BOARD OF EDUCATION OF THE TOWN OF PHILLIPSBURG, WARREN COUNTY V. NEW JERSEY DEPARTMENT OF EDUCATION, 9/25/03 (#558-03)

558-03
BOARD OF EDUCATION OF THE 	:
TOWN OF PHILLIPSBURG,
WARREN COUNTY, 	:
PETITIONER, 	: 	COMMISSIONER OF EDUCATION
V. 	: 	DECISION
NEW JERSEY STATE DEPARTMENT 	:
OF EDUCATION,
:
RESPONDENT.
:
SYNOPSIS
Petitioning ìAbbottî Board of Education claimed the Department was required to provide
full State funding for its 2003-04 early childhood education program. 	The Department
had provided Early Childhood Program Aid (ECPA) and Preschool Expansion Aid
(PSEA) in accordance with prescribed formulas, but the district contended that additional
State monies were required to fully fund the difference between the total of these aids and
the approved preschool budget.
The ALJ concluded that the Department correctly calculated the districtís ECPA and
PSEA, but that this did not end the inquiry. The ALJ concluded that Court, Department
and legislative pronouncements, taken together, require that the districtís preschool plan
be funded entirely by the State, subject to legislative appropriations.
The Commissioner concurred that ECPA and PSEA were correctly calculated, but
rejected the conclusion that full State funding of preschool program was required
regardless of other funds available in the district budget. 	The Commissioner held that
the Stateís obligation is to ensure that sufficient funds are available to fully support the
districtís approved early childhood education plan, with additional State aid to be
provided where formula aids and local resources are together inadequate for this purpose.
Petition was dismissed.
This synopsis is not part of the Commissionerís decision. 	It has been prepared for the
convenience of the reader. It has been neither reviewed nor approved by the Commissioner.
September 25, 2003

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OAL DKT. NO. EDU 3423-03
AGENCY DKT. NO. 104-3/03
BOARD OF EDUCATION OF THE 	:
TOWN OF PHILLIPSBURG,
WARREN COUNTY, 	:
PETITIONER, 	: 	COMMISSIONER OF EDUCATION
V. 	: 	DECISION
NEW JERSEY STATE DEPARTMENT 	:
OF EDUCATION,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of
Administrative Law have been reviewed. 	Exceptions were filed by the Department of
Education 	(Department), 	as 	were 	replies 	by 	the 	Board 	of 	Education 	(Board), 	in
accordance with the provisions of N.J.A.C. 1:1-18.4 and extensions duly requested and
granted. 	Following enactment of the FY í04 Appropriations Act, a supplemental
submission was made by the Department, to which the Board, in turn, replied.
In its exceptions, the Department urges the Commissioner to limit his
adoption of the Initial Decision to finding that the Department correctly calculated the
amount of the Boardís Preschool Expansion Aid (PSEA) for the 2003-04 fiscal year, and
to reject Administrative Law Judge (ALJ) Springerís addressing of broader issues in a
matter 	pled 	solely 	as 	an 	appeal 	of 	the 	Departmentís 	February 	26, 	2003 	PSEA
determination. 	The Department contends, as it did in its Letter Brief in Reply to the
Boardís Motion for Summary Decision at 1-2 and 4, that the February 26 determination
under appeal was confined to the issue of PSEA and ìneither calculates nor advises [the

11
Board] of the amount of Additional Abbott v. Burke State aid that it will receiveî so that
any assertion by the Board regarding such aid is ìentirely inappropriateî in the present
proceeding. 	Instead, the Department argues, the Boardís entitlement to Additional
Abbott v. Burke State aid was the subject of a May 30, 2003 Department determination
which the Board appealed on June 5, 2003 in accordance with the expedited schedule
established by the Supreme Court on May 21, 2003, so that consideration of additional
aid in the current context is misplaced. (Departmentís Exceptions at 1-3, quotation at 2)
The Department further contends that the ALJ erred in interpreting the
Governorís Budget Message for FY í04, on which he relied in concluding that the
Boardís approved Early Childhood Plan must be fully funded with State aid, that is, with
a combination of Early Childhood Program Aid, PSEA and Additional Abbott v. Burke
Aid. 	Instead, the Department urges, the pertinent language should be read as ìrequiring
the Department to ensure that there are sufficient funds in [the Boardís] budget to
support the approved Early Childhood Plan,î with such funds deriving from both State
aids and the local tax share where available. 	(Departmentís Exceptions at 4-6, quotation
at 5-6, emphasis supplied) The Department argues:
In Abbott v. Burke, 153 N.J. 480 (1998), the Supreme Court opined, ìthe
Commissioner may, before seeking new appropriations, first determine
whether funds within an existing school budget are sufficient to meet a
schoolís request for a demonstrably needed supplemental program.î Id. at
518. 	The 	Court 	further 	opined, 	ì[u]nderlying 	the 	Commissioner's
proposal 	for 	whole-school 	reform, 	early 	childhood 	programs 	and
supplemental programs, is the clear commitment that if there is a need for
additional funds, the needed funds will be provided or secured.î Ibid.
(emphasis added).
The above-quoted language demonstrates that the Supreme Court intended
for the Commissioner to ensure that the early childhood programs are fully
funded, however, the Commissioner could first determine whether funds
within an existing school budget are sufficient to meet a schoolís request
for such programs. Because local tax levy is included [in] the budget, the

12
Commissioner 	can 	consider 	those 	funds 	as 	well 	as 	other 	revenue
supporting 	the 	budget 	when 	determining 	the 	amount 	of 	Additional
Abbott v. Burke State aid, if any, that a district needs.
(Departmentís Exceptions at 5)
The Department buttresses its position with the language of the FY í04 	Appropriations
Act, adopted by the Legislature and signed by the Governor as P.L. 2003, c.122,
contrasting that language with the earlier Governorís Budget Message as cited in the
Initial Decision at 6.1 The Department urges:
Notably, the Governorís Budget Message for FY04 provided: ìThe
amount appropriated hereinabove for Additional Abbott v. Burke State Aid
will provide additional resources to ëAbbott districtsí to meet the Stateís
obligation 	to 	fully 	fund 	parity 	and 	the 	approved 	early 	childhood
operational plans.î 	(Emphasis added). 	The FY04 Appropriations Act
provides: ìThe amount appropriated hereinabove for Additional Abbott v.
Burke State Aid will provide additional resources to ëAbbott districtsí to
meet the Stateís obligation to fully fund parity and approved ëAbbottí
preschool expansion.î L. 2003, c. 122.
***
Here, the Legislature revised the language contained in the Governorís
Budget 	Message 	to 	clarify 	that, 	contrary 	to 	Judge 	Springerís
interpretation, the Department is not required to ensure that Phillipsburgís
approved Early Childhood Plan is fully funded with State aid such as
Additional Abbott v. Burke State aid. By purposefully deleting the words
ìearly childhood operational plansî from the Governorís Budget Message
and replacing those words in the FY04 Act with ìëAbbottí preschool
expansion,î the FY04 Act unequivocally demonstrates that, while the
Department 	must 	ensure 	that 	Phillipsburgís 	ìapproved 	ëAbbottí
expansionî is fully funded with State aid, the Department is not required
to ensure that Phillipsburgís approved ìearly childhood operational planî
is fully funded with State aid. 	Moreover, this revision is consistent with
the method, established in the FY04 Act, by which Preschool Expansion
Aid is calculated: ìfunding the increase in the approved budgeted costs
from 2001-2002 to 2003-2004 for the projected expansion of preschool
programs in ìAbbott districts.î L. 2003, c. 122.
(Departmentís Supplemental Submission at 2-3)
In reply to the Departmentís threshold objections, the Board counters that
the ALJ did not address issues outside the scope of the pleadings, since the Petition of
1 The Department added this argument in the post-exceptions submission noted at page 10 above.

13
Appeal not only challenged the amount of PSEA awarded the Board, but also the
Departmentís failure to fully fund the Boardís approved preschool program. 2 (Boardís
Reply Exceptions at 2-4) The Board further objects to the Departmentís protestation over
the scope of the ALJís ruling, noting that the Department itself raised the issue of full
funding by arguing, in its initial brief in support of a motion for summary decision, that
ì ëas a matter of law,í while the State must ensure that Phillipsburgís preschool program
is fully funded, there is not a concomitant obligation that such funding be provided by the
State,î and that the Department ìsought summary decision based on the claim that there
was no State obligation to fully fund the DOE-approved preschool program with State
funds; the [Department] cannot now be heard to complain that the ALJ ruled adversely to
the [Department] on the very ëmatter of lawí asserted by the [Department].î (Id. at 4-5,
quoting Departmentís Letter Brief of May 13, 2003 at 8) 	Neither, the Board alleges, can
the Department claim that the Initial Decision wrongly addresses yet-to-be-determined
Additional Abbott v. Burke Aid; this claim ìdisingenuously misconstruesî the Initial
Decision, which did not find that the Board was owed Additional Abbott v. Burke Aid,
but rather concluded that the State had an obligation, to be met however the State deemed
fit, to provide full State funding for approved preschool programs, subject to legislative
appropriations. 	(Id. at 5-6, quotation at 6) The Board urges that deferral of the question
of full State funding makes no sense as a matter of public interest, since the question will
only recur later if not resolved here, where it has already been fully briefed and
considered. (Id. at 6-7)
2 The Board points to its claim for relief, and also to ∂∂ 4, 7, 11, 13, 14, 18 and 20 of the Verified Petition,
noting that while PSEA is mentioned, ìthe gist of these claims is that the State must fully fund the DOE-
approved preschool program with State funds.î (Boardís Reply Exceptions at 3-4, quotation at 3)

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In reply to the Departmentís further exceptions, the Board references its
arguments made before, and adopted by, the ALJ, and offers the additional argument that
the Supreme Courtís decision in Abbott V, supra, nowhere intimates that preschool
programs should or could be funded in part by local tax share; indeed, the Board avers,
the Courtís decision was based on the recommendations of the Honorable Michael King,
P.J.A.D., sitting as the remand court, and, while the Court disagreed with Judge King
regarding full-day preschool, it ìdid not take issue with his conclusion that preschool
would be funded by ECPA, T&E, parity funds and the incremental State funding needed
to fully fund the preschool program.î (Boardís Reply Exceptions at 7-9, quotation at 8-9)
Finally, the Board offers the Office of Legislative Servicesí analysis of the Departmentís
FY í03 budget, explaining the purpose of PSEA as a new line item funding the increase
in costs between 2001-02 and 2002-03 for programs which had been, ì[u]p until this
time***funded through a combination of Early Childhood Program Aid and Additional
Abbott v. Burke Aid.î 	This excerpt, the Board opines, ìreflects the Legislatureís clear
understanding that prior to the 2001-02 school year, the State had fully funded preschool
with State funds and that PSEA was to ensure full state funding for any increase in 2002-
03 over 2001-02. 	Thus, when the FY í04 Appropriations Act provides that PSEA in
2003-04 is to fund the difference between the 2002-03 program and the 2003-04
program, the evident legislative intent is to continue the full State funding in effect prior
to the 2001-02 school year -- and extended into the 2002-03 school year by PSEA -- into
the 2003-04 school year.î (Id. at 9-10, quotation at 10)
Moreover, the Board counters, the Department errs in claiming that the
language of the Appropriations Act as finally adopted by the Legislature supports its

15
position, since the Initial Decision does not, as the Department alleges, rely exclusively
on the earlier Governorís Budget Message, but rather places that message in the context
of 	continuing 	expressions 	of 	legislative 	concern, 	the 	Abbott 	decisions, 	and 	the
Departmentís repeated public pronouncements. 	(Boardís Supplemental Submission at 1-
2) 	Additionally,
[t]he FY [í04] Appropriations Act still links the Additional Abbott v.
Burke State Aid to the ìStateís obligationî to fully fund parity and
approved Abbott preschool expansion. 	Significantly, the language is not
limited to the formula for funding approved preschool expansion aid, but
rather 	to 	the 	funding 	of 	preschool 	expansion. 	Moreover, 	the 	FY
Appropriations Act does not define what the Legislature meant by the
Stateís obligation so the Commissioner must ìemploy extrinsic aids, such
as legislative intent or prior precedent, to interpret the language at issue.î
In re Passaic County Util. Auth., 164 N.J. 270, 300 (2000) (citation
omitted). 	(Id. at 3)
Thus, the Board concludes, ìproperly construed under governing legal principles,î the
FY í04 Appropriations Act not only fails to support the Departmentís position, but
actually ìreinforces the correctnessî of the Initial Decision. 	(Id. at 4)
Upon his own review and consideration, the Commissioner initially
concurs with the ALJ and the Board that the issue to be decided in this matter is not
limited strictly to the question of whether the Department correctly calculated the amount
of PSEA due the district for 2003-04. 	Notwithstanding that the Petition of Appeal was,
in fact, pled largely in terms of PSEA as claimed by the Department, the Commissioner
finds it in the best interest of both the parties in this matter and Abbott districts generally
to decide the broader question squarely underlying the Boardís specific allegations, that
is, the question of whether Court, legislative and Department pronouncements, alone or
in combination, require that the entire cost of approved Abbott preschool programs be
funded, dollar for dollar, exclusively by the State.

16
The ALJ answered this question in the affirmative, based on legislative
intent as expressed through the Governorís FY í04 Budget Message, read in light of
1) Court language recognizing preschool as a critical component of Abbott reform efforts
although not a constitutional mandate and acknowledging the statutory endorsement of
the link between preschool and later educational achievement; 2) prior enactments
reflecting the Legislatureís concern with fully funded early childhood education in
Abbott districts; and 3) Department pronouncements expressing clear commitment to full
funding of preschool programs.
The Commissioner, however, cannot concur with the ALJís analysis.
With respect to the requirements of the Court, nowhere in the Abbott decisions is there a
suggestion, let alone a directive, that approved Abbott preschool programs must be
funded exclusively by the State. On exception, the Board argues implicit endorsement of
its position by the Courtís silence in response to Judge Kingís statement that preschool
would be funded by ECPA, T&E, parity funds and ìthe incremental State funding needed
to fully fund the preschool program,î with no mention of local revenues. (Boardís Reply
Exceptions at 8-9) Similarly, based on the Boardís earlier arguments, the ALJ cites to the
Courtís concern with municipal overburden and Abbott districtsí inadequate tax bases
and to its language referencing the Stateís ìclear commitment that if there is a need for
additional funds, the needed funds will be provided or secured.î 	(Initial Decision at 5)
These statements, however, do not even on their face require State funding regardless of
need. 	Rather, they provide for the State to ensure, with additional aid if necessary, that
sufficient funds are available to the district to fully fund its preschool program, that is, to
ensure that any gap remaining after receipt of statutory formula aids will be addressed by

17
the State to the extent that need exists because funds otherwise available to the district are
insufficient to fully support the approved program. 	This reading is consonant not only
with the Courtís actual language and concern with local taxation capabilities, but also
with its overall recognition that, while adequate funding is critical to achievement of a
thorough and efficient system of public education in Abbott districts, such funding is a
shared responsibility between the State and the local district.
Taken within the proper framework, then, the proffered Department
pronouncements regarding ìfull fundingî of Abbott preschool programs cannot be
viewed as promises or expectations of dollar-for-dollar State funding regardless of
resources available in the local district budget. 	Rather, they must be understood as
reflections of the Departmentís commitment, and recognition of its obligation, to provide
or secure additional State funds to the full degree necessary to support approved
programs where local budgetary resources, including formula aids, local levies and
monies realized through economies, efficiencies and reallocations, are found inadequate
for this purpose. 	Indeed, this is the only interpretation consistent with sound educational
policy, which must recognize both the critical importance of ensuring that approved
Abbott preschool programs are supported by sufficient funds and the necessity to allocate
State and local resources as efficiently and effectively as possible in meeting the shared
responsibility for education in Abbott districts.
Finally, the Commissioner cannot ignore that the Legislature has now
spoken definitively on the question posed by this appeal. Even granting, arguendo, that
prior Legislatures provided for full State funding of Abbott district early childhood
operational plans during the first years of their development, and that the Governorís

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Budget Message for FY í04 appeared to continue that pattern, the current Legislature has
acted deliberately and decisively to clarify that its intent for the FY í04 budget year is to
provide additional funding for only those costs directly associated with approved program
expansion, not for the entire early childhood operational plan. In that regard, it is noted
that there is no question, nor does the Board except to the ALJís conclusion, that the
Department correctly calculated the districtís PSEA in accordance with the prescribed
legislative formula.
Accordingly, for the reasons set forth above, the Initial Decision of the
Office of Administrative Law is rejected except insofar as it concludes that the
Department correctly calculated petitionerís ECPA and PSEA for 2003-04. The Petition
of Appeal, therefore, is dismissed in its entirety.
IT IS SO ORDERED. 3
COMMISSIONER OF EDUCATION
Date of Decision: 	September 25, 2003
Date of Mailing: 	September 26, 2003
3 Pursuant to P.L. 2003, c. 122, ìAbbottî determinations are final agency actions appealable directly to the
Appellate Division of the New Jersey Superior Court.