C.E., on behalf of minor child, K.E. v. Board of Education of the Township of West Orange, Essex County, 1/9/2020, (#16-20)

OAL Dkt. No. EDU 09617-19
Agency Dkt. No. 143-6/19
New Jersey Commissioner of Education
Final Decision
C.E., on behalf of minor child K.E.,
Petitioner,
v.
Board of Education of the Township of
West Orange, Essex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
Upon such review, the Commissioner concurs with the Administrative Law
Judge’s (ALJ) finding that petitioner did not meet his burden of demonstrating that he was a
domiciliary of West Orange for the 2018-19 and 2019-20 school years. 	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’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 child was ineligible to attend school in
West Orange. 	Therefore, the Board is entitled to tuition reimbursement in the amount of
$21,205.00 for tuition costs incurred from the beginning of the 2018-2019 school year through
October 21, 2019, and $101.51 for each school day following October 21, 2019, during which
time petitioner’s minor child was ineligible to attend school in West Orange.
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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 $21,205.00, plus
$101.51 for each school day following October 21, 2019, for tuition costs incurred during the
time period in which K.E. was ineligible to attend school in West Orange. The petition of appeal
is hereby dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	January 9, 2020
Date of Mailing: 	January 10, 2020
1 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
SUMMARY DECISION
OAL DKT. NO. EDU 09617-19
AGENCY DKT. NO. 143-6/19
C.E. ON BEHALF OFMINOR CHILD K.E.,
Petitioner,
v.
TOWNSHIP OF WEST ORANGE BOARD
OF EDUCATION, ESSEX COUNTY,
Respondent.
__________________________________________
C.E. petitioner, pro se
Frances L. Febres, Esq. for respondent (Cleary, Giacobbe, Alfieri, Jacobs, LLC)
Record Closed: November 24, 2019 	Decided: December 6, 2019
BEFORE: NANCI G. STOKES, ALJ:
STATEMENT OF THE CASE
Petitioner, C.E., is the father of K.E, who is a minor and student in the West
Orange Public School District (District). 	During the 2018- 19 school year and through
the current school year, K.E. was not domiciled in the District. 	Should public school be

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free to K.E. in the District for the 2018-19 school year? No. Public school shall be free
to a minor who is domiciled within the school district. N.J.S.A. 18A:38-1(a).
PROCEDURAL HISTORY
Petitioner, C.E., is the father of K.E, who is a minor and a student in the District.
On December 6, 2016, the West Orang Board of Education (Board) discovered
that K.E. was not domiciled within the District and voted to remove K.E. from its schools.
Petitioner appealed that determination, and the case was transmitted to the Office of
Administrative Law (OAL). 	K.E. was found not to be domiciled within the District and
therefore, ineligible for free public education in the District. On May 18, 2017, C.E. was
ordered to pay $17,069 in back tuition for the 2016-17 school year. See C.E. o/b/o K.E.
v. West Orange Public School District, OAL DKT. No. EDU 00494-17, initial decision
(May 18, 2017).
On January 10, 2018, the Board again discovered that K.E. was not domiciled
within the District, and again voted to remove K.E. from its schools. Petitioner appealed
that determination, and the case was transmitted to the OAL. K.E. was found not to be
domiciled within the District and therefore, ineligible for free public education in the
District, on June 5, 2018, C.E. was ordered to pay $20,000 in back tuition for the 2017-
18 school year. See C.E. o/b/o K.E. v. West Orange Public School District, OAL DKT.
No. EDU 03717-18, initial decision (June 5, 2018).
In October 2018, C.E. advised the Board that he was closing on a house in West
Orange, 	that 	he 	would 	provide 	documentation 	that 	K.E. 	was 	eligible 	to 	continue
attending school in the District, and that he would remit the remaining $10,000 in back
tuition for the 2017-18 school year.
On October 15, 2018, the Board held a residency hearing, determined for a third
time that K.E. was not domiciled in the District, concluded that K.E. ineligible to receive

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a free education from it, and voted to remove K.E. from the District. 	C.E. paid the
remaining $10,000 in back tuition owed for the 2017-18 school year on October 22,
2018, but despite several requests, he did not supply documentation establishing K.E.’s
domicile in West Orange for the 2018-19 school year.
On May 29, 2019, the Board notified C.E. that K.E. would be removed from rolls
on June 21, 2019, and that C.E. would be assessed tuition for each day of ineligible
attendance.
On June 21, 2019, C.E. appealed the determination.
On July 17, 2019, the Department of Education, Office of Controversies and
Disputes, transmitted the case to the OAL as a contested case under the Administrative
Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act establishing the OAL, N.J.S.A.
52:14F-1 to -23, for a hearing under the Uniform Administrative Procedure Rules,
N.J.A.C. 1:1-1.1 to -21.6.
On August 6, 2019, I held an initial prehearing conference during which time the
parties agreed that discovery would be exchanged by September 20, 2019, and that an
additional prehearing conference would be held prior to the October 21, 2019, hearing
date. 	On 	August 	7, 	2019, 	a 	Prehearing 	Order 	was 	entered 	memorializing 	the
discussion and scheduling a prehearing conference for September 30, 2019. 	On
September 30, 2019, C.E. advised he had not yet supplied documentation supporting
K.E.’s residency in West Orange. I instructed C.E. to provide all discovery to the Board
by October 8, 2019.
On October 17, 2019, the Board notified the court that C.E. did not supply any
discovery.
On the hearing date of October 21, 2019, the parties agreed that there was no
need to conduct a hearing, and that the case could be resolved through a motion for

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summary decision. 	On the record, the Board presented its oral argument for summary
decision, and C.E. did not dispute the Board’s position.
On November 4, 2019, the Board filed its motion for summary decision; C.E. filed
no opposition; and on November 24, 2019, I closed the record.
FINDINGS OF FACT
Based on the documents the Board submitted in support of the motion for
summary decision, and viewing them in the light most favorable to C.E., I FIND the
following as FACT:
During the period of April 3, 2019, through May 23, 2019, the Board’s residency
investigators 	conducted 	simultaneous 	surveillance 	of 	the 	East 	Orange 	address
identified on C.E.’s 2018 and 2019 court filings, banking records, and residency appeal
petition in this case; as well as the West Orange address stated on K.E.’s student
registration record, C.E.’s September 2017 application for PSE&G services, and a
month-to-month lease signed by C.E. on September 20, 2017. 	Other than K.E.’s
student registration record, no documentation supporting residency in West Orange for
2018 or 2019 was presented to the District.
On ten occasions from April 3, 2019, through May 23, 2019, during the morning
hours, the investigator observed K.E. and C.E. entering and exiting the East Orange
address, and the presence of C.E.’s vehicle; whereas at no time did an investigator
observe K.E. or C.E. entering or exiting the West Orange address. 	The Board’s
residency investigators concluded that the East Orange address listed on the residency
appeal petition is where K.E. resided with C.E. 	A prior investigation with simultaneous
surveillance of the same East Orange and West Orange addresses in November and
December 2017 and January 2018 revealed the same findings.

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On May 29, 2019, the Board notified C.E. that K.E. would be removed from rolls
on June 21, 2019, and that C.E. would be assessed tuition for each day of ineligible
attendance.
In this case, C.E. presents no evidence to establish his domicile or that of his
daughter, K.E., in the District.
Despite her domicile with C.E. in East Orange, K.E. continued to attend the West
Orange public schools for the 2018-19 school year, and she continues to attend the
West Orange public schools for the 2019-20 school year to this day.
Based upon a per diem tuition rate of $101.45, the tuition for general education
attendance in District for the 2018-19 school year is $18,566. The per diem tuition rate
for the 2019-20 school year is $101.51. Therefore, the tuition for general education
attendance in District from September 4, 2019, through the hearing date of October 21,
2019, is $2,639.
To date, C.E. has made no payments to the District for the 2018-19 or 2019-20
school year.
CONCLUSIONS OF LAW
A party may move for summary decision upon any or all substantive issues in a
contested case. 	N.J.A.C. 1:1-12.5(a). 	The motion for summary decision shall be
served with briefs and may be served with supporting affidavits. 	Ibid. 	“The decision
sought may be rendered if the papers and discovery which have been filed, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to prevail as a matter of law.” 	N.J.A.C.
1:1-12.5(b).

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Even where a statute calls for a “hearing,” where a motion for summary decision
is made and supported by documentary evidence, and where the objector submits no
evidence 	to demonstrate a 	genuine issue of 	material fact, 	the motion procedure
constitutes the hearing and no trial-type hearing is necessary. Contini v. Newark Bd. of
Educ., 286 N.J. Super. 106, 120-21 (App. Div. 1995), certif. denied, 145 N.J. 372
(1996).
To 	determine 	whether 	there 	exists 	a 	"genuine 	issue" 	of 	material 	fact 	that
precludes summary judgment, the motion judge must consider whether the competent
evidential materials presented, when viewed in the light most favorable to the non-
moving party, are sufficient to demonstrate that the moving party is entitled to a
judgment as a matter of law. Brill v. Guardian Life Ins., 142 N.J. 520, 540 (1995).
In this case, no genuine issue of any material fact exists, and I CONCLUDE that
this case is ripe for summary decision.
Public school shall be free to a minor who is domiciled within the school district.
N.J.S.A. 18A:38-1(a). A student is domiciled in 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); State v. Benny,
20 N.J 238, 250 (1955). New Jersey has consistently held that the domicile of the child
follows the domicile of the parent. 	Shim v. Rutgers, 191 N.J. 374, 399 (2007). If a
student does not have a right to attend the school district, the Commissioner may
assess tuition. See N.J.A.C. 6A:22-6.2.
Where a local board of education seeks removal of a student, the parent may
appeal to the Commissioner of Education. 	N.J.S.A. 18A:39-1(b)(2). 	In the proceeding
before the Commissioner, the parent has the burden of proof by a preponderance of the
evidence that the child meets eligibility requirements for a free education. 	Ibid. 	If the
evidence does not support the parent’s claim, the Commissioner shall assess the parent

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tuition for the student prorated to the time of the student’s ineligible attendance in the
schools of the district. Ibid.
In 	this 	case, 	a 	preponderance 	of 	the 	evidence 	demonstrates 	that 	K.E. 	is
domiciled in East Orange, New Jersey, and was domiciled in East Orange for the 2018-
19 school year to the present; and thus, the Board is entitled to prevail as a matter of
law given my findings of fact, the tuition C.E. owes the District is clear. 	Therefore, I
CONCLUDE that C.E. owes the Board $18,566 for the period of ineligibility for the
2018-19 school year; $2,639 from September 4, 2019, through the scheduled hearing
date of October 21, 2019; and $101.51 for each school day attended beyond October
21, 2019, for the remainder of the 2019-20 school year.
ORDER
Given my findings of fact and conclusions of law, I ORDER that C.E. owes the
Board $18,566 for the period of ineligibility for the 2018-19 school year; $2,639 from
September 4, 2019, through the scheduled hearing date of October 21, 2019; and
$101.51 for each school day attended beyond October 21, 2019, for the remainder of
the 2019-20 school year.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

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Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
December 6, 2019
DATE 	NANCI G. STOKES, ALJ
Date Received at Agency: 	December 6, 2019
Date Mailed to Parties:
ljb

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APPENDIX
LIST OF EXHIBITS
For Petitioner:
None
For Respondent:
R-1 	Motion for Summary Decision
R-2 	Certification of Gerard Drappi, Residency Officer, with exhibits
R-3 	Certification of J. Scott Cascone, Superintendent of Schools, with exhibits.