On appeal from a Final Decision of the State Board of Education, Docket No. EDU-10085-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Petitioner Y.E., on behalf of her minor son, E.E., appeals from the June 6, 2007 final decision of the State Board of Education (State Board), affirming that part of the January 8, 2007 decision of the Commissioner of Education (Commissioner), which: 1) determined that E.E. was not domiciled in the City of Newark (City) from January 2006 through June 2006; and 2) ordered petitioner to reimburse respondent State-Operated School District of the City of Newark (the District), $4,478.88 for E.E.'s tuition for that period of time. We reverse and remand the matter to the State Board for further proceedings consistent with this opinion.
Y.E. and C.H. are the mother and father, respectively, of E.E., an eleven-year old boy. Y.E. is the owner of two residential properties located at North 17th Street*fn1 in East Orange. On September 27, 2005, C.H. filed an affidavit with the District stating that he could no longer care for E.E., and that E.E. was residing in the City with his aunt, J.H. On the same day that C.H.'s affidavit was filed, J.H. filed a guardian affidavit with the District, pursuant to N.J.S.A. 18A:38-1(b), stating that she: 1) resided at Broadway, Third Floor, in the City; 2) was supporting E.E. "gratis and [would] assume all personal obligations for [E.E.] relative to the requirements of the [District]"; and 3) "intend[ed] to keep and support [E.E.] gratuitously for a period of time that is not solely bound by the school year." Relying on these two affidavits, the District approved E.E.'s attendance at a school within the City.
On a date not disclosed in the record, it came to the District's attention that E.E. may not have been residing with J.H., but rather with petitioner in East Orange. Consequently, the District commenced an investigation into E.E.'s domicile, which determined that E.E. was not domiciled within the City. On March 3, 2006, the District sent petitioner a notice of initial determination of E.E.'s ineligibility, stating that he was not entitled to a free education in the District.
On April 5, 2006, a residency hearing was held, but petitioner did not attend, because she had not learned of the hearing until April 27, 2006. On April 5, 2006, a notice of final ineligibility was sent to petitioner. The notice stated that the District based its determination of ineligibility on the following facts:
The guardianship affidavit issued [to] the district on September 27, 2005 for guardianship of [E.E.] by [J.H.] residing at Broadway, Newark, New Jersey is no longer in force due to the fact that [J.H.] has renounced further guardianship of [E.E.] and your son no longer resides with [J.H.].
The residence where student [E.E.] is domiciled is North 17th Street, East Orange, New Jersey. The district has video and photographic evidence of you and your child [E.E.] leaving your East Orange residence on four consecutive days during the month of March. The car that you use to transport your child [E.E.] to [the Newark school] is registered to you with an East Orange address.
After receiving the April 5, 2006 notice, petitioner submitted documentation to the District demonstrating her residence at South 10th Street in the City. The additional information provided by petitioner included: a copy of a lease between Frank Hodges, as landlord, and petitioner, as tenant, for premises at South 10th Street for the term commencing August 1, 2005, and ending August 1, 2006; a copy of petitioner's New Jersey driver's license dated April 27, 2006, indicating her residence at South 10th Street; and a sworn statement of J.H. dated April 28, 2006, which provided, "I [J.H.] state that the child [E.E.] does not reside in my home as of 12-25-05. I released him . . . in the custody of his natural mother [petitioner]. You can reach me at [telephone number] after 4:00 p.m. with any concerns."
On May 8, 2006, the District sent a letter to petitioner advising that it had reviewed the additional residency information she had provided, and that the District had reaffirmed its prior decision contained in the April 5, 2006 notice of final ineligibility. The letter rejected the authenticity of the apartment lease the petitioner had provided for South 10th Street. "Your residence is not in Newark, New Jersey. The apartment lease which you presented for  South 10th Street, Newark, New Jersey, is not a valid lease. Landlord Frank Hodges admitted to investigator Manual Guinones that the lease was fictitious and stated that you reside in East Orange, New Jersey."
On May 10, 2006, petitioner sent a notice of appeal from the District's April 5, 2006 notice of final ineligibility to the Bureau of Controversies and Disputes (Bureau), explaining that the reason petitioner filed the appeal past the twenty-oneday time period contained in N.J.S.A. 18A:38-1(b)(2) was because she had not received the final notice until April 27, 2006. On May 12, 2006, J.H. filed a residency appeal on behalf of E.E. with the Bureau.*fn2
On May 19, 2006, the District received a notarized statement from J.H., which stated in pertinent part: 1) . . . ; 2) "while my nephew, [E.E.], resided in my home in the beginning of the 2005-06 school year, [E.E.] has not resided in my home since December 25, 2005. At that time, I released him to the custody of his natural mother, [petitioner]"; 3) "[a] petition of appeal was filed in my name on behalf of [E.E.] with the Department of Education on or about May 12, 2006, claiming that [E.E.] resides with me and seeking [E.E.'s] continued attendance in Raphael Hernandez School"; 4) "I wish to acknowledge that I was unaware of the language specifically stating that [E.E.] resides with me at  Broadway, Newark, New Jersey"; 5) "[E.E.] does not reside with me, and I am not responsible for his education"; 6) "[t]o the best of my knowledge, [E.E.] resides with his mother in East Orange, New Jersey"; and 7) "[t]herefore, I hereby withdraw my petition of appeal claiming residency for [E.E.] submitted under my signature dated May 12, 2006." On June 14, 2006, the Bureau marked J.H.'s petition as withdrawn.
During the summer of 2006, the District's child study team evaluated E.E., and after finding him eligible for special education services, developed an individualized education program (IEP) for him. Thereafter, the District placed E.E. at one of its schools where he began receiving special education services in September 2006 until he was removed from the District.*fn3
On September 11, 2006, petitioner filed a pro se appeal of the District's determination of ineligibility. On September 15, 2006, the Bureau sent petitioner a letter advising that, although the appeal was untimely, the appeal would be processed. The letter provided in pertinent part:
The 21-day time period set forth in N.J.S.A. 18A:38-1(b)(2) for appealing the above referenced Final Notice of Ineligibility to the Commissioner has expired. If you nonetheless wish to challenge the District's determination of ineligibility, your petition may be processed. However, due to the expiration of the appeal period, E.E. may not automatically attend school in the District during the pendency of such an appeal.
If you seek a determination from the Commissioner that E.E. may attend school in the [D]istrict while an appeal of his ineligibility is pending you must file a motion for emergent relief, pursuant to N.J.A.C. 6A:3-1.6, explaining why you believe the Commissioner should grant such relief . . . .
On September 22, 2006, petitioner filed a request for emergent relief, alleging, among other matters, that she had not known that J.H.'s May 12, 2006 appeal had been withdrawn. On September 25, 2006, petitioner's application for emergent relief was forwarded by the Bureau to the Office of Administrative Law (OAL), pursuant to N.J.A.C. 6A:3-1.6(c).
On September 29, the District filed its answer to the appeal and counterclaimed for: (1) tuition for the period of E.E.'s ineligible enrollment in the District school; and (2) "reimbursement for the professional time of all child study team personnel who participated in the evaluation, testing, preparation of reports, eligibility determination, and IEP meetings, and preparation of appropriate IEP to meet the needs of E.E." The District also filed a motion to dismiss the appeal as untimely.
On October 2, 2006, a hearing on petitioner's application for emergent relief and on the District's motion seeking to dismiss the appeal commenced before the assigned Administrative Law Judge (ALJ), with petitioner proceeding pro se. Prior to commencement of any testimony in the matter, the ALJ requested the District's ...