On appeal from a Final Decision of the Commissioner of Education, Docket No. 48-2/08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sapp-Peterson and Alvarez.
Plaintiff, Board of Education of the City of Elizabeth, Union County (District or Board),*fn1 is an Abbott district.*fn2 It appeals from the final decision of the Commissioner of defendant, Department of Education (DOE), denying its request for funding for additional educational programs, declining to subsidize the Board's decision to give its teachers and aides a one-hour lunch break instead of the thirty minutes provided under the collective bargaining agreement, and concluding that it had not been sufficiently thrifty in planning and paying for its technology needs. We affirm.
Under DOE regulations, school districts must submit to the DOE both a two-year preschool program plan and a one-year preschool program budget. N.J.A.C. 6A:10A-2.2(a)(9) and (11).*fn3
As part of DOE's budget guidelines, one-year "Special Requests" that "(1) do not fit within or (2) exceed the amounts in any of the line-item categories" in the budget may be submitted as well, but should be accompanied by "detailed descriptions and justifications . . . ." N.J.A.C. 6A:10A-1.2.*fn4 Plaintiff submitted its 2008-2009 proposed budget to defendant in November 2007, which included a request for funding for its extended day/extended school year program (ED/ESY), funding for 165 lunchroom assistants and $44,000 for technology infrastructure. DOE approved the budget but without the ED/ESY program, the additional lunchroom assistants or technology infrastructure. The District appealed the DOE's decision to the Commissioner, who assigned the matter to the Office of Administrative Law (OAL), to be heard as a contested case before an Administrative Law Judge (ALJ). N.J.S.A. 52:14B-9 and -10; see also N.J.A.C. 1:1-1.1 to -20.3 (providing uniform rules of procedure for conduct of contested case proceedings). Both sides presented testimony, at the conclusion of which the ALJ issued a written opinion.
The ALJ found that the District failed to meet its burden in showing a need for funding beyond the regular day/regular school year schedule required under Abbott and the resulting regulations. The ALJ specifically noted that the District's reliance upon various assessments and screening processes did not outweigh the contrary explanations offered by the DOE against the funding. The ALJ determined that funding should be provided for the 165 lunch assistants for the one-hour lunch period "[s]ince the District provides a one hour lunch for its teaching staff" as an "accommodation" to "ensure that a safe and secure environment exists during lunch." Finally, on the issue of funding for the technology infrastructure, the District contended that its yearly allotment of $132,000, based upon a total allotment of $800 per class for 165 classrooms, was annually expended on replacement items. The ALJ determined that based upon proofs the District submitted, it was evident "not all of the replacement items were recurring annually . . . ." The ALJ nonetheless concluded "it was clear that [the $132,000] allotment would likely be exhausted by the end of the school year . . . ." Additionally, the ALJ noted that the justification for the additional technology funding was the same as had been submitted for the previous year and that additional funding had been provided over the past several years, although not necessarily for the amount requested in the latest submission. While recognizing that a determination for one year was not binding for purposes of funding in succeeding years, the ALJ determined that the
Department's own treatise . . . encourages a rich learning environment through the use of technology, ". . . such as computers with age-appropriate software, to enhance the development of critical thinking skills." In this regard, the District offered compelling reasons for infrastructure funding-the need for telephone service, networking capabilities, and internet access.  "Preschool Teaching & Learning Expectations: Standards of Quality" (July 2004).*fn5
The Commissioner reviewed the record, the initial decision of the ALJ, as well as the exceptions and replies submitted. She adopted the ALJ's initial decision with respect to the additional funding sought for ED/ESY, but rejected the recommendation that the DOE fund 165 positions for the student lunch hour and the special request for $44,000 in additional funding for technology infrastructure.
In concurring with the ALJ's recommendation that the ED/ESY funding be denied, the Commissioner found that the record indisputably demonstrated that the Board is able to meet the needs of its preschool students during the regular school day and that she would not accept a "simple 'more is better' rationale without a specific factual nexus to the identified unmet needs of district students, which was not provided herein."
In her written decision, the Commissioner, like the ALJ, was "unpersuaded" by the Board's stated need for the ED/ESY program, noting that "both Department and Board witnesses attested that the district is able to meet the needs of its preschool students during the regular school day." The Commissioner found that the Board was already in compliance with regulatory year and hour requirements, and that the Board had failed to make "a compelling showing that . . . this [existing] program . . . does not enable students to enter kindergarten ready to succeed . . . ."
Turning to the ALJ's recommendation that the lunch assistants be provided for one hour, to which both parties took exception for different reasons,*fn6 the Commissioner affirmed that recommendation in part and rejected it in part, denying the Board's special request for supplemental funding. The Commissioner determined that the ALJ's recommendation that the District should be awarded a portion of the requested funds was based on an erroneous assumption concerning the length of teachers' lunch hours and, further, that the Board could satisfy its schools' lunchtime needs by making "more efficient use of available resources . . . ." On this basis, the Commissioner ruled that the Board could adequately supervise students without additional funding.
Finally, in rejecting the ALJ's recommendation that the requested $44,000 for technology funding be granted, the Commissioner found that the DOE was not required to grant the funding requested simply because it had granted an "identical request for the 2007-2008 school year . . . ." The Commissioner also stated that the Board failed to prove it had already disbursed "the entire amount of available technology funding[,]" as it was required to do, and expressed the opinion that the Board's ...