S.B., on behalf of minor child, R.B. V. BOARD OF EDUCATION OF THE TOWNSHIP OF EWING, MERCER COUNTY, 11/2/06, (#381-06)

#381-06 (OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu04412-06_1.html)
S.B., ON BEHALF OF MINOR 	:
CHILD, R.B.,
:
PETITIONER,
: 	COMMISSIONER OF EDUCATION
V.
: 	DECISION
BOARD OF EDUCATION OF THE
TOWNSHIP OF EWING, 	:
MERCER COUNTY,
:
RESPONDENT.
:
SYNOPSIS
Petitioner contested respondent’s determination that her nephew, R.B., was not domiciled in
respondent’s district, claiming that R.B. was in fact residing with her in Ewing Township.
Respondent asserts that R.B. is domiciled with his mother in Trenton, and filed a counterclaim
seeking 	reimbursement 	of 	tuition. 	Petitioner 	failed 	to 	appear 	at 	hearing 	scheduled 	for
October 5, 2006; however, the case file includes a copy of a fax sent by petitioner to the OAL on
October 6, 2006, advising that petitioner had been unable to attend the hearing because of a death in
the family and requesting another court date.
The ALJ found that petitioner did not appear at the hearing, and that – as of October 6, 2006, the
date of the Initial Decision – no written excuse had been provided by S.B. for her nonappearance at
the scheduled hearing on October 5, 2006. Accordingly, the ALJ dismissed the petition, and ordered
petitioner to pay tuition in the amount of $10,015.35 to respondent Board.
The 	Commissioner 	notes 	that 	the 	Initial 	Decision 	makes 	no 	reference 	to 	petitioner’s
October 6, 2006 fax (which was stamped as received on October 10th, the next business day
following the transmittal date on the fax), and observes that there is no indication that the ALJ was
aware of this document when rendering his decision. The Commissioner therefore remands this
matter to the OAL so that the ALJ may take account of petitioner’s explanation for her failure to
appear – and make the determination required by N.J.A.C. 1:1-14.4 – before turning to any
recommendation on the merits.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

OAL DKT. NO. EDU 4412-06
AGENCY DKT. NO. 201-6/06
S.B., ON BEHALF OF MINOR 	:
CHILD, R.B.,
:
PETITIONER,
: 	COMMISSIONER OF EDUCATION
V.
: 	DECISION
BOARD OF EDUCATION OF THE
TOWNSHIP OF EWING, 	:
MERCER COUNTY,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of
Administrative Law (OAL) have been reviewed. No exceptions were filed by the parties.
Upon review, the Commissioner cannot agree with the Administrative
Law Judge (ALJ) that petitioner’s appeal must be dismissed at this juncture due to her
failure to appear at the hearing scheduled for October 5, 2006, and that tuition may be
concomitantly assessed based upon the ex parte proofs offered by the Board.
OAL rules provide that in the event a party does not appear at a scheduled
hearing, the ALJ shall hold the matter for one day to allow for receipt of a written
explanation of nonappearance; after according the other party(ies) an opportunity to
respond to any explanation filed, the ALJ shall then either reschedule the hearing with
such conditions as are deemed appropriate, or refuse to do so because the nonappearing
party was found to have intentionally attempted to cause delay. 	Where the hearing is not
rescheduled, an Initial Decision on the merits may be entered based on ex parte proofs
1

from 	the 	appearing 	party, 	provided 	that 	such 	decision 	either 	memorializes 	the
nonappearing party’s failure to file an explanation or sets forth the basis for the ALJ’s
conclusion 	that 	the 	nonappearance 	was 	an 	intentional 	attempt 	to 	cause 	delay.
N.J.A.C. 1:1-14.4
In the instant matter, the Initial Decision – issued on October 6, 2006
based upon a record closed the same day as the scheduled hearing (October 5) – states
that no written explanation had been received from petitioner “to date” (at 2). However,
the record forwarded to the Commissioner includes a fax from petitioner stating, in full,
that “per your conversation with [me,] we had a death in our family and requested for
another court date because the service was on Thursday [October 5]. 	Thank you very
much for your understanding.” The document’s transmittal registry shows it to have been
faxed on October 6, 2006 at 4:19 p.m., although OAL did not stamp it as received until
the morning of the next business day, October 10, 2006 (Monday, October 9 being a State
holiday). 	The Initial Decision makes no mention of this document, nor is there any
indication that the ALJ was aware of it when rendering his decision.1
Consequently, the Commissioner finds it necessary to remand this matter
to the OAL so that the ALJ may take account of petitioner’s explanation and make the
determination required by N.J.A.C. 1:1-14.4 before turning to any recommendation on the
merits. The Commissioner stresses that, in so holding, she makes no inference as to what
the result of such determination should be; rather, she simply recognizes that this matter
cannot be fairly decided in its absence.
1 It is not possible to tell from the document – a single page without identification of intended recipient(s) –
whether petitioner also faxed, or otherwise provided, a copy to the Board. N.J.A.C. 1:1-14.4(b)
2

Accordingly, for the reasons expressed herein, this matter is remanded to
the OAL for further proceedings consistent with applicable rule.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	November 2, 2006
Date of Mailing: 	November 3, 2006
2 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C. 6A:4-1.1 et seq.
3