Opinion
DOCKET NO. A-0570-15T4
02-09-2017
E.S., on behalf of minor children, M.S. and Z.S., Petitioner-Appellant, v. BOARD OF EDUCATION OF THE CITY OF LINDEN, Respondent-Respondent.
Kasuri Byck, LLC, attorneys for appellant (Warren D. Levy, on the briefs). Weiner Lesniak, LLP, attorneys for respondent Board of Education of the City of Linden (Mark A. Tabakin, of counsel; Steven R. Nevolis, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Commissioner of Education (Kathryn E. Duran, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Leone and Vernoia. On appeal from the Commissioner of Education, Docket No. 37-2/15. Kasuri Byck, LLC, attorneys for appellant (Warren D. Levy, on the briefs). Weiner Lesniak, LLP, attorneys for respondent Board of Education of the City of Linden (Mark A. Tabakin, of counsel; Steven R. Nevolis, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Commissioner of Education (Kathryn E. Duran, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
E.S., the father of two young children, appeals the decision of the Commissioner of Education (Commissioner) adopting an administrative law judge's (ALJ) findings and conclusions that the children were not entitled to a free education in the City of Linden public schools, and directing that E.S. pay $17,340.96 in tuition reimbursement to the Linden Board of Education (BOE). We affirm.
We employ initials to protect the identities of the minor children. --------
I.
During the 2014-2015 school year, E.S.'s children attended School Four (School Four) in Linden. On January 14, 2015, an employee at the school could not contact E.S. at a telephone number that had been provided. E.S.'s children provided the school with a telephone number at an address in the Borough of Roselle. Jim McCullough, a BOE attendance officer, was asked to verify that the children were living in Linden.
On January 29, 2015, McCullough went to a Linden address where E.S. owned a home. A man later identified as E.S.'s father answered the door and informed McCullough that E.S. had moved to Roselle. McCullough thereafter performed a record search for E.S.'s phone number and found it originated from a home in Roselle. McCullough also reviewed tax records and determined E.S. bought a home in Roselle in 2010.
On January 30, 2015, McCullough set up a surveillance of E.S.'s Roselle home at 7:40 a.m. and recorded a video of E.S. leaving the house with his children and driving them to School Four. On February 2, 2015, McCullough sent E.S. an initial notice of determination of ineligibility for residency stating that a review of the domicile status of E.S.'s children revealed they resided in Roselle and therefore were not entitled to a free education in Linden.
The next morning, McCullough again monitored E.S.'s Roselle home and recorded E.S. exiting the house with his children and driving them to School Four. Later that day, E.S. called McCullough in response to the initial notice, denied living in Roselle, and explained he occasionally slept in his Roselle home because of his work schedule. E.S. maintained that he lived at the home in Linden.
On February 9, 2015, the BOE sent E.S. a final determination of ineligibility for residency, stating that E.S.'s children were not eligible for a free education in Linden because the tax records showed E.S. owned a home in Roselle and video surveillance corroborated that E.S. and his children resided at the Roselle address. The notice advised E.S. of his right to appeal the determination to the Commissioner.
E.S. filed a pro se residency appeal of the BOE's determination with the Commissioner. E.S. claimed he owned a two-family home in Linden and did not lease the first floor where the children's grandparents lived. E.S. asserted the children stayed with the grandparents at the Linden home when he and his wife were not available due to their work schedules. He further alleged his children "spend most of their time in Linden" and were "entitled to receive free education in [the] Linden Public School[s]."
On August 3, 2015, an ALJ conducted a hearing on E.S.'s appeal. E.S. appeared pro se and testified he owns both a two-family residence in Linden and a home in Roselle, and that his children slept in Linden "most of the time." He also testified his children sometimes slept in Linden when his wife was working. E.S. admitted he had been a registered voter in Roselle since purchasing a home there in 2010.
The BOE presented the testimony of McCullough, who detailed his investigation and explained that after he sent E.S. the initial notice on February 2, 2015, he continued monitoring appellant's Roselle home. McCullough observed (and video recorded) E.S. or his wife driving their children from the Roselle home to School Four each morning on fifteen additional dates from February through April 2015.
McCullough further explained that he "did not do a surveillance in Linden," but "every time [he] went by the house . . . in Linden, [he] never observed any of [E.S.'s] vehicles parked in front." McCullough explained "[t]he determination of eligibility of where the children go to school is where they sleep at night. And when they come out of the house in the morning, it shows that the children are sleeping at the residence in Roselle." McCullough stated that "everyday [he] was in front of [the Roselle] house, the children came out of that house. . . . There was never a day [he] was there that they did not come out."
John Horre, another BOE attendance officer, testified he went to E.S.'s Linden home in June 2015, and learned of a prior tenant named Williams. Horre subsequently contacted Williams, who advised Horre that in June 2015, he moved from one of the units in E.S.'s two-family Linden home after living there for "about a year." Williams told Horre that E.S. did not live at the Linden home during the year Williams was a tenant.
Joann Hamilton, the BOE's Director of Assessment and Pupil Personnel, testified she oversaw residency investigations. Hamilton initiated the "disenrollment process" of E.S.'s children, which included providing E.S. with the notices of the BOE's determination and E.S.'s right to appeal.
Hamilton testified concerning the BOE's request for reimbursement of tuition costs, and explained the total reimbursement sought by the BOE was calculated from February 9, 2015, the date of the BOE's final notice to appellant, through June 23, 2015, the final day of the school year. Hamilton said the calculation included only "actual days of school," and totaled eighty-four school days.
Hamilton further testified the BOE's reimbursement demand was based upon calculations provided by the BOE's Business Administrator, Kathleen Gaylord. The annual per pupil cost for the school year was $18,581, which represented a per diem rate of $103.22 . Hamilton testified that based on the per diem rate of $103.22 over the course of eighty-four school days for each of E.S.'s children, the BOE was entitled to reimbursement of $17,340.96.
The ALJ issued her initial decision on August 13, 2015, finding McCullough's testimony credible and concluding that E.S.'s children were domiciled in Roselle during the eighty-four days they attended school in Linden from February 9, 2015 through June 23, 2015. The ALJ further determined E.S. failed to establish by a preponderance of the evidence that his children were domiciled in Linden and therefore entitled to a free public education in Linden. The ALJ recommended that E.S. reimburse the BOE the sum of $17,340.96 for tuition costs associated with the children's attendance at School Four.
E.S. filed exceptions to the ALJ's decision, claiming the BOE failed to monitor his Linden home during the time period at issue and that such monitoring would have shown the children leaving that home in the morning to attend school. On September 25, 2015, the Commissioner issued a final decision adopting the ALJ's initial decision and directing E.S. to reimburse the BOE $17,340.96. This appeal followed.
II.
We will reverse an agency's final decision only if there is a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" In re Pontoriero, 439 N.J. Super. 24, 34 (2015) (alteration in original) (quoting Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009)). An action is arbitrary, capricious, or unreasonable if it (1) violates the law, including express or implied legislative policies, (2) is unsupported by substantial evidence in the record, or (3) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385-86 (2013) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). "[W]e will 'intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
Here, we consider the Commissioner's determination that E.S. failed to prove his children were entitled to a free public education in Linden. "Public schools shall be free to . . . persons over five and under 20 years of age" who are "domiciled within the school district." N.J.S.A. 18A:38-1(a). "A child's domicile is normally that of his or her parents." Somerville Bd. of Educ. v. Manville Bd. of Educ., 332 N.J. Super. 6, 12 (App. Div. 2000) (citations omitted), aff'd, 167 N.J. 155 (2001).
A student is deemed to be "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." N.J.A.C. 6A:22-3.1(a)(1). A student who does not live with his parents may be deemed domiciled where the student is
kept in the home of another person domiciled within the school district and is supported by such other person gratis as if he were such other person's own child, upon filing by such other person with the . . . board of education of the district, . . . a sworn statement that he is domiciled within the district and is
supporting the child gratis and will assume all personal obligations for the child relative to school requirements and that he intends so to keep and support the child gratuitously for a longer time than merely through the school term . . . .
[N.J.S.A. 18A:38-1(b)(1).]
When a board of education determines a child is not domiciled within the district, a parent or guardian may "contest the board's decision before the commissioner . . . and shall be entitled to an expedited hearing before the commissioner." N.J.S.A. 18A:38-1(b)(2). In the proceedings before the commissioner, the parent or guardian has "the burden of pro[ving] by a preponderance of the evidence that the child is eligible for a free education." Ibid.
To satisfy that burden here, E.S. was required to prove by a preponderance of the evidence that his children were domiciled in Linden from February 9, 2015, through the end of the school year on June 23, 2015. Ibid. A domicile is legally defined as a permanent home from which a person does not intend to move. Lipman v. Rutgers-State Univ. of N.J., 329 N.J. Super. 433, 444 (App. Div. 2000). While a person may have multiple residences, they can only have one domicile, which is their permanent home. Somerville, supra, 332 N.J. Super. at 12.
We have carefully reviewed the record and are satisfied E.S. did not meet his burden. The evidence supports the Commissioner's determination that his children were domiciled in Roselle. The evidence showed E.S. purchased a home in Roselle in 2010, he and his wife resided there, his children's phone contact was at the Roselle address, and E.S. registered to vote in Roselle. E.S.'s father informed McCullough that E.S. did not reside at the Linden address and Williams stated E.S. did not live at the Linden address during the year prior to June 2015.
McCullough's investigation established that from February 9, 2015, through the end of the school year, E.S. and his wife consistently transported the children from their Roselle address to school in the morning. McCullough consistently observed E.S. and his wife's motor vehicles parked outside of the Roselle address, and never saw them at the Linden address.
Against the substantial evidence showing E.S. and his children were domiciled in Roselle, E.S. presented little to satisfy his burden of proving that he or his children were domiciled in Linden. E.S. failed to produce any evidence demonstrating that the Linden home was his or his children's "true, fixed, permanent home and principal establishment, and to which whenever [they were absent, they had] the intention of returning, and from which they had no present intention of moving." Kurilla v. Roth, 132 N.J.L. 213, 215 (Sup. Ct. 1944). E.S. testified his children stayed with their grandparents at the Linden home when he and his wife were unavailable, but the children stayed at the Roselle home when either he or his wife were not working and were available to care for the children.
Moreover, E.S. failed to introduce any evidence showing the grandparents filed a sworn statement with the BOE stating they were domiciled in Linden, they supported the children gratis and as if the children were their own, and they assumed all personal obligations for the children relative to their school requirements and intended to keep the children for a period longer than the school year. See N.J.S.A. 18A:38-1(b)(1). Thus, there was no basis in the evidence for the Commissioner to conclude the children were domiciled with their grandparents at the Linden home. Ibid.
We are convinced there was substantial credible evidence supporting the Commissioner's determination that E.S. failed to prove his children were domiciled in Linden within the meaning of N.J.S.A. 18A:28-1 and N.J.A.C. 6A:22-3.1(a)(1). Accordingly, E.S.'s children were not eligible for a free education in Linden for the eighty-four school days between February 9, 2015, through June 23, 2015. We are also satisfied the BOE is entitled to tuition reimbursement in the amount of $17,340.96. The Commissioner's determination of the amount was supported by the evidence and calculated as required pursuant to N.J.S.A. 18A:38-1(b)(2).
E.S.'s remaining arguments are without sufficient merit to warrant 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