V.B., on behalf of minor children, J.R., J.R., K.B., and K.B. v. Board of Education of the City of Elizabeth, Union County, 7/12/2023, (#209-23)

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209-23
New Jersey Commissioner of Education

Final Decision
V.B., on behalf of minor children, J.B., J.B., K.B, and K.B.,

Petitioner,

Board of Education of the City of Elizabeth,
Union County,

Respondent.

Synopsis

Pro se petitioner appealed the determination of the respondent Board that her minor children were not
entitled to a free public education in Elizabeth schools during the period from March 13 to April 25, 2023. The
Board contended that V.B.’s children had transferred in and out of the District five times since 2017, and a
residency investigation concluded that the family was not domiciled in Elizabeth during the period in question.
The Board sought tuition reimbursement in the total amount of $9,570.00 for the children’s ineligible
attendance during the 2022-2023 school year.

The ALJ found, inter alia, that: petitioner testified credibly that the address on her paperwork with the District
included an incorrect apartment number, and she had lived on the third floor rather than the second floor,
which is where the residency investigator visited to gather evidence that she did not live at the address
provided; the Roselle address that the investigator contended is petitioner’s actual address is the home of the
children’s paternal grandmother, where the children spent time but never slept overnight; petitioner submitted
a current lease effective March 1, 2023, as well as a utility bill and driver’s license with the same current
address in Elizabeth as proof of her residency within the school district during the time in question; the
District’s investigator did not surveille petitioner’s current address; and the Board failed to prove that the
children were living at the grandmother’s Roselle home. The ALJ concluded that petitioner met her burden of
proof that the family is currently domiciled in Elizabeth and the children are eligible for a free education in
Elizabeth schools. Accordingly, the ALJ determined that no tuition reimbursement is due to the District and
ordered the reversal of the Board’s residency determination.

Upon review, the Commissioner concurred with the ALJ’s findings and conclusion and adopted the
Initial Decision of the OAL as the final decision in this matter. Accordingly, the petition of appeal was granted,
and no tuition reimbursement is owed to the Board.

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.

OAL Dkt. No. 03209-23
Agency Dkt. No. 93-4/23
New Jersey Commissioner of Education
Final Decision
V.B., on behalf of minor children, J.R., J.R., K.B.
and K.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 and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge that V.B. and her
four minor children were residents of the City of Elizabeth – and domiciled within the Board’s school
district – during the period of March 13, 2023, to April 25, 2023. Thus, the Board is not entitled to
reimbursement from petitioner for tuition costs.
Accordingly, the petition of appeal is hereby granted.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
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.
209-23
July 12, 2023
July 13, 2023

OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION
OAL DKT. NO. EDU 03209-23
AGENCY DKT. NO. 93-4/23

V.B. ON BEHALF OF MINOR CHILDREN
J.R., JLR., K.B. & K.B.,
Petitioner,
v.
CITY OF ELIZABETH BOARD OF
EDUCATION, UNION COUNTY,
Respondent.

V.B., petitioner, appearing pro se

Brian Kane, Esq. for respondent (LaCorte, Bundy, Varady & Kinsella)

Record Closed: June 1, 2023 Decided: June 9, 2023

BEFORE: JOANN LASALA CANDIDO, ALAJ

STATEMENT OF THE CASE

Petitioner, V.B., challenges the residency determination made by the Elizabeth
Board of Education (“Board”) about her minor children J.R., J.R., K.B. and K.B. On or
about April 11, 2023, respondent submitted an Answer, which was filed with the

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EDU 03209-23

Commissioner of Education on April 12, 2023. Respondent's demand included a
request that the Commissioner dismiss the petition of appeal, that the children be
removed from the district, and that the petitioner be assessed a tuition charge for each
day of the four children’s’ ineligible attendance in the Board’s schools for the 2022-2023

school year for a total of twenty-four days.

The matter was transmitted to the Office of Administrative Law (OAL) on April 12,
2023, for resolution as a contested case pursuant to N.J.S.A. 52:14B-1 to -15
and N.J.S.A.52:14F-1 to -13. A hearing was held on June 1, 2023, and the record
closed on that date.

The issues in this matter are whether the children are eligible to attend
respondent's public schools free of charge in accordance with N.J.S.A. 18A:38-1 and, if
not, whether respondent's requests for tuition reimbursement and for disenrollment of

the children should be granted.
TESTIMONY

William Buteau

Elizabeth Board of Education residency investigator William Buteau testified on
behalf of the Board. Buteau investigates following up on tips and prepares reports.
Buteau investigated the children in this matter because the children transferred in and
out of the District five times since 2017. On May 18, 2023, Buteau drafted a Summary
Report in the above-named matter. R-1 The Report outlines the number of times the
children were in and out of the District and what triggered his investigation. The
Transfer Information confirms each time the children were transferred. R-2 On
September 20, 2022, a chain of emails from school officials shows an address for
petitioner on Spring Street in Union. R-3 Petitioner forwarded an email to school officials
attaching a confirmation from Capitol One on November 23, 2022, reflecting a change
of address from Newark to Elizabeth. R-4

OAL DKT. NO. EDU 03209-23

Buteau stated that based upon a background check of petitioner, her most
current address lists that of an address in Newark. It also shows an address in Roselle
that the Board states she resides in. R-5 On or about March 2, 2023, the Board filed two
Notice of Initial Determination of Ineligibility letters for two of the students on each. The
petitioner did not request a hearing on these documents. R-6 Buteau went to the
addresses listed on a location report and he could not locate petitioner. He was told the
petitioner did not live there by the neighbors. He would go to these addresses on
weekdays. He did not go to the current address listed on the lease and utility bill. On or
about March 13, 2023, the Board filed four Notices of Final Ineligibility, one for each
student. The tuition for K.B. is $99.75 per day for attending school while not a resident;
the tuition for J.R. is $99.63 per day; the tuition for K.F.B. is $99.75 per day and the
tuition for J.F.R. is $99.63 per day while attending during ineligibility. These rates are
applied depending on the grade level. R-7_ Lastly, when the students turn on a school
owned laptop computer, it reveals the location of the student. Prior to March 1, 2023,
the computers reveal a Roselle address at times. Buteau was not available in the office
to accept paperwork from the petitioner. The students were disenrolled on April 25,
2023. That was based upon twenty-four school days between March 13, 2023, to April
25, 2023. The total tuition the Board seeks is $9,570.00 for the twenty-four days.

V.B.

V.B. credibly testified on her behalf. She states that the address on the Board
paperwork for her Park Street address in Elizabeth reflects apartment #2 when in fact
she lived on the third floor. The address in Roselle is the paternal grandmother's home
and the children never sleep there. V.B. submitted the current lease, utility bill and
driver's license for her apartment in Elizabeth. The children have not been permitted in
school since the Easter break. V.B. attempted to drop off paperwork that the District did
not accept to file a timely appeal. When she asked the investigator if he was in his office
when she attempted ,to drop off paperwork he responded he was not.

The parties have stipulated the following FACTS.

OAL DKT. NO. EDU 03209-23

On March 2, 2023, the Respondent Elizabeth Board of Education made its
initial determination that the minor students J.R., J.R., K.B., and K.B. were
not domiciled within the District and sent letters to that effect to the

petitioner.

In the initial determination letters, the respondent notified the petitioner
regarding the procedure for requesting a hearing before the Elizabeth
Board of Education.

On March 13, 2023, the respondent Elizabeth Board of Education made
its final determination that the minor students J.R., J.R., K.B., and K.B.
were not domiciled within the District and sent letters.

In the final determination letters, the respondent informed the petitioner
that if the petitioner did not file the appeal within twenty-one (21) days, the
Petitioner's children would be removed from Respondent's schools.

In the final determination letters, the respondent informed the petitioner
that petitioner may be assessed for tuition of the minor students at a per

diem rate of $99.75 per student for ineligible attendance.

On April 10, 2023, petitioner's residency appeal was filed with the
Department of Education.

In addition to the stipulated FACTS, | heard testimony from petitioner whom |

FIND was credible and forthcoming as well as from Investigator William Buteau and
FIND additional FACTS:

1.

Petitioner provided a residency Appeal dated March 21, 2023 and another
on May 1, 2023. P-1

Petitioner, at the time the Board is assessing tuition for twenty-four days,
provided proof by submitting a Lease agreement effective March 1, 2023 at
an Elizabeth address as well as a utility bill and driver's license all reflecting
the Elizabeth address. She resided on the third floor of her prior Elizabeth
address and not the 2™ floor where Investigator Buteau checked.

OAL DKT. NO. EDU 03209-23

3. Investigator Buteau did not investigate the current Elizabeth address.

4. The Roselle address is the paternal grandmother's address. The Board did
not provide proof that the four children were viewed living at this address.

5. The respondent is seeking tuition for the four children for twenty-four school
days for K.B. at $99.75 per day; the tuition for J.R. at $99.63 per day; the
tuition for K.F.B. at $99.75 per day and the tuition for J.F.R. at $99.63 per day
for a total of $9570.00.

LEGAL ANALYSIS AND CONCLUSIONS

Under N.J.S.A. 18A:38-1(a), “[a]lny person who is domiciled within the school
district” is entitled to a free education from that district. However, “[i]f the superintendent
or administrative principal of a school district finds that the parent or guardian of a child
who is attending the schools of the district is not domiciled within the district... , the
superintendent or administrative principal may apply to the board of education for the
removal of the child.” N.J.S.A. 18A:38-1(b)(2). The parents may contest a local school
board's decision regarding the student's right to attend school in the district to the
Commissioner of Education and “shall have the burden of proof by a preponderance of
the evidence” to prove domicile in the school district. N.J.S.A. 18A:38-1(b)(2). The State
Board of Education has promulgated various rules implementing N.J.S.A. 18A:38-1 and
governing student domicile and eligibility to attend school. N.J.A.C. 6A:22-1.1 to -6.3.

Generally, appeals of a local school board’s “determinations with respect to
entitlement to attend school pursuant to N.J.S.A. 18A:38-1 and N.JLA.C. 6A:22[-1.1
to 6.3]" proceed under the general provisions governing controversies and disputes
before the Commissioner of Education, N.J.A.C. 6A:3-1.1 to -1.17, but certain
exceptions exist. N.J.A.C. 6A:3-8.1(a). For example, pro se petitioners may file a
petition in letter form if they use a specific form provided by the Department of
Education. N.J.A.C. 6A:3-8.1(a)(1). When utilizing the Pro Se Residency Appeal form
provided by the Department of Education to file their petition, the parents or guardians
must “iJnclude a signed attestation” that “[t]hey understand that they may be assessed

tuition for the period of the child(ren)’s ineligible attendance .. . if the Commissioner

OAL DKT. NO. EDU 03209-23

determines that the appeal has been abandoned or withdrawn and/or that the child(ren)
are ineligible for a free education in the district.” N.J.A.C. 6A:3-8.1(a)(1 )(iv)(2).

According to N.J.A.C. 6A:22-6.3(a), “[t]uition assessed pursuant to the provisions
of this section shall be calculated on a per student basis for the period of a student’s
ineligible enrollment, by applicable grade/program category and consistent with the
provisions of N.J.A.C. 6A:23-3.1. The individual student's record of daily attendance
shall not impact on such calculation.” However, “[nJothing in this chapter shall preclude
an equitable determination, by the district board of education or the Commissioner, that,
when the circumstances of a matter so warrant, tuition shall not be assessed for all or
part of any period of a _ student's ineligible attendance in the school
district.” N.JLA.C.6A:22-6.3(b).

Per N.J.S.A. 18A:38-1(b)(2), the resident “shall have the burden of proof by a
preponderance of the evidence that the child is eligible for a free education’. See,
generally, D.L. v. Board of Educ. of Princeton Regional School Dist., 366 N.J. Super.
269 (App. Div. 2004).

Based upon the foregoing, | CONCLUDE that the petitioner has met her burden
under N.J.S.A.18A:38-1(b) (2) that JR., JR... K.B. and K.B. are and have been
domiciled in Elizabeth from March 13, 2023 to April 25, 2023, and therefore are entitled
to a free education in the Elizabeth school district. V.B. provided the Lease agreement
effective March 1, 2023, her driver's license, and her utility bill that all reflect the same
address in Elizabeth where she was domiciled during the time the District is assessing

tuition.

ORDER

Accordingiy, it is hereby ORDERED that respondent's determination that V.B.
and her four children, J.R., J.R., K.B. and K.B., are not residents and domiciliary in
Elizabeth, New Jersey, and were not domiciled within its school district during the period
of March 13, 2023 to April 25, 2023, is hereby REVERSED. It is further ORDERED that

OAL DKT. NO. EDU 03209-23

respondent is not entitled to reimbursement from petitioner for the cost of audited tuition
in the amount of $9,570.00.

| 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.

OAL DKT. NO. EDU 03209-23

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.

fu fos [hte

June 9, 2023

DATE JOANN LASALA CANDIDO, ALAJ
Date Received at Agency: June 9, 2023

Date Mailed to Parties: June 9, 2023

OAL DKT. NO. EDU 03209-23

EXHIBITS

For Petitioner

P-1 Residency Appeals dated March 21, 2023 and May 1, 2023
P-2 New Jersey Driver's License
P-3. PSE&G Bill

P-4 Lease Agreement effective March 1, 2023

For Respondent

R-1 Elizabeth Board of Education Report dated May 18, 2023

R-2 Transfer Records of J.R., J.R., K.B. and K.B.

R-3 Correspondence from V.B. dated September 14, 2022

R-4 V.B.’s letter Capitol One statement dated November 23, 2022

R-5 Accurint Report for V.B.

R-6 Notice of Initial Determination of Ineligibility for J.R., J.R., K.B. and K.B.
R-7 Notices of Final Determination for J.R., J.R., K.B. and K.B.

R-8 Laptop Surveillance for K.B. and K.B.

R-9 Elizabeth Board of Education 2022-2023 school calendar

9

Bryant, Latoya [OAL]

From: Bryant, Latoya [OAL]

Sent: Friday, June 9, 2023 10:55 AM

To: Candice Hendricks; Jennifer Simons; Karin Molnar; oal decisions [OAL]; Rick Keiser

Subject: JUDGE CANDIDO'S INITIAL DECISION EDU 03209-23 V.B. obo minor children vy.
Elizabeth BOE

Attachments: EDU 3209-23 V.B. v. Elizabeth BOE-residency (002) (002).doc

Latoya J. Bryant

Judicial Assistant to

JoAnn LaSala Candido, ALAJ
Kimberly A. Moss, AL!
Nanci Stokes, AL

Bryant, Latoya [OAL]

ee Nee eee
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Sent: Friday, June 9, 2023 10:55 AM
Subject: Relayed: JUDGE CANDIDO'S INITIAL DECISION EDU 03209-23 V.B. obo minor children

v. Elizabeth BOE

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Subject: JUDGE CANDIDO'S INITIAL DECISION EDU 03209-23 V.B. obo minor children v. Elizabeth BOE

Bryant, Latoya [OAL]

From: Bryant, Latoya [OAL]

Sent: Friday, June 9, 2023 11:02 AM

To: vivian28@gmail.com; Brian Kane

Subject: Judge Candido’'s Initial Decision - EDU 3209-23 V.B. v. Elizabeth BOE-residency

Attachments: EDU 3209-23 V.B. v. Elizabeth BOE-residency (002) (002).pdf