On appeal from Department of Education.
Before Judges Skillman, Wells and Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These consolidated appeals require this court to consider whether preschool programs required by Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V) must be funded exclusively by the State. The Commissioner of Education concluded that neither the Supreme Court's mandating of preschool programs in Abbott V, nor the Appropriations Act for Fiscal Year 2004, L. 2003, c. 122, requires exclusive State funding. Instead, the Commissioner determined that the Supreme Court has only directed that he "ensure" that there be adequate funding for these programs, thus permitting the utilization of local district funds. We agree with the Commissioner and affirm.
Funding for preschool education in the Abbott districts starts with the approval by the Department of Education (DOE) of a budget based on the district's demonstrated need. The DOE then calculates the State aid available. The two components of State aid for preschool are Early Childhood Program Aid (ECPA) and Abbott Preschool Expansion Aid (PSEA). ECPA is based upon a formula contained in N.J.S.A. 18A:7F-16, while PSEA is the amount obtained by subtracting the 2002-03 approved preschool plan from the 2003-04 approved plan. The difference between the approved budget for the 2003-04 preschool plan for these districts, and the ECPA and PSEA State aid components, constitute the funds at issue in these matters.*fn1
Each of the appellants filed appeals challenging the DOE's calculation of their PSEA awards for the year 2003-04. The appeal of the Phillipsburg Board of Education (Phillipsburg) was the first of these four matters to reach disposition. The Administrative Law Judge (ALJ) rendered a summary decision, determining that the DOE correctly calculated the PSEA due Phillipsburg. The ALJ, however, also found that because the combination of PSEA and ECPA was insufficient to fund the entire approved preschool budget, the State was required to provide the shortfall.
The other Abbott districts -- Pemberton, Millville and Neptune -- agreed to stipulate to the essential facts and relied on the arguments raised and considered in the Phillipsburg matter. The ALJs in those matters reached similar results, thus collectively imposing upon the State the obligation to fund the shortfall in each of these districts, namely, $835,034 in Phillipsburg, $424,569 in Pemberton, $1,763,866 in Millville, and $3,768,176 in Neptune.
The DOE filed an appeal with the Commissioner of Education who, in final decisions rendered in each matter on September 25, 2003, rejected the ALJ's conclusions that the State was obligated to exclusively fund these shortfalls. The Commissioner explained that
"[F]ull funding" of Abbott preschool programs cannot be viewed as promises or expectations of dollar-for-dollar State funding regardless of resources available in the local district budget. Rather, they must be understood as reflections of the Department's commitment, and recognition of its obligation, to provide or secure additional State funds to the full degree necessary to support approved programs where local budgetary resources, including formula aids, local levies and monies realized through economies, efficiencies and reallocations, are found inadequate for this purpose.
Because the Commissioner concluded that the fulfillment of his obligation to"ensure" adequate funding for preschool in the Abbott districts permitted the allocation of local tax levies and other local budgetary resources to those purposes, these four Abbott districts seek our review of the Commissioner's decision.
Since the parties do not further dispute the PSEA calculations, the sole question before this court is whether the Commissioner may look to the district's funds, in whole or in part, to bear the shortfall or whether, as the Abbott districts argue, the burden for the payment of these funds rests exclusively upon the State. Resolution of this issue turns on an understanding of the Supreme Court's ...