On appeal from the Commissioner of Education, Docket No. 590-10/10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 21, 2011 -
Before Judges Axelrad and Sapp-Peterson.
Appellant, Margate City Board of Education (Margate), appeals from the final administrative agency decision of the Commissioner, Department of Education (DOE), dismissing its petition challenging an "extraordinary services" invoice submitted to it by respondent, Board of Education of the City of Atlantic City (Board). The Commissioner dismissed Margate's petition on the basis that it was untimely. After considering the record, in light of the arguments advanced by the parties and prevailing legal standards, we remand the matter to the agency for re-transmittal to the Office of Administrative Law (OAL) for a contested-case hearing and initial decision on all issues, and reference, in turn, to the agency head for a final decision. See N.J.S.A. 52:14B-10.
The Board and Margate have a send-receive agreement (Agreement) that calls for Margate to send its students in grades nine through twelve to the Atlantic City school district, N.J.S.A. 18A:38-8. K.C., a resident of Margate, enrolled in the district commencing March 2006. In December 2008, K.C.'s mother, F.M., filed a due process petition against the Board with the DOE, alleging the Board failed to evaluate K.C. or to provide him with a free and appropriate public education (FAPE). See 20 U.S.C.A. § 1400(d)(1)(A). F.M. alleged she incurred $116,237.41 in placement costs, $3500 for evaluations, $5400 for transportation expenses, and $48,799.23 in counsel fees.
On December 14, 2009, the Board approved a settlement of the litigation with F.M. for $175,000, and passed a resolution memorializing its approval of the settlement. At no time prior to the Board's approval did the Board inform Margate that it had reached a settlement, include Margate in the settlement negotiations, or inform Margate of the terms upon which the Board settled with F.M.
The settlement agreement called for the Board to pay F.M. $105,000 within sixty days of its execution (February 10, 2010) and the balance no later than July 9, 2010. F.M. agreed, among other conditions, to be solely responsible for all remaining educational costs incurred on behalf of K.C., who was nineteen years old at that time. F.M. also waived and released the Board from all claims accruing as of the date of the settlement agreement.
On December 15, 2010, the Board's attorney e-mailed F.M.'s attorney, advising that the settlement payments referenced in the settlement agreement would be paid by Margate. Margate was not copied on this e-mail. The next day, the Board secretary sent an e-mail to Margate, which in pertinent part stated:
Attached is a scanned certified resolution from the December 14, 2009 Atlantic City Board of Education meeting approving the settlement agreement in the negotiated matter F.M. o/b/o K.C. v. Atlantic City Board of Education. Also attached is the settlement agreement.
If you have any questions, please do not hesitate to contact our Solicitors Office[.]
The following day, the Board secretary sent another e-mail to Margate, attaching a scanned copy of the settlement agreement and, the following day, sent another e-mail to Margate, attaching a December 15, 2009 e-mail from the Board's attorney to the Board's business administrator. The relevant portion of the Board attorney's e-mail stated: "As you will recall, this [is] a Margate student, so they will be responsible for any settlement payments. Please make the necessary arrangements to forward the approved Settlement on to Margate and request that payment be made thereunder as soon as possible."
In a letter dated January 21, 2010, to F.M.'s attorney and copied to the Board's attorney, Margate's attorney advised that the Board bore sole responsibility for the settlement payments "under the express terms of the Agreement." The letter stated further:
[T]he claims in the due process matter relate to special education responsibilities of Atlantic City, not Margate. Atlantic City made a voluntary decision to settle the claims against it at its expense. [The Board's attorney] did not copy Margate or its solicitor on the December 15th e-mail that was sent to you, nor did he send any communication to ...