On appeal from the New Jersey Commissioner of Education, Docket No. 165-6/08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2012
Before Judges Simonelli and Accurso.
The Board of Education of the Borough of Tinton Falls (Tinton Falls)
appeals the final decision of the Commissioner of Education
(Commissioner), adopting an initial decision of Administrative Law
Judge (ALJ) Ana Viscomi, rejecting Tinton Falls's request for
declaratory judgment that Tinton Falls is responsible for educating
only those children of Navy personnel residing at Naval Weapons
Station Earle (NWS Earle). Because N.J.S.A. 18A:38-7.8 does not limit Tinton
Falls's obligation to only Navy dependants but requires the district to educate all children
residing at NWS Earle, we affirm.
The facts before the ALJ were essentially undisputed. NWS Earle straddles the school districts of Tinton Falls and Colts Neck. In the mid-1980s, the Department of the Navy (Navy) began "homeporting" additional naval ships at NWS Earle creating the need for an additional 500 units of military housing. Respondent Board of Education of the Township of Colts Neck (Colts Neck) objected to the expansion, and, in 1987, brought suit in federal court seeking to enjoin construction. The federal district court entered a preliminary injunction against the Navy. The Navy then turned to Tinton Falls. After Tinton Falls expressed its willingness to accommodate the additional Navy children expected to reside at NWS Earle, the Navy settled the federal action filed by Colts Neck. The Settlement Agreement (Agreement) noted that legislation had been introduced providing "that Navy dependents living in the Colts Neck section of Earle may be educated in a different school district" if the receiving school district's board of education passed "a resolution indicating [its] desire to receive the Navy dependents" and the County Superintendent of Schools designated the district "to receive the Navy dependents." The Agreement also noted that Tinton Falls had expressed its desire "to receive . . . Navy dependents living in the Colts Neck Section of Earle" and "to adopt a resolution to that effect," and that the Navy "agreed to provide funding for the temporary facilities to accommodate the arrival of Navy dependent children in the Tinton Falls system."
On February 8, 1988, a bill was introduced in the New Jersey Assembly, which was ultimately approved and signed into law on April 7, 1988, as "An Act concerning the education of persons of school age who reside on certain federal property and supplementing chapter 38 of Title 18A of the New Jersey Statutes." L. 1988, c. 12. The text of the legislation provides:
a. After July 1, 1988, persons of school age who reside on federal property which is located entirely within the geographic boundaries of two or more school districts, one of which is a constituent district of a limited purpose regional district with more than six constituent districts in a county of the fifth class shall be deemed to be domiciled in a district to be designated by the county superintendent of schools. These persons shall attend the schools of the designated district and the designated district shall count these pupils in the resident enrollment of the district for all State aid and all federal funds provided under Pub. L. [No.] 81-874, 20 U.S.C. § 236 et seq.
b. The designated district shall be a district that contains within its boundaries a portion of the federal property on which the pupils reside. Not later than 10 days after the effective date of this act, the board of education of any school district that seeks to be designated by the county superintendent of schools pursuant to this section shall adopt a resolution by majority vote of its members indicating its interest and the resolution shall be forwarded to the county superintendent. Based on a determination of the best interests of the pupils residing on federal property and pupils residing in the districts seeking designation, the county superintendent shall, within 30 days of the effective date of this act, certify to the Commissioner of Education which local school district, if any, shall be the designated district. Once the county superintendent has certified the designated district, the county superintendent may not revoke or alter that certification. In the event that no board of education adopts a resolution indicating an interest in being designated pursuant to this section, the county superintendent shall not designate a district and the pupils residing on the federal property shall attend the schools of the district in which they reside.
c. Notwithstanding the provisions of this section, those pupils residing on federal property prior to October 1, 1987 shall be permitted at the option of each pupil to continue in the school they were attending on September 30, 1987 until graduation from the school. For the purpose of calculating State and federal aid, each pupil who elects to remain shall continue to be included in the resident enrollment of the district in which they reside. [N.J.S.A. 18A:38-7.8.]
After the statute was enacted, Tinton Falls unanimously adopted a cross-districting plan resolution on April 11, 1988, directing the superintendent of Tinton Falls to apply to the county superintendent to assign the "children of all Naval personnel at Earle" to Tinton Falls. The request was made, and Tinton Falls was designated as the "district to receive pupils residing on the federal property known as NWS Earle."
The Navy and Tinton Falls entered into a Memorandum of Agreement on June 16, 1988 (MOA), noting that legislation had been recently enacted allowing "Navy dependent children residing on NWS Earle to attend Tinton Falls Schools," and that Tinton Falls was designated as the school district "required by the laws of the State of New Jersey to provide free public education to the children residing on NWS Earle." The MOA addressed the education of the additional students, installation of temporary classrooms, and funding to be provided by the Navy. Once the construction was complete, the Navy began to occupy the new housing units.
Several years later, in 1994, Tinton Falls began to question both the wisdom of its earlier cross-districting plan resolution and the legality of the district's designation under N.J.S.A. 18A:38-7.8. Tinton Falls was concerned about the presence of non-Navy military personnel residing at NWS Earle, and questioned its obligation to educate the children of non-Navy children residing there. In the years that followed, Tinton Falls pursued several different strategies designed to ensure that it was obligated to educate only those students of Navy families residing at NWS Earle. Those efforts included the introduction of a bill in the Assembly in 2005 to amend N.J.S.A. 18A:38-7.8 to clarify the statutory language that "persons of school age" specifically referred to only those who "are the dependents of military personnel of the United States Navy." No action was taken on the bill.
On December 18, 2006, Tinton Falls adopted a resolution that "only Navy dependent children residing at NWS Earle shall be permitted to attend Tinton Falls Schools," and noting that the education of "non-Navy dependent children was never contemplated in [the MOA]." The Monmouth County Superintendent responded with a determination letter on January 17, 2007, stating that the "Tinton Falls School District was designated as the district to receive students residing on federal property" and that the language of N.J.S.A. ...