Board of Education of the Township of Piscataway, Middlesex County v. Board of Education of the Borough of Bound Brook, Somerset County, 4/20/2023, (#118-23)

118-23
New Jersey Commissioner of Education
Final Decision
Board of Education of the Township of Piscataway,
Middlesex County,
Petitioner,
v.
Board of Education of the Borough of Bound Brook,
Somerset County,
Respondent.
Synopsis
The Board of Education of Piscataway (Piscataway) filed a petition contending that the Board of Education of
Bound Brook (Bound Brook) is financially responsible for student O.W.’s attendance in Piscataway schools
during the 2020–2021 school year. 	Bound Brook filed a motion for summary decision, asserting that
Piscataway’s petition was untimely filed. 	In this matter, O.W. was residing with his parent and attending
school in Bound Brook in 2019, when he was removed by the New Jersey Department of Children and Families
(DCF) and placed with his aunt, K.W., in Piscataway. O.W. continued to attend school in Bound Brook until the
2020-2021 school year, when his aunt enrolled him in school in Piscataway. During that year, Bound Brook
ignored a tuition contract and invoices from Piscataway regarding O.W.’s educational costs. In December 2021
and January 2022, counsel for both boards exchanged a series of emails in which they continued to disagree
about which board was responsible for O.W.’s tuition in 2020-2021. Piscataway filed the appeal in April 2022.
The ALJ found, inter alia, that: 	there are no material facts in dispute, and the matter is ripe for summary
decision; 	because Bound Brook ignored Piscataway’s tuition contract and invoices during the 2020-2021
school year, Piscataway should have realized that Bound Brook did not intend to pay for O.W.’s costs for that
school year, yet the within petition of appeal was not filed until April 18, 2022; the 90-day limitations period in
this case began to run at the end of the 2020-2021 school year, so any petition of appeal should have been
filed by the end of September 2021; and Piscataway’s argument that the matter of financial responsibility was
still in dispute in the fall of 2021 and Bound Brook did not take final action until January 2022 is without merit.
Accordingly, the ALJ determined that the petition was untimely pursuant to N.J.A.C. 6A:3-1.3 and granted
Bound Brook’s motion for summary decision.
Upon review, the Commissioner disagreed with the ALJ’s findings and conclusion, and reversed the Initial
Decision. 	In so doing, the Commissioner found, inter alia, that the petition was timely filed as, in other
matters, the Commissioner has concluded that the 90-day limitations period begins to run when a petitioner is
put on notice of a respondent’s “firm position,” which in this case did not occur until the exchange of emails in
2022. 	Further, the record demonstrates that Piscataway established a genuine issue of material fact;
therefore, summary decision is inappropriate at this stage. Accordingly, the matter was remanded to the OAL
for further proceedings consistent with this decision.
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. 03916-22
Agency Dkt. No. 82-4/22
New Jersey Commissioner of Education
Final Decision
Board of Education of the Township of
Piscataway, Middlesex County,
Petitioner,
v.
Board of Education of the Borough of
Bound Brook, Somerset County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the petitioner pursuant to N.J.A.C. 1:1-18.4, and the respondent’s reply
thereto, have been reviewed and considered.
This matter involves the question of whether the Piscataway Board of Education
(Piscataway) or the Bound Brook Board of Education (Bound Brook) is responsible for the costs
of student O.W.’s attendance in a Piscataway school for the 2020-2021 school year. O.W. was
residing with his parent and attending school in Bound Brook in May 2019, when he was
removed by the New Jersey Department of Children and Families (DCF) and placed with his
aunt, K.W., in Piscataway.1 O.W. continued to attend school in Bound Brook until the 2020-
2021 school year, when his aunt enrolled him in school in Piscataway. During that year,
1 K.W.’s home was considered a resource family home pursuant to N.J.S.A. 30:4C-26.1.
118-23

2
Piscataway sent Bound Brook a tuition contract and periodic invoices, which Bound Brook
ignored. In December 2021 and January 2022, counsel for both boards exchanged a series of
emails regarding tuition, in which the parties continued to disagree about which board was
responsible for O.W.’s costs.
In April 2022, Piscataway filed a petition of appeal, seeking an order that Bound Brook is
financially responsible for the costs of O.W.’s attendance in Piscataway during the 2020-2021
school year. Following Bound Brook’s motion to dismiss, which was converted to a motion for
summary decision pursuant to N.J.Ct.R. 4:6-2,2 the Administrative Law Judge (ALJ) determined
that the petition was untimely pursuant to N.J.A.C. 6A:3-1.3. The ALJ found that Bound Brook
ignored Piscataway’s tuition contract and invoices during the 2020-2021 school year, such that
Piscataway should have realized that Bound Brook did not intend to pay for O.W.’s costs. The
ALJ concluded that, giving all favorable inferences to Piscataway, the 90-day limitations period
began to run at the end of the 2020-2021 school year, and therefore any petition of appeal
should have been filed by the end of September 2021; Piscataway did not file the petition of
appeal until April 18, 2022. The ALJ rejected Piscataway’s argument that the matter of financial
responsibility was still in dispute in the fall of 2021 and that Bound Brook did not take final
action until January 2022, finding that the facts suggest otherwise. Accordingly, the ALJ granted
Piscataway’s motion for summary decision and dismissed the petition.
In its exceptions, Piscataway argues that, in disputes between school districts arising
from an ongoing course of dealing rather than a single discrete action, the Commissioner has
framed the triggering event for the 90-day limitations period as when the parties are
2 The Rules of Court are applicable to OAL proceedings pursuant to N.J.A.C. 1:1-1.3.

3
undeniably at an impasse. According to Piscataway, Bound Brook did not unequivocally refuse
to pay for O.W.’s attendance until the exchange of emails between counsel in 2022, and any
other events relied upon by the ALJ were insufficient to support a finding that the limitations
period began to run earlier. Piscataway contends that it would be unfair to commence the
limitations period on the last day of the school year when the regulation does not specify such a
start date, and further submits that applying such strict timelines would discourage the
informal resolution of these types of matters. Finally, Piscataway argues that, even if the
petition was untimely, the limitations period should be relaxed because there was no clear
notice to Piscataway that it had commenced running, and there would be no prejudice to
Bound Brook.
In reply, Bound Brook argues that the ALJ correctly dismissed the petition as untimely
based on the events that occurred during the 2020-2021 school year. According to Bound
Brook, the emails between counsel in December 2021 and January 2022 should not reset the
clock on the limitations period when Piscataway’s counsel acknowledged that Bound Brook had
already disagreed that it was responsible for O.W.’s tuition. Bound Brook contends that there
is no reason to relax the 90-day limitations period and that doing so would run counter to the
principles underlying the limitation.
Upon review, the Commissioner disagrees with the ALJ and finds that the petition of
appeal was timely filed. In other matters, the Commissioner has concluded that the 90-day
limitations period began to run when a petitioner was on notice of a respondent’s “firm
position.” Bd. of Educ. of the Twp. of Waterford, Camden Co. v. Bd. of Educ. of the Twp. of
Hammonton, Atlantic Co. and Bd. Educ. of the Twp. of Folsom, Atlantic Co. v. Bd. of Educ. of the

4
Twp. of Hammonton, Atlantic Co., Commissioner Decision No. 132-08 (decided Mar. 24, 2008);
see also Bd. of Educ. of the Borough of Mountainside, Union Co. v. Bd. of Educ. of the Twp. of
Berkeley Heights, Union Co., Commissioner Decision No. 21-08 (decided January 17, 2008).
While the ALJ relied heavily on the fact that Bound Brook ignored the tuition contract and
invoices sent by Piscataway, the Commissioner concludes that Bound Brook’s failure to respond
is not sufficient to have notified Piscataway that Bound Brook was firm in its position that it was
not responsible for O.W.’s tuition and costs, nor is the fact that the school year ended without
any payment by Bound Brook. Neither of these non-events represents the communication of a
firm position by Bound Brook to Piscataway.
Turning to the other potential triggering event asserted by Bound Brook, the enrollment
of O.W. in Piscataway schools in September 2020 could not start the running of the limitations
period since, at that time, Bound Brook had not stated its position regarding which party was
financially responsible for O.W.’s education costs. Additionally, while Piscataway became
aware in November 2020 that Bound Brook had not reported O.W. on its Application for State
School Aid (ASSA), the certification of Piscataway’s business administrator (BA) indicates that
Bound Brook had not reported O.W. because Bound Brook believed that O.W.’s aunt had
adopted him. Contrary to Bound Book’s suggestion that the BA’s certification confirms that
Bound Brook had disavowed financial responsibility in November 2020, it is clear to the
Commissioner that Piscataway was under the impression that Bound Book’s disavowal was
conditioned on factual misinformation that Piscataway later corrected. It was not
unreasonable for Piscataway to believe that, once Bound Brook had received the updated

5
information showing that O.W.’s aunt had not adopted him and that the kinship legal
guardianship had not yet been finalized, Bound Brook would begin making tuition payments.
The parties’ briefs on summary decision, as well as their exceptions, also addressed the
merits of Piscataway’s claim for tuition. However, a review of the record demonstrates that
Piscataway has established a genuine issue of material fact regarding DCF’s involvement with
O.W.’s placement, and therefore summary decision on this issue is inappropriate at this stage.
Accordingly, the Initial Decision is reversed and Bound Brook’s motion for summary
decision is denied. This matter is remanded to the OAL for further proceedings consistent with
this decision.
IT IS SO ORDERED.3
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
3 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.
April 20, 2023
April 21, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 03916-22
AGENCY DKT. 82-4/22
TOWNSHIP OF PISCATAWAY
BOARD OF EDUCATION,
MIDDLESEX COUNTY,
Petitioner,
v.
BOROUGH OF BOUND BROOK
BOARD OF EDUCATION,
SOMERSET COUNTY,
Respondent.
David B. Rubin, Esq., for petitioner
Kyle J. Trent, Esq., for respondent (Apruzzese, McDermott, Mastro & Murphy,
attorneys)
Record Closed: December 9, 2022 	Decided: January 31, 2023
BEFORE SUSAN M. SCAROLA, ALJ (Ret., on recall):

OAL DKT. NO. EDU 03916-22
2
STATEMENT OF THE CASE
The petitioner, Township of Piscataway Board of Education, Middlesex County
(Piscataway), 	contends 	that 	the 	respondent, 	Borough 	of 	Bound 	Brook 	Board 	of
Education, Somerset County (Bound Brook), is financially responsible for student O.W.’s
attendance at school in Piscataway during the 2020–2021 school year under N.J.S.A.
18A:7B-12(a)(2). 	That provision states that, for school funding purposes, if a child is
placed in a resource family home, “the district of residence shall be the present district of
residence of the parent or guardian with whom the child lived prior to the most recent
placement in a resource family home.”
Piscataway contends that, under N.J.S.A. 18A:7B-12(a)(2), Bound Brook was
O.W.’s “district of residence” for the 2020–2021 school year because he lived with a
parent in Bound Brook prior to his placement in a resource home in Piscataway in May
2019, and Bound Brook must pay to Piscataway the cost of O.W.’s education for the
2020–2021 school year. In response, Bound Brook has moved to dismiss the petition as
untimely.
PROCEDURAL HISTORY
On April 18, 2022, Piscataway filed a petition of appeal with the Commissioner of
Education.
In response, on May 6, 2022, Bound Brook filed a motion to dismiss in lieu of an
answer pursuant to N.J.A.C. 6A:3-1.5(g). 	The Commissioner transmitted the matter to
the Office of Administrative Law (OAL), where it was filed on May 17, 2022. 	N.J.S.A.
52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13.
On September 28, 2022, Piscataway filed a brief in opposition to Bound Brook’s
motion to dismiss, and 	included with 	its brief a 	certification from 	David Oliveira,
Piscataway’s school business administrator/board secretary. By letter dated October 28,
2022, the parties were notified that, pursuant to R. 4:6-2, and as urged by Bound Brook,
Bound Brook’s motion to dismiss would be converted to a motion for summary decision,

OAL DKT. NO. EDU 03916-22
3
because Oliveira’s certification in response to Bound Brook’s motion included facts
outside Piscataway’s petition.
On December 9, 2022, Piscataway submitted a brief in opposition to Bound
Brook’s motion for summary decision and included a supplemental certification from
Oliveira and a certification from another Piscataway employee, Stephanie Verbarg.
FACTUAL DISCUSSION
For 	purposes 	of 	Bound 	Brook’s 	motion, 	the 	following 	facts 	submitted 	by
Piscataway are not in dispute. 	O.W. is a student who was residing with a parent and
attending school in Bound Brook when, in May 2019, he was removed from his home and
placed by the New Jersey Division of Child Protection & Permanency, Department of
Children & Families (DCF), with his aunt, K.W., in a resource family home in Piscataway.1
Petition, ¶¶ 1–2. 	O.W. continued to attend school in Bound Brook for the remainder of
the 2018–2019 school year and for the 2019–2020 school year. Id. at ¶ 3. However, his
aunt enrolled him in school in Piscataway for the 2020–2021 school year. 	Ibid. 	On or
about June 29, 2021, O.W.’s aunt was granted kinship legal guardianship (KLG) over
O.W. Id. at ¶ 4.
The Somerset County executive county superintendent has determined that
Piscataway was responsible for O.W.’s education from the date of entry of the KLG order,
but that determination did not address financial responsibility for O.W.’s enrollment in
Piscataway during the 2020–2021 school year.2 	Id. at ¶ 5. 	On March 23, 2022,
Piscataway applied to the Somerset County executive county superintendent for a
determination that pursuant to N.J.S.A. 18A:7B-12(a)(2), Bound Brook was financially
responsible for O.W.’s enrollment in Piscataway during the 2020–2021 school year; that
1 Under the laws governing dependent and neglected children, “resource family home” is a “private
residence[] wherein any child in the care, custody, or guardianship of the Department of Children and
Families may be placed by the department[.]” N.J.S.A. 30:4C-26.1.
2 It is unclear from the petition when the executive county superintendent made this determination; that is,
it is unknown whether this determination was prior to or part of the determination made by the executive
county superintendent in response to Piscataway’s March 23, 2022, application. 	The facts concerning
determinations made by the Somerset County Executive County Superintendent are recited here in the
same order as they were presented by Piscataway in its petition.

OAL DKT. NO. EDU 03916-22
4
application has since been transferred to the Middlesex County executive county
superintendent of schools, where it is currently pending resolution. Id. at ¶ 6.
In an April 14, 2022, response to Piscataway’s application, Bound Brook asserted
that executive county superintendents of school have no jurisdiction to resolve disputes
over financial responsibility for the education of students residing in resource family
homes, and that such disputes must be resolved, in the first instance, by the Office of
School Facilities and Finance on application pursuant to N.J.A.C. 6A:23A-19.2. Id. at ¶ 7.
Piscataway disputes Bound Brook’s contention regarding jurisdiction and, on April 18,
2022, appealed to the Commissioner’s authority over all disputes arising under the school
laws for a determination that Bound Brook is responsible for the costs of O.W.’s
attendance at school in Piscataway during the 2020–2021 school year. Id. at ¶ 9.
In response, on May 6, 2022, Bound Brook filed a motion to dismiss in lieu of an
answer pursuant to N.J.A.C. 6A:3-1.5(g). According to Bound Brook, even assuming that
all of the allegations set forth in Piscataway’s petition are true, the matter must be
dismissed as untimely under N.J.A.C. 6A:3-1.3(i). 	The 90-day rule, as N.J.A.C. 6A:3-
1.3(i) is commonly known, requires a party to “file a petition no later than the 90th day
from the date of receipt of the notice of a final order, ruling, or other action by the district
board of education, individual party, or agency, that is the subject of the requested
contested case hearing.” Bound Brook contends that Piscataway should have first filed
a complaint with the Office of School Facilities and Finance in accordance with the
residency-determination rules at N.J.A.C. 6A:23A-19.1 to -19.3, and that Piscataway filed
this petition before the Commissioner on April 18, 2022, in contravention of the 90-day
rule because it was filed approximately 594 days after O.W.’s aunt enrolled him in
Piscataway.
On September 28, 2022, Piscataway filed a brief in opposition to Bound Brook’s
motion to dismiss, and 	included with 	its brief a 	certification from 	David Oliveira,
Piscataway’s school business administrator/board secretary. 	Oliveira certified to the
following supplemental facts not contained in Piscataway’s petition: When, in September
2020, K.W. enrolled O.W. in Piscataway for the 2020–2021 school year, she provided
Piscataway with certain paperwork, including a letter from the DCF advising O.W.’s

OAL DKT. NO. EDU 03916-22
5
school principal in Bound Brook that O.W. had been removed from his parental home and
placed in a resource family home with K.W. as of May 20, 2019, and that O.W. “will remain
in his or her current school—Bound Brook Borough.” Oliveira Cert., ¶¶ 2–3. The undated
letter bears a fax date stamp of September 11, 2019. Id. at ¶ 3. K.W. also presented a
letter from the DCF dated May 21, 2019, authorizing her to register O.W. for school. Id.
at ¶ 4.
In October 2020, Piscataway’s 2020–2021 electronic Application for State School
Aid (ASSA) included O.W. as being the financial responsibility of Bound Brook; however,
Piscataway received an error message because Bound Brook’s ASSA had not included
O.W. as being Bound Brook’s responsibility. Id. at ¶ 5. In November or December 2020,
Piscataway contacted Bound Brook, which according to Oliveira thought that K.W., a
Piscataway resident, had custody of O.W. and that, as such, Piscataway was financially
responsible for him for the 2020–2021 school year. Id. at ¶ 6.
Piscataway spoke with K.W., who informed the district that she was seeking KLG
status, and that the process was ongoing. 	Ibid. 	On December 2, 2020, Piscataway, in
turn, informed Bound Brook of the ongoing guardianship process. Ibid. In particular, an
accountant for Piscataway sent an email to Bound Brook about the guardianship situation
and stated that “[b]ased on this information, as of 10/15/20 [O.W.] is still being sent from
Bound Brook, until this process is finalized. Can you adjust your ASSA to reflect Bound
Brook sending [O.W.] to Piscataway.” Id. at Ex. C. The accountant then advised Bound
Brook that “[a]s soon as the court order has finalized the [guardianship] paperwork, we
will notify you of the change.” Ibid. According to Oliveira, he “alerted the Department [of
Education’s] Middlesex County Office to the issue in December 2020, in the hope they
could straighten it out informally, but that never happened.” Id. at ¶ 6.
Oliveira further certified that “[o]ver the course of the 2020–2021 school year, my
office sent Bound Brook a tuition contract and periodic invoices for tuition for O.W., which
were ignored.” Id. at ¶ 7.
However, “[t]he matter remained in limbo between our two districts going into the
fall of 2021,” when on November 15, 2021, Piscataway contacted the DCF for information

OAL DKT. NO. EDU 03916-22
6
about O.W.’s district of residence. Ibid.; Ex. D. In response, on November 19, 2021, the
DCF provided Piscataway with a court order appointing K.W. as O.W.’s KLG on June 29,
2021. Ibid.
Beginning on December 18, 2021, Piscataway’s counsel, David Rubin, and Bound
Brook’s then-counsel, Robert Merryman, exchanged a series of emails about O.W.’s
district of residence for the 2020–2021 school year. In the first email, Rubin stated that
Bound Brook was responsible and acknowledged that “Bound Brook has indicated it
disagrees” and that “my understanding is that this disagreement goes back to last school
year.” Id. at Ex. E.
On December 22, 2021, Rubin informed Merryman that he reviewed the KLG order
and that he accepted Piscataway’s responsibility for O.W. after the order was entered,
but not for the 2020–2021 school year, and asked Merryman if “Bound Brook is still
contesting its financial responsibility for that period of time?” Ibid. Merryman eventually
responded on January 27, 2022, advising Rubin that because it was unknown where
O.W.’s parent lived when he was removed from the home, “Bound Brook District is not
prepared to accept financial responsibility for the child’s education in Piscataway for
2020–21.” Ibid.
On March 22, 2022, Rubin reached out to the DCF about where O.W.’s parent(s)
lived during the 2020–2021 school year, and a DCF representative informed him that
O.W.’s mother had lived in Bound Brook throughout the DCF’s involvement and was still
living in that town when the DCF closed its file on O.W. in July 2021. Id. at Ex. F.
Based on these facts, Piscataway argues in opposition to Bound Brook’s motion
that the 90-day rule does not bar its petition and that Bound Brook was financially
responsible for O.W.’s attendance at school in Piscataway for the 2020–2021 school year
pursuant 	to 	N.J.S.A. 	18A:7B-12(a)(2) 	since 	Bound 	Brook 	was 	O.W.’s 	“district 	of
residence” for the 2020–2021 school year.
As to the timeliness issue, Piscataway maintains that, although Piscataway first
approached Bound Brook in December 2020 about financial responsibility for O.W.’s

OAL DKT. NO. EDU 03916-22
7
education, and although “there were further communications between the parties from
time to time over the rest of [the 2020–2021] school year, . . . [t]he earliest evidence of a
‘final . . . action’” for purposes of N.J.A.C. 6A:3-1.3(i) “was the exchange of emails
between the parties’ counsel in December 2021 and January 2022, after Piscataway was
first made aware in November 2021 that the aunt had secured [KLG] status in June 2021.”
According to Piscataway, the limitations period most reasonably started to run after
Merryman’s January 27, 2022, email in which he stated that Bound Brook “is not prepared
to accept financial responsibility for [O.W.’s] education in Piscataway for 2020–2021.”
And because Piscataway filed its petition on April 18, 2022, such filing was timely, that is,
within ninety days of “final action” by Bound Brook regarding financial responsibility for
O.W. for the 2020–2021 school year.
Moreover, Piscataway contends that, contrary to Bound Brook’s position, it did not
have to first appeal to the Office of School Facilities and Finance pursuant to N.J.A.C.
6A:23A-19.2 because that provision does not, on its face, refer to disputes regarding the
district of residence of a child living in a resource family home, such as O.W.
Finally, Piscataway argues that, even if its petition was untimely, the 90-day rule
should be relaxed for good cause because “[t]here is no evidence that Bound Brook was
ever lulled into believing that Piscataway had dropped its pursuit of tuition for the 2020–
2021 school year,” and “[g]iven the confusion over the aunt’s guardianship status during
that 	school 	year, it’s 	apparent that 	the material 	facts bearing 	on Bound Brook’s
responsibility were continuing to evolve well after O.W. started attending school in
Piscataway in September 2020.” 	In Piscataway’s view, “there is no prejudice to Bound
Brook by allowing Piscataway its day in court.”
On October 11, 2022, Bound Brook submitted a brief, arguing that, because
Piscataway, through Oliveira’s certification, provided facts outside the petition, Bound
Brook’s motion to dismiss should be converted to a motion for summary decision and that
the additional facts, which Bound Brook does not dispute, not only strengthen Bound
Brook’s 90-day-rule argument, but also show that Piscataway was financially responsible
for O.W. for the 2020–2021 school year.

OAL DKT. NO. EDU 03916-22
8
In regard to the latter argument, Bound Brook relies on N.J.S.A. 30:4C-26b, which
authorizes the DCF to determine the school a child should attend while placed in a
resource family home. According to Bound Brook, under that statute, only the DCF (or a
court) could have changed O.W.’s school placement from Bound Brook to Piscataway,
and by accepting O.W. in the absence of the DCF or a court order placing O.W. in
Piscataway’s 	schools 	for 	the 	2020–2021 	school 	year, 	Piscataway 	“assume[d]
responsibility for the cost of same, and cannot enroll a student in direct contravention to
the law and then seek to impose the cost on another school district despite its disregard
for the law to the financial detriment of the other school district.”
By letter dated October 28, 2022, the parties were advised that, pursuant to R. 4:6-
2, and as argued by Bound Brook, Bound Brook’s motion to dismiss would be converted
to a motion for summary decision, because Oliveira’s certification in response to Bound
Brook’s motion included facts outside Piscataway’s petition. 	Under this rule, if, on a
motion to dismiss for failure to state a claim upon which relief may be granted (like Bound
Brook’s motion to dismiss on timeliness grounds),
matters 	outside 	the 	pleading 	are 	presented 	to 	and 	not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided by R. 4:46,
and all parties shall be given reasonable notice of the court’s
intention to treat the motion as one for summary judgment and
a reasonable opportunity to present all material pertinent to
such a motion.
[R. 4:6-2; see also Roa v. Roa, 200 N.J. 555, 562 (2010)
(concluding that because a motion to dismiss a complaint as
untimely “was based upon evidence, including certifications,
outside of the pleadings,” the Court “view[ed] the record in a
light most favorable to the non-moving party, which is the
standard applicable to summary judgment”).]
In accordance with that rule, Piscataway was given an opportunity to oppose Bound
Brook’s motion for summary decision.

OAL DKT. NO. EDU 03916-22
9
On December 9, 2022, Piscataway submitted a brief in opposition to Bound
Brook’s motion for summary decision and included a supplemental certification from
Oliveira and a certification from another Piscataway employee, Stephanie Verbarg. In its
brief, Piscataway again argued against the application of the 90-day rule, reiterating that
“Piscataway would not have reasonably considered this matter as having reached an
impasse until after the email exchanges between [counsel for each district] clearly framing
the issues and our clients’ positions concerning them.”
As for the substantive issue—which district is financially responsible for O.W.’s
schooling during the 2020–2021 school year—Piscataway again contends that N.J.S.A.
18A:7B-12(a)(2) applies, such that Bound Brook is responsible for O.W.’s tuition because
Bound Brook was where O.W.’s mother lived when the DCF placed O.W. in a resource
family home in Piscataway. 	And as for Bound Brook’s contention that, under N.J.S.A.
30:4C-26b, 	only 	the 	DCF 	could 	change 	O.W.’s 	placement 	from 	Bound 	Brook 	to
Piscataway, and that in the absence of such action by the DCF Piscataway “assume[d]
responsibility for the cost of same, and cannot enroll a student in direct contravention to
the law and then seek to impose the cost on another school district despite its disregard
for the law to the financial detriment of the other school district,” Piscataway counters with
Verbarg’s certification, in which she attests that O.W.’s aunt informed Verbarg that the
DCF did, in fact, direct the aunt to change O.W.’s enrollment from Bound Brook to
Piscataway for the 2020–2021 school year. 	Regardless, according to Piscataway,
N.J.S.A. 	18A:7B-12(a)(2), 	which 	cross-references 	N.J.S.A. 	30:4C-26b, 	dispositively
designates Bound Brook as the district of residence for funding purposes for O.W. during
the 2020–2021 school year.
LEGAL ANALYSIS
Standards for summary decision
Under the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6, “[a]
party may move for summary decision upon all or any of the substantive issues in a
contested case.” N.J.A.C. 1:1-12.5(a). Such motion “shall be served with briefs and with
or without supporting affidavits” and “[t]he decision sought may be rendered if the papers

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and discovery which have been filed, together with the affidavits, if any, show that there
is no genuine issue as to any material fact challenged and that the moving party is entitled
to prevail as a matter of law.” 	N.J.A.C. 1:1-12.5(b). 	When the motion “is made and
supported, an adverse party in order to prevail must by responding affidavit set forth
specific facts showing that there is a genuine issue which can only be determined in an
evidentiary proceeding.” Ibid.
Bound Brook does not dispute any of the facts presented by Piscataway. As such,
the question is whether Bound Brook, as the moving party, is entitled to prevail as a matter
of law. This first depends on the threshold issue regarding the timeliness of Piscataway’s
petition.
The 90-day rule
Under the “rules of procedure for the filing of petitions with the Commissioner of
Education to hear and decide controversies and disputes arising under school laws,”
N.J.A.C. 6A:3-1.1 to -1.17, “[t]he petitioner shall file a petition no later than the 90th day
from the date of receipt of the notice of a final order, ruling, or other action by the district
board of education, individual party, or agency, that is the subject of the requested
contested case hearing.” N.J.A.C. 6A:3-1.3(i).
Here, Bound Brook asserts that Piscataway’s petition is untimely under the 90-day
rule, and, therefore, should be dismissed. As the Supreme Court has explained, the 90-
day rule serves the dual purposes of (1) “stimulat[ing] litigants to pursue a right of action
within a reasonable time so that the opposing party may have a fair opportunity to defend,
thus preventing the litigation of stale claims,” and (2) “penaliz[ing] dilatoriness and
serv[ing] as a measure of repose by giving security and stability to human affairs.”
Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 587 (1993) (citations and
quotations omitted). 	Importantly, for purposes of N.J.A.C. 6A:3-1.3(i), the limitations
period begins when a party is “alerted to the existence of facts that may equate in law
with . . . a cause of action.” 	Ibid. (citing Burd v. New Jersey Tel. Co., 76 N.J. 284, 291
(1978)).

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The 90-day rule may be “relaxed or dispensed with . . . in any case where a strict
adherence thereto may be deemed inappropriate or unnecessary or may result in
injustice,” or if there is “the presence of a substantial constitutional issue or other issue of
fundamental public interest beyond that of concern only to the parties themselves.”
N.J.A.C. 6A:3-1.16; Balwierczak v. Bd. of Educ. of Berkeley Heights, 1999 N.J. AGEN
LEXIS 1367 (December 8, 1999).
Timeliness of Piscataway’s petition
Piscataway’s petition should be dismissed as untimely because the board was
alerted to the existence of facts that equated with a cause of action during the 2020–2021
school year yet did not file its petition seeking tuition from Bound Brook for O.W.’s school
attendance in Piscataway for the 2020–2021 school year until April 18, 2022. While it is
difficult to pinpoint the applicable limitations period in this matter, several instances of
inaction by Bound Brook in response to actions by Piscataway throughout the 2020–2021
school year should have indicated to Piscataway that Bound Brook did not intend to pay
for O.W. and stimulated Piscataway to file a petition at some point during the 2020–2021
school year, or at some point soon thereafter.
The first indication of Bound Brook’s renunciation of responsibility for the costs of
O.W.’s education in Piscataway was the fact that Bound Brook did not include O.W. as a
student sent to Piscataway in its 2020–2021 ASSA filing. 	And after Piscataway alerted
Bound Brook about K.W.’s ongoing, yet unfinalized, pursuit of guardianship of O.W.,
stating in the December 2, 2020, email that “[b]ased on this information, as of 10/15/20
[O.W.] is still being sent from Bound Brook, until this process is finalized. Can you adjust
your ASSA to reflect Bound Brook sending [O.W.] to Piscataway,” it appears that
Piscataway’s request went unanswered by Bound Brook. This was yet another indication
that Bound Brook was disinclined to pay for O.W.’s education in Piscataway.
However, the most obvious indication of Bound Brook’s position and what should
have served as the impetus for Piscataway to promptly file a petition against Bound Brook
was the fact that “[o]ver the course of the 2020–2021 school year, [Piscataway] sent
Bound Brook a tuition contract and periodic invoices for tuition for O.W., which were

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ignored.” 	At some point during the 2020–2021 school, after Bound Brook’s silence or
inaction in response to Piscataway’s attempts at getting Bound Brook to pay tuition for
O.W., Piscataway should have realized that Bound Brook did not intend to pay for O.W.
and should have pursued legal action against Bound Brook.
The exact date by which Piscataway should have filed a petition is uncertain,
particularly because Oliveira did not certify to or clarify the dates on which Piscataway
sent the tuition contract or invoices to Bound Brook. However, even giving all favorable
inferences to Piscataway, and setting the start date for the 90-day period at the last day
of the 2020–2021 school year, or June 30, 2021, Piscataway would have had to file its
petition by the end of September 2021. That did not happen. And although Piscataway
advised Bound Brook on December 2, 2020, that “[a]s soon as the court order has
finalized the [guardianship] paperwork, we will notify you of the change,” Piscataway
waited until November 2021 to inquire with the DCF about K.W.’s guardianship status
(which was finalized on June 29, 2021), and then revisited with Bound Brook the issue of
financial responsibility for the 2020–2021 school year.
Although Piscataway argues that “[t]he matter [of financial responsibility] remained
in limbo between the two districts going into the fall of 2021,” and that Bound Brook did
not take “final action” until January 2022, the facts suggest otherwise. Collectively, Bound
Brook’s 2020–2021 ASSA filing, Bound Brook’s inaction in amending its ASSA filing after
Piscataway asked Bound Brook to do so in the December 2, 2020, email, and Bound
Brook’s inaction when sent a tuition contract and numerous invoices during the 2020–
2021 school year alerted Piscataway that Bound Brook was not going to pay O.W.’s tuition
for the 2020–2021 school year and should have spurred Piscataway to file a petition
against Bound Brook at some point during the 2020–2021 school year, or ninety days
thereafter.3 April 18, 2022—by any measure—was too late.4
3 In this regard, such petition could have been filed at any point with the Commissioner, who has jurisdiction
over all matters arising under the school laws. N.J.S.A. 18A:6-9.
4 That Piscataway first sought redress through an executive county superintendent also does not save
Piscataway from the 90-day rule, since Piscataway appealed to that authority only a few weeks before filing
a petition with the Commissioner.

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13
Piscataway unconvincingly argues that, in a dispute between school districts, the
90-day period does not begin to run until there is a “firm” disagreement or an “undeniable
impasse,” citing to Commissioner decisions in Bd. of Educ. of Mountainside v. Bd. of
Educ. of Berkeley Heights, 2008 N.J. AGEN LEXIS 270 (January 17, 2008), aff’d, 2010
N.J. Super. Unpub. LEXIS 545 (March 15, 2010), and Bd. of Educ. of Waterford v. Bd. of
Educ. of Hammonton, 2008 N.J. AGEN LEXIS 261 (March 24, 2008), and that Piscataway
and Bound Brook were not undeniably at an impasse until January 2022. Bound Brook’s
inaction in the face of Piscataway’s persistent attempts to get Bound Brook to accept
financial 	responsibility 	for 	O.W. 	throughout 	the 	2020–2021 	school 	year 	suggests
otherwise. Piscataway was certainly firm in its position by sending a tuition contract and
invoices to Bound Brook that it wanted Bound Brook to be responsible for O.W., yet it
declined 	or 	neglected 	to 	pursue 	legal 	action 	within 	a 	reasonable 	time 	after 	its
communications went unanswered.
Finally, relaxation of the 90-day rule is not appropriate in this case because
Piscataway knew it had a cause of action at some point during or shortly after the 2020–
2021 school year but sat on its rights, and because there is no “substantial constitutional
issue or other issue of fundamental public interest beyond that of concern only to the
parties themselves.” 	While not to minimize the importance of a district of residence’s
orderly payment of tuition for a student’s attendance in another school district when
required by law, the present dispute is between two school districts over the costs of
educating one child for one school year.
Contrary to Piscataway’s argument that relaxation is appropriate because “[t]here
is no evidence that Bound Brook was ever lulled into believing that Piscataway had
dropped its pursuit of tuition for the 2020–2021 school year,” Bound Brook could have
reasonably concluded that Piscataway would not seek legal recourse when, after ignoring
the tuition contract and invoices throughout the 2020–2021 school year, Bound Brook did
not hear anything about the tuition issue again until December 2021. Accordingly, Bound
Brook’s motion to dismiss Piscataway’s petition as untimely should be granted.

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CONCLUSION
Based on the uncontested facts presented by both districts, Bound Brook’s motion
to dismiss Piscataway’s petition as untimely is granted.
ORDER
I hereby ORDER that Bound Brook’s motion for summary decision is GRANTED.
Piscataway’s petition shall be DISMISSED as untimely filed.
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.

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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.
January 31, 2023
DATE 	SUSAN M. SCAROLA, ALJ (Ret., on recall)
Date Received at Agency:
Date Mailed to Parties:
SMS/nn

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APPENDIX
WITNESSES
For petitioner:
None
For respondent:
None
EXHIBITS
For petitioner:
Briefs
For respondent:
Brief