State's minimum standards for certification as providing a thorough and efficient system of education," and recommended that the State Board of Education (State Board) remove the Newark Board and create a State-operated school district to administer the Newark schools.

After hearing oral argument, the State Board issued a forty-four page written decision accepting the Commissioner's recommendation, and on July 5, 1995, entered an administrative order removing the Newark Board and creating a State-operated school district for Newark. The State Board agreed with the ALJ and the Commissioner that a local school board's right to a hearing under the Public School Education Act is subject to the summary decision procedures established under the APA. It also concluded that the summary decision procedure was appropriate in this case because "Newark has failed to present ... anything to suggest that a remand for further hearing would result in any Conclusion other than that it has failed to provide a thorough and efficient education for over a decade." The State Board emphasized that the Newark Board recognized the many deficiencies in Newark's schools but had failed to assume any responsibility for correcting those deficiencies.

The Newark Board appealed from the State Board's decision and moved for a stay pending appeal. This motion was denied by the State Board, this court and ultimately the Supreme Court, thus allowing the State-operated district to assume control of the Newark school system on July 12, 1995.

On appeal, the Newark Board argues that even if there are no disputed material facts relating to the proposed removal of a local school board and creation of a State-operated district, the Public School Education Act requires the Commissioner to conduct an evidentiary hearing before ordering such administrative action. In the alternative, the Newark Board argues that there are genuine issues of fact material to the decision to create a State-operated school district in Newark. We reject both arguments and affirm the State Board's final decision.

The Newark Board argues that because the Public School Education Act requires a "plenary hearing" before the Commissioner or the State Board may order any corrective action, including the creation of a State-operated school district, an evidentiary hearing is required even if there are no disputed issues of fact material to this proposed administrative action.

The relevant sections of the Public School Education Act provide:

Based on the [comprehensive compliance investigation], the commissioner shall issue a report which will document any irregularities and list all those aspects of the corrective action plan ... which have not been successfully implemented by the district or the conditions which would preclude the district from successfully implementing a plan. ... The commissioner shall also order the local board to show cause why an administrative order, subject to the provisions of [N.J.S.A. 18A:7A-15 and N.J.S.A. 18A:7A-34] should not be implemented. The plenary hearing before a Judge of the Office of Administrative Law, pursuant to the ...


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