MORRIS EDUCATION ASSOCIATION AND HELEN KILGALLON V. BOARD OF EDUCATION OF THE MORRIS SCHOOL DISTRICT, MORRIS COUNTY, 4/19/02 (#175-02)

175-02
MORRIS EDUCATION ASSOCIATION AND 	:
HELEN KILGALLON,
:
PETITIONERS,
:
V. 	COMMISSIONER OF EDUCATION
:
BOARD OF EDUCATION OF THE MORRIS 	DECISION
SCHOOL DISTRICT, MORRIS COUNTY, 	:
RESPONDENT. 	:
:
SYNOPSIS
Petitioning Education Association and a resident/taxpayer alleged that the Board was utilizing
instructors to teach foreign languages, who do not hold valid New Jersey certificates, and that a
contract 	with 	a 	private 	vendor 	for 	such 	instruction 	was 	unlawful. 	Petitioners 	sought
acknowledgement that to contract with a private vendor was illegal and sought an order
preventing such future agreements.
The ALJ determined that the Board is not utilizing any private contractors to provide foreign
language instruction to its students for the 2001-02 school year and has not contested the
proposition that teachers must hold valid New Jersey certifications. The ALJ, therefore, ordered
the petition dismissed without prejudice as moot. 	The ALJ further determined that the
Associationís seeking of an order to prevent future agreements was tantamount to its seeking an
advisory opinion to be fortified by a written order and such an opinion does not coincide with
requirement that the OAL hear contested matters.
The Commissioner adopted the findings and determination in the Initial Decision as his own.
April 19, 2002

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OAL DKT. NO. EDU 7250-01
AGENCY DKT. NO. 156-6/01
MORRIS EDUCATION ASSOCIATION AND 	:
HELEN KILGALLON,
:
PETITIONERS,
:
V. 	COMMISSIONER OF EDUCATION
:
BOARD OF EDUCATION OF THE MORRIS 	DECISION
SCHOOL DISTRICT, MORRIS COUNTY, 	:
RESPONDENT. 	:
:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	Petitionersí exceptions and the Districtís reply thereto were
timely filed in accordance with N.J.A.C. 1:1-18.4.
Petitionersí exceptions recast and reiterate their arguments, advanced before the
Administrative Law Judge (ALJ) below, as to why this matter should not be considered moot.
Essentially, they again urge that even though the Board is not currently contracting with Berlitz
for the provision of foreign language instruction, it will neither acknowledge that such an
arrangement is prohibited nor provide assurance that the Board will not enter such a contractual
arrangement in future school years. 	Therefore, petitioners propose that, absent a specific
directive of the Commissioner prohibiting the Board from entering into contracts of this nature, it
is highly likely that such a contractual arrangement will arise in the future, requiring petitioners
to again petition the Commissioner for relief. 	(Petitionersí Exceptions at 2-3) 	As such,
petitioners maintain that the ALJ erred in finding this matter moot.

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Alternatively, should the Commissioner deem that this matter is no longer an
active controversy, petitioners request that the Commissioner render a declaratory ruling, based
upon the State Boardís decision in Guttenberg Education Association v. Board of Education of
the Borough of Guttenberg, Hudson County, decided March 3, 1999 and the Commissionerís
decision in Neptune Township Education Association v. Board of Education of the Township of
Neptune, Monmouth County, decided May 22, 2000, proscribing the Board from entering into
any commitment of this nature in the future.
In response, the Board submits that it is well-established that ìan issue is ëmootí
when a determination is sought on a matter which, when rendered, cannot have any practical
effect on the existing controversy. 	In other words, the conflict between the parties has become
merely hypothetical.î (citations omitted) 	(Boardís Reply Exceptions at 2) Here, because the
Board is not utilizing Berlitz to provide foreign language instruction to its students for the
2001-02 school year, the ALJ properly dismissed this matter as moot, as there was no basis upon
which he could grant relief. 	(Boardís Reply Exceptions at 3) 	Notwithstanding petitionersí
attempt to categorize this matter as one with a strong likelihood of repetition, in actuality,
petitioners do no more than ìraise hypothetical arguments about potential future events***.î
(Ibid.)
The Board next urges the Commissioner to reject petitionersí attempt to secure an
order prohibiting the Board from procuring services from private contractors through conversion
of their petition to a petition for declaratory judgment, since petitioners have not satisfied the
requirements necessary for such a ruling. 	It maintains that, pursuant to N.J.S.A. 6A:3-2.1, a
petitioner may request the Commissioner to issue such a declaratory ruling with respect to rights,
responsibilities, 	and 	status 	arising 	under 	a 	particular 	statute 	or 	regulation 	within 	the

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Commissionerís jurisdictional purview. Petitioners here have advanced no statute or regulation
which they claim as a foundational basis for such a ruling. Consequently, the Board avers, this
request must be denied. (Boardís Reply Exceptions at 4, 5)
Upon 	his 	full 	and 	independent 	review 	of 	the 	record 	in 	this 	matter, 	the
Commissioner concurs with the ALJ that this matter is appropriately dismissed as moot. 	As to
petitionersí 	request 	for 	declaratory 	relief, 	the 	Commissioner 	determines, 	pursuant 	to 	his
discretionary authority under N.J.A.C. 6A:3-2.1, to decline to entertain such request. 	It is
well-established that declaratory judgment ìcannot be used to decide or declare rights or status of
parties upon a state of facts which are future, contingent and uncertain.î Chamber of Commerce
of the United States of America v. State of New Jersey, 89 N.J. 131, 140 (1982). 	See, also,
N.J.A.C. 6A:3-2.1(a)1. The settled policy of the law in this State is to refuse advisory opinions
and refrain from functioning in the abstract in a declaratory judgment action. 	See Wagner v.
Ligham, 37 N.J. Super. 430, 431 (App. Div. 1955), citing New Jersey Turnpike Authority v.
Parsons, 3 N.J. 235, 240 (1949); Friedland v. State, 149 N.J. Super. 483, 495 (Law Div. 1977).
Accordingly, the 	Initial 	Decision of the 	OAL 	is 	affirmed 	for 	the reasons
articulated therein and the instant Petition of Appeal is hereby dismissed.
IT IS SO ORDERED. *
COMMISSIONER OF EDUCATION
Date of Decision: 	4/19/02
Date of Mailing: 	4/22/02
* This decision, as the Commissionerís final determination may be appealed to the State Board of Education
pursuant to N.J.S.A. 18A:6-27 et seq. and N.J.A.C. 6A:2-1.1 et seq. Commissioner decisions are deemed filed three
days after the date of mailing to the parties.