Board of Education of the Township of Lakewood, Ocean County v. New Jersey Department of Education, 2/28/25 (#67-25)

67-25
OAL Dkt. No. EDU 01046-25
Agency Dkt. No. 14-1/25
New Jersey Commissioner of Education
Order on Emergent Relief
Board of Education of the Township of Lakewood,
Ocean County,
Petitioner,
v.
New Jersey Department of Education,
Respondent.
The record of this emergent matter, the sound recording of the hearing held at the Office of
Administrative Law (OAL), and the recommended Order of the Administrative Law Judge (ALJ) have been
reviewed. 	Upon such review, the Commissioner concurs with the ALJ that petitioner has failed to
demonstrate entitlement to emergent relief pursuant to the standards enunciated in Crowe v. DeGioia,
90 N.J. 126 (1982), and codified at N.J.A.C. 6A:3-1.6.
Accordingly, the Board’s application for emergent relief is denied. 	As the ALJ indicated, the
petitioner was only seeking emergent relief; therefore, there is no longer a pending dispute that requires
additional adjudication. The OAL is directed to return the file to the agency in accordance with N.J.A.C.
1:1-3.3.
IT IS SO ORDERED. 1
COMMISSIONER OF EDUCATION
Date of Decision: 	February 28, 2025
Date of Mailing: 	February 28, 2025
1 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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
ORDER ON EMERGENT
RELIEF
OAL DKT. NO. EDU 01046-25
AGENCY DKT. NO. 14-1/25
BOARD OF EDUCATION OF
THE TOWNSHIP OF LAKEWOOD,
Petitioner,
v.
NEW JERSEY DEPARTMENT
OF EDUCATION,
Respondent.
Michael I. Inzelbuch, Esq., for petitioner
Kevin Milton, Deputy Attorney General, for respondent, (Matthew J. Platkin,
Attorney General of New Jersey, attorney)
BEFORE TRICIA M. CALIGUIRE, ALJ:
STATEMENT OF THE CASE
Petitioner, the Board of Education of the Township of Lakewood (Board), seeks an
order for emergent relief in the form of written authorization by respondent New Jersey
Department of Education (NJDOE) to use Special Revenue/Restricted Funds to pay

OAL DKT. NO. EDU 01046-25
2
existing bills and to immediately respond to the Board’s request for a loan, including, if
approved, the amount of such loan.
PROCEDURAL HISTORY
On January 14, 2025, petitioner filed an emergent petition with the Office of
Controversies and Disputes of the NJDOE. The Commissioner did not act upon the
motion and pursuant to N.J.A.C. 6A:3-1.6(c)(3), on January 15, 2025, the emergent
matter was transmitted to the Office of Administrative Law (OAL).1
On January 17, 2025, petitioner filed a supplemental brief and respondent filed its
opposition to the motion for emergent relief. The emergent relief request was scheduled
for oral argument, on January 21, 2025. Shortly before the hearing, petitioner submitted
a letter from its auditor.2
Due to scheduling difficulties, the parties agreed to appear via Zoom Audio
Communications, Inc., and on January 21, 2025, the parties appeared for oral argument. On
January 22, 2025, both parties filed supplemental briefs and certifications, and the request for
emergent relief is now ripe for consideration.
FACTUAL DISCUSSION
Most of the pertinent facts in this case are not in dispute. Accordingly, I FIND as
FACTS:
The Board administers the Lakewood Public School District (LPSD), a public
school district serving students in grades kindergarten through twelfth grade. The LPSD
is comprised of approximately 4,500 students; costs are also incurred by the LPSD to
1 To date, Lakewood has not filed a due process petition. In a similar case involving the same parties, the
reviewing agency found that “given the importance of the issue, the application will be treated as both a
petition seeking final relief and as a motion for emergent relief without the necessity of the petitioner filing .
. . supplemental pleadings. Bd. of Educ. of Lakewood Tsp. v. NJ Dept. of Educ., 2019 N.J. AGEN. LEXIS
818, *7 (July 3, 2019).
2 Respondent was afforded opportunity to submit a written response to this letter.

OAL DKT. NO. EDU 01046-25
3
provide services, primarily transportation, to approximately 50,000 private school
students. Certification of Laura A. Winters, Ed.D., Board Superintendent (January 12,
2025), ¶ 9.
The LPSD receives funding from the State based on the enrollment of public-
school students (under the State funding formula) and, for at least the past ten years,3
from the NJDOE in the form of loans “when necessary for [LPSD] to continue to operate
and deliver a thorough and efficient education to its students.” Certification of Stephanie
Kuntz, NJDOE Director of State Monitors (January 17, 2025) (Kuntz Cert.), ¶ 12; see also
Certification of Kevin Campbell, Board Business Administrator (January 12, 2025)
(Campbell Cert.), ¶ 9.
In or about March of each year, the Board adopts the annual budget for the
upcoming school year. Each school year from approximately 2015, through and including
the 2023–2024 school year, the LPSD has received an NJDOE State Aid Advance Loan
because during those years, projected revenue including “the regular state aid
allocation,”4 has been lower than budgeted expenses. Winters Cert., ¶¶ 7, 8.
As explained by counsel at oral argument, from approximately 2015, through and
including 2024, after the Board approved the annual budget for the upcoming school year,
the LPSD submitted a “budget deficit presentation” (or loan application) to the NJDOE
using a designated portal on the NJDOE website. In March 2024, the Board projected a
budget deficit — and therefore requested a State Aid Advance Loan for the 2024–2025
school year — of approximately 140 million dollars.
Counsel stated that each year prior to 2024, the NJDOE notified the LPSD of the
approval of its loan application and the amount of the approved loan between July and
November, or four to seven months following the application.5 To date, the NJDOE has
3 See Campbell Cert., ¶ 14.
4 Based on the New Jersey State Funding Formula, as codified in the School Funding Reform Act of 2008,
N.J.S.A. 18A:7F-43 et seq.
5 See Joint Supplemental Certification of Winters and Campbell (January 22, 2022) (Joint Supp. Cert.), Ex.
D (Ltr. of Angelica Allen-McMillan, NJDOE Acting Commissioner, to Laura Winters (November 17, 2023).).

OAL DKT. NO. EDU 01046-25
4
not informed the LPSD whether its loan application has been approved and/or the amount
of any such loan for the 2024-2025 school year. Winters Cert., ¶ 12.
Pursuant to N.J.S.A. 18A:7A-55, the NJDOE appointed a State monitor, Louise
Davis, to “oversee the fiscal management and expenditures of [LPSD] funds,” including
“budget reallocations and reductions, approvals of purchase orders, budget transfers, and
payment of bills and claims.” Kuntz Cert., ¶¶ 5, 6. The State Monitor is authorized to
override a vote by the Board on such matters. Id., ¶ 6.
In the LPSD budget, funds are designated for specific use, including general funds,
which are used for payroll, health insurance premiums, and utilities (among other
expenses), and special revenue funds, which “are earmarked for specific nonpublic
programs.” Cambell Cert., ¶¶ 11, 12. LPSD funds are “organized in one bank account
which is accessible by [Cambell]” and available to meet LPSD’s financial obligations.
Kuntz Cert., ¶ 11.
Some portion of the special revenue funds is comprised of “State and Federal
Grant Funds [which] are legally restricted to their designated purposes.” Ltr. of Matthew
Holman, LPSD Auditor, to LPSD Board of Education (January 21, 2025). According to
Mr. Holman:
[Using Grant] funds for other operations would constitute a
violation of the grant agreements and could result in audits,
penalties, and potential repayment of misused funds
especially when no repayment schedule can be established
due to the lack of specifics provided with regard to a [State Aid
Advance] Loan.
[Ibid.]
Grant funds are not segregated in separate bank accounts, whether by individual
grant, or by category of grants generally, but are maintained in the same bank account as
general revenues.

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5
On January 8, 2025, the Board approved Resolution #18, which prohibits the use
of special revenue funds for general fund expenses without the written authorization of
the NJDOE and/or the State Monitor. Winters Cert., ¶ 10; Kuntz Cert., ¶ 7. As of January
15,6 and 30, 2025, the LPSD had bills come due for general fund expenses which the
LPSD could not pay because insufficient monies were available in the designated general
fund.
On January 10, 2025, the State Monitor instructed the Board to pay approved
payroll bills, but did not designate whether to use general fund or special revenue funds.
Winters Cert., ¶¶ 5, 17; Campbell Cert., ¶¶ 5, 15. On January 15, 2025, the Board filed
this emergent action, claiming that its faces a deficit of more than four million dollars in
the general fund and is unable to use special revenue funds to cover general fund
expenses due to the (1) action of the Board prohibiting such action; and (2) the refusal of
the State Monitor and/or the NJDOE to issue written authorization to take such action.
By letter dated January 17, 2025, the State Monitor notified Winters of her decision
to deny Resolution #18, thereby removing the prohibition on use of special revenue funds
for general fund expenditures. Kuntz Cert., ¶¶ 8, 9, and Ex. A.
As of January 10, 2025, the LPSD had more than thirty-four million dollars in
special revenue funds. Campbell Cert., ¶ 14, Ex. B.
The Board has asked the NJDOE to confirm that it will issue a loan to the LPSD
for the current school year, and to inform the LPSD of the amount of the loan, but such
assurances have not been documented. Winters Cert., ¶ 10; Campbell Cert., ¶ 9. The
NJDOE has yet to decide on a loan because the amount depends on whether the LPSD
has available cash and, if it does not, then the amount of money needed by the LPSD to
“sustain the district through the current school year.” Kuntz Cert., ¶ 13.
6 After the initial filing in this matter, some bills due January 15, 2025, were paid.

OAL DKT. NO. EDU 01046-25
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LEGAL ANALYSIS
When the subject matter of a controversy is action by a board of education, the
petitioner may file “a separate motion for emergent relief . . . pending the Commissioner’s
final decision in the contested case.” N.J.A.C. 6A:3-1.6(a). Here, the Board has not
initiated due process proceedings, seeking only emergent relief.
The standards for granting emergent relief are set forth in Crowe v. DeGioia, 90
N.J. 126 (1982), and are codified at N.J.A.C. 6A:3-1.6(b). The petitioner bears the burden
of proving that:
1. Petitioner will suffer irreparable harm if the requested
relief is not granted;
2. The legal right underlying the petitioner’s claim is settled;
3. Petitioner has a likelihood of prevailing on the merits of
the underlying claim; and
4. When the equities and the interests of the parties are
balanced, the petitioner will suffer greater harm than the
respondent will suffer if the requested relief is not
granted.
[N.J.A.C. 6A:3-1.6(b).]
Irreparable Harm
To obtain emergent relief, the Board must demonstrate more than a risk of
irreparable harm, but a “clear showing of immediate irreparable injury,” or a “presently
existing actual threat; (an injunction) may not be used simply to eliminate a possibility of
a remote future injury, or a future invasion of rights, be those rights protected by statute
or by common law.” Cont’l Group, Inc. v. Amoco Chems. Corp., 614 F. 2d 351, 359 (D.N.J.
1980).
The Board contends that if it uses special revenue funds to meet general fund
expenses, irreparable harm will result as it will be “unable to provide mandated services

OAL DKT. NO. EDU 01046-25
7
for non-public students for transportation, security [and special education services].”
Supplemental Br. of Pet’r in Support of Emergent Relief (January 17, 2025) at 3. Further,
the Board contends that State guidelines define “special revenue funds” as those which
are “legally restricted to expenditures for specified purposes.” Id. at 3–4. The Board does
not, however, provide citations or specific support for its argument that it is legally
restricted from using the proceeds of the special reserve account. Holman’s letter alone
is not competent evidence of grant agreements which allegedly restrict the grantee in its
use of grant funds. Further, the Board offered no evidence to counter the NJDOE’s
argument that the funds are not actually segregated by account but are commingled in a
single account accessible to the Business Administrator.7
In response, the NJDOE first notes that the Board has sufficient funds until either
January 30, 2025, or February 22, 2025, leaving sufficient time “for the Monitor to
ascertain the amount of restricted unspent state or federal grant money, calculate the
impact of that amount on the timing and amount of a state aid loan advance, and
communicate that information to the [NJDOE] so that a potential state aid loan advance
may issue.” Supplemental Certification of Stephanie Kuntz (January 22, 2025) (Kuntz
Supp. Cert.), ¶ 14.
Second, NJDOE contends that the Board is permitted to pay its bills using the
special revenue funds and also notes that the Board has not “cited any law supporting
the proposition that the [NJDOE] or the State Monitor must provide written authorization
to [the LPSD to] pay its bills using funds from the special revenue fund.” Ltr. Br. of Resp’t
Opposing Emergent Relief (January 17, 2025) at 7.
With respect to the action of the Board restricting the Business Administrator from
using funds for expenses other than those specifically designated, the NJDOE argues
that this action created the emergency and therefore, the Board cannot avail itself of
emergent relief. Ibid., citing McKenzie v. Corzine, 396 N.J. Super. 405, 414–15 (App.
Div. 2007) (fear of imminent irreparable injury not merited because plaintiff’s delay in
bringing action to challenge ballot measure created the emergency); J.H. Renarde, Inc.
7 The Board states that while it has one account for all funds, its accounting system differentiates receipts
and expenditures by directed use of the funds. Joint Supp. Cert., ¶ 2.

OAL DKT. NO. EDU 01046-25
8
v. Sims, 312 N.J. Super. 195, 205 (Chancery Div. 1998) (“self-inflicted hardship should
not be considered or, at best, should be given very little weight in determining whether
the injunction should issue.”). Significant here is that on January 17, 2025, the State
Monitor denied Resolution #18, thereby removing any obstacle from payment of general
expenses using special revenue funds.8
It is not clear whether the State Monitor would treat funds from a segregated
account (limited only to specific grants or grants generally) as unavailable for general
expenses. The Board argues that prior to January 2025, it had no need to segregate
funds; an accurate accounting of expenditures was enough to ensure that grant funds
were available to cover grant-related expenses because prior to 2025, the LPSD was
assured of State Aid Advance Loans. Noting that there was no support for Holman’s
statements regarding the grant agreements, respondent contends that the restrictions
Holman describes were not brought to the attention of the State Monitor prior to January
21, 2025, but with this information, the State Monitor will now investigate. Second
Supplemental Ltr. Br. of Resp’t (January 21, 2025) (Second Supp. Ltr. Br. of Resp’t) at 2
citing ¶¶ 10, 11. Should the State Monitor determine that “an adjustment to the timing of
a state aid advance loan” is required, the NJDOE “will act accordingly,” and will make a
decision on the loan application “in three to five days.” Second Supp. Ltr. Br. of Resp’t at
2; Kuntz Supp. Cert., ¶ 7.
I CONCLUDE that petitioner has not met the burden of establishing that irreparable
harm will result if the State Monitor and/or the NJDOE are not ordered to immediately
provide the Board with written authorization to pay its pending bills using special revenue
funds. Further, Kuntz certifies that the NJDOE is currently reviewing LPSD loan
application to determine whether a loan is required to assist the LPSD in meeting its
financial obligations for the remainder of the 2024–2025 school year. Accordingly, I
CONCLUDE that petitioner has not met the burden of establishing that irreparable harm
will result unless the NJDOE is ordered to immediately respond to the Board’s request for
a loan.
8 The NJDOE also notes that the Board met its January 15, 2025, payroll. Resp’t’s Br. at 6, citing
Supplemental Certification of Campbell, Ex. B.

OAL DKT. NO. EDU 01046-25
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Whether the Legal Right is Settled and the Likelihood of Prevailing on the Merits
The second consideration is whether the legal right underlying the Board’s claim
is settled, N.J.A.C. 6A:3-1.6(b)(2), and then third, the Board must make a preliminary
showing of a reasonable probability of success on the merits. Crowe, 90 N.J. at 133.
Neither party disputes the application of N.J.S.A. 18A:7A-55(b)(1), which
describes the duties of the State Monitor as follows:
The State monitor shall:
(1) oversee the fiscal management and expenditures of
school district funds, including, but not limited to, budget
reallocations and reductions, approvals of purchase
orders, budget transfers, and payment of bills and claims;
(2) oversee the operation and fiscal management of school
district facilities, including the development and
implementation of recommendations for redistricting and
restructuring of schools;
(3) ensure development and implementation of an acceptable
plan to address the circumstances set forth in subsection
a. of this section which resulted in the appointment of the
State monitor. The plan shall include measurable
benchmarks and specific activities to address the
deficiencies of the school district;
(4) oversee all district staffing, including the ability to hire,
promote, and terminate employees;
(5) have authority to override a chief school administrator’s
action and a vote by the board of education on any of the
matters set forth in this subsection, except that all actions
of the State monitor shall be subject to the education,
labor, and employment laws and regulations, including the
“New Jersey Employer-Employee Relations Act,”
P.L.1941, c.100 (C.34:13A-1 et seq.), and collective
bargaining agreements entered into by the school district;
(6) attend all meetings of the board of education, including
closed sessions; and

OAL DKT. NO. EDU 01046-25
10
(7) meet with the board of education on at least a quarterly
basis to discuss with the members of the board the past
actions of the board which led to the appointment of the
State monitor and to provide board members with
education and training that address the deficiencies
identified in board actions.
The Board argues that the statute gives it the “right to clear guidance from the
State Monitor where funds are supposed to come from and which account it must use to
pay bills.” Supp. Br. of Pet’r at 5. The Board goes on to state that the action of prior State
monitors supports this conclusion but does not specify by whom or in what form such
“clear guidance” was given. Further, the Board is currently reluctant to act without written
authorization because it has yet to receive a loan commitment from the NJDOE. Id., n.5.
The applicable statute, N.J.S.A. 18A:7A-55(b)(1), gives the State Monitor the
authority to oversee the payment of bills but does not require her to authorize such
payments. “The meaning of a statute first must be sought in the language in which it is
framed, and, if it is plain, the court’s sole function is to enforce it according to its terms.
When a statute is clear and unambiguous on its face, it is not open to construction or
interpretation.” McQueen v. Brown, 342 N.J. Super. 120, 131 (2001) (citations omitted),
aff’d per curium, 175 N.J. 200 (2002).
The Board implies that prior State monitors routinely approved the payment of bills
in advance, thereby creating the expectation that such approval was required, see Supp.
Br. of Resp’t at 5, 7–8, but does not provide a certification from those monitors—or even
from Board staff—to that effect. The Business Administrator states instead that he was
previously directed by the State monitors “that, as long as the District had available cash,
it should be utilized to fund operations, regardless of the source.” Id. at 5, quoting Ex. B.
The Board goes on to argue that the practice of the NJDOE and prior monitors to give
such directions, though without clarity as to whether such directions were issued in
writing, is the status quo, and a reviewing court should seek to maintain the status quo
on an emergent basis.

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In response, the NJDOE argues that the practice of prior monitors of giving such
advice, even if given routinely,9 does not create a legal obligation on the part of the current
monitor to direct payment from specific funds, rather than available funds, and to do so in
writing. The more persuasive argument is the one made by respondent: that but for the
action of the Board via Resolution #18, there was no requirement for the State Monitor
and/or the NJDOE to direct the use of specific funds to pay specific expenses. Now that
Resolution #18 has been denied, the Business Administrator is again free to pay bills
using any available funds.
The Board argues that Resolution #18 was adopted because for the first time in a
decade, the NJDOE has not processed its application for a State Aid Advance Loan in a
timely manner, leaving it in the unenviable position of being forced to spend restricted
funds for general expenses without advance notice that such funds will be replaced, and
thereby risking both audits and the potential future loss of grant funding. Although
petitioner did not cite any authority for the loan program, it is presumed that prior loans
were obtained pursuant to N.J.S.A. 18A:7A-56, which provides:
a. The Commissioner of Education shall recommend to the
State Treasurer whether an advance State aid payment
should be made to a school district for which a State monitor
has been appointed. The commissioner’s recommendation
shall be based on whether the payment is necessary to
ensure the provision of a thorough and efficient education. An
advance State aid payment shall be recorded by the school
district as revenue for budget purposes in the school year in
which the advance State aid payment is provided.
b. The advance State aid payment shall be repaid by the
school district through automatic reductions in the State aid
provided to the school district in subsequent years. The term
of the repayment shall not exceed 10 years, but may be for a
shorter term as determined by the State Treasurer. At any time
during the term of the repayment the State Treasurer, in
consultation with the Commissioner of Education, may
determine to impose interest on the unpaid balance; except
that interest shall not be imposed in the case of a school
district for which a State monitor is appointed within 90 days
9 Again, there is no evidence, including certifications, that standard practice under prior State monitors was
to delay payment of bills until the State monitor gave specific authorization that any available cash could
be used.

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12
of the effective date of this act [April 17, 2006]. The
commissioner shall transfer the amount of the reduction in
State aid to the account established pursuant to section 5
[C.18A:7A-58] of this act.
c. In any year in which the school district’s undesignated
general fund balance is greater than 1.5% of general fund
expenditures, the amount which exceeds 1.5% shall be an
additional amount applied to the following year’s repayment
of the advance State aid payment and the school district’s
State aid shall be reduced by this additional amount in that
following year.
The entire statutory provision is quoted to make clear that it imposes no obligation
on the part of the Commissioner to process applications for State aid loan advances within
a specific time. Based on respondent’s statements here, the NJDOE will act on the loan
application (1) at the completion of their current investigation into the LPSD’s finances; or
(2) if the NJDOE determines the LPSD is out of money; and (3) the NJDOE determines
how much money is needed by the LPSD to complete the current school year. The Board
does not cite to any authority requiring the NJDOE to make a loan commitment before
those alternate circumstances arise.
I CONCLUDE that the Board has not shown that the legal right underlying its claim
for emergent relief is settled.
With respect to the third prong, there is no underlying due process petition, but if
the Board had filed a due process petition for similar relief, for the above reasons, I would
not be able to conclude that the Board has a likelihood of succeeding on the merits.
Balance of Equities and Interests
The final prong of the above test is whether the equities and interests of the parties
weigh in favor of granting the requested relief. The Board argues that without specific
authorization by the State Monitor and/or the NJDOE, and without confirmation that a
NJDOE loan will be provided, the Board risks using special revenue funds for general
expenses and then being unable to pay expenses for which such special revenue funds
are earmarked. Supp. Br. of Pet’r at 8. As explained above, the only reason that the

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Business Administrator could not pay pending bills using any available cash, including the
special reserved fund, was because the Board adopted Resolution #18. There is no other
statutory or regulatory requirement for authorization from the State Monitor and/or the
NJDOE to use special revenue funds for expenses other than those for which those funds
were earmarked. Resolution #18 is no longer a bar to payment by the Business
Administrator of all pending bills.
Respondent argues that the Board’s request for emergent relief is not supported
by law and, with the denial of Resolution #18, “the exigent circumstances alleged in their
petition” are moot. I agree and for these reasons, CONCLUDE that the equities do not
favor petitioner’s request.
I CONCLUDE that the Board has not proved by a preponderance of credible
evidence that its request for emergent relief satisfies the applicable requirements.
ORDER
For the reasons stated above, I hereby ORDER that the application for emergent
relief of petitioner, the Board of Education of the Township of Lakewood, is hereby
DENIED.

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This order on application for emergency relief may be adopted, modified or
rejected by the ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION,
who by law is authorized to make a final decision in this matter. The final decision shall
be issued without undue delay, but no later than forty-five days following the entry of this
order. If the ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION does
not adopt, modify or reject this order within forty-five days, this recommended order shall
become a final decision on the issue of emergent relief in accordance with N.J.S.A.
52:14B-10.
January 22, 2025
DATE TRICIA M. CALIGUIRE, ALJ
Date Received at Agency:
Date Mailed to Parties:
TMC/cb