On appeal from New Jersey Department of Education, Docket Nos. 204-7/07 and 235-8/07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Payne and Waugh.
The Boards of Education of Waterford Township and Folsom Borough appeal from a consolidated final administrative determination of the Commissioner of Education dismissing their appeals from an adverse determination by the Board of Education of Hammonton Township, notwithstanding the initial determination of an Administrative Law Judge (ALJ) in favor of the petitioners. Hammonton, a receiving district, sought retroactive reimbursement for resource room charges for the 2004-2005, 2005-2006 and 2006-2007 school years. The petitioners, Waterford and Folsom, the sending districts, claimed their contracts with Hammonton included all charges and, in any event, the retroactive adjustments were untimely.
In his initial decision, the ALJ concluded that Hammonton had "waive[d] the resource room costs for the students from Waterford" in exchange for the assumption by the Waterford Board of Education of "the costs of an additional Child Study Team to be assigned to the Hammonton public schools," so that "the Waterford Board of Education is not responsible for its students' use of the resource room for the period 2004-2005, 2005-2006, 2006-2007 school years . . . ." The ALJ also concluded that "the Folsom Board of Education is exempt from the resource room assessments" because they were not included in the contract with the sending districts, and "the Folsom Board of Education was without knowledge of any additional charges to be applied to its sending/receiving tuition payments" retroactively.
The Commissioner rejected the ALJ's initial determination and held that Waterford and Folsom failed to file their appeal petitions with the Commissioner within the 90-day limitation period, as required by N.J.A.C. 6A:3-1.3(i). The Waterford petition was dated on July 24, 2007. Folsom's petition was dated August 15, 2007. The Commissioner found that they were aware of Hammonton's position long before receipt of a letter dated May 14, 2007, from the Division of Finance of the Department of Education, which petitioners contend commenced the period of limitation.
The Commissioner found "that the Initial Decision cannot be adopted as the final decision in this matter, in that it fails to address the threshold procedural issue of whether - as contended by Hammonton - petitioners' appeals were filed out of time pursuant to N.J.A.C. 6A3-1.3(i)." The Commissioner felt no remand for consideration of that issue by the ALJ was necessary because the petitions themselves revealed that Waterford was aware of Hammonton's position "at least as early as November 2006," and Folsom as early as February 2007, at which time the 90-day period began to run. Hence, she concluded "there was no basis for delaying action pending inquiry to and response from the Division of Finance," as had been done in lieu of filing the appeals. The Commissioner thus determined that "petitioners could and should have acted to protect their rights in this matter well before July and August 2007, regardless of ongoing efforts to resolve the dispute by means other than litigation." The Commissioner also explained why she would not relax the regulation concerning time limits.
While the appeals were pending before the State Board of Education, legislation was enacted eliminating the State Board's role in reviewing decisions of the Commissioner, and these appeals were filed. The petitioners argue they met the time limit because, within 90 days of the receipt of the final order or ruling of the Hammonton Board, on February 27, Waterford wrote to the County Superintendent, seeking intervention. According to Waterford "[t]he County Superintendent failed specifically [to] respond to the Petitioner's inquisition, therefore, the Petitioner subsequently submitted this dispute to the Division of Finance . . . in order to avoid a needless filing with the Commissioner if the Department had already had a clearly articulated position on the matter . . . ." Both Waterford and Folsom rely on the Division's unsatisfactory response of May 14, 2007 as the trigger date for the 90-day period in which to appeal.*fn1
Waterford also points to N.J.A.C. 6A:23-3.1(f)(5), which requires the County Superintendent of the county in which the receiving district Board of Education is located to "review any unique circumstances or variations and methodology and mediate all disputes that arise from the determination of tentative tuition charges, including challenges to the estimated average daily enrollment counts . . . ." The Commissioner does not suggest this regulation is inapplicable to this dispute. To the contrary, in rejecting the timeliness of the appeal, she wrote:
[n]otwithstanding that N.J.S.A. 6A:23-3.1(f)(5) requires tuition rate disputes to be taken to the county superintendent, the purpose of this process is expressly that of mediation, with no provision in any statute or rule for subsequent involvement by the Division of Finance; thus when the parties' ongoing dispute was not resolved through mediation at the county level - regardless of the reason - there was no basis for delaying action pending inquiry to and response from the Division of Finance.
Simply stated, the petitioners could and should have acted to protect their rights in this matter well before July and August of 2007, regardless of ongoing efforts to resolve the dispute by means other than litigation.
We appreciate the deference to which the Commissioner's interpretation of her Department's regulations is ordinarily entitled. Bueno v. Bd. of Trs. T'chers' Fund, 404 N.J. Super. 119, 125 (App. Div. 2008), certif. denied, _ N.J. _ (2009). We also recognize that she gave reasons as to why Waterford and Folsom should have pursued their statutory rights within appropriate time limits, without awaiting whatever remedies there may have been through mediation, and that she expressly found no basis to relax the time bar. However, we do not understand the reasons given in the context of the mediation requirement and the possibility that the required action might be taken by the County Superintendent. As we understand the Commissioner's opinion, there was no authority or justification for writing the Division instead of pursuing mediation by the County Superintendent, and the appeals were untimely for that reason. Presumably, the Commissioner would have found that the 90-day period in which to appeal would have been tolled while a mediation was pursued and conducted.
There is no suggestion that Waterford did not act in good faith or that Folsom was not known to be relying on the position advocated by Waterford. Under the circumstances, we believe the delay attributable to the communication with the Division of Finance should be treated as the functional equivalent of the pursuit of mediation because of the Superintendent's inaction. Accordingly, the Commissioner's ...