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In the Matter of Monmouth-Ocean
Educational Services Commission,
Rumson-Fair Haven Regional High School District, Stafford Township Board of Education
APRIL 2005

II
IN THIS ISSUE

Camden
Bd.of Ed. v. Alexander, et al.

COUNCIL ON LOCAL MANDATES
The State cannot require radon testing in your school district unless it pays for it, ruled the Council on Local Mandates (Council). In a decision issued August 20, 2004, the Council declared that N.J.S.A. 18A:20-40, a statute requiring radon gas testing at least once every five years in every public school building in the State, constituted an unfunded mandate in violation of the New Jersey Constitution, Article VIII, Section 2, Paragraph 5, and the Local Mandates Act, N.J.S.A. 52:13H-1 through -22. In accordance with its determination, the Council ordered that N.J.S.A. 18A:20-40 will “cease to be mandatory in its effect and hereby expires.”
    In the Matter of Complaints filed by the Monmouth-Ocean Educational Services Commission, the Rumson-Fair Haven Regional High School District, and the Stafford Township Board of Education was initiated by the Monmouth-Ocean Educational Services Commission. Similar complaints by the Rumson-Fair Haven and Stafford Township school districts followed, and were consolidated with the complaint from Monmouth-Ocean. Eighteen other school districts filed complaints, which were held in abeyance pending the outcome of the case. Amicus curiae status was granted to the NJSBA and the Garden State Coalition of Schools, as well as to 14 individual boards of education. In fact, the Council asked the NJSBA, as part of its role as amicus curiae, to notify its member boards of education of the opportunity for them to file for amicus curiae status in this case, which NJSBA accomplished through an article in School Board Notes.
    Noting that the parties agreed that the Legislature did not authorize any resources to offset the cost of implementation of the required radon testing by local school boards, the Court determined that N.J.S.A. 18A:20-40 would constitute an invalid unfunded mandate unless it were excused by one of the mandate exemptions set forth in N.J.S.A. 52:13H-3. However, the Council held that none of the exemptions applied. In the absence of state funding, the requirement was unconstitutional.
    NJSBA participated as amicus curiae by filing a brief and participating in oral argument. NJSBA argued that N.J.S.A. 18A:20-40 was an unfunded mandate for boards of education, and that it did not fall under any of the unfunded mandates exceptions. Specifically, NJSBA urged the Court to reject the State’s argument that the radon testing requirement was imposed upon both public schools and non-public schools in the same, or substantially the same, manner. NJSBA maintained that the requirement that all public school buildings be tested, went far beyond the private sector requirement of testing only in the child care center areas of buildings in which child care centers were located, as set forth in N.J.S.A. 30:5B-5.2(a). Further, NJSBA refuted the Attorney General’s argument that N.J.S.A. 18A:20-40 implemented the New Jersey Constitution. NJSBA pointed out that neither the school funding law (CEIFA) nor the 2000 and 2002 Biennial Reports on the Cost of Providing a Thorough and Efficient Education, including the efficiency standards, contain any requirement or funding for radon testing. Neither the Governor, after consultation with the Commissioner, nor the Legislature, has made radon testing part of a constitutionally defined thorough and efficient education.
    This decision marked only the second time that the Council on Local Mandates has declared a state-mandated public education program to be an invalid unfunded mandate. In In the Matter of Complaints Filed by the Highland Park Board of Education and the Borough of Highland Park, decided May 11, 2000, the Council determined that the amended portion of N.J.A.C. 6A:11-1.2 which defined "local levy budget per pupil for the specific grade level" as the "program budget per pupil," was an unfunded mandate in violation of Article VIII of the New Jersey Constitution and the Local Mandates Act.