J.T., on behalf of minor children, J.T., A.T. AND B.T. V. BOARD OF EDUCATION OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, 4/20/17, (#116-17)

116-17
J.T., ON BEHALF OF MINOR CHILDREN, 	:
J.T., A.T., AND B.T.,
:
PETITIONER,
: 	COMMISSIONER OF EDUCATION
V.
: 	DECISION
BOARD OF EDUCATION OF THE
TOWNSHIP OF SOUTH BRUNSWICK, 	:
MIDDLESEX COUNTY,
:
RESPONDENT.
:
SYNOPSIS
In November 2016, pro se petitioner appealed the determination of the respondent Board that his children
are ineligible for a free public education in respondent’s school district. 	Petitioner contended that he
resides at an address in Monmouth Junction, which is within the South Brunswick school district. The
Board contended that a residency investigation revealed that petitioner and his children actually reside in
Franklin Township. The Board filed a motion to dismiss, asserting that the petition was late filed.
The ALJ found, inter alia, that: the facts of this matter were set forth in respondent’s brief in support of
its motion to dismiss and in a certification from the Superintendent of Schools, and the tuition costs for
the 2015-2016 school year were contained in a letter from the New Jersey Department of Education dated
February 17, 2017; the facts contained therein were adopted as if set forth at length within the
Initial Decision. The ALJ concluded, inter alia, that: petitioner failed to timely file a residency appeal in
accordance with N.J.S.A. 18A:38-1(b); respondent’s motion to dismiss should be granted as petitioner
failed to file a response thereto; and respondent is entitled to tuition for the period of ineligible
attendance. 	Accordingly, 	the 	ALJ 	denied 	the 	petitioner’s 	residency appeal 	and 	ordered 	tuition
reimbursement at a rate of $71 per day per child for the period of ineligible attendance.
The Commissioner remanded the matter to the OAL, finding that the ALJ failed to include a factual
discussion or make factual findings in this case. As 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.
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.
April 20, 2017

OAL DKT. NO. EDU 01163-17
(EDU 12760-16 ON REMAND)
(EDU 05774-16 PRIOR REMAND)
AGENCY DKT. NO. 61-2/16
J.T., ON BEHALF OF MINOR CHILDREN, 	:
J.T., A.T., AND B.T.,
:
PETITIONER,
: 	COMMISSIONER OF EDUCATION
V.
: 	DECISION
BOARD OF EDUCATION OF THE
TOWNSHIP OF SOUTH BRUNSWICK, 	:
MIDDLESEX COUNTY,
:
RESPONDENT.
:
The record, proposed settlement agreement and release, and Initial Decision
issued by the Office of Administrative Law (OAL), pursuant to N.J.A.C. 1:1-19.1, have been
reviewed – mindful of the Commissioner’s January 23, 2017 determination that the prior
settlement agreement did not comply with N.J.A.C. 6A:3-1.13, as it was neither signed by the
Board’s attorney, nor contained a copy of the Board’s resolution approving the settlement and
designating the Board President to sign the 	agreement on its behalf. 	Since the settlement
agreement 	now 	contains 	a 	copy 	of 	the 	Board 	resolution 	approving 	the 	settlement, 	the
Commissioner can approve the within agreement in its present form.
Additionally, the Commissioner notes that the settlement makes reference to a
monthly payment intended to begin on August 15, 2016. 	The parties are reminded that a
settlement of litigation before the Commissioner is not binding until the Commissioner approves
the proposed terms.

Subject to the foregoing, the Commissioner approves the parties’ settlement and
adopts the Initial Decision as the final decision in this matter, which is hereby dismissed subject
to compliance with the terms of the settlement.
IT IS SO ORDERED.
ACTING COMMISSIONER OF EDUCATION
Date of Decision: April 20, 2017
Date of Mailing: 	April 20, 2017

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 19075-16
AGENCY REF. NO. 298-11/16
J.T.. ON BEHALF OF MINOR CHILDREN, J.T., A.T.
AND B.T.,
Petitioners,
v.
BOARD OF EDUCATION OF THE TOWNSHIP OF
SOUTH BRUNSWICK, MIDLLESEX COUNTY,
Respondent.
_________________________________________
J.T., Petitioner, pro se
Adam S. Herman, Esq., for Respondent (Adams, Gutierrez & Lattiboudere, LLC,
attorneys)
Record Closed: March 3, 2017 	Decided: March 8, 2017
BEFORE THOMAS R. BETANCOURT, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner challenges Respondent Board of Education’s residency determination.

The matter was transferred to the Office of Administrative Law (OAL), where it
was filed on December 20, 2016, as a contested case. N.J.S.A. 52:14B-1 to –15;
N.J.S.A. 52:14F-1 to –13.
A prehearing conference was held on January 6, 2017. 	A prehearing order,
dated January 6, 2017, was entered by the undersigned.
Respondent filed a motion to dismiss the petitioner’s appeal with the Bureau of
Controversies 	and 	Disputes 	on 	December 	16, 	2016, 	prior 	to 	the 	matter 	being
transferred to the OAL, and before a decision on said motion was made. 	Respondent
simultaneously filed its Answer and Cross Petition with the Bureau of Controversies and
Disputes.
Pursuant to the prehearing Order entered on January 6, 2017, Petitioner was
permitted ten days from the receipt of said motion to respond. 	No response was
submitted.
On February 24, 2017, Respondent filed a certification of Gary McCartney,
Superintendent of the South Brunswick Board of Education.
On March 3, 2017, Respondent’s counsel provided a letter from the New Jersey
Department of Education setting forth Tuition Costs per Pupil for the 2015-2016 school
year.
ISSUES
1. 	Did Respondent err in its determination that Petitioner’s three children did not
reside in South Brunswick and were ineligible to attend school in the South
Brunswick School District; and, is petitioners claim time barred?
2. 	Are Respondents entitled to tuition reimbursement?

FACTUAL DISCUSSION
The Preliminary Statement and the Factual Background set forth in Respondent’s
brief in support of its motion to dismiss are adopted herein as if set forth at length.
The facts set forth in the Certification of Gary McCartney are adopted herein as if
set forth at length.
The tuition costs per pupil for the 2015-2016 school year contained in the letter
from the New Jersey Department of Education, dated February 17, 2017, are adopted
herein as if set forth at length.
LEGAL ANALYSIS AND CONCLUSION
Standard of Review
N.J.A.C. 6A:3-1.5(g) states, “Nothing in this section precludes the filing of a
motion to dismiss in lieu of an answer to a petition, provided that such motion is filed
within the time allotted for the filing of an answer. 	Briefing on such motions shall be in
the manner and within the time fixed by the Commissioner, or by the ALJ if the motion is
to be briefed following transmittal to the OAL.”
In ruling on a motion to dismiss:
The judge considers whether all of the evidence together
with all legitimate inferences could sustain a judgment in
favor of the party opposing the motion. 	The judge is not
concerned with the weight, worth, nature or extent of the
evidence. 	The judge must accept all evidence supporting
the party defending against the motion and accord that party
the benefit of all inferences that can and legitimately be
deducted therefrom…Myles Hart v. New Jersey State Board
of 	Examiners, 	2014 	WL 	3708621 	(citing 	New 	Jersey
Practice, Administrative Law and Practice, §5, 19, at 259-
60).

Petitioner did not file a response to Respondent’s motion to dismiss.
N.J.S.A. 18A:38-1 provides that public schools shall be free to the following
persons over five and under 20 years of age:
a. Any person who is domiciled within the school district;
b. (1) Any person who 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 secretary of
the board of education of the district, if so required by the
board, 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, and a copy of his lease if a tenant, or a sworn
statement 	by 	his 	landlord 	acknowledging 	his 	tenancy 	if
residing as a tenant without a written lease, and upon filing
by the child's parent or guardian with the secretary of the
board of education a sworn statement that he is not capable
of supporting or providing care for the child due to a family or
economic hardship and that the child is not residing with the
resident of the district solely for the purpose of receiving a
free public education within the district. The statement shall
be accompanied by documentation to support the validity of
the sworn statements, information from or about which shall
be supplied only to the board and only to the extent that it
directly pertains to the support or nonsupport of the child. If
in the judgment of the board of education the evidence does
not support the validity of the claim by the resident, the
board may deny admission to the child. The resident may
contest the board's decision to the commissioner within 21
days of the date of the decision and shall be entitled to an
expedited hearing before the commissioner on the validity of
the 	claim 	and 	shall 	have 	the 	burden 	of 	proof 	by 	a
preponderance of the evidence that the child is eligible for a
free education under the criteria listed in this subsection. The
board of education shall, at the time of its decision, notify the
resident in writing of his right to contest the board's decision
to the commissioner within 21 days. No child shall be denied
admission during the pendency of the proceedings before
the commissioner. In the event the child is currently enrolled

in the district, the student shall not be removed from school
during the 21-day period in which the resident may contest
the 	board's 	decision 	nor 	during 	the 	pendency 	of 	the
proceedings before the commissioner. If in the judgment of
the commissioner the evidence does not support the claim of
the resident, he shall assess the resident tuition for the
student 	prorated 	to 	the 	time 	of 	the 	student's 	ineligible
attendance in the school district. Tuition shall be computed
on the basis of 1/180 of the total annual per pupil cost to the
local district multiplied by the number of days of ineligible
attendance and shall be collected in the manner in which
orders 	of 	the 	commissioner 	are 	enforced. 	Nothing 	shall
preclude a board from collecting tuition from the resident,
parent 	or 	guardian 	for 	a 	student's 	period 	of 	ineligible
attendance in the schools of the district where the issue is
not appealed to the commissioner.
In the instant matter, Respondent notified Petitioner of the residency hearing by
letter dated October 13, 2016. 	The residency hearing was held on October 24, 2016.
By letter dated October 26, 2016, Petitioner was advised of Respondent’s determination
that his children were not eligible to attend school in the Respondent School District.
Petitioner was advised in said letter of his right to contest Respondent School District’s
decision within twenty-one days. Petitioner did not file the pro se residency appeal until
November 22, 2016. Said appeal was dated November 20, 2016. The twenty-one day
period in which to file expired on November 15, 2016.
Right to a Free Public Education
N.J.S.A. 18A:38-1(a) and N.J.A.C. 6A:22-3.1(a) sets forth the right of a student to
a free public education, which in pertinent parts states:
Public schools shall be free to the following persons over five
and under twenty years of age:
a. Any person who is domiciled within the school district[.]
Consideration in proving residency for purposes of establishing eligibility for
school district placement is found at N.J.A.C. 6A:22-3.4(a),

(a) A district board of education shall accept a combination
of any of the following or similar forms of documentation
from persons attempting to demonstrate a student’s eligibility
for enrollment in the school district:
1. 	Property 	tax 	bills, 	deeds, 	contracts 	of 	sale, 	leases,
mortgages, signed letters from landlords and other evidence
of property ownership, tenancy or residency;
2. Voter registrations, licenses, permits, financial account
information, utility bills, delivery receipts, and other evidence
of personal attachment to a particular location;
. . .
3. 	Court 	orders; 	State 	agency 	agreements; 	and 	other
evidence of court or agency placements or directives;
4. Receipts; bills; cancelled checks; insurance claims or
payments; 	and 	other 	evidence 	of 	expenditures
demonstrating personal attachment to a particular location or
to support the student;
. . .
6. Affidavits, certifications and sworn attestations pertaining
to statutory criteria for school attendance, from the parent,
guardian, 	person 	keeping 	an 	“affidavit 	student,” 	adult
student, person(s) with whom a family is living, or others as
appropriate;
. . .
8. Any other business record or document issued by a
governmental entity.
(b) 	A 	district 	board 	of 	education 	may 	accept 	forms 	of
documentation not listed in (a) above, and shall not exclude
from 	consideration 	any 	documentation 	or 	information
presented by a person seeking to enroll a student.
(c) A district board of education shall consider the totality of
information and documentation offered by an applicant, and

shall not deny enrollment based on failure to provide a
particular form of documentation, or a particular subset of
documents, without regard to other evidence presented.
In S.S. ex rel. A.S. and A.S. v. Bd. of Education of the Township of Marlboro,
Monmouth 	County, 	EDU 	192-12, 	Initial 	Decision 	(August 	26, 	2013),
http://njlaw.rutgers.edu/collections/oal, evidence submitted by an investigator hired by
the Marlboro New Jersey School District to determine whether certain minor children
who were enrolled in the school district in fact were domiciled therein within the
meaning of N.J.A.C. 6A:22-3.1(a) was sufficient to establish that the children in fact
were not domiciled in the district during the period in question and, instead, supported a
conclusion that the minors resided at their grandmother's home in Edison, New Jersey.
Even 	though 	their 	mother 	had 	submitted 	documentation 	of 	the 	type 	described
in N.J.A.C. 6A:22-3.4(a) that supported her claim that the minors were domiciled in
Marlboro, the circumstances of the mother's employment, which included late hours,
was such that the minors were properly found to be residing with their grandmother. On
that basis, the administrative law judge recommended that the Department of Education
find the mother liable for tuition for the minors.
In the instant matter, it is clear that neither Petitioner, nor his children, resided
within Respondent’s school district. 	(See Certification of Gary McCartney and the
investigator’s report attached thereto as Exhibit A)
N.J.A.C. 6A:22-6.2 states:
(a) If an appeal to the Commissioner is filed by the parent,
guardian, adult student, or school district resident keeping an
"affidavit" student and the petitioner does not sustain the
burden of demonstrating the student's right to attend the
school district, or the petitioner withdraws the appeal, fails to
prosecute, or abandons the appeal by any means other than
settlement 	agreeing 	to 	waive 	or 	reduce 	tuition, 	the
Commissioner may assess tuition for the period during which
the hearing and decision on appeal were pending, and for up
to one year of a student's ineligible attendance in a school
district prior to the appeal's filing and including the 21-day
period to file an appeal.

1. Upon the Commissioner's finding that an appeal has been
abandoned, the district board of education may remove the
student from school and seek tuition for up to one year of
ineligible attendance pursuant to N.J.A.C. 6A:22-6.1(a) plus
the period of ineligible attendance after the appeal was filed.
If the record of the appeal includes a calculation reflecting
the tuition rate(s) for the year(s) at issue, the per diem tuition
rate for the current year and the date on which the student's
ineligible attendance began, the Commissioner may order
payment of tuition as part of his or her decision. In doing so,
the 	Commissioner 	shall 	consider 	whether 	the 	ineligible
attendance was due to a school district's error. 	If the record
does not include such a calculation and the district board of
education 	has 	filed 	a 	counterclaim 	for 	tuition, 	the
counterclaim shall proceed to a hearing notwithstanding that
the petition has been abandoned.
2. 	An 	order 	of 	the 	Commissioner 	assessing 	tuition 	is
enforceable through recording, upon request of the district
board of education pursuant to N.J.A.C. 6A:3-12, on the
judgment docket of the Superior Court, Law Division, in
accordance with N.J.S.A. 2A:58-10.
Cleary, Petitioner has failed to sustain the burden of proof to demonstrate J.T.,
A.T. and B.T. have the right to attend the Respondent school, and Respondent is
entitled to tuition reimbursement.
N.J.A.C. 6A:22-6.3 states in pertinent part:
a) 	Tuition 	assessed 	pursuant 	to 	this 	section 	shall 	be
calculated 	on 	a 	per-student 	basis 	for 	the 	period 	of 	a
student's ineligible enrollment, up to one year, by applicable
grade/program category and consistent with the provisions
of N.J.A.C. 6A:23A-17.1. The individual student's record of
daily attendance shall not affect the calculation.
Respondent calculates tuition reimbursement for the 2016-2017 school year at
$71 per day. (Certification of Gary McCartney, Exhibit C)
I CONCLUDE that petitioner failed to timely file a residency appeal in accordance
with N.J.S.A. 18A:38-1(b), and therefore the same is time barred.

I further CONCLUDE that petitioner’s motion to dismiss should be GRANTED as
Petitioner failed to file a response thereto, and the facts set forth in Respondent’s
motion to dismiss are adopted herein.
I 	further 	CONCLUDE 	neither 	Petitioner, 	nor 	his 	children, 	resided 	within
Respondent’s District during the 2016-2017 school year and Respondent is entitled to
the relief requested in its Answer and Cross Petition: reimbursement for tuition for the
period of ineligible attendance for each child.
I 	further 	CONCLUDE 	that 	Respondent 	is 	entitled 	to 	an 	order 	excluding
Petitioner’s children from the Respondent school district
ORDER
Based upon the foregoing it is ORDERED that Respondent’s motion to dismiss
Petitioner’s residency appeal is granted: and,
It is further ORDERED that Petitioner’s residency appeal is dismissed with
prejudice; and,
It is further ORDERED that Petitioner’s children, J.T., A.T. and B.T. are not
entitled to attend school in the Respondent school district and are excluded therefrom;
and,
It is further ORDERED that Respondent is entitled to tuition reimbursement from
Petitioner in the amount of $71 per day per child for each day J.T., A.T. and B.T.
attended school in the Respondent school district.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.

This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked "Attention: Exceptions." A copy of any exceptions must be sent to
the judge and to the other parties.
March 8, 2017
DATE 	THOMAS R. BETANCOURT, ALJ
Date Received at Agency:
Date Mailed to Parties:
db

APPENDIX
List of Moving Papers and Pleadings
For Petitioner:
Pro se Residency Appeal dated November 20, 2016, and filed with the Bureau of
Controversies and Disputes on November 22, 2016.
For Respondent:
Notice of Motion to Dismiss dated December 15, 2016, and filed with the Bureau
of Controversies and Disputes on December 16, 2016.
Answer and Cross Petition dated December 15, 2016 and filed with the Bureau
of Controversies and Disputes on December 16, 2016.
Brief in support of motion to dismiss the residency appeal December 15, 2016
and filed with the Bureau of Controversies and Disputes with Directions for
Appealing Local Board’s Residency Determination to on December 16, 2016,
together with Exhibits A through D.
Certification of Gary McCartney, Superintendent of Respondent school district,
with Exhibits A though D.
Letter from the New Jersey Department of Education, dated February 17, 2017,
with tuition costs per pupil for the 2015-2016 school year.