Opinion
DOCKET NO. A-0348-13T1
04-17-2015
S.S., Petitioner-Appellant, v. BOARD OF EDUCATION OF THE TOWNSHIP OF MARLBORO, MONMOUTH COUNTY, Respondent-Respondent.
S.S., appellant pro se. Schenck, Price, Smith & King, LLP, attorneys for respondent Board of Education of the Township of Marlboro, Monmouth County (Marc H. Zitomer, of counsel and on the brief; Joseph L. Roselle, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the Department of Education. S.S., appellant pro se. Schenck, Price, Smith & King, LLP, attorneys for respondent Board of Education of the Township of Marlboro, Monmouth County (Marc H. Zitomer, of counsel and on the brief; Joseph L. Roselle, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
S.S., the mother of children who attended school in the Marlboro School District, appeals a determination that found her children were not domiciled in Marlboro and required reimbursement of $20,598 in tuition fees. Because our standard of review requires deference to an agency's expertise and findings of fact, we affirm.
The facts as found by an administrative law judge and adopted by the Assistant Commissioner of Education demonstrate that S.S.'s two children attended school in the Marlboro School District during the 2011-2012 school year. Based on information received in the late summer, early fall of 2011, the business administrator initiated an investigation into whether the children were truly domiciled in Marlboro. In September 2011, a private investigator surveilled S.S.'s purported Marlboro residence as well as other locations. He observed that the children would be dropped off at S.S.'s father's Marlboro home early in the morning to catch the school bus and then driven to Edison at night. Consequently, on October 21, 2011, the school superintendent sent S.S. a "notice of initial determination," which informed her that the superintendent would be recommending the removal of her children from the district and the assessment of tuition; the notice also informed S.S. of her right to request a hearing.
S.S. requested a hearing, which occurred on November 21, 2011. The next day, the district wrote to S.S. to inform her of: the determination that she and the children were not domiciled in Marlboro; the approval of a resolution dis-enrolling the children; and the assessment of tuition. The district also informed S.S. of her appeal rights, which S.S. exercised.
In November 2011, the investigator continued his surveillance. Over several days, he observed S.S. load her children into her car in Edison and drive them to Marlboro, where they waited for the bus in S.S.'s father's driveway. He made additional observations over the course of several days that demonstrated S.S. resided in Edison. Surveillance in January and February 2012 further supported his opinion.
An administrative law judge conducted an evidentiary hearing over the course of several days, at which time the investigator, the district business administrator, S.S., and members of S.S.'s family testified. S.S. argued that government documents, bank statements and cell phone bills revealed she had a Marlboro residence and, in light of N.J.A.C. 6A:22-3.4, these records conclusively established the children's eligibility to attend the Marlboro schools.
In his August 26, 2013 written decision, the ALJ explained how he evaluated the witnesses and how he determined that the investigator was credible. The ALJ also set forth the legal principles applicable to the meaning of domicile and concluded that S.S. failed to sustain her burden of proof. He thus concluded that the children were ineligible for a free public education in Marlboro, and he quantified tuition charges for the period of ineligible attendance. After reviewing the record, the Assistant Commissioner rendered a thorough written decision, which adopted the ALJ's decision, and concluded, among other things, that the documents offered by S.S. were not in and of themselves determinative of the children's domicile. S.S. appeals, arguing:
We have not recited the subparts of S.S.'s arguments for brevity's sake.
I. THE ALJ ARBITRARILY & WHIMSICALLY REJECTED AUTHENTIC CREDIBLE LEGAL EVIDENCE IN FAVOR OF ILLEGAL SPECULATIONS, CONJECTURES.
II. THE [BOARD OF EDUCATION] HAS ABSOLUTELY NO STATUTORY POWER TO CONDUCT ANY SURVEILLANCE.
III. THE [BOARD OF EDUCATION] AND THE COMMISSIONER HAVE VIOLATED STATUTORY & DECISIONAL LAWS & THE ALJ IGNORED SUCH.
Entitlement to a free public education in a particular district turns on domicile. N.J.S.A. 18A:38-1(a); see also N.J.A.C. 6A:22-3.1(a)(1) (declaring that "[a] student is domiciled in the school district when he or she is the child of a parent or guardian whose domicile is located within the school district"). In similar circumstances, we have observed that "a person may have only one domicile . . . and that domicile is determined by permanent intention." Somerville Bd. of Educ. v. Manville Bd. of Educ, 332 N.J. Super. 6, 12 (App. Div. 2000), aff'd, 167 N.J. 55 (2001). Here, the Assistant Commissioner adopted the ALJ's thorough findings of fact and concluded that S.S. and the children were not domiciled in Marlboro. The Assistant Commissioner also recognized that what may be revealed by the documents referred to in N.J.A.C. 6A:22-3.4 are not alone determinative on this question. Here, it was shown that the real circumstances differed from the artifice suggested by the documents offered by S.S.
Our standard of review requires that we refrain from intervening in such a determination "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The agency findings were based on substantial credible evidence and correct legal principles. Consequently, we find no cause to intervene. S.S.'s arguments, including her contention that surveillance was unauthorized or violative of constitutional or statutory principles, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION