The commissioner of education recently issued nine decisions on subjects ranging from board member conflict of interest to student residency and suspension of teaching certification. A summary of each decision follows.

In Board of Education of the Township of Wayne v. Catherine Kazan, board member Kazan was a supporter of a full-day kindergarten program in the Wayne school district. When a proposal to fund the full-day kindergarten was defeated by the voters, the board member and fourteen other citizens petitioned the Superior Court to review and invalidate the election results, alleging that the outcome of the vote was tainted by illegal political activity at the polling places. The board sought to remove the board member from the board for violating N.J.S.A. 18A:12-2, which provides that no member of a board of education shall be interested directly or indirectly in any contract with or claim against the board. The administrative law judge (ALJ) determined that the board member did not sue or file a complaint against the board of which she was a member. She and fourteen other citizens sought Superior Court review of the election process on the public question. She gained nothing and had no pecuniary interest, such as a family business, adverse to the board. The complaint was an election law challenge to obtain an order to the municipal clerk to void the election results. Only the subject matter of the public question implicated board interests. The ALJ determined that the board member had every right to remain on the board on behalf of the citizens who voted for her, no doubt because they agree with her passionate stance about kindergarten. The commissioner concurred with the ALJ’s determination that respondent has no conflict of interest pursuant to N.J.S.A. 18A:12-2 that precludes her from serving on the board.

In The Matter of the Suspension of the Teaching Certificate of Chae Hyuk Im, the commissioner determined that a one-year suspension of a teaching staff member’s certificate for failure to give the appropriate notice of resignation was appropriate, rejecting an administrative law judge’s (ALJ’s) determination that a lesser penalty was appropriate. The teacher was determined to be guilty of unprofessional conduct for failing to provide the board with the 60-day notice required under N.J.S.A. 18A:28-8 when he voluntarily choose to pursue a career with the Federal Bureau of Investigation (FBI). The one-year suspension is routinely issued where the facts demonstrate that individuals have violated the 60-day notice requirement for strictly personal reasons, putting their own self-interest above the interests of students and their professional obligation to provide adequate notice to the board. Despite the general rule of a one-year suspension, there are rare instances where the commissioner has found justification for a lesser penalty in cases where compelling mitigating circumstances exist for the lack of the requisite notice. A common theme in many of those cases was the existence of a suitable alternative who was available to replace the resigning teacher, thereby minimizing the impact on the students. Unlike these cases – which have justified an exception to the customary one-year suspension – the facts in this matter are neither exceptional nor do they warrant the exercise of the commissioner’s discretion.

In Y.Y o/b/o minor children W.Y. and D.Y. v. Board of Education of the Borough of North Arlington, the commissioner rejected the ALJ’s initial summary decision that Y.Y. was a resident of Kearny, not North Arlington, and as such, her children, W.Y. and D.Y., were not entitled to a free public education in North Arlington schools and ordered that petitioner reimburse the board for tuition in the total amount of $21,883.94 for the 2014-2015, 2015-2016, and 2016-2017 school years. Y.Y. had contended that she had three separate residences in New Jersey, but was legally domiciled in North Arlington. The commissioner found that there were genuine issues of material fact making summary decision not appropriate. Petitioner Y.Y. had submitted numerous documents to support her claim of residency in North Arlington, and filed an affidavit certifying that she “…has three residences in the state of New Jersey and is domiciled in North Arlington, New Jersey.” The petitioner submitted the following evidence to support her position that her domicile is in North Arlington: (1) the deed to her North Arlington property; (2) property tax bills; (3) a certificate of occupancy; (4) electric/gas bills and Verizon bills; (5) voter registration; (6) grand juror summons with payment stubs for grand jury service; (7) home health aide certification; (8) photos of her North Arlington property; (9) correspondence regarding Verizon Fios service; (10) W-2; and (11) bank statements. The ALJ failed to consider the evidence in the light most favorable to petitioner, the non-moving party. The commissioner remanded the matter to the Office of Administrative Law (OAL) for further proceedings.

In The Banyan School v. New Jersey State Department of Education, Office of School Finance, the Banyan School appeal of the Office of School Finance determination to classify certain employee payments in 2012-2013 as “non-allowable bonuses,” was dismissed for failure to file its petition within the 90-day time period set forth in N.J.A.C. 6A:3-1.3 (i). The commissioner agreed with the ALJ that the Office of School Finance’s June 30, 2014 letter was a definitive refusal to revise its published 2014-2015 tentative tuition rate. Banyan was required to file its appeal no later than 90 days from the date of its receipt of respondent’s final determination by the Office of School Finance. Banyan did not file its petition until April 23, 2015, significantly beyond the 90-day timeline. The commissioner is also in accord with the ALJ that there was no compelling reason to relax the 90-day limitations period. The appeal was dismissed.

In Clinton Barlow III v. Board of Education of the City of Trenton, petitioner sought permission to enter Trenton Central High School to collect recyclable junk trash prior to the demolition of the school. School had already been demolished and there was no recyclable junk trash to collect. ALJ ordered the matter dismissed on the grounds of mootness. Commissioner agreed.

In Patricia McRae v. State Operated School District of the City of Newark, a non-tenured second grade teacher appealed her non-renewal alleging that she was terminated as a result of ineffective and partially effective performance ratings. Teacher alleged that funds were withheld from her paycheck for mentoring services which were allegedly never provided to her, making her evaluations unfair and null and void. The ALJ determined that her petition was untimely as, pursuant to N.J.A.C. 6A:3-1.3(i), a petition of appeal before the commissioner must be filed no later than the 90th day from the date of receipt of the notice of a final order or ruling; in this case, the petitioner filed her appeal on August 24, 2016, which was 106 days after she received notice of non-renewal, May 11, 2016. The ALJ granted the board summary decision. The commissioner concurred with the ALJ that the within petition was untimely filed and must be dismissed on those grounds.

In J.T. o/b/o minor children, J.T., A.T. and B.T. v. Board of Education of the Township of South Brunswick, a parent appealed the board’s determination that his children were ineligible to attend the South Brunswick schools as they lived in Franklin Township, not the Monmouth Junction section of South Brunswick as the parent contended. The matter was remanded to the OAL as the ALJ failed to include a factual discussion or make factual findings. N.J.A.C. 1:1-18.3 requires that initial decisions include a factual discussion and make factual findings. The commissioner remanded the matter for inclusion of a factual discussion.

In T.F. o/b/o minor child T.N. v. Board of Education of the City of Ocean City, the parent appealed the board’s determination that her daughter was ineligible for a free public education in Ocean City. The parent failed to appear at the hearing so the facts were deemed admitted. When her daughter was not accepted into Ocean City’s choice school program, the parent enrolled her in Ocean City using an Ocean City apartment address. A residency investigation revealed that the lease had expired and the mother and daughter were actually living in Margate with the maternal grandmother. Since the parent failed to appear at the hearing, the testimony and evidence presented by the board was uncontroverted; and the tuition cost for the period of T.N.’s ineligible attendance totaled $15,537. The commissioner adopted the ALJ’s Initial Decision; the petitioner was ordered to pay tuition.

In The Center for Education v. State of New Jersey Department of Education, the commissioner found that the matter became moot when the center’s application was advanced from Phase II to Phase III in March 2015, after the NJDOE received documentation demonstrating sufficient need, which rendered the center eligible for Approved Private School for Students with Disabilities (APSSD) status. There was no remaining dispute or controversy once the center was granted preliminary approval in May 2015. It appears that in deciding the mootness issue, the ALJ either failed to understand, or disregarded, the governing regulations with respect to the facts in this matter and the standard for mootness. The commissioner also found that the ALJ’s determination that the NJDOE acted in an arbitrary, capricious and unreasonable manner when the Offive of Special Education Policies and Practices (OSEP) conducted an investigation and denied the center’s application, was incorrect. Specifically, the commissioner found that the ALJ inappropriately applied the requirements of the governing regulations when he determined that the NJDOE’s actions were arbitrary, capricious and unreasonable.

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