NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2478-18T4
BOROUGH OF SEA BRIGHT,
MONMOUTH COUNTY,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF
THE SHORE REGIONAL HIGH
SCHOOL DISTRICT
MONMOUTH COUNTY,
Respondent-Respondent.
_______________________________
Argued telephonically May 18, 2020 –
Decided July 1, 2020
Before Judges Ostrer, Vernoia, and Susswein.
On appeal from the New Jersey Commissioner of
Education, Docket No. 25-2/16.
Vito Anthony Gagliardi argued the cause for appellant
(Porzio Bromberg & Newman, PC, attorneys; Vito
Anthony Gagliardi and Kerri A. Wright, of counsel and
on the briefs; David Lawrence Disler, on the briefs).
Dennis Anthony Collins argued the cause for
respondent Board of Education of the Shore Regional
High School District, (Collins, Vella & Casello,
attorneys; Dennis Anthony Collins, of counsel and on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Geoffrey
Nelson Stark, Deputy Attorney General, on statement
in lieu of brief).
PER CURIAM
The Borough of Sea Bright appeals from a decision by the Commissioner
of Education denying the Borough's request that the Commissioner authorize a
public referendum to change the method for apportioning municipal
appropriations to the Shore Regional School District (Shore Regional). Sea
Bright contends the Shore Regional Board of Education (Regional Board)
improperly refused to approve the referendum, depriving voters of their right
under N.J.S.A. 18A:13-23 to revise the funding apportionment method. The
Commissioner rejected the Borough's contention that the Regional Board was
arbitrary, capricious, or unreasonable when it failed to vote on and approve a
motion that had not been seconded. We have carefully reviewed the record in
light of the governing legal principles and affirm the Commissioner's decision.
A-2478-18T4
2
I.
Before we recount the facts and procedural history leading to this appeal,
we provide historical background regarding how regional school districts are
funded by participating municipalities. As we explained in Borough of Seaside
Park v. Commissioner of New Jersey Department of Education, in 1931, the
Legislature authorized the establishment of regionalized school districts using a
"per pupil" funding mechanism. 432 N.J. Super. 167, 177 (App. Div. 2013). In
1975, the Legislature passed an amendment that altered the funding formula
from a per pupil basis to one that is based on the equalized value of real estate.
Id. at 176 (citation omitted). In 1993, the Legislature passed another amendment
that allows regional districts to choose how appropriations are apportioned
among member municipalities. Under the revised statute, which remains in
force to this day, a regional district may be funded based on equalized property
valuation, per pupil enrollment, or a combination of the two methods. Id. at 178
(citations omitted). That choice is exercised through voter approval at a regular
or special election. Id. at 178 (citations omitted).
Shore Regional is comprised of Sea Bright, West Long Branch,
Oceanport, and Monmouth Beach. The district was established in the 1960's at
a time when the authorizing statute required that municipal appropriations be
A-2478-18T4
3
apportioned on a per pupil basis. In 1975, Shore Regional's funding formula
was changed to the equalized property valuation method as required by the
statutory amendment adopted that year. The funding method for the school
district has not changed since that time.
In 1990, Sea Bright challenged the constitutionality of requiring it to
"contribute to the costs of the regional school district based upon its proportion
of the total equalized value of property in the district, rather than the percentage
of students who are Sea Bright residents." Borough of Sea Bright v. State Dep't
of Educ., 242 N.J. Super. 225, 227 (App. Div. 1990). We rejected the Borough's
challenge and held that the statutory framework for funding regional school
districts is constitutional. Id. at 230–33.
Elected officials in Sea Bright continue to believe that the equalized
property valuation apportionment method is unfair to the taxpayers they
represent, forcing Sea Bright to bear a disproportionate share of the regional
district's budget. On July 23, 2015, the Mayor of Sea Bright sent a letter to the
Regional Board asking it to, "explore the possibility of modification of the
school budget apportionment method.” The Mayor offered to "share data, and
help develop proposed funding formula modifications and language that would
A-2478-18T4
4
seek to protect all of your members from harmful fluctuations in their percent
shares of the school budget."
At the November 19, 2015, public meeting of the Regional Board, Sea
Bright's sole Board member made a motion to "to have a vote on conducting a
referendum to change the State funding formula." 1 No other Board member
seconded the motion, and therefore no vote was taken on it.
The Board went into closed executive session to discuss its response to
the Sea Bright Mayor's July 23 letter. The minutes note that, "[the
Superintendent] indicated that a letter has been prepared and will be discussed
by the Board." 2
1
We note that the motion, as described in the minutes, is phrased inartfully in
that neither the Regional Board nor the voters in the member municipalities have
the authority to change the "State funding formula." Viewed in the context of
the Mayor's July 23 letter, we infer that the Sea Bright Board member's intent
was to call for a referendum pursuant to N.J.S.A. 18A:13-23 to change the
funding apportionment method used by the Shore Regional School District .
2
The letter that was sent by the Superintendent to the Mayor is dated November
6, 2015. We infer from the record that the letter had been drafted by the
Superintendent before the meeting on November 19 and was discussed and
approved in closed executive session before it was actually mailed to the Mayor.
We do not address whether this process violated the Open Public Meetings Act,
N.J.S.A. 10:4-6 to -21.
The Borough's petition to the Commissioner notes that the letter was not
received by Sea Bright until November 29, 2015. The Superintendent's failure
to change the date before sending it to the Mayor thus appears to have been an
A-2478-18T4
5
The letter to the Sea Bright Mayor from the Shore Regional
Superintendent explained, "At this time, it is the consensus of the Shore
Regional Board of Education not to explore the possibility of a referendum to
reduce the apportionment of Sea Bright to the Shore Regional High School
District." The Superintendent's letter noted, "The Shore Regional School
District does understand the plight of Sea Bright (as well as our other sending
districts) in these tough economic times." The letter further explained, "We
have proposed, developed, and adopted a budget that has had no increase in each
of the last three years. This current school year budget has seen Sea Bright's
apportionment decrease from 21% to 17% for a savings of $789 per year for the
average assessed home. That represents a 25% DECREASE in Sea Bright taxes
from the previous year."
On February 3, 2016, Sea Bright filed a petition with the Commissioner
of Education requesting that the Commissioner "authorize a public referendum
to consider modification of the tax allocation method for Shore Regional to one
based 100% on pupil enrollment.” The matter was referred to an Administrative
Law Judge (ALJ).
oversight. We do not believe the date of the letter is important to the issues
raised in this appeal.
A-2478-18T4
6
On October 15, 2018, the A.L.J. issued an opinion concluding that there
is nothing in N.J.S.A. 18A:13-23 that "mandates the Board to put the referendum
on the ballot, in the absence of a vote by the Board." The ALJ reasoned, "[u]nder
N.J.S.A. 18A:13-23 the role of the voting public is to approve or disapprove of
the apportionment method placed on the ballot by the Board. Nothing mandates
that a district place such a referendum on the ballot." The ALJ added,
"[m]oreover, there was no need for a discussion of the reasons for the failure of
the motion to receive even[] a second. Finally, since there was no second on the
motion, it clearly failed." The ALJ thereupon granted the Regional Board's
motion for summary decision and denied Sea Bright's motion for summary
decision.
On January 14, 2019, the Commissioner of Education issued a written
opinion, "concurr[ing] with the ALJ that the Board is entitled to summary
decision." The Commissioner found, "this matter is limited to a determination
as to whether the Board acted in an arbitrary, capricious or unreasonable manner
by failing to place a referendum on the ballot; as the motion in question was
never seconded, the Commissioner cannot find that the Board was arbitrary,
capricious or unreasonable."
Sea Bright now appeals from the Commissioner's adjudicatory decision.
A-2478-18T4
7
II.
We begin our analysis by acknowledging general legal principles that
govern the scope of our review. An appellate court "will disturb an agency's
adjudicatory decision only upon a finding that the decision is
'arbitrary, capricious or unreasonable,' or is unsupported 'by substantial credible
evidence in the record as a whole.'" Blanchard v. N.J. Dep't of Corr., 461 N.J.
Super. 231, 237–38 (App. Div. 2019) (quoting Henry v. Rahway State Prison,
81 N.J. 571, 579–80 (1980)). "The person challenging an agency action has
'[t]he burden of showing that an action was arbitrary, unreasonable or
capricious.'" Miller v. State-Operated Sch. Dist. of the City of Newark, Essex
Cty., 461 N.J. Super. 215, 223 (App. Div. 2018) (alteration in original) (quoting
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)),
aff'd Miller v. State-Operated Sch. Dist. of the City of Newark, 240 N.J. 118
(2019).
"While [an appellate court] respect[s] an agency's expertise and will 'defer
to the specialized or technical expertise of the agency charged with
administration of a regulatory system,' [an appellate court is] 'in no way bound
by the agency's interpretation of a statute or its determination of a strictly legal
issue.'" DiNapoli v. Bd. of Educ. of Twp. of Verona, 434 N.J. Super. 233, 236–
A-2478-18T4
8
37 (App. Div. 2014) (citations omitted). "Statutory interpretation involves the
examination of legal issues and is, therefore, a question of law subject to de
novo review." Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J.
369, 380 (2014) (citations omitted).
III.
The statute at the heart of this case, N.J.S.A. 18A:13-23, governs the
apportionment of appropriations to a regional school district. 3 The statute
provides:
The annual or special appropriations for regional districts,
including the amounts to be raised for interest upon, and the
redemption of, bonds payable by the district, shall be
apportioned among the municipalities included within the
regional district, as may be approved by the voters of each
municipality at the annual school election or a special school
election, upon the basis of:
a. the portion of each municipality's equalized valuation
allocated to the regional district . . .;
b. the proportional number of pupils enrolled from each
municipality on the 15th day of October of the prebudget year
3
Another statute, N.J.S.A. 18A:13-23.3, prescribes preconditions to the
modification of the manner for apportioning appropriations. At least one of the
prerequisites must exist before the funding method may be modified by voters.
For example, modification is permitted if "[t]en years have elapsed since the last
school election in which the apportionment of costs was approved by the voters."
N.J.S.A. 18A:13-23.3(a). It is not disputed that modification of the Shore
Regional apportionment method would have been allowed under N.J.S.A.
18A:13-23.3.
A-2478-18T4
9
in the same manner as would apply if each municipality
comprised separate constituent school districts; or
c. any combination of apportionment based upon equalized
valuations pursuant to subsection a. of this section or pupil
enrollments pursuant to subsection b. of this section.
[N.J.S.A. 18A:13-23 (Emphasis added).]
Although this statute expressly authorizes the citizens of member
municipalities to determine the funding apportionment method, it does not
prescribe how the question gets to the voters by means of a ballot referendum.
Notably, this statute does not authorize a member municipality, acting
unilaterally, to petition the Education Commissioner to approve that a
referendum question be placed on a ballot. This formulation stands in sharp
contrast with another provision in chapter 13 of Title 18A that governs how a
municipality may withdraw from a regional school district. See N.J.S.A. 18A:3-
54 (providing in pertinent part, "[t]he municipal governing body . . . of the
withdrawing district . . . may, within 30 days after the filing of the report by the
county superintendent [pursuant to N.J.S.A. 18A:13-51 to -53], petition the
commissioner for permission to submit to the legal voters of the withdrawing
district and the remaining districts within the regional district the question
whether or not it shall so withdraw").
A-2478-18T4
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It is thus apparent that the Legislature knew how to authorize a public
referendum that does not require action by the regional board of education but
chose not to do so in N.J.S.A. 18A:13-23. We therefore agree with the
Commissioner that the Regional Board was not obligated under N.J.S.A.
18A:13-23 to place the funding issue on the ballot at the request of one
municipality.
The ALJ and Commissioner further concluded there is nothing in the text
of N.J.S.A. 18A:13-23 that "mandates the Board to put the referendum on the
ballot, in the absence of a vote by the Board." (Emphasis added). As a general
proposition, an agency's or municipal body's inaction is subject to judicial
review. See Caporusso v. N.J. Dep't of Health and Senior Servs., 434 N.J. Super.
88, 109 (App. Div. 2014) (reviewing agency inaction for unreasonableness,
arbitrariness, or capriciousness (citing Gilliland v. Bd. of Rev., Dep't of Labor
& Indus., 298 N.J. Super. 349, 354–55 (App. Div. 1997))); see also Balagun v.
N.J. Dep't of Corr., 361 N.J. Super. 199, 202–203 (App. Div. 2003) (noting that
agencies are "obliged . . . 'to tell [courts] why'" it came to its conclusion (quoting
In re Valley Hosp., 240 N.J. Super. 301, 306 (App. Div. 1990))). We turn, then,
to whether the "absence of a vote" because the motion was not seconded is a
A-2478-18T4
11
form of inaction attributable to the Board that was, as Sea Bright contends,
arbitrary, capricious and unreasonable. 4
Our review of the minutes of the November 19, 2015 meeting reveals that
the Regional Board follows Roberts Rules of Order. 5 In accordance with
Roberts' Rules Article I, § 5, the Board was under no obligation to act on a
motion that was not seconded. We do not believe that adherence to this basic
principle of parliamentary procedure is arbitrary, capricious, or unreasonable.
Accordingly, we conclude that the Commissioner was not arbitrary, capricious,
or unreasonable in denying Sea Bright's petition on the grounds that the motion
had not been seconded.
In reaching this conclusion, we emphasize that the Commissioner's task is
to review the action, or inaction, of a regional board sitting as a corporate body,
not to review decisions made by individual board members. We presume each
4
We note that Sea Bright appeals from the decision of the Education
Commissioner. Our review thus focuses on whether the Commissioner abused
his discretion in granting the Regional Board's motion for summary disposition.
5
According to the New Jersey School Boards Association website, "[m]ost
[New Jersey school] boards follow Roberts Rules of Order, which describes how
meetings are run, how motions and votes are taken and other procedures."
School Board Basics: Frequently Asked Questions, New Jersey School Boards
Association, https://www.njsba.org/news-information/parent-
connections/school-board-basics-frequently-asked-questions/ (last visited June
8, 2020).
A-2478-18T4
12
member represents the interests of his or her municipality and its constituents.
Sea Bright cites no authority for the proposition that individual board members
are required to explain why they chose not to second a motion. We decline to
extend the scope of administrative or judicial review to the decisions made by
individual Board members to refrain from seconding a motion.
We add, finally, that even if we were to assume for purposes of argument
that the failure to vote on the motion in these circumstances is a form of Board
inaction that is subject to administrative and judicial review, the nature and
scope of that review would be deferential. See Bd. of Educ. of Twp. of Colts
Neck v. Bd. of Educ. of Freehold Reg'l High Sch. Dist., 270 N.J. Super. 497,
505 (App. Div. 1994) (commenting that legislative and quasi-legislative
determinations enjoy the presumption of validity and are disturbed only upon a
showing of arbitrariness, capriciousness, or unreasonableness (citations
omitted)).
We have already noted that the decision to follow Roberts Rules is a
matter vested in the discretion of regional boards and affords no reason for
appellate intervention in this case. Furthermore, the Superintendent's letter
explains why the Regional Board was denying the Mayor's request to revisit the
A-2478-18T4
13
appropriations apportionment method. 6 The letter specifically refers to a
consensus "not to explore the possibility of a referendum." Had there been a
formal vote on the motion and had it been defeated, the explanation of reasons
set forth in the Superintendent's letter would appear to be sufficient to show that
the Board's decision was not arbitrary, capricious, or unreasonable.
To the extent we have not addressed them, any additional arguments
raised by Sea Bright lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(1)(E).
Affirm.
6
It bears repeating that the Superintendent's letter to the Mayor expressly
purports to reflect the "consensus of the Shore Regional Board of Education."
A-2478-18T4
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