On appeal from a final decision of the State Board of Education, EDUOS-4720-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Baxter.
Appellant, the Board of Education of the Lenape Regional High School District (Lenape District), appeals from a determination of the State Board of Education (State Board) affirming the right of the Gloucester County Institute of Technology (GCIT) to exclude post-secondary students from the formula it used to calculate the fee the Lenape District was required to pay to GCIT for out-of-county students who attended GCIT. We affirm substantially for the reasons expressed by the Acting Commissioner of Education (Commissioner) in her October 11, 2005 decision, which the State Board affirmed on March 3, 2006.
GCIT operates the Southern New Jersey Academy of Performing Arts program for students who pursue careers in the performing arts. The Lenape District is located in Burlington County, and is comprised of four high schools. GCIT seeks payment from the Lenape District of nonresident fees for forty-five students who attended GCIT's academy program during the school years 1997-1998 through 2004-2005.
In 1998, GCIT petitioned the Commissioner, seeking tuition payments for nine students from the Lenape District who were attending GCIT. At that time, the Lenape District claimed that GCIT did not meet the definition of vocational education. After the case was transferred to the Office of Administrative Law (OAL), the Administrative Law Judge (ALJ) concluded that the academy program was approved vocational education; the Commissioner subsequently adopted, in substantial part, the ALJ's decision.
The State Board remanded the matter to the Commissioner for findings consistent with the State Board's March 1, 2000 decision in a companion case. K.B. ex rel H.B. v. Bd. of Educ. of the Rancocas Valley Reg'l High Sch. Dist., No. A-6814-02 (App. Div. Nov. 12, 2004), certif. denied, 182 N.J. 431 (2005). Following the decision by this court in K.B., supra, that the academy program constituted "vocational education," the ALJ again concluded that the GCIT nonresident fee calculation was appropriate. The Commissioner adopted the ALJ's recommendation and directed the Lenape District to remit payment to GCIT, including an unpaid balance on the nonresident fee and interest on the undisputed amount. The State Board affirmed the Commissioner's decision.
The facts are not in dispute. The issue is whether the governing law and regulation require the inclusion of post-secondary vocational students for purposes of calculating the non-resident fee. In addressing this issue, the ALJ, in his August 26, 2005 decision, made the following findings:
N.J.S.A. 18A:54-20.1(c) does not allow an institution like GCIT to collect tuition from a school district like Lenape for students that have graduated from high school and are no longer the responsibility of the home district. The question here, however, is whether GCIT must include in-county post-secondary students in attendance at its programs, when calculating the non-resident fee for out-of-county secondary students. The better rational[e] . . . is that the regulatory scheme would choose to compare like categories. Thus the non-resident fee for out-of-county secondary students would be based on secondary students in attendance at GCIT.
The ALJ observed that the Legislature and the State Board used the same non-resident fee language for county special services districts, which do not have post-secondary students. Accordingly, he reasoned that the parallel language in the two statutes showed that post-secondary students were also not contemplated in N.J.S.A. 18A:54-20.1(c). He imposed prejudgment interest beginning March 1, 2005, thirty days from the date of the Supreme Court's denial of certification in K.B. In adopting the ALJ's findings, the Commissioner stated:
With respect to the central question of this matter, the Commissioner concurs with the ALJ that [GCIT] did not err by omitting nonresident post-secondary students from its calculation of the nonresident fee authorized by N.J.S.A. 18A:54-20.1(c). Notwithstanding [Lenape District's] focus on the construction of particular words and phrases, it is clear from the overall statutory and regulatory scheme governing support of county vocational schools -- as well as sound in terms of educational and fiscal policy -- that the nonresident fee is intended to generate for out of county students the same level of support that the school's county of location provides for resident students.
The Commissioner observed that post-secondary county vocational education for nonresidents is governed by its own separate statutory scheme, N.J.S.A. 18A:54-23.1 to -23.5, and that post-secondary costs are wholly covered by the State, while secondary costs are covered by the county.
The Commissioner also agreed with the ALJ that "there was no reason why [Lenape District] should not have paid at least the undisputed amount due to GCIT, as it represents it now has" and directed appellant to pay prejudgment interest on the undisputed amount, $257,042.22, from the March 1, ...