C.B., on behalf of minor child, C.B. v. Board of Education of the City of Elizabeth, Union County, 3/8/2021, (#54-21R)

54-21R
New Jersey Commissioner of Education
Decision
C.B., on behalf of minor child, C.B.,
Petitioner,
v.
Board of Education of the City of Elizabeth,
Union County,
Respondent.
Synopsis
Pro se petitioner challenged the determination of the respondent Board that C.B. and her minor child were
not domiciled in Elizabeth for the 2019-20 and 2020-21 school years. The Board became aware of
inconsistencies in petitioner’s residency in November 2019 when petitioner requested that bus service for
her minor child be changed to an address in Newark. C.B. has been in an out of district placement for
special services at the Developmental Learning Center in New Providence since 2018, and the Board
requested tuition reimbursement based upon the cost of C.B.’s out of district placement.
The ALJ found, inter alia, that: children aged five to twenty years are entitled to a free public education in
the district in which their parent or guardian are domiciled; petitioner in this case failed to provide any
documentation that she resided at the Elizabeth address provided to the district; petitioner’s testimony was
not credible; petitioner did not call family members as witnesses on her behalf, even though she claimed
to sign annual leases with her mother on the second floor of the premises she purported to reside in; and
evidence from surveillance over a period of four months by the district’s residency investigator shows that
C.B. never entered the house which petitioner claimed to reside in, but instead waited outside the home for
a ride to an address in Newark. The ALJ concluded that the petitioner was not domiciled in Elizabeth
during the 2019-20 and 2020-21 school years; 	accordingly, the respondent Board is entitled to tuition
reimbursement in the amount of $96.972.24 for the cost of C.B.’s education through November 9, 2020,
plus $391.22 per school day for the remainder of the school year.
Upon review, the Commissioner, inter alia, concurred with the ALJ that petitioner failed to establish that
she and her minor child were domiciled in Elizabeth from the 2019-20 school year to the present, and
therefore C.B. was not entitled to a free public education in the district’s schools during that time. The
Commissioner, however, disagreed with the ALJ’s calculation of tuition owed to the Board and instead
found that the Board’s ability to recover tuition is limited pursuant to N.J.S.A. 18A:38-1(b), which does not
specify that the assessed tuition be equal to the actual costs incurred by the district for educating the student
at issue; rather, it uses the measure of annual per pupil cost, which is based on the district’s overall costs
and enrollment and is not specific to any individual student. As the Commissioner was unable to discern
the per pupil cost from the record, the matter was remanded to the OAL for recalculation of tuition pursuant
to N.J.S.A. 18A:38-1(b).
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 8, 2021

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OAL Dkt. No. EDU 17292-19
Agency Dkt. No. 301-11/19
New Jersey Commissioner of Education
Decision
C.B., on behalf of C.B.,
Petitioner,
v.
Board of Education of the City of Elizabeth,
Union County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed, as have the exceptions filed by petitioner pursuant to
N.J.A.C. 1:1-18.4, and the Board’s reply thereto.
In this matter, petitioner challenges the Board’s determination that she does not
reside in the Elizabeth school district. After a hearing on the merits, the Administrative Law Judge
(ALJ) found that petitioner was not domiciled in Elizabeth for the 2019-20 and 2020-21 school
years. The minor child attends an out of district placement at the Developmental Learning Center
(DLC) in New Providence for special services; DLC has charged the Board tuition costs in the
amount of $80,541 for the 2019-2020 school year and $391.22 per day for the 2020-21 school
year. 	Accordingly, the ALJ found that the Board is entitled to tuition reimbursement from
petitioner in the amount of $96,972.24 for the 2019-20 school year and 42 days of the 2020-21
school year (through November 9, 2020), plus $391.22 per day for each day that the minor child
receives services from the district after November 9, 2020.

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In her exceptions, petitioner disagrees with the Initial Decision’s factual findings
and the conclusion that she does not reside in Elizabeth. 	She argues she was home when the
Board’s investigator came to her door but did not answer. She also contends that her electric bill,
pictures taken from her home, and statements from her minor child’s after-school respite care
provider demonstrate that she lives in Elizabeth. She further maintains that the person seen by the
investigator picking up the minor child on the steps of her home was a family friend who would
take the child to her own house to care for him after school.1
Upon review, the Commissioner concurs with the ALJ’s finding that petitioner
failed to sustain her burden of establishing that she and her minor child were domiciled in Elizabeth
from the 2019-20 school year to the present. The Commissioner further concurs with the ALJ’s
conclusion that the minor child was, therefore, not entitled to a free public education in the district
during that time. The Commissioner does not find petitioner’s exceptions to be persuasive, as she
simply expresses her disagreement with the ALJ’s decision. 	The ALJ addressed the evidence
submitted by petitioner in detail and explained why it fails to demonstrate that she resides in
Elizabeth. The ALJ also found that petitioner was not a credible witness, a finding which cannot
be overturned unless it is found to be arbitrary, capricious, unreasonable, or unsupported by
sufficient, competent, and credible evidence in the record. 	N.J.S.A. 52:14B-10(c). 	The
Commissioner finds no reason in the record to disturb the ALJ’s credibility assessments or the
factual findings based thereon.
With respect to the assessment of tuition, the Commissioner disagrees with the
ALJ’s calculation of tuition owed to the Board, and instead finds that the Board’s ability to recover
1 In reply, the Board argues that petitioner’s exceptions should not be considered because they were filed
one day late and fail to set forth specific findings of fact and conclusions of law to which exception is taken.
The Commissioner will nevertheless consider petitioner’s exceptions. N.J.A.C. 6A:3-1.16 .

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tuition from petitioner is limited. N.J.S.A. 18A:38-1(b) provides that if a parent loses a residency
appeal, the Commissioner shall assess tuition “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.” The
statute does not specify that the assessed tuition be equal to the actual costs incurred by the district
for educating the student at issue. Instead, it uses the measure of annual per pupil cost, which is
based on the district’s overall costs and enrollment and is not specific to any individual student.
See N.J.-B., on behalf of minor child, I.T. v. Board of Education of the Township of Union, Union
County, Commissioner’s Decision No. 112-20, decided April 24, 2020 (finding that tuition
reimbursement is limited to 1/180 of the per pupil cost and does not include the assessment of
special education and related costs). The Commissioner is unable to discern the annual per pupil
cost from the record. 	The Commissioner, therefore, is constrained to remand this matter for
determination of the annual tuition cost and a calculation of tuition that is consistent with N.J.S.A.
18A:38-1(b).
Accordingly, this matter is remanded to the OAL for further proceedings consistent
with this decision.
IT IS SO ORDERED.
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	March 8, 2021
Date of Mailing: 	March 9, 2021

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State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT NO. EDU 17292-19
AGENCY REF. NO. 301-11/19
C.B. o/b/o MINOR CHILD, C.B.,
Petitioners,
v.
BOARD OF EDUCATION OF THE CITY
OF ELIZABETH, UNION COUNTY,
Respondents.
________________________________
C.B., on behalf of minor child C.B., petitioner pro se
Christina M. DiPaola, Esq., for respondent (LaCorte, Bundy, Varady & Kinsella,
attorneys)
Record Closed: November 11, 2020 	Decided: December 8, 2020
BEFORE ERNEST M. BONGIOVANNI, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner C.B., (petitioner) appeals the residency determination that petitioners do
not reside in Elizabeth, and the tuition due associated with it, by the respondent, Board
of Education of the Township of Elizabeth, Union County (respondent or BOE).

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Petitioner filed a pro se residency appeal with the Department of Education,
Bureau of Controversies and Disputes, which transmitted this matter to the Office of
Administrative Law (OAL), where it was filed on December 9, 2019 as a contested case,
pursuant to N.J.A.C. 6A:3-1 et seq. and N.J.S.A. 52:14B-1 to -15. A hearing was held on
November 2, 2020, and the record left open for post hearing submissions until November
11, 2020 at which time the record closed.
FACTUAL DISCUSSION
Testimony
Diana Pinto Gomez
Diana Pinto Gomez (Gomez) is the Director of Special Services for the BOE. As
such she has presided over the implementation of 3700 IEPS in the past four years.
The petitioner’s son, C.B. is autistic, and as such, has been placed “out of District”
since December 2018 at the Developmental Learning Center (DLC) in New Providence.
The BOE uses their own transportation to bus children to and from their homes and the
DLC.
In September, Ms. Gomez learned of a problem with the bus transportation of C.B.
The bus drivers had reported that there was no one accompanying the minor child at the
place of home pickup in the morning and home drop off in the afternoon. 	The bus
company decided to suspend services until this condition was corrected.
Ms. Gomez said that on November 12, 2019, the petitioner sent her an email
requesting that C.B. be picked up and dropped off at xxxxx Street, Newark, NJ. (Newark
address) Ms. Gomez quickly replied to petitioner that C.B. cannot be transported to and
from a residence in Newark, only to a residence in Elizabeth. The petitioner in turn sent

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another email to Ms. Gomez, stating “This will serve as my notice of an Address Change.”
The email further stated that “Circumstances have unfortunately limited my options and I
am afraid that, for the time being, the address that I have provided will be my new residing
address.” Owing to this information, Ms. Gomez immediately undertook a residency
check.
Victor Tropeano
Victor Tropeano (Tropeano) is employed by respondent as a residency inspector
within the legal department, a position he has held for three years. 	Prior to that
employment he was an Elizabeth police department detective for 26 years.
On November 12, 2019, just two hours after Ms. Gomez received the second email
from the petitioner, Tropeano went to xxxx Street in Elizabeth, (Elizabeth address) the
same which had been previously provided to the BOE by the petitioner as her address.
He rang the front doorbell which was responded to by a woman’s voice. Tropeano asked
if the petitioner and her son C.B. lived at this address. The voice responded that she
“could not help” him and refused to come to the door
On November 14, 2019, the BOE sent a Notice of Initial Determination of
ineligibility to both the Newark and Elizabeth addresses. 	The UPS sent to the Newark
address came back return to sender, however the UPS delivery to the Elizabeth address
was signed for by “C.B.”. 	Later, the petitioner sent an email to Ms. Gomez and other
school officials saying that her 16-year-old son had signed that USP for her but didn’t
open it, because he was not an adult of age at least 21. 	On November 20, petitioner
sent another email to Ms. Gomez and other BOE officials saying that petitioner was on
active military service but residing in Elizabeth. That same day, when the bus attempted
to drop off C.B. at the Elizabeth address no adult was there for pick up and C.B. had to
be transported back to the Special Services school until he could be picked up.

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On November 22, 2019 Tropeano conducted surveillance of the Elizabeth address
beginning approximately at 3 PM. He saw a woman dropped off by a vehicle. The woman
sat on the front porch and remained there until C.B. was dropped off by the School bus.
The woman and C.B. remained on the porch until picked up by what appeared to be (after
a license plate check) an UBER or Lyft vehicle. 	A tax search revealed that xxx Street,
Elizabeth was owned by the petitioner’s mother, and C.B.’s grandmother.
On November 26, 2019, Tropeano conducted afternoon surveillance of the
Elizabeth address. He observed a woman dropped off by an UBER or Lyft vehicle at 3:20
p.m. 	At 3:30 p.m., the school bus dropped C.B. off. He remained on the porch with the
woman until another UBER/Lyft vehicle picked them up at 3:52 p.m. 	Significantly, C.B.
and the woman never entered what was supposedly C.B.’s home. Tropeano drove to the
Newark address and saw the woman and C.B. enter the home at the Newark address.
Tropeano 	conducted 	similar 	surveillances 	of 	thee 	Newark 	address 	in 	the
afternoons in January and February 2020 	Again, the same pattern would occur. In the
afternoon, soon after the school bus drop off of C.B., he observed the Uber/Lyft vehicles
drop the woman and C.B. off at the Newark address. He also observed the woman being
dropped off at the Elizabeth address wait for C.B. to arrive, and then wait for another car
to pick them up. 	On at least one occasion the woman and C.B. remained outside the
Elizabeth house for 45 minutes before being picked up. 	After waiting, another vehicle
would bring the two to the Newark address home.
Tassian Winkley
Tassian Winkley (Ms. Winkley) was called to testify by the petitioner. 	She is a
friend of the petitioner. She has lived at the Newark address with her brother and mother
for the last 3-4 years. The apartment is leased by all three of them. In addition to being
the petitioner’s friend, the petitioner’s adult brother who lives at the Elizabeth address is
Ms. Winkley’s boyfriend. 	She works as a home health aide with shifts of either 9AM to
noon or 9::00 a.m. to 5:00 p.m. She provides these health aid services at the homes

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belonging to those in need of her care. 	However, In November 2019 she was between
jobs (she works through an agency) and agreed to help provide “services” for C.B.,
namely she would pick up C.B. at the Elizabeth address and bring him home to her house
until petitioner came home from work. (P-5) She received no pay, but the petitioner paid
for the transportation of Ms. Winkley from Newark to Elizabeth and for C.B. and Ms.
Winkley back to Newark. Ms. Winkley said she would bring C.B. to her house in Newark
rather than wait for the petitioner to come home to the Elizabeth house because there are
other children at her house C.B. could play with.
As documentary proof that Ms. Winkley herself resides at the Newark address, she
provided a letter from a company that provides extended warranties for servicing vehicles.
The letter is undated but talks about a price increase effective August 27, 2020. 	Ms.
Winkley did not know why this letter was sent to her as she doesn’t own a vehicle. She
said the petitioner did ask her to provide documentary proof of her residency at the
Newark address, and this was her proof. 	She stated she leases an apartment at the
Newark address along with her mother and sister. Her name is on the lease and on the
utilities. She also has children of her own enrolled in Newark school. She did not provide
any proof of the lease, the utilities, or the enrollment to show she resides at the Newark
address.
Ms. Winkley did not say why she never entered the Elizabeth address house where
C.B. lived, during all these pick-ups. She is aware that in addition to petitioner and C.B.,
the petitioner’s brother, her boyfriend, lives there, along with C.B.’s mother and C’.B’s 16-
year-old brother.. She said she stopped providing these services for C.B. after December
because it was too complicated a situation. She explained that as part of taking care of
C.B. she had to log onto a computer and report to C.B.’s mother.
The Petitioner
She testified that what precipitated the residency investigation was her problem of
getting aftercare for C.B. 	She had run out of FMLA, and was working in NYC. She did

6
not provide a specific explanation for the times that no one was present to pick up C.B.
at the Elizabeth address, forcing the bus to return C.B. to Special Services. 	Regarding
the arrangement she made in November with Ms. Winkley, it made sense to her to leave
C.B. at Ms. Winkley’s house in Newark, rather than her house in Elizabeth, until she got
home from work, as she had to drive through Newark to get to Elizabeth and could pick
C.B. up on the way.
She stated that on the date of the email exchanges when she notified Ms. Gomez
of the address change, she was aware that the BOE was concerned that C.B. did not
reside in Elizabeth. Nevertheless, she did not expect an Investigator to come to her door
that day. 	She said she was the female voice that responded to Mr. Tropeano when he
asked for information through the front door intercom at the Elizabeth house. 	She said
she told him as a response to whether she and/or C.B. lived there that “I don’t know how
I could help you.” She did not identify herself. She refused to open the door. While Mr.
Tropeano had identified himself as being an investigator for the BOE, and while she had
just had two email exchanges regarding a residency inquiry, she did not accept the man
at the door as a BOE agent. She is aware of many people who come to her door saying
they are with agencies when they are really not. She said, “I think it was a threat.”
When she got the letter of Initial determination of Ineligibility via UPS, which she
said her 16 year old son had signed for her at the Elizabeth address, she refused to open
it even though she knew if was from the BOE and that there as a residency investigation.
She said she “did not want to admit” that she received anything from the BOE.
Eventually she received an email from the BOE attaching the same Notice of
Determination of Ineligibility and associated documents that had been sent via UPS to
both addresses. 	The Notice, included a “Statement of Compliance with Compulsory
Education Law “My student, C.B. is being denied enrollment n the Elizabeth School
District because it has been determined he is not entitled to attend the schools free of
charge pursuant to N.J.S.A. 18A:3801. 	The “Notice of Initial Determination of Ineligibility”
(R-2) stated their review indicated the petitioner’s “Domicile/Residency not in the district”

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and therefore ineligible to attend schools of the Elizabeth Public School District. It further
stated that if she did “not accept these reasons” you may request a hearing before the
Board of Education,” (emphasis supplied) by contacting the BOE on or before
November 21, 2019. The petitioner testified that by the time she read the email the date
was past November 21. She acknowledged, however, receiving many emails and other
attempted communication phone calls made by Mr. Tropeano and emails sent by the
BOE, including his secretary, and that she responded to none of them.
Petitioner said the reception on her cellphone was weak and that she did not
understand why the BOE did not attempt to call her at her office in NYC. 	She did not,
however attempt to explain why she did return any messages left on her cellphone. She
admitted she thought the Board would afford her a hearing if she requested it, however
she did not want to open the UPS parcel containing the appeal documents because she
was afraid to “admit anything” by opening it up. Even after she got the email again with
all the appeal forms, but she “refused” to provide any proof of residency to the BOE, “other
than my word.” She referred to an email (P-2) she sent the BOE on November 20, 2020
which stated in pertinent part:
My son and I reside in Elizabeth, NJ. 	We have
occupied and have not relocated from the premises in
which we are currently residing as I consider this to be our
home. 	I have occupied these premises to which I am
referring 	to, 	following 	my 	return 	from 	a 	two 	year
deployment in Iraq to the year 2013, when my son [C.B.]
was born. 	I am not currently deployed and the status of my
occupancy of the premises where I live in in Elizabeth NJ
remains the same I have Not, Nor have I ever in fact Moved
from 	these 	premises 	or 	Provided 	Verbal 	or 	Written
Confirmation Pursuant to a Specified date for which I
have given notice would be a date I intend to move.
[emphasis and capital letters in original]
The email went on to explain that her November 12 “Notice” to the BOE only referred to
her “hardship and the limitation on foreseeable options” referred to her “FEAR that I might
need to move” when in fact she had no such intention.

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Petitioner entered as an exhibit (P-7) photographs that she said showed her son
getting on the bus at the Elizabeth address on November 26, 2019, the date of one of Mr.
Tropeano’s surveillances; however when pointed out to her, she acknowledged that Mr.
Tropeano testified he did no surveillance at all in the morning, and referred only to his
surveillance in the afternoon.
Petitioner said her brother, age 38, resides at the Elizabeth address, as does her
17-year-old son, and her mother, age 65. 	She rents the upstairs floor from her mother
who owns the two-family house. 	She signs a lease every year with her mother and did
so on January 1, 2019 and on January 1, 2020. She provided a PSEG bill sent to her
from “my account@pseg.com” to her Yahoo email address. 	That account shows a
balance owed for the Floor 2 unit at the Elizabeth house of $3,688.63 which was due on
January 15, 2020. It did not show current usage of the utilities for that floor nor how the
bill accumulated such a total.
When asked why she did not produce the lease or other documentary proof of her
address being the Elizabeth address, petitioner had no reply. 	When asked why she did
not ask her mother, her brother or her 17 year old son to testify as proof of her residency,
petitioner said she did not wish to “drag them into this,” notwithstanding she knows the
BOE is seeking in their counterclaim, approximately $100,000 a year as reimbursements
for these services provided for C.B.
Petitioner also provided a document from Neuropath Behavioral Health that she
began using once “services” were provided to her which show they are providing “In Home
Respite care for C.B.” on January 13, 2020, and January 14, 2020. The employees “Time
in/Time Out” on January 13 was 2:31 A.M-8:31 P.M. and on January 14, 2:36 p.m. and
8:07 P.M. 	This she said “contradicted" Mr. Tropeano’s surveillance on those days.
Actually, the documents do not contradict his testimony.
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 Ms.
Gomez and Mr. Tropeano to be credible. They were truthful and accurate. They testified
clearly and directly, without any a bias against petitioner. 	I found petitioner and her
witness Ms. Winkley to be less credible. 	First, it appeared that because she was
petitioner’s friend, she performed these pick-up services gratis, with petitioner paying for
the Uber/Lyft rides. However soon after starting she found she was having to log into a
computer, to, apparently report to the petitioner, about the pick-ups, which proved too
difficult for her. 	Second while she claimed she stopped picking up J.B. in December,
surveillance by Mr. Tropeano in January and February 2020 showed Ms. Winkley as in
November and December, again picking C.B. up at the Elizabeth address, waiting for any
Lyft/Uber ride. I found it not credible that while she claimed petitioner asked her to bring
proof of Ms. Winkley’s residence being in Newark, she only thought to produce a piece
of “junk’ mail about a car she didn’t own, rather than, for example her own lease of the

10
Newark apartment, her utilities bills (which she claimed were in her name) or proof of
enrollment of her own kids who attended according to her Newark public schools. I find
her testimony in general to be not credible and tainted by bias, by being a friend of the
petitioner, the girlfriend of her brother and perhaps an employee for caretaking services
for C.B.
Further I did not find it credible that she and C.B. would never knock on the door
of the Elizabeth house and seek entry when her boyfriend lives there. 	Even if her
boyfriend was at work and if petitioner’s mother was at work, it appears the 17 year old
son would have answered the door and let them in, assuming petitioner didn’t entrust Ms.
Winkley, with a housekey. 	IAs testified to by Mr. Tropeano, and unchallenged by
petitioner, C.B.’s drop off was approximately at 3:15 p.m.
Exhibit P-3 contained a picture of a man holding a UPS parcel. On the same page
as the picture preceding it was a Nov 21, 3:49 PM email by petitioner to Ms. Gomez and
other school officials which said “Please inform the Gentleman… that I was visited yet
again from another person who described themselves as having affiliation with the
Elizabeth Board of Education. For some reason he was under the impression that my 6-
year-old son was left outside…and that he was checking to make sure everything was
ok….it is most certainly something that did not occur nor would it ever”.
Yet, it was well documented that the Bus transit employees had a continued
problem with no one being at the drop off site at the appointed time and that C.B. had to
be transported back to Special Services. 	They had threatened to discontinue the drop
off. This was the problem that had been brought to the petitioner’s attention, to which she
personally acknowledged as being a problem which she asked to resolve by dropping off
C.B. at the Newark address. So, her comment that this never occurred was untruthful or
certainly evasive.
Further who took the picture of the gentleman on the porch? 	The photo was
followed by another email again on November 21 by the petitioner to the BOE which

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recounted how her then 16-year-old son signed a UPS package a day or two ago at the
Elizabeth address. If the son signed the UPS and took the picture from the house, why
wouldn’t he also be available on all the days of the afternoon surveillance to let his autistic
younger brother in the house while he and Ms. Winkley waited for another car? It is
undisputed that C.B.’s drop off time was supposed to be 3:15 P.M. 	And if the petitioner
herself was the one who took the picture of the “gentleman” or was there on in Elizabeth
on November 21 (her email said “I was visited…) again, why wouldn’t she answer the
door? 	There was no evidence that she even spoke to this gentleman that day which is
why she had to write to the BOE to ask them to “inform him…that all is well.” Her email
does not say she answered the door or communicated directly in any way to this
gentleman. So, if she was there, and took the picture, what was she hiding from?
In fact, I believe it not credible that the arrangement would be for Ms. Winkley to
watch C.B. at her home in Newark rather than C.B.’s own home in Elizabeth, if C.B. really
lived there. 	As noted by petitioner’s exhibit of time logs by Neuropath Behavioral
Healthcare, they described C.B.’s behavior as either “aggravated” or “very aggravated”
with C.B. hitting the caregiver, throwing shoes and cursing. 	It’s unlikely that this child
would be better behaved at Ms. Winkley’s house in Newark than in his own house among
his own family in Elizabeth if that were the case. 	Ms. Winkley never indicated in any way
it was a hardship to do the caregiving at her boyfriend’s house and C.B.’s home, and its
her profession to do caregiving at other people’s homes rather than her own.
None of petitioner’s documentary evidence matched or supported her contentions.
The JCP&L bill looked like a collection notice for an unpaid bill for many months. It was
for nearly $4,000 and did not show any current use or when the services were incurred.
It was not mailed to the Elizabeth address but only emails. This “proof” suggests that it
was more likely that petitioner had once lived at the Elizabeth address but had left,
possibly because she couldn’t (or wouldn’t) pay her bills, than proof that she lives there
currently.

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Similarly, 	the 	documents 	(P-8) from 	Neuropath 	Behavioral 	Health 	shows 	a
healthcare professional employee providing “In Home Respite care for C.B.” on January
13, 2020, and January 14, 2020. The employee’s “Time in/Time Out” on January 13 was
2:31 a.m.-8:31 p.m. and on January 14, 2:36 p.m. and 8:07 p.m. This, petitioner claimed
“contradicted" Mr. Tropeano’s surveillance on those days. However, the documents show
only the time in/time out of the employee. They do not state that C.B. was there all that
time. As noted, on those days Tropeano followed the car from Elizabeth to Newark. The
Uber/Lyft car would get to Newark around 3:45 p.m. It’s entirely consistent that the hours
of actual car giving began at that time rather than when the employee clocked in at 2:30
p.m. It would not be unusual for a caregiver to get paid an hour for waiting time. Further
it is interesting that again, these documents which were obtained to help her case, were
not sent to a street address but again by email. Nowhere does a street address appear
on the document, nor does it state at what address the services were performed. Finally,
the photos (P-7) taken from what I will presume was the Elizabeth address on November
26, 2019, do not in fact show, as petitioner contended, C.B. getting on or walking toward
a bus. 	None of the pictures show a school bus. 	One of the four pictures shows two to
four people who could be students walking in the same direction; but none of them appear
to be even close to the figure of a six-year-old boy or anyone with a six-year-old.
Respondent’s Counterclaim for Reimbursement
The tuition for C.B. who receives special services contracted for by the BOE.
for the 2019-2020 school year was $80,541. The daily rate for C.B.’s tuition for the 2020-
2021 school year is $391.22 per day. 	42 school days had elapsed by the close of the
record on November 9, 2020 for $16,431.23. The yearly rate for 2020-2021 is $70, 419.00
(R-4)
Based on the credible testimonial and documentary evidence, I FIND the following
as FACTS in this matter:

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1. 	C.B. is a 6-year-old autistic child who was enrolled for Special Services
education for the 2019-2020 and continues to attend there despite having been
determined to be ineligible to attend for free public education there.
2. 	Soon after the 2019-2020 school year began, there were multiple incidents
reported by the Bus transportation unit of long waits for adult, parent or guardian
to appear for pick ups with C.B. This resulted in the child having to be returned
by the bus company to the Special Services school and a warning that busing
would have to be suspended.
3. 	As a result of inquires made by the BOE, the petitioner, C.B.’s mother first asked
to have C.B. picked up and dropped off at an address in Newark. 	When told
this was not possible, the petitioner replied that she was notifying the district of
her change of address to xxxx Street in Newark, and that this would be the “new
residing address.”
4. 	None of the proofs offered by petitioner credibly overcame her own admission
that the Newark address was her “new residing address” as she had advised
the BOE 	of in writing on November 12, 2019, but instead re-enforced and
supported that C.B. and petitioner, if they ever did live at the Elizabeth address,
had moved to the Newark address.
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-
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.

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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 she resided at the
Elizabeth Address. There was offered no mail to her sent to that address, although there
was a past due bill reproduced from her online account for nearly $4000 by JCP&L which
at best indicated she once lived at that her address. 	She did not provide a copy of her
driver’s license with the Elizabeth address, although she does drive a car. 	C.B., her six
year old autistic child, while under surveillance for a period of four months was not seen
entering what petitioner claimed was his own house, but rather would wait outside
sometimes for up to 45 minutes for another ride to the Newark house.
The petitioner did not act like a credible person who had nothing to hide about her
current place of residence. 	Instead she was deceptive and evasive. 	If we believe this
part of her story at all, the first thing she did when confronted with the BOE’s concern that
she was not residing at the Elizabeth address, and asked if she lived at the Elizabeth
address was to refuse to answer the door to the person who identified himself as being
an investigator with the BOE, and further refusing to identify herself and saying “there is
nothing I can do to help you.” 	Although petitioner claimed she didn’t file for a hearing
because it was too late to do so, she had the parcel containing the Notice and all

15
documentation needed to file for a hearing but “refused” to open it because to her mind it
constituted an admission. Besides, even had she wanted to ask for a hearing, she
“refused” to provide any proof of her residency to the BOE other than her own word.
These are not the actions of one who has nothing to hide about her address.
In this hearing, the petitioner has essentially done the same thing, by just
demanding her word alone be believed. She had ample opportunity to present a variety
documentary evidence of residency, e.g. the annual leases she said she signs to her
mother but chose not to. Similarly, even though acknowledging that the BOE was seeking
over $100,000 in reimbursed tuition from her she chose not to call her 38 year old brother,
65 year old mother or 17 year old son, who supposedly live with her at the Elizabeth
address because she “did not want to drag them into this thing.” That is not the behavior
of an innocent and credible witness.
I agree with the comments in the post hearing submission of respondent that, in
accordance with the test in State v. Hill, 199 NJ. 545 (2009) there is a specific adverse
interest to be drawn from failure to call her mother-also her alleged landlord-as her
witness, as well as other family members. 	In particular; 1) 	her mother as her landlord
has a special relationship with her as a party to these proceedings and the petitioner has
superior knowledge of the identity of this witness and the testimony the witness might be
expected to give (petitioner named her as a person having knowledge of the subject
matter of the dispute in answers to interrogatories). 2) The witness was available both
practically and physically (she described her mother as 65 and very active working well
over 40 hours every week) 3) The testimony of her mother would elucidate relevant and
critical fact issues (her mother owned the Elizabeth house and supposedly leased the
second floor to her daughter the petitioner for use by her and her two sons) 4) 	Her
mother/landlord’s testimony would appear superior to evidence already utilized in respect
of the facts to be proven. 	Here, the evidence of daily transportation from the Elizabeth
address to the Newark address over a period of months was strong evidence that C.B.
and petitioner no longer lived at the Elizabeth address if they ever did. Petitioner’s only
other witness, Ms. Winkley was vague; she did not communicate an authentic real sense

16
of being familiar with the Elizabeth address by, e.g. not describing the inside the house..
She was generally not credible and potentially biased, and knew nothing about the lease
arrangement between petitioner and her mother. 	In fact, she didn’t even provide
competent 	evidence 	that 	she 	lived 	at 	the 	Newark 	address. 	Further, 	petitioner’s
documentary evidence was woefully inadequate and tended to prove the opposite of what
petitioner said it would prove. 	Again, it would appear petitioner believes her word must
be believed, regardless of credibility. Therefore, her failure to call her mother as a witness
without a reasonable explanation leads to the natural inference that her testimony would
be unfavorable to petitioner and to her story.
As noted, tuition for C.B. for the 2019-2020 school year was $80,541. 	The daily
rate for C.B.’s tuition for the 2020-2021 school year is $391.22 per day. 42 school days
had elapsed by the close of the record on November 9, 2020 for $16,431.23. The yearly
rate for 2020-2021 is $70, 419. (R-4)
The Board asserts that it is entitled to be reimbursed for tuition for the 2019-2020
and 2020-2021 school years for C.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.

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Based upon the facts adduced and the legal principles cited above, I CONCLUDE
that petitioners were not domiciled in the Elizabeth School District for the 2019-2020 and
2020-2021 school years and that respondent is entitled to reimbursement from the
petitioner for the costs of tuition in the amount of $96,972.24 and for $391.22 per day for
every day he continues thereafter to receive services from the school district for the
remainder of the 2020-2021 school year.
ORDER
Based on the foregoing, it is hereby ORDERED that respondent's determination
that petitioner C.B. and her minor child C.B. were not residents or domiciles of Elizabeth
New Jersey and were not domiciled within its school district during the 2019-2020 and
2020-2021 	school 	years, 	is 	hereby 	AFFIRMED. 	It 	is 	further 	ORDERED 	that 	the
respondent’s counterclaim for tuition is also GRANTED. It is further ORDERED that
respondent be reimbursed tuition from petitioner in the amount of $96.972.24 for the
2019-2020 and 2020-2021 school year as of November 9, 2020, and to be further
reimbursed at the rate of $391.22 per school day for the remainder of the school 	year
until and unless petitioner transfers C.B. for public or private education to another district
or becomes domiciled in Elizabeth.
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.
December 8, 2020
DATE 	ERNEST M. BONGIOVANNI, ALJ
Date Received at Agency: 	December 8, 2020
Date Mailed to Parties:
EB/id

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APPENDIX
LIST OF WITNESSES
For Petitioner:
C.B., petitioner
Tassian Winkley
For Respondent:
Diana Pinto Gomez
Vito Tropeano
LIST OF EXHIBITS
For Petitioner:
P-1 	Petitioner’s Answers to Interrogatories
P-2 	Comments and summary by petitioner
P-3 	Email of November 21, 2019, indicating petitioner’s address in Elizabeth, and
associated emails.
P-4 	Not entered as evidence
P-5 	Statement of witness Tassian Winkley, dated August 31, 2020
P-6 	PSEG bill of January 1, 2020
P-7 	Photos of December 11, 2019 alleged to show C.B. getting on bus
P-8 	Letters from Neuropath Behavioral HealthCare
For Respondent:
R-1 	Memo/Summary of File by Vito Tropeano, (undated)
R-2 	Notice of Initial Determination of Ineligibility, dated November 14, 2019
R-3 	Notice of Final Ineligibility dated November 22, 2019

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R-4 	Purchase Order between Elizabeth BOE and Morris Union Jointure Commission
for services at the Developmental Learning Center, for 2019-2020, dated April
16, 2019.
R-5 	Respondent’s Answers to Interrogatories with attached emails of petitioner, C.B.