M.R., on behalf of minor child, N.R., v. Board of Education of the City of Elizabeth, Union County, 9/19/19, (#244-19)

244-19
New Jersey Commissioner of Education
Final Decision
M.R., on behalf of minor child, N.R.,
Petitioner,
v.
Board of Education of the City of Elizabeth,
Union County,
Respondent.
Synopsis
Petitioner appealed the determination of the respondent Board that his child was ineligible to
receive a free public education in respondent’s school district. 	Petitioner asserted that he is
domiciled in Elizabeth and that his daughter spent most of her time with him during the relevant
time period, from November 2018 through her graduation from high school in June 2019. 	The
Board contended that a residency investigation had demonstrated that M.R. lived in East Orange,
and N.R. lived in Union with her mother; the Board filed a counterclaim for tuition.
The ALJ found, inter alia, that: 	the testimony provided by M.R. at hearing in this matter was
credible, and no persuasive evidence to the contrary was presented by the Board; M.R. resides in
Elizabeth in a shared apartment situation, and both his name and his daughter’s name appear as
residents on the property lease; both M.R. and L.R., the mother of N.R., gave credible testimony
describing the time spent by N.R. between their two homes; N.R. did share her time between the
separate domiciles of her two parents, but primarily spent four nights per week in Elizabeth
during the school year. The ALJ concluded that M.R. is domiciled in Elizabeth, and has met his
burden of demonstrating that N.R. was properly enrolled in the Elizabeth public schools and
eligible for a free education therein. 	The ALJ ordered that the Board’s demand for tuition set
forth in its counterclaim be dismissed; 	further, as N.R. has graduated from high school, the
continued free attendance in the Elizabeth public schools requested in the petition is now moot.
The petition was dismissed.
Upon review, the Commissioner concurred with the findings and conclusions of the ALJ, and
adopted the Initial Decision of the OAL as the final decision in this matter.
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.
September 19, 2019

1
OAL Dkt. No. EDU 03909-19
Agency Dkt. No. 33-2/19
New Jersey Commissioner of Education
Final Decision
M.R., on behalf of minor child, N.R.,
Petitioner,
v.
Board of Education of the City of Elizabeth, Union
County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed.1 The parties did not file exceptions.
Upon review, the Commissioner agrees with the Administrative Law Judge (ALJ) that
petitioner sustained his burden of demonstrating that he was a domiciled in Elizabeth from November 30,
2018 through the end of the 2018-19 school year. As such, the minor child, N.R., was entitled to a free
public education in the District’s schools during that time. Additionally, the Commissioner agrees with
the ALJ that the issue of N.R.’s continued free attendance in the District is moot as she has graduated
from high school.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this
matter. The Board’s counterpetition for tuition is dismissed.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	September 19, 2019
Date of Mailing: 	September 20, 2019
1 The Commissioner was not provided with a transcript of the August 7, 2019 hearing at the OAL.
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 03909-19
AGENCY REF. NO. 33-2/19
M.R., ON BEHALF OF MINOR CHILD, N.R.,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY
OF ELIZABETH, UNION COUNTY,
Respondent.
___________________________________
M.R., pro se
Christina DiPalo, Esq., for respondent (La Corte, Bundy, Varady and Kinsella,
attorneys)
Record Closed: August 7, 2019 	Decided: August 12, 2019
BEFORE ELLEN S. BASS, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner, M.R., appeals the determination of respondent, the Elizabeth Board of
Education, that he is not domiciled in its district. 	The Board had determined that his
daughter was ineligible to attend the public schools, and counterclaims for tuition.

OAL DKT. NO. EDU 03909-19
2
Petitioner 	filed 	an 	appeal 	with 	the 	Commissioner 	of 	Education 	(the
Commissioner) on February 13, 2019. 	The Board filed an answer on March 4, 2019,
and the contested case was transmitted to the Office of Administrative Law (OAL),
where it was filed on March 20, 2019. The case was scheduled for hearing on April 24,
2019, and May 3, 2019. The April date was adjourned at the request of the Board. The
Board then requested an adjournment of the May 3, 2019, date, and the matter was
rescheduled for July 10, 2019. 	This date was again adjourned at the request of the
Board. All adjournments were granted with petitioner’s consent.
The hearing ultimately proceeded on August 7, 2019; the parties presented
documentary and testimonial evidence and the record closed. 	In the interim, N.R.
graduated from high school. 	M.R. thus no longer seeks his daughter’s continued
attendance in the Elizabeth schools. 	The Board continues to press its entitlement to
tuition under N.J.S.A. 18A:38-1. 	The Board contests M.R.’s residency in Elizabeth for
the period from November 30, 2018, until N.R.’s graduation from high school in June
2019.
FINDINGS OF FACT
On November 30, 2018, the Board sent a Notice of Initial Determination of
Ineligibility to M.R. at an address it had on file in East Orange. The letter was signed for
by “R,” M.R.’s last name.3 	A Board level residency hearing took place on January 28,
2019. 	Investigator William Buteau was present at the Board hearing, and related that
M.R. had advised that he lived in Elizabeth with his girlfriend L.P. 	M.R. produced a
lease that listed himself and N.R. as occupants of the apartment. 	His driver’s license,
however, bore the East Orange address. 	When asked for his Elizabeth address at the
Board hearing, M.R. initially offered the incorrect street number; he later corrected
himself. After hearing Buteau’s testimony, M.R. told me he made this error because the
Board hearing was a frightening and unfamiliar situation, and he was stressed and
confused. 	M.R. seemed similarly stressed and uncertain about the process when he
appeared at the OAL.
3 M.R.’s mother lives at that address and has the same last name.

OAL DKT. NO. EDU 03909-19
3
Buteau testified that he conducted surveillance at the Board’s request on January
29, 2019, and January 30, 2019. He observed a vehicle owned by L.R., N.R.’s mother,
transport N.R. from Union to school in Elizabeth both mornings. 	Based on Buteau’s
findings, and on the information supplied at the hearing, the Board determined that M.R.
resided in East Orange, and that N.R. resided with her mother in Union. On February 5,
2019, the Board wrote to M.R. and advised that the Board had determined that he did
not reside in Elizabeth, and that N.R. was not eligible to attend the public schools.
Importantly, I FIND that the sole basis expressed in the Notice of Final Ineligibility for his
daughter’s removal was M.R.’s purported domicile outside of Elizabeth. 	The concern
that N.R. resided with her mother went entirely unmentioned. The Notice advised M.R.
that he had a right to appeal to the Commissioner. 	N.R. appealed the findings in the
February 5, 2019, letter; N.R. remained in school in Elizabeth in the interim as required
by law.
M.R. appeared at the OAL hearing with L.R. 	He explained that together he and
L.R. had decided that their daughter should live with him in Elizabeth. 	N.R. was not
having a successful experience in the Union schools, where she had attended high
school previously. 	M.R. has lived in Elizabeth since October 2017; N.R. started to
attend school in Elizabeth at that time. 	Until 2016 he had lived in Union, and then
temporarily relocated to Berkley Heights before moving to Elizabeth.
M.R. produced a lease between L.P. and Elizabeth Gardens, LLC, for the period
from February 1, 2018, until February 1, 2019. 	Although he is not a signatory to that
lease, M.R.’s name and that of his daughter appear as additional occupants. 	A similar
one-year lease was executed on February 1, 2019. 	M.R. indicated however, that he
has lived at the address noted on the lease with L.P., who he described as a friend,
since October 2017. 	He shares the rent for the apartment. 	While M.R. stated that he
pays half of an $1,100 per month rental fee, the two leases reflected entirely different
rental amounts: $1,270 per month in 2018, and somewhat curiously, only $1,025 per
month in 2019.

OAL DKT. NO. EDU 03909-19
4
M.R. also produced three 2019 bills for his Visa account, all with the same
Elizabeth address as that on L.P.’s lease. 	He provided me with a copy of his driver’s
license and explained that when he appeared at the residency hearing before the
Board, his license reflected the East Orange address where his mother resides. 	M.R.
stated that he has not resided with his mother since 1989, but never changed the
address on his license. In an effort to avoid any further confusion about where he lives,
M.R. changed his license in June 2019 to reflect the Elizabeth address.
M.R. explained the living arrangements once N.R. came to live with him in
Elizabeth. 	He was emphatic that she usually stayed with him during the week and
spent only weekends with her mother in Union. 	He stated that N.R. spent Monday
through Thursday nights at his home. 	Both M.R. and L.R. readily admitted that there
were occasional times when N.R. would spend the night mid-week with her mother. But
L.R. urged that this would happen no more than one or two times per month. During the
summer, N.R. would spend more time with her mother in Union.
M.R. seemed genuinely confused by the Board’s cross-petition for tuition. 	He
asserted without equivocation that he lived in Elizabeth, and that his daughter spent
most of her time with him there during the relevant time period. 	He urged that he
brought her to Elizabeth because she had been bullied in Union, and the schools there
seemed powerless to rectify the situation. 	M.R. was incredulous that there would be
any reason why his daughter could not attend school in Elizabeth. He was firm that his
only objective in having his daughter to live with him in Elizabeth was to obtain a proper
education for his child, and that he was not trying to cheat anyone.
A credibility determination requires an overall assessment of the witness’s story
in light of its rationality, internal consistency and the manner in which it “hangs together”
with the other evidence. 	Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963).
Our courts have held that “credibility findings . . . are often influenced by matters such
as observations of the character and demeanor of witnesses . . . that are not transmitted
by the record.” State v. Locurto, 157 N.J. 463, 474 (1998). M.R. showed an inability to
recall some details; for example, the rental amount quoted at the hearing was not the
sum reflected on the leases. 	This was reminiscent of his inability to correctly offer the

OAL DKT. NO. EDU 03909-19
5
correct street address at the Board level hearing. 	But overall, I found his assertion that
he lived in Elizabeth believable and I heard no persuasive evidence to the contrary.
Board Investigator Buteau attempted to raise some question about whether N.R. spent
most of her time in Elizabeth, but he offered nothing to support the Board’s finding that
M.R. himself did not reside in Elizabeth.4 	Indeed, since the Board had directed him to
conduct surveillance, Buteau could have easily followed M.R. and offered proof that
M.R. did not spend the night in Elizabeth. 	It is noteworthy that no such evidence was
presented. 	I FIND that M.R. resides in Elizabeth at the address reflected on the lease
he presented at the hearing. 	I likewise believed both M.R. and L.R. when they
described the time spent by N.R. between their two homes. I FIND that N.R. shared her
time between her parents’ homes, but primarily spent four nights per week in Elizabeth
during the school year.
The Board produced a budget worksheet that reflected the daily rate for high
school students, and also shared a school calendar. 	Per Buteau’s testimony, I FIND
that the Board seeks tuition reimbursement for 125 school days at a tuition rate of
$79.79 per day, for a total sum of $9,973.75.
LEGAL DISCUSSION AND CONCLUSIONS OF LAW
Public schools are required to provide a free education to individuals between the
ages of five and twenty years who are domiciled within the school district. 	N.J.S.A.
18A:38-1(a). 	Domicile has been defined as the place where a person has his true,
fixed, permanent home and principal establishment, and to which whenever he is
absent, he has the intention of returning. State v. Benny, 20 N.J. 238, 250 (1955). The
domicile of an unemancipated child is that of her parent, custodian or guardian. 	P.B.K.
ex rel minor child E.Y. v. Bd. of Educ. of Tenafly, 343 N.J. Super. 419, 427 (App. Div.
2001).
4 Buteau’s surveillance proof that on two nights in January 2019 N.R. spent school nights in Union with
her mother was consistent with her parents’ testimony that she did sometimes stay with her mother mid-
week, albeit infrequently.

OAL DKT. NO. EDU 03909-19
6
Where a local board determines that a child is not properly domiciled in its
district, N.J.S.A. 18A:38-1(b)(2) provides a right of appeal to the parents as follows:
The parent or guardian may contest the board’s decision
before the commissioner within 21 days of the date of the
decision and shall be entitled to an expedited hearing before
the commissioner 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.
I CONCLUDE that M.R. is a domiciliary of Elizabeth. 	Since the determination of
the Board was based on a finding that he did not reside in Elizabeth, I further
CONCLUDE that M.R. has met his burden of demonstrating that N.R. was properly
enrolled in the Elizabeth public schools and was eligible for a free education.
Due process required that the Board provide M.R. with any and all bases for its
determination of ineligibility; as its determination that he did not reside in Elizabeth was
the only basis expressed in its February 5, 2019, Notice of Final Ineligibility, my analysis
can end here. 	But in the interest of thoroughness, I will note that the administrative
code offers guidance where, as here, a child shares her time between divorced or
separated parents who live in two different school districts. N.J.A.C. 6A:22-3.1(a)(1)(i)
provides that
1. 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.
i. When a student's parents or guardians are
domiciled within different school districts and
there is no court order or written agreement
between the parents designating the school
district of attendance, the student's domicile is
the school district of the parent or guardian
with whom the student lives for the majority of
the school year. This subparagraph shall apply
regardless of which parent has legal custody.
This 	regulation 	evinces 	a 	regulatory 	recognition 	that 	in 	today’s 	world 	custody
arrangements are often changing and fluid and are often determined by parents

OAL DKT. NO. EDU 03909-19
7
informally and without court intervention. 	The regulation in essence allows divorced
parents to informally decide where their child will attend school. 	Since the evidence
revealed that N.R. spent more nights than not in Elizabeth during the school year,
N.J.A.C. 6A:22-3.1(a)(1)(i) makes it plain and I CONCLUDE that she was domiciled in
Elizabeth from November 2018 until she graduated from high school in June 2019.
Having determined that N.R. was eligible for school attendance from November
30, 2018, until the end of the school year in June 2019, I CONCLUDE that there is no
basis for the award of tuition sought by the Board’s counterclaim, and it should be
dismissed.
ORDER
Based on the foregoing, together with the record as a whole, I ORDER that the
Board’s demand for tuition as set forth in its counterclaim be DISMISSED. 	Insofar as
N.R. has graduated from high school, the relief sought by the petition, that is, continued
free attendance in the Elizabeth public schools, is moot and likewise is DISMISSED.
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.

OAL DKT. NO. EDU 03909-19
8
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.
August 12, 2019
DATE 	ELLEN S. BASS, ALJ
Date Received at Agency: 	August 12,2019
Date Mailed to Parties:
sej

OAL DKT. NO. EDU 03909-19
9
APPENDIX
Witnesses
For Petitioner
M.R., pro se
L.R.
For Respondent
William Buteau, Investigator
Exhibits
For Petitioner
P-1 	Lease
P-2 	Driver’s license
P-3 	Visa Bill
P-4 	Visa Bill
P-5 	Visa Bill
P-6 	Lease
For Respondent
R-1 	Investigatory Report with attachments
R-2 	Notice of Final Ineligibility
R-3 	Tuition Rates
R-4 	School calendar