On appeal from the State Board of Education. Lentz & Gengaro, attorneys for appellants (George M. Holland, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Grall and Messano.
K.L. and K.L., on behalf of their minor children, C.L. and M.L., appeal from the final order of the Commissioner of Education (the Commissioner) that 1) adopted the findings of the administrative law judge (ALJ) reached on summary disposition; and 2) dismissed their petition. They contend that they were denied their due process rights by not being provided with a full hearing before the Board of Education of the Borough of Kinnelon (the Board), and by the ALJ's conversion of the Board's motion to dismiss into one for summary disposition. Furthermore, petitioners argue that the Commissioner erred as a matter of law by concluding that their children were not domiciled in the school district for purposes of N.J.S.A. 18A:38-1, and therefore entitled to an education "free of charge."
We have considered these arguments in light of the record and applicable legal standards. We affirm.
In May 2007, petitioners purchased a single-family home in Kinnelon but did not occupy it during renovations. On July 3, 2007, they executed an "affidavit of anticipated residency" furnished by the Board. The document indicated that petitioners anticipated establishing permanent residency in Kinnelon as of October 2007. Attached to the affidavit was a copy of the Board's policy #5111 that provided,
A nonresident child otherwise eligible for attendance whose parent(s) or legal guardian(s) anticipates district residency and has entered a contract to buy, build or rent a residence in this district may be enrolled without payment of tuition for a period of time not greater than 5 weeks prior to the anticipated date of residency. If any such pupil does not become a resident of the district within 5 weeks after admission to school, the situation will be reviewed and the need to assess tuition will be determined.
On October 8, 2007, the Board's Business Administrator/Secretary Alice M. Robinson, sent a letter to petitioners requesting "an update on [their] home renovations." The letter further advised petitioners that beginning October 15, the Board would charge "$998 per month per child until a Certificate of Occupancy [wa]s issued." Robinson indicated she was available to discuss the situation with petitioners.
Instead of contacting the Board, on October 22 petitioners filed two Verified Petitions each seeking a due process hearing before the Bureau of Controversies and Disputes in the Department of Education.*fn1 They alleged that "due to unanticipated building/construction requirements," they were "unable to complete the renovations required" on their house in Kinnelon. Despite this fact, petitioners averred that their home in Kinnelon was their "true, fixed and permanent home" and that of their children. The petition sought an order 1) declaring that the Board violated applicable law "by not providing... proper written notice of [its] intention to cease providing" free education to their children; 2) violated applicable law by failing to provide proper notice "of what documentation was needed to establish proof" of their children's domicile; 3) finding that the children "ha[ve] been and continue to be domiciled" in Kinnelon and "eligible to receive a public education free of charge"; and 4) awarding petitioners counsel fees and costs.
The Board's attorney responded by writing to petitioners' counsel, noting that in light of the administrative filing, if petitioners waived "the ineligibility procedures" before the Board, "the parties could move forward for summary decision." Petitioners' counsel indicated they were not waiving "any of the procedures afforded" to them.
The Board then moved to dismiss the petition in lieu of filing an answer. It raised two arguments: First, that the Commissioner lacked jurisdiction over a "contract dispute" between the parties; second, that since it was not seeking to remove the children from the district, no notice or informal hearing was required, and the matter was "not ripe for adjudication."
The motion was transferred to the Office of Administrative Law and assigned to an ALJ. Sua sponte, she converted the matter to a motion for summary decision. The ALJ determined that the Commissioner had jurisdiction over the dispute, and further determined, based on the papers and briefs filed, that petitioners' children were not domiciled in Kinnelon. She dismissed the petition.
Exceptions were filed by petitioners with the Commissioner, and the Board filed its reply. Petitioners objected to the conversion of the motion to one for summary disposition, noting that they were denied the opportunity to testify and furnish additional evidence as to "why they considered their new home in Kinnelon to be their domicile." This additional information included copies of petitioners' drivers' licenses, their voter registration forms, and a preliminary 2007 real estate tax bill, all of which demonstrated that ...