M.B., on behalf of D.B. and M.B. v. Board of Education of the Township of Union, Union County, 3/17/2020, (#98-20)

New Jersey Commissioner of Education
Final Decision
M.B., on behalf of minor children,
D.B. and M.B.,
Petitioner,
v.
Board of Education of the Township of Union,
Union County,
Respondent.
Synopsis
Pro se petitioner appealed the determination of the respondent Board that D.B. and M.B. did not reside
within the Union Township School District during the 2018-2019 school year. The Board alleged that
D.B. and M.B. were not residing at either of the two addresses provided by the petitioner, and sought
payment of tuition for the period of their ineligible attendance.
The ALJ found, inter alia, that: pursuant to N.J.S.A. 18A:38-1(b)(2), petitioner has the burden of proof
in a determination of residency; 	the residency investigation in this matter demonstrated that the
children were not present at either of the addresses in Union Township provided by petitioner and were
instead seen repeatedly at an address in Roselle; and based on the evidence submitted by the petitioner
in support of his residency claim, D.B. and M.B. were not domiciled in the District while attending
school there during the 2018-2019 school year. 	The ALJ concluded that D.B. and M.B. were not
entitled to receive a free public education in the Union Township School District; accordingly, the
respondent Board is entitled to reimbursement for tuition costs in the amount of $28,046 for the 2018-
2019 school year.
Upon review of the record in this matter, the Commissioner concurred with the ALJ’s findings and
conclusion. 	The Initial Decision was adopted as the final decision in this matter, and the petitioner was
ordered to reimburse the Board for tuition in the amount of $28,046; 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.
March 17, 2020
98-20

OAL Dkt. No. EDU 02760-19
Agency Dkt. No. 21-1/19
New Jersey Commissioner of Education
Decision
M.B., on behalf of minor children,
D.B. and M.B.,
Petitioner,
v.
Board of Education of the Township
of Union, 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 concurs with the Administrative Law Judge’s
(ALJ) finding that petitioner failed to sustain her burden of establishing that she was a
domiciliary of Union for the 2018-2019 school year. The Commissioner further concurs with the
ALJ’s conclusion that the minor children 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 children were ineligible to attend school in
Union. Therefore, the Board is entitled to tuition reimbursement in the amount of $14,023 for
M.B. and $14,023 for D.B. for the 2018-2019 school year, during which time petitioner’s minor
children were ineligible to attend school in respondent’s district.
1 The Commissioner was not provided with a transcript of the January 31, 2020 hearing at the OAL.

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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 $28,046 for tuition
costs incurred during the time period in which M.B. and D.B. were ineligible to attend school in
Union. The petition of appeal is hereby dismissed.
IT IS SO ORDERED. 2
COMMISSIONER OF EDUCATION
Date of Decision: 	March 17, 2020
Date of Mailing: 	March 17, 2020
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).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 02760-19
AGENCY DKT. NO. 21-1/19
M.B. ON BEHALF OF MINOR CHILDREN D.B AND M.B.,
Petitioner,
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF UNION, UNION COUNTY,
Respondent.
______________________________________________
M.B., for petitioner, pro se
Nashali Amin Rose, Esq., for respondent (Florio Perrucci Steinhardt & Cappelli,
LLC)
Record Closed: February 11, 2020 	Decided: February 25, 2020
BEFORE KIMBERLY A. MOSS, ALJ:
STATEMENT OF THE CASE
Petitioner M.B. challenges the Board of Education of the Township of Union’s
(Respondent or Board) residency determination that petitioners do not reside and/or not
domiciled in Union.

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PROCEDURAL HISTORY
The 	matter 	was 	transmitted 	to 	the 	Office 	of 	Administrative 	Law 	(OAL) 	on
February 26, 2019, for hearing as a contested case. 	The hearing was scheduled and
heard on January 31, 2020. 	The respondent submitted a closing brief and certification
on February 11, 2020, at which time I closed the record.
FACTUAL DISCUSSION
Testimony
Daniel Hodge
Daniel Hodge is employed by respondent as a residency inspector. On February
23, 2018, he was assigned to investigate whether M.B. and D.B. lived in the Union. The
reason for the investigation was that either M.B or D.B. stated that they lived in Roselle.
Hodge began the investigation on February 23, 2018, at the address of XXXX
Hawthorne Avenue, Union. 	This is the address that the Board had on record for
petitioners. 	On February 23 and February 26, 2018, no one exited the Hawthorne
Avenue address between 7:15-9:00 a.m. On February 26, 2018, the principal of Hanna
Caldwell School, where D.B. and M.B were registered, pointed out the children’s father
as he was picking them up from school to Hodge. 	Hodge followed petitioner’s car to
Roselle. A Honda Odyssey and a Jeep were registered to petitioner. Petitioner drove a
white Ford Explorer when he picked up the children. 	On February 28, 2018, no one
exited the Hawthorne Avenue address. 	On March 1, 2018, the Odyssey dropped the
children at school and picked them up. 	Hodge followed the Odyssey after it picked the
children up from school but lost it in traffic.
On March 12, 2018, there were no cars at the Hawthorne Avenue address at
7:30 a.m. 	The Odyssey driven by the children’s mother dropped them at school.

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Hodge followed the Odyssey, which made several stops before finally stopping at the
Oak Park apartments in Roselle. 	On March 13, 2018, both cars registered to petitioner
were at the Oak Park Apartments. 	The mother dropped the children at school and
returned to the Oak Park apartments. 	Hodge never saw the children at the Hawthorne
Avenue address.
A residency hearing was held which resulted in the children staying in school.
Hodge was told to check on the residency. 	From 	September 4, 2018, through
September 27, 2018, Hodge conducted surveillance to determine if the children lived at
the Hawthorne Avenue address. 	He did no surveillance from September 27, 2018, to
May 2, 2019.
In March 2019 petitioner informed the Board that they moved to Vauxhall Road in
Union. 	Hodge did not see the Odyssey or the Explorer at the Vauxhall Road address
until May 2, 2019. At that time Hodge questioned the crossing guard on Vauxhall Road,
who stated that he had not seen any grammar school aged children coming out of the
residence on May 7, 2019. Hodge knocked on the door of the Vauxhall Road residence
at 7:00 p.m. There was no answer. He went by at 10:00 p.m. and the house was dark.
On May 13, 2019, May 14, 2019, and May 15, 2019, no cars were at the
Vauxhall Road address in the morning. On May 16, 2019, Hodge again questioned the
crossing guard at 7:15 a.m. who stated that he had seen high school children coming
out of the Vauxhall Road residence, but he believes that they moved. 	On May 17,
2019, Hodge knocked on the door of the Vauxhall residence at 7:00 p.m. and there was
no answer. A college-age neighbor told him that the premises were vacant.
On May 20, 2019, Hodge saw petitioner cutting the grass at the Vauxhall Road
address at 10:00 a.m. On May 21, 2019, Hodge saw the Jeep at the Roselle address in
the morning. 	On May 22, 2019, there were no cars at the Vauxhall Road address at
6:00 p.m. 	On May 23, 2019, the jeep was parked in Roselle at 7:00 a.m. 	On May 25,
2019, Hodge went past the Vauxhall Road address five different times and no cars were
parked at the address.

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On May 28, 2019, the Jeep and the Explorer were parked at the Roselle address
at 7:15 a.m. On May 29, 2019, Hodge saw the Jeep and Explorer parked at the Roselle
address at 7:00 a.m. at 8:15 a.m. the children entered the Explorer, at 3:00 p.m. the
children were picked up from school in the Explorer and taken to Roselle. 	On May 30,
2019, the Jeep and the Explorer were seen at Roselle at 7:30 a.m. The children at 8:20
a.m. came out of the Roselle address and entered the Explorer.
Hodge never saw the children at either Union address. 	He saw the children at
the Roselle address. 	Hodge never saw the petitioner drive any car other than the
Explorer. 	The Odyssey was driven by the children’s mother. 	Hodge had driven by the
Hawthorne Avenue address as late as 10:00 p.m. and did not see the Explorer.
M.B.
M.B. is the father of M.B. and D.B. 	He stated that he told the Board in March
2018 that they could not stay at the Hawthorne Street address. 	The children stayed
with their mother due to a family issue. When the children were staying in Roselle with
their mother, he would take them to school. 	After school he picked up the children and
returned them to their mother in Roselle and went back to work. He drove the Explorer.
The children’s mother drove the Jeep and the Odyssey.
Petitioner’s primary residence was on Hawthorne Avenue in Union. He moved to
the Vauxhall Road, Union address in March 2019. If someone is looking in the driveway
of the Vauxhall Road address, the yard cannot be seen. 	He enters and exits through
the rear door at the Vauxhall Road address. 	When he leaves the Vauxhall Road
address, he sees the crossing guard coming on duty. 	He signed the lease for the
Vauxhall Road address on March 1, 2019.
FINDINGS OF FACT

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In light of the contradictory testimony presented by respondent’s witness and
petitioner, the resolution of this matter requires that I make credibility determinations
with regard to the critical facts. 	The choice of accepting or rejecting the witness’s
testimony or credibility rests with the finder of facts. Freud v. Davis, 64 N.J. Super. 242,
246 (App. Div. 1960). 	In addition, for testimony to be believed, it must not only come
from the mouth of a credible witness, but it also has to be credible in itself. It must elicit
evidence that is from such common experience and observation that it can be approved
as proper under the circumstances. 	See Spagnuolo v. Bonnet, 60 N.J. 546 (1974);
Gallo v. Gallo, 66 N.J. Super. 1 (App. Div. 1961). 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). 	A fact finder “is free to weigh the evidence
and to reject the testimony of a witness even though not contradicted when it is contrary
to circumstances given in evidence or contains inherent improbabilities or contradictions
which alone or in connection with other circumstances in evidence excite suspicion as
to its truth.” 	In re Perrone, 5 N.J. 514, 521-22 (1950); see D’Amato by McPherson v.
D’Amato, 305 N.J. Super. 109, 115 (App. Div. 1997).
Having had an opportunity to observe the demeanor of the witnesses, I FIND
Hodge to be credible. 	He was truthful and accurate. 	He testified clearly and directly.
He did not have a bias against petitioner. I found M.B. to be less credible. 	He testified
that the children could not stay at the Hawthorne Avenue address due to family issues,
but he later testified that the children did live at the Hawthorne Avenue address. 	He
was vague on the reason that the children could not stay at the Hawthorne Avenue
address. 	He did not expound on what the family issues were for the children not living
at the Hawthorne Avenue address.
Based 	on 	the 	credible 	testimonial 	and 	documentary 	evidence, 	I 	FIND 	the
following as FACTS in this matter:
Petitioner M.B. is the father of M.B and D.B. During the 2017-2018 school year a
residency investigation was commenced to determine if M.B and D.B. lived at the

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Hawthorne Avenue address in Union. 	The Board believed that the children lived in
Roselle. 	A hearing was held before the Board on April 10, 2018. 	At that meeting the
Board allowed the children to remain in school for the remainder of the school year.
M.B. primarily drove a Ford Explorer. 	The children’s mother drove a Honda
Odyssey or a Jeep. 	On various dated in July 2019, Hodge saw the Odyssey parked in
Roselle. 	On August 1, 2018, August 8, 2018, and August 22, 2018, Hodge saw the
Explorer parked in front of the Hawthorne Avenue address in Union. He did not see the
children on any of the July or August surveillances.
On September 4, 2018, and September 10, 2018, Hodge saw the Odyssey
parked in Roselle at 7:30 a.m. 	On September 11, 2018, and September 12, 2018,
Hodge saw petitioner drive the children to school from Roselle at 7:30 a.m. and 7:45
a.m. 	On September 12, 2018, the children’s mother picked them up from school and
drove them to Roselle. 	On September 13, 2018, Hodge saw the children in Roselle at
approximately 8:15 a.m. 	The car was parked in a lot near the Roselle address. 	On
September 14, 2018, September 15, 2018, and September 18, 2018, Hodge saw the
children enter the Explorer in Roselle at approximately 8:20 a.m. 	On September 20,
2018, the Odyssey and Explorer were seen at the Roselle address at 8:15 a.m. 	The
children were taken to school at 8:45 a.m. in the Explorer. On September 21, 2018, the
Explorer picked the children up from school and took them to Roselle. 	On September
24, 2018, the Explorer was seen at the Hawthorne address at 6:45 a.m. It was seen at
the Roselle address at 7:30 a.m. 	The children were taken to school on September 25,
2018, from Roselle. 	On the same date the children were picked up from school and
taken to the Roselle address. On September 26, 2018, the Explorer and Odyssey were
at the Roselle address at 8:00 a.m. 	The children were taken to school in the Explorer
from Roselle. 	They were picked up after school and taken to Roselle. 	Hodge never
saw the children at the Hawthorne Avenue, Union address. 	There was no surveillance
from September 27, 2018, to March 2019.
On or about October 29, 2018, petitioner received a letter from the Board stating
that the children do not reside in the district because they reside with him in Roselle.

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The letter stated that the children would be removed from the district on November 7,
2018. 	Petitioner appealed the Board’s residency decision on or about November 6,
2018. 	A residency hearing was scheduled for December 11, 2018. 	On January 3,
2019, the Board determined that the children no longer reside in Union, therefore they
are not eligible to attend school in Union. 	Petitioner filed an appeal on January 23,
2019. 	On March 15, 2019, signed a one-year lease starting on April 1, 2019, to March
31, 2019, for property located on Vauxhall Road in Union.
In March 2019 petitioner informed the Board that they moved to Vauxhall Road in
Union. 	Hodge did not see the Odyssey or the Explorer at the Vauxhall Road address
until May 2, 2019. At that time Hodge questioned the crossing guard on Vauxhall road,
who stated that he had not seen any grammar-school-aged children coming out of the
residence. 	On May 7, 2019, Hodge knocked on the door of the Vauxhall Road
residence at 7:00 p.m. There was no answer. He went by at 10:00 p.m. and the house
was dark. On May 8, 2019, at 7:00 p.m. there was a box truck with the words Brother’s
Furniture on its side in the driveway at the Vauxhall Road address. The front door was
open and there were people inside.
On May 13, 2019, May 14, 2019, and May 15, 2019, no cars were at the
Vauxhall Road address in the morning. 	On May 16, 2019, at 7:50 a.m. Hodge again
questioned the crossing guard, who stated that he had seen high school children
coming out of the Vauxhall Road residence, but he believes that they moved. 	On May
17, 2019, Hodge knocked on the door of the Vauxhall residence at 7:00 p.m. and there
was no answer. A college-age neighbor told him that the premises were vacant.
On May 20, 2019, Hodge saw petitioner cutting the grass at the Vauxhall Road
address. On May 21, 2019, Hodge saw the jeep at the Roselle address in the morning.
On May 22, 2019, there were no cars at the Vauxhall residence at 6:00 p.m. 	On May
23, 2019, the jeep was parked in Roselle at 7:00 a.m. 	On May 25, 2019, Hodge went
past the Vauxhall Road address five different times and no cars were parked at the
address.

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On May 28, 2019, the Jeep and the Explorer were parked in Roselle at 7:00 a.m.
At 8:15 a.m. the students came out of the Roselle address. At 2:45 p.m. Hodge went to
the Vauxhall Road address and knocked on the door, but there was no answer. 	On
May 29, 2019, Hodge saw the Jeep and Explorer parked at the Roselle address at 7:00
a.m. 	At 8:15 a.m. the children entered the Explorer in Roselle at 3:00 p.m. the children
were picked up from school in the Explorer and taken to Roselle. On May 30, 2019, the
Jeep and the Explorer were seen at Roselle at 7:30 a.m. 	At 8:20 a.m. the children
came out of the Roselle address and entered the Explorer.
Hodge never saw the children at either Union address. 	He saw the children at
the Roselle address. 	Hodge never saw the petitioner drive any car other than the
Explorer. 	The Odyssey was driven by the children’s mother. 	Hodge had driven by the
Hawthorne Avenue address as late as 10:00 p.m. and did not see the Explorer.
M.B. testified that the children did not stay at the Hawthorne Avenue address
because of a family issue. 	He did not address the substance of the family issue and
why the children could not live at Hawthorne Avenue address. 	He also stated that his
and the children’s residence was at Hawthorne Avenue prior to moving to Vauxhall
Road. 	He stated that he took title to the Vauxhall property on March 1, 2019. 	He also
stated new furniture for the children was purchased for the children. Although he states
that he took title to the premises on March 1, 2019, the lease has the April 1, 2019, as
the beginning of the lease.
The daily rate for tuition for M.B. for the 2018-2019 school year was $77.91.
The yearly rate for M.B.’s tuition for 2018-2019 was $14,023. 	The daily rate for tuition
for D.B. for the 2018-2019 school year was $77.91. The yearly rate for D.B.’s tuition for
2018-2019 was $14,023.
LEGAL ANALYSIS
Any child between the ages of five and twenty years old is entitled to a free public
education in the district in which he is a resident. N.J.S.A. 18A:38-1(a); N.J.A.C. 6A:22-

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3.1(a). 	A student is a resident of 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). 	A student may attend
school in a district in which he is a non-resident, with or without payment of tuition, at
the discretion of the school district. N.J.S.A. 18A:38-3(a); N.J.A.C. 6A:22-2.2.
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 his or her parent, custodian or guardian. 	P.B.K. ex
rel. minor child E.Y. v. Board of Educ. of Tenafly, 343 N.J. Super 419, 427 (App. Div.
2001).
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 section.
In this matter, petitioner provided no documentation that he resided at the
Hawthorne Avenue address. 	There were no bills addressed to him at that address, he
did not provide a copy of his driver’s license with the Hawthorne Avenue address. 	In
addition, petitioner stated that he the children resided at the Hawthorne Avenue address
yet testified that the children could not stay at the Hawthorne Avenue address because
of a family issue. 	The family issue was never explained in any terms other than there
was a family issue. 	Hodge saw the children on numerous occasions leave from the
Roselle address.

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The children were never seen at the Vauxhall Road address from March 2019
when the lease was signed through May 30, 2019. 	On two occasions in May 2019,
Hodge knocked on the door of the Vauxhall address at 7 p.m. and there was no answer.
On two occasions in May 2019, Hodge drove by the Vauxhall Road address at 10:00
p.m. and there were no lights on in the house. 	Hodge never saw the children at the
Vauxhall Road address in May 2019, but he did see them at the Roselle address in May
2019.
The daily rate for tuition for M.B. for the 2018-2019 school year was $77.91. The
yearly rate for M.B.’s tuition for 2018-2019 was $14,023. 	The daily rate for tuition for
D.B. for the 2018-2019 school year was $77.91. 	The yearly rate for D.B.’s tuition for
2018-2019 was $14,023.
The Board asserts that it is entitled to be reimbursed for tuition for the 2018-2019
school year for M.B and D.B.’s ineligible enrollment. Whereas here, the evidence does
not support the claims of the resident, the Commissioner of Education is authorized to
assess tuition pursuant to N.J.A.C. 6A:22-6.2(a), which provides as follows:
If in the judgment of the Commissioner the evidence does
not support the claim of the resident, he shall assess the
resident tuition for the student prorated to the time of the
student's ineligible attendance in the school district. 	Tuition
shall be computed on the basis of 1/180 of the total annual
per pupil cost to the local district multiplied by the number of
days of ineligible attendance and shall be collected in the
manner in which orders of the Commissioner are enforced.
N.J.S.A. 18A: 38-1(b) likewise requires that tuition be calculated on the basis of
1/180 of the total annual per pupil cost to the district multiplied by the number of days of
ineligible attendance.
Based 	upon 	the 	facts 	adduced 	and 	the 	legal 	principles 	cited 	above, 	I
CONCLUDE that petitioners were not a domiciliary in the Union School District for the
2018-2019 school year and that respondent is entitled to reimbursement for the costs of
tuition in the amount of $14,023 for M.B. and $14,023 for D.B. for a total of $28,046.

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ORDER
Based on the foregoing, it is hereby ORDERED that respondent's determination
that petitioner and her children were not residents and domiciliary in Union, New Jersey,
and were not domiciled within its school district during the 2018-2019 school year is
hereby AFFIRMED. 	It is further ORDERED that respondent be reimbursed tuition from
petitioner in the amount of $28,046.
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, P.O. 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.
February 25, 2020
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	February 25, 2020
Date Mailed to Parties:
ljb

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APPENDIX
LIST OF WITNESSES
For Petitioner:
For Respondent:
Daniel Hodge
LIST OF EXHIBITS
For Petitioner:
P-1 Lease Dated April 15, 2019
For Respondent:
R-1(a) Investigation reports of Daniel Hodge dated May 30, 2019, and September 17,
2019, Enrollment Form
R-1(b) Investigation Photos
R-2 	Residency Investigation Request Form
R-3 	March 26, 2018, Notice of Initial Determination of Ineligibility
R-4 	May 1, 2018, Decision to allow D.B. and M.B. to complete the 2017-2018 school
year
R-5 	October 29, 2018, Notice of Initial Determination of Ineligibility
R-6 	November 6, 2018, Letter from petitioner to the Board requesting a hearing
R-7 	November 7, 2018, Letter from Board Scheduling the Hearing
R-8 	January 3, 2019, Notice of Removal
R-9 	Petitioner’s Residency Appeal Petition
R-10 	Respondent’s Answer
R-11(a) Tuition Cost for D.B.
R-11(b) Tuition Cost foe M.B.
R-12 	Certification of Manuel Viera regarding daily and yearly tuition for M.B. and D.B.