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Education Law Center, On Behalf of Abbott Vs Burke v. New Jersey Department of Education and

April 3, 2012

EDUCATION LAW CENTER, ON BEHALF OF ABBOTT VS BURKE PLAINTIFF SCHOOL CHILDREN, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF EDUCATION AND
NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY, RESPONDENTS.



On appeal from the Schools Development Authority, Department of Education.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff Education Law Center seeks an order from this court compelling the New Jersey Schools Development Authority (SDA) to adopt by a date certain regulations governing the delegation of school facilities projects to eligible SDA school districts*fn1 as required by L. 2007, c. 137, § 24, codified at N.J.S.A. 18A:7G-13(e)(2) (Section 24). Section 24 required the SDA to adopt the regulations by August 6, 2008. As SDA has provided no justification for further delay, we grant the requested relief. Although plaintiff sought a similar order compelling action by the Department of Education (DOE), which was also required to adopt regulations, N.J.S.A. 18A:7g-13(e)(1), plaintiff's request was, the parties concede, rendered moot by DOE's adoption of regulations on April 4, 2011. 43 N.J.R. 830(a) (April 4, 2011); N.J.A.C. 6A:26-19.

I.

This action has its roots in the State's efforts to remedy inadequacies in educational facilities in poor school districts. The Educational Facilities Financing and Construction Act (EFCFA), enacted in 2000, L. 2000, c. 72, provided for the financing and construction of school facilities. N.J.S.A. 18A:7G-1 to -48. The EFCFA was responsive to the Supreme Court's decision in Abbott v. Burke, 153 N.J. 480, 519-25 (1998) directing the State to implement a school construction program in thirty-one Abbott school districts. See also Abbott v. Burke, 164 N.J. 84 (2000) (affirming State responsibility to fund facilities remediation and construction in Abbott districts).

In the wake of criticism of the management of the school construction program under the EFCFA, then-Governor Jon Corzine established an Interagency Working Group on School Construction (Working Group) to develop recommendations for reform. Exec. Order No. 3, 38 N.J.R. 1263(b) (Feb. 7, 2006). The Working Group issued three extensive reports proposing comprehensive changes in the school construction program. See Report to the Governor by the Interagency Working Group for School Construction, (March 15, 2006); Second Report to the Governor by the Interagency Working Group for School Construction, (May 17, 2006); Third Report to the Governor by the Interagency Working Group for School Construction, (Sept. 14, 2006) at http://www.njsda.gov/RP/Interagency_Working_Group.html (last visited March 26, 2012). Among the Working Group's numerous recommendations was the proposal to delegate management of school construction projects to capable local school districts:

EFCFA should also be amended to allow qualified school districts to assume full responsibility for the design and construction of school facility projects. Concomitantly, the legislation should provide for the development and adoption of criteria to evaluate a district's capability to manage all or part of a project involving a major rehabilitation or the construction of a new school. Moreover, the legislation should encompass a new initiative to assist districts, as needed, to enhance their capacity to manage such projects. [Third Report to the Governor by the Interagency Working Group for School Construction (Sept. 14, 2006), 14, at http://www.njsda.gov/RP/Interagency_Working_ Group.html (last visited March 26, 2012).]

The Working Group was convinced that delegating management authority to capable local districts would increase efficiencies and promote successful completion of school construction projects. Id. at 5, 13-14.

In response to the Working Group's recommendations, the Legislature passed comprehensive legislation that the Governor then signed into law on August 6, 2007 as L. 2007, c. 137 (Act). See N.J.S.A. 52:18A-235(g), (h) (recognizing recommendations of Working Group and stating intent to adopt them). Along with creating a new State agency to manage the school construction program and adopting numerous other changes in the EFCFA, the 2007 law authorized SDA to delegate capital maintenance projects to an SDA district and, subject to regulations, authorize the management of other projects. N.J.S.A. 18A:7G-13(a). "The development authority may also authorize [an SDA] district to undertake the design, acquisition, construction and all other appropriate actions necessary to complete any other school facilities project in accordance with the procedures established pursuant to subsection e of this section." Ibid.

Consistent with that power to delegate, the statute required both the DOE and SDA to adopt regulations pursuant to which DOE would determine whether a district was "eligible" to manage, and SDA would determine whether a district had the "capacity" to manage a school construction project:

(1) Within one year of the effective date of P.L.2007, c.137 (C.52:18A-235 et al.), the commissioner, in consultation with the development authority, shall adopt pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations by which the commissioner shall determine whether an SDA district is eligible to be considered by the development authority to manage a school facilities project or projects. In making the determination, the commissioner shall consider the district's fiscal integrity and operations, the district's performance in each of the five key components of school district effectiveness under the New Jersey Quality Single Accountability Continuum (NJQSAC) in accordance with section 10 of P.L.1975, c.212 (C.18A:7A-10), and other relevant factors.

(2) Within one year of the effective date of P.L.2007, c.137 (C.52:18A-235 et al.), the development authority, in consultation with the commissioner, shall adopt pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations by which the development authority shall determine the capacity of an SDA district, deemed eligible by the commissioner pursuant to paragraph (1) of this subsection, to manage a school facilities project or projects identified by the development authority. In making the determination, the development authority shall consider the experience of the SDA district, the size, complexity, and cost of the project, time constraints, and other relevant factors. [N.J.S.A. 18A:7G-13(e).]

As the Act, approved August 6, 2007, became effective immediately, L. 2007, c. 137, § 62, the deadline for promulgating the required regulations was August 6, 2008. However, the Administration failed to propose or promulgate regulations pursuant to the law adopted to implement its own Working Group's recommendations.

Shortly after the new Administration took office, plaintiff's executive director David G. Sciarra, alerted the Governor's Office and the Attorney General by letters on January 28, and February 23, 2010 of the past delay in adopting regulations and plaintiff's interest in ensuring that SDA and DOE comply with the statutory mandate. On April 15, 2010, Assistant Attorney General Nancy Kaplen responded to the February 23, 2010 letter to the Attorney General, stating the Attorney General had asked the Division of Law to work with DOE and SDA "so that appropriate regulations can be proposed as expeditiously as possible." Plaintiff replied on April 23, 2010 requesting a timeframe for the promulgation ...


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