N.M., on behalf of minor children, K.M. and N.M. v. Board of Education of the City of Elizabeth, Union County, 8/10/2022, (#192-22)

192-22
New Jersey Commissioner of Education
Final Decision
N.M., on behalf of minor children, N.M. and K.M.,
Petitioner,
v.
Board of Education of the City of Elizabeth,
Union County,
Respondent.
Synopsis
Petitioner filed a pro se petition challenging the determination of the respondent Board of Education of
the City of Elizabeth (Board) that her minor children, N.M. and K.M., were ineligible to receive a free
public education in respondent’s school district from December 8, 2021 through the end of the 2021-
2022 school year. Petitioner asserted that she and her children lived with her mother at an address in
Elizabeth. The Board contended that a residency investigation concluded that petitioner and her
children actually reside at an address in East Orange. The Board filed a counterclaim for tuition for the
period of ineligible attendance. Petitioner failed to appear at the scheduled hearing and offered no
explanation for her failure to attend.
The ALJ found, inter alia, that: pursuant to N.J.S.A. 18A:38-1(a) and N.J.A.C. 6A:22-3.1(a), public schools
are free to any person over five and under twenty five years of age who is domiciled within the school
district; pursuant to N.J.A.C. 6A:22-6.2., if a student does not have a right to attend the school district,
the Commissioner may assess tuition; in this case, a preponderance of evidence demonstrates that the
petitioner and her children were not domiciled in Elizabeth during the relevant time period; and
petitioner supplied no compelling proof of domicile in Elizabeth despite requests to produce required
documentation of residency. The ALJ concluded that N.M. and K.M. were not eligible to attend school in
Elizabeth from December 8, 2021 through the end of the 2021-2022 school year. Accordingly, the ALJ
ordered petitioner to pay the Board tuition in the amount of $19,335.80 for the period of N.M. and
K.M.’s ineligibility from December 8, 2021 through June 20, 2022, as well as $79.90 per child for each
school day attended beyond that date for the remainder of the 2021-2022 school year.
Upon review, the Commissioner concurred with the ALJ that petitioner failed to sustain her burden of
establishing that she was domiciled in Elizabeth from December 8, 2021 through the end of the 2021-
2022 school year. Accordingly, the Initial Decision of the OAL was adopted as the final decision in this
matter, and petitioner was ordered to reimburse the Board for tuition costs as outlined herein. The
petition was dismissed.
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 00653-22
Agency Dkt. No. 240-12/21
New Jersey Commissioner of Education
Final Decision
N.M., on behalf of minor children,
N.M. and K.M.,
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. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge’s (ALJ)
finding that petitioner failed to sustain her burden of establishing that she was a domiciliary of
Elizabeth from December 8, 2021 through the end of the 2021-2022 school year. The
Commissioner further concurs with the ALJ’s conclusion that minor children N.M. and K.M.
were, therefore, not entitled to a free public education in the District’s schools during that time.
Pursuant to N.J.S.A. 18A:38-1b, the Commissioner shall assess tuition against petitioner
for the time period during which the minor child was ineligible to attend school in the District.
Therefore, the Board is entitled to tuition reimbursement in the amount of $19,335.80 for the
period from December 8, 2021 through June 20, 2022, plus $79.90 per child for each school day
192-22

2
attended from June 20, 2022 through the end of the school year, during which time petitioner’s
minor children were ineligible to attend school in Elizabeth.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter.
Petitioner is directed to reimburse the Board in the amount of $19,335.80 for the period from
December 8, 2021 through June 20, 2022,1 plus $79.90 per child for each school day attended
from June 20, 2022 through the end of the school year, for tuition costs incurred during the
time period in which the minor children were ineligible to attend school in Elizabeth. The
petition of appeal is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This calculation is based on a daily tuition rate of $79.90 and 121 school days of ineligible attendance per child.
The Commissioner notes that these figures were derived from testimony presented to the ALJ during the hearing.
However, a transcript of the testimony was not provided to the Commissioner, nor did the record contain any
certification verifying the tuition rate or number of days of ineligible attendance. Therefore, the Commissioner
relies on the ALJ’s findings of fact.
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
August 10, 2022
August 10, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 00653-22
AGENCY DKT. NO. 240-12/21
N.M. ON BEHALF OF MINOR CHILDREN N.M. & K.M
Petitioner,
v.
CITY OF ELIZABETH BOARD
OF EDUCATION, UNION COUNTY,
Respondent.
__________________________________________
N.M. petitioner, pro se
Brian J. Kane, Esq. for respondent (La Corte, Bundy, Varady & Kinsella,
attorneys)
Record Closed: June 21, 2022 	Decided: June 28, 2022
BEFORE: NANCI G. STOKES, ALJ:
STATEMENT OF THE CASE

OAL DKT. NO. EDU 00653-22
2
Petitioner, N.M. is the mother of minor children N.M. and K.M. who are students
in the Elizabeth Public School District (District). 	From December 8, 2021, until now,
K.M. and N.M. were not domiciled in the District. 	Should public school be free to K.M.
and N.M. in the District for this period? 	No. 	Public school shall be free only to a minor
who is domiciled within the school district. N.J.S.A. 18A:38-1(a).
PROCEDURAL HISTORY
On 	November 	11, 	2021, 	the 	Elizabeth 	Board 	of 	Education (Board) initially
determined that K.M. and N.M. were not domiciled within the District, offered to conduct
a residency hearing before the Board, and directed petitioner to present residency
proofs to its investigator. Petitioner did not seek a residency hearing.
On December 8, 2021, the Board rendered a final decision, advising N.M. that
neither child could attend public schools in the District because their domicile was not in
Elizabeth. 	The District deemed petitioner’s proofs insufficient. 	If petitioner did not
remove the children from the District’s schools and appealed the determination, the
children could remain, but the District would seek per diem reimbursement for their
education.
On December 11, 2021, petitioner appealed that determination, and the Board
filed a counterclaim for tuition reimbursement. On January 19, 2022, the Department of
Education, 	Office 	of 	Controversies 	and 	Disputes, 	transmitted 	the 	case 	under 	the
Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act establishing the
OAL, 	N.J.S.A. 	52:14F-1 	to 	-23, 	for 	a 	hearing 	under 	the 	Uniform 	Administrative
Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.
On February 11, 2022, I scheduled a pre-hearing conference, but neither party
attended. 	On February 24, 2022, I held an initial pre-hearing conference during which
the parties agreed to exchange discovery by March 21, 2022, and I would schedule

OAL DKT. NO. EDU 00653-22
3
another 	pre-hearing 	conference 	on 	March 	30, 	2022. 	At 	petitioner’s 	request, 	I
rescheduled the March 30, 2022, conference for April 4, 2022. Yet, she did not appear.
I scheduled the hearing for June 20, 2022, and issued a pre-hearing Order dated
April 5, 2022, sent via email and regular mail. 	The Order also extended discovery until
June 1, 2022 and required the parties to submit exhibits by June 10, 2022. The District
complied, but petitioner supplied no discovery or exhibits.
On June 20, 2022, I conducted the hearing. 	This tribunal waited thirty minutes,
but petitioner did not sign onto the zoom hearing despite separate notice. Petitioner did
not contact the OAL to explain her absence, and I closed the record on June 21, 2022.
FINDINGS OF FACT
Based on the evidence the Board submitted and having considered its sufficiency
and the opportunity to assess the witness’ credibility, I FIND the following as FACT:
Beginning in November 2021, the Board’s residency investigator explored the
domicile 	of K.M., 	attending 	the 	District’s School 	Number 	Twenty-Nine, 	and 	N.M.,
attending the District’s School 	Number One. 	The principal 	received emails from
teachers noting that the children told teachers and friends that they lived in East
Orange. 	On picture day, K.M. filled her address on the form as being in East Orange.
However, petitioner enrolled the children using an address in Elizabeth. Petitioner does
not explain this discrepancy.
The District’s residency investigator for four and one-half years, Vito Tropeano, is
a former police officer and was straightforward in his testimony. 	Tropeano credibly
described the steps he took to investigate this case. 	In addition to the form completed
by K.M., and emails reporting statements by the children, he also reviewed attendance
records revealing excessive missed school days or tardy arrivals for both children.
According to the attendance records, K.M. had thirty absences and twelve tardiness

OAL DKT. NO. EDU 00653-22
4
notations during the 2021-22 school year. 	N.M. had twenty-seven absences and thirty-
seven tardiness notations for the 2021-22 school year.
Tropeano also went to the property in Elizabeth multiple times, and no one ever
answered. 	He also spoke to the property management office for the home. 	Notably,
petitioner is not on the lease. 	Instead, the lease is in petitioner’s mother’s name.
Tropeano notes that the Elizabeth address is walking distance from N.M.’s school, and
when leaving school, Tropeano observed N.M. walking in the opposite direction away
from that address.
The District supplied N.M. with a computer-type device for school work that
allows the District to “ping” or track its location. 	The device records note its frequent
use at the school at 250 Broadway in Elizabeth and the East Orange address written on
the picture record completed by the student and used for mailings to petitioner. 	N.M.
also used the device a few times at a non-specific location in Elizabeth, like a hot spot.
However, the device's location and use history do not identify the Elizabeth address
used to enroll petitioner’s children during the three months tracked.
On March 21, 2022, Tropeano observed the Elizabeth residence starting at 7:45
a.m., before school hours, noting only one vehicle present belonging to petitioner’s
mother. 	N.M. was not at school by 8:10 a.m. While watching the home, Tropeano saw
no one leave. 	Tropeano learned that petitioner’s friend dropped N.M. off at school at
8:45 a.m., after the start of school. 	In other words, N.M. was not at the Elizabeth
residence before being dropped off at school.
Tropeano sent eligibility correspondence to petitioner at both addresses on
November 12, 2021, and December 8, 2021. The East Orange address is an apartment
complex, and the security desk signs for mail deliveries to residents. 	The East Orange
complex security desk signed for both letters addressed to petitioner. 	Petitioner signed
for the November 12, 2021, correspondence to the Elizabeth address where her mother

OAL DKT. NO. EDU 00653-22
5
resides. 	However, the December 8, 2021, correspondence to the same address was
undeliverable.
Tropeano explains that the District requires at least five documents to establish
residency in the District. The Districts expects to see indicia of residence like a lease or
property utility bills, but petitioner supplied none connecting her to ownership or rental of
the Elizabeth property.
Further, 	Tropeano 	reviewed 	materials 	received 	from 	petitioner, 	which 	he
describes as insufficient. 	Petitioner has a driver’s license with the Elizabeth address
issued in June 2020 and supplied two bank statements from November 2021 with that
same address. 	Still, petitioner’s mother lives at the Elizabeth address, and petitioner
could have used this as a mailing address. 	Although the petitioner emailed the District
that her mother would send the District a certified letter explaining petitioner’s living
situation, the District received none.
Petitioner 	supplied 	no 	additional 	supporting 	materials 	in 	this 	case 	despite
knowing that the District considered her proofs inadequate.
The District charges a per diem pupil general education rate of $79.90. 	To June
20, 2022, one hundred twenty-one school days expired, totaling $9,667.90 per student.
Eight additional days remain in this school year. 	Thus, through the hearing date, the
District is owed $19,335.80 for educating N.M. and K.M., who remain enrolled in general
education in the Elizabeth Public School District.
To date, petitioner has made no payments to the District since its demand on
December 8, 2021, to either remove N.M. and K.M from the District or pay the per diem
amount.
CONCLUSIONS OF LAW

OAL DKT. NO. EDU 00653-22
6
Public school shall be free to a minor who is domiciled within the school district.
N.J.S.A. 18A:38-1(a). A student is domiciled in a school district if his parent or guardian
has a permanent home in the district such that “the parent or guardian intends to return
to it when absent, and has no present intent of moving from it, notwithstanding the
existence of homes or residences elsewhere.” N.J.A.C. 6A:22-3.1(a)(1); State v. Benny,
20 N.J 238, 250 (1955). New Jersey has consistently held that the domicile of the child
follows the domicile of the parent. 	Shim v. Rutgers, 191 N.J. 374, 399 (2007).
Establishment of a domicile is an act of volition. Matter of Unanue, 255 N.J. Super. 362,
375 (Law Div. 1991). “[A] choice of domicile by a person, irrespective of the motive, will
be honored by the court, provided there are sufficient objective indicia, by way of proofs,
supporting the actual existence of that domicile.” Id. at 376.
If a student does not have a right to attend the school district, the Commissioner
may assess tuition. See N.J.A.C. 6A:22-6.2.
Where a local board of education seeks removal of a student, the parent may
appeal to the Commissioner of Education. 	N.J.S.A. 18A:39-1(b)(2). 	In the proceeding
before the Commissioner, the parent has the burden of proof by a preponderance of the
evidence that the child meets eligibility requirements for a free education. 	Ibid. 	If the
evidence does not support the parent’s claim, the Commissioner shall assess the parent
tuition for the student prorated to the time of the student’s ineligible attendance in the
schools of the district. Ibid.
In this case, I CONCLUDE that a preponderance of the evidence demonstrates
that neither K.M. nor N.M. are domiciled in Elizabeth or were domiciled in the District
when Elizabeth commenced its investigation. 	Indeed, I CONCLUDE that petitioner
supplied no compelling proof of her children’s domicile in Elizabeth on balance to the
District’s investigatory findings. Thus, I CONCLUDE that the Board is entitled to prevail
as a matter of law given my findings of fact and the tuition petitioner owes the District is
clear. 	Therefore, I CONCLUDE that petitioner owes the Board $19,335.80 for the

OAL DKT. NO. EDU 00653-22
7
period of N.M. and K.M.’s ineligibility from December 8, 2021, through the scheduled
hearing date of June 20, 2022; and $79.50 for each child for school days attended
beyond the hearing date, for the remainder of the 2021-22 school year.
ORDER
Given my findings of fact and conclusions of law, I ORDER that petitioner owes
the Board $19,335.80 for the period of N.M. and K.M.’s ineligibility from December 8,
2021, through the scheduled hearing date of June 20, 2022; and $79.50 for each child
for school days attended beyond the hearing date, for the remainder of the 2021-22
school year.
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 00653-22
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.
June 28, 2022
DATE 	NANCI G. STOKES, ALJ
Date Received at Agency: 	June 28, 2022
Date Mailed to Parties: 	June 28, 2022
ljb

OAL DKT. NO. EDU 00653-22
9
APPENDIX
WITNESSES
For Petitioner:
None.
For Respondent:
Vito Tropeano
EXHIBITS
For Petitioner:
None
For Respondent:
R-1. Emails to Legal Department
R-2. Student N.M.’s Photo Order Form
R-3. Residency Investigation Request Form
R-4. Notice of Initial Determination of Ineligibility for Student N.M.
R-5. Notice of Initial Determination of Ineligibility for Student K.M.
R-6. UPS packages to 144 South Harrison St., #404, East Orange, NJ and 172 Community Lane
R-7. Petitioner’s Letter and Documents
R-8. Notice of Final Determination of Ineligibility for Student N.M.
R-9. Notice of Final Determination of Ineligibility for Student K.M.
R-10. Second Set of UPS packages to 144 South Harrison St., #404, East Orange, NJ
and 172
Community Lane.

OAL DKT. NO. EDU 00653-22
10
R-11. Pro Se Appeal
R-12. Student K.M.’s attendance records
R-13. Student N.M.’s attendance records
R-14. Student N.M.’s device records
R-15. Supplemental Report.