Y.Y. VS. BOARD OF EDUCATION OF THE BOROUGH OF NORTH ARLINGTON (NEW JERSEY COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE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-5475-18

Y.Y., on behalf of minor
children, W.Y. and D.Y.,

Petitioner-Appellant,
v.

BOARD OF EDUCATION
OF THE BOROUGH OF
NORTH ARLINGTON,
BERGEN COUNTY,

Respondent-Respondent.
_________________________

Argued April 12, 2021 – Decided October 13, 2021

Before Judges Hoffman and Suter.

On appeal from the New Jersey Commissioner of
Education, Docket No. 149-5/16.

Y.Y., appellant, argued the cause pro se.

Eric L. Harrison argued the cause for respondent Board
of Education of the Borough of North Arlington
(Methfessel & Werbel, attorneys; Eric L. Harrison, of
counsel and on the brief).
 Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Commissioner of Education
(Aimee Blenner, Deputy Attorney General, on the
statement in lieu of brief).

The opinion of the court was delivered by

SUTER, J.A.D.

Petitioner Y.Y. on behalf of her minor children, W.Y. and D.Y., appeals

the July 8, 2019 Final Decision on Remand of the Commissioner of Education

(the Commissioner), which adopted the Initial Decision by the administrative

law judge (ALJ), dismissing petitioner's residency claim. The Commissioner

found petitioner's children were not domiciled in North Arlington, Bergen

County, and thus, were ineligible for a free education in those public schools.

The Commissioner directed petitioner to reimburse the North Arlington Board

of Education (Board) for tuition costs of $30,720.36. We affirm the

Commissioner's final agency decision on the issue of domicile, finding it was

not arbitrary, capricious, or unreasonable. However, we reverse and remand the

tuition issue to the Commissioner.

I.

A.

On October 6, 2015, petitioner filed a pro se residency appeal with the

Commissioner after the North Arlington School District (District) claimed her

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children resided in Kearny, not in North Arlington. She learned her children

would be disenrolled from attendance in North Arlington and she could owe

tuition reimbursement. In a November 2, 2015 letter to her, the North Arlington

Superintendent (the Superintendent) advised "based upon the information

provided by the North Arlington Police Department that [D.Y.] and [W.Y.] were

being transported to and from school from a residence located in Kearny." If

she did not agree she could request a hearing before the Board in closed session

and "your children will be entitled to continue their enrollment in the District,

until the Board is able to review the appropriate evidence and make a

determination regarding your children's residence." The letter advised if she

were not successful in showing the children were eligible to attend school in

North Arlington, she could be assessed tuition "for any period of ineligible

attendance." The letter informed her of the approximate tuition rate per day for

the schools the children attended.

Petitioner withdrew her pro se residency appeal. The Board conducted a

hearing on December 14, 2015. At the hearing, petitioner provided her deed for

the North Arlington property, one utility bill for October 2015, and a bank

statement. She declined the Board's request to see the inside of her apartment

in North Arlington, asserting it needed first to advise her on what it meant by

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domicile. A second hearing was scheduled for May 2, 2016, but petitioner left

before the hearing started. On May 4, 2016, the Superintendent issued a Notice

of Final Ineligibility advising petitioner the Board passed a resolution

disenrolling her two children from the District based on its finding they were

domiciled in Kearny rather than North Arlington.

On May 23, 2016, petitioner filed a second residency appeal with the

Commissioner.1 Although a motion for summary disposition by the District was

granted by an ALJ, the Commissioner reversed, remanding petitioner's residency

appeal to the Office of Administrative Law (OAL) for a hearing.2

B.

We glean the facts from the July 7, 2017 OAL hearing and the evidence

from that proceeding. 3 Petitioner and her husband are the parents of two

1
The record includes a May 23, 2016 letter from the Department of Education
acknowledging that a "Petition of Appeal" was filed with the Commissioner on
May 23, 2016. Petitioner's appeal itself was not included in the record.
2
The record on appeal does not include the motion's order or the
Commissioner's remand order.
3
Contrary to Rule 2:5-4(a), petitioner included records in her appendix that
were not part of the record before the Commissioner. These include petitioner's
affidavit of July 19, 2017, an obituary, a notice dated May 11, 2017, photographs
of an apartment, notes dated February 8, 9 and 17, 2015, and June 1, 2016, and
an email between ADT and petitioner. We have not considered these records.

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children, W.Y. and D.Y. She and her husband purchased their home in Kearny

in 2001. Kearny is in Hudson County. Petitioner's husband was considerably

older than her and suffered from Lou Gehrig's disease. 4 She separated from him

in October 2013, because she and her husband had "a very different desire of

life," and she wanted to do more activities. Petitioner moved to an address in

North Arlington, which is in Bergen County.

In June 2014, petitioner and a relative purchased a three-apartment

building in North Arlington. She testified she moved into the third-floor

apartment in October 2014. This is a small apartment with two bedrooms and

one bathroom. She testified her sons slept in one room and she in the other.

W.Y. attended the Bergen County Technical School (Bergen Tech),

beginning in September 2014. D.Y. attended a school in North Arlington.

Petitioner testified that W.Y. would stay most of the time in Kearny with her

husband. D.Y. also was in Kearny "very often" to play the piano there.

Petitioner testified her children would eat dinner on a regular basis in Kearny

See Townsend v. Pierre, 221 N.J. 36, 45 n.2 (2015) (providing based on Rule
2:5–4(a) that materials not provided to the trial court but presented on appeal
for the first time would not be considered).
4
Petitioner's appellate brief advises her husband passed away in July 2019.
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and then return to North Arlington for the night. Petitioner testified in 2014 to

2015, the children stayed with her in North Arlington during the weeknights.

Petitioner is a licensed health aide. She acknowledged spending a

considerable amount of time at the Kearny home because of her husband's health

conditions, especially after he had surgery in September 2015. She billed an

insurance company for the care she provided him as his health aide.

To show her domicile was in North Arlington, petitioner introduced the

deed to the North Arlington property, property tax bill, certificate of occupancy,

PSEG gas bill, Verizon Fios bill, voter registration, home health aide license,

W2 form and bank statements. However, on cross-examination she

acknowledged writing a letter dated in February 2017 where she listed her return

address as Kearny, rather than North Arlington. In the body of the letter, she

referred to Kearny, as "home."

Detective Anthony Scala of the North Arlington Police Department

testified that at the request of the District, he conducted two residency checks

on September 16 and 17, 2015, at petitioner's North Arlington address , but she

was not there. On September 17, 2015, he observed her at the Kearny address

leaving with W.Y. Shortly after that at 7:40 a.m., he saw an older man at the

Kearny address taking D.Y.to the middle school in North Arlington. Detective

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Scala reported what he observed to the North Arlington Middle School principal,

and then later to the Board. Detective Scala's report was placed in evidence

without objection.

Harry Melber was an investigator for Check-M-Out Security Services &

Investigations, LLC. He testified that on various dates and times early in the

morning, on one day in October 2016, and eight days in May and June 2017, he

made observations of petitioner's property in North Arlington and in Kearny.

Petitioner was not at the North Arlington property. He observed her at the

Kearny property with her children. On four occasions in the early morning, he

observed petitioner drive W.Y. to Bergen Tech from the address in Kearny. He

also observed petitioner drive D.Y. in the morning from Kearny to one of the

schools in North Arlington. Melber took videos during his investigation. His

report and photographs made from the videos were introduced as evidence by

the District without objection from petitioner.

Carla Gomes, a process server for "Simply Status," testified that on June

20, 2017, she was not successful at serving a subpoena on petitioner at the North

Arlington address. Later she spoke with petitioner's son and husband at the

Kearny address, but her husband would not accept service. She went back to

the North Arlington apartment and — after gaining entry to the building from

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someone who was there — left a notice to contact her. Petitioner did not.

Petitioner claimed Gomes' testimony was false about how she was able to enter

the building.

The North Arlington School Business Administrator Board Secretary,

Kathleen Marano, testified she learned about a possible residency violation by

petitioner from a part-time employee, who also worked in Kearny. Marano

notified the Superintendent. Petitioner had a hearing before the Board in

December 2015, where she submitted some information about her residency, but

not everything the Superintendent had requested.

Anita Gilmore was petitioner's next-door neighbor in Kearny since 2001.

Her testimony revealed that she and petitioner were not on good terms. Gilmore

learned that one of petitioner's sons was attending a school in North Arlington

and notified a Board member. She claimed she saw petitioner "all the time" at

the Kearny residence. There was "never" a time where petitioner stopped living

next door in Kearny. However, Gilmore acknowledged there were periods of

time when she was out-of-state.

Gilmore testified there were seven security cameras covering the

perimeter of her house. She testified about ten different dates that her security

camera captured activity at petitioner's Kearny property. The flash drive was

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admitted into evidence. 5 These showed petitioner doing yardwork and coming

and going from the house in Kearny.6

C.

The ALJ's initial decision on May 8, 2018, concluded there was no

evidence the "two children ever left the domicile with their father in Kearny."

Other than petitioner's testimony, the ALJ noted petitioner did not show

evidence the children lived with her in North Arlington during the week.

Petitioner would not allow the Board permission to visit the North Arlington

apartment. She admitted they spent a significant amount of time in Kearny

because of her husband's health condition, internet access and the piano that was

there. The ALJ found it was not likely the family ate dinner in Kearny and the

children then went to North Arlington for the night. There was no one to

corroborate petitioner's version of events. The ALJ concluded the two children

5
There also are photographs that are in the District's appendix described as
"photographs of petitioner's Kearny residence."
6
After the hearing, petitioner filed a motion to suppress the videotaped evidence
from Gilmore. She also claimed Detective Scala conducted an unlawful search,
her driver's license and plate number were unlawfully seized, other videos were
not authenticated, testimony by Gilmore and Gomes was false and Gomes
"colluded" with the District's attorney. There is a reference to this motion being
denied, but we have not been provided with an order or decision. The OAL
record was closed on September 6, 2017, after the submission of closing briefs.

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"were never domiciled in North Arlington and remained domiciliar[ies] of

Kearny during the crucial time from September 2014 through the present. " The

ALJ concluded any payments to Bergen Tech for W.Y. were to be reimbursed

by petitioner. The ALJ did not have enough information, at that time, to

determine the cost of the tuition for D.Y.

Petitioner filed exceptions 7 to the Initial Decision alleging a lack of fact-

finding by the ALJ, bias and false testimony by witnesses, the violation of her

constitutional and statutory rights by the manner in which Scala and Melber's

investigations were conducted and the ALJ's improper reliance on hearsay

evidence and testimony. The exceptions included a listing of alleged

constitutional violations but did not elaborate on how they applied.

On July 26, 2018, the Commissioner issued a Decision on Remand. The

Commissioner summarized the issues raised by the petitioner and the District in

their exceptions. The Commissioner "concur[ed] with the ALJ's finding that

petitioner failed to sustain her burden of establishing that she and her children

were domiciled in North Arlington from the 2014-2015 school year to the

present." The Commissioner also found sufficient evidence to support the ALJ's

7
The District filed exceptions on the issue of tuition and a reply to petitioner.
This is not in the appendix nor are petitioner's "reply exceptions."
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finding that the "children remained domiciled in Kearny with their father." The

Commissioner found "no basis . . . to disturb the ALJ's credibility assessments."

It found the ALJ did not demonstrate bias or ignore any of the documents or

explanations provided by petitioner. Rather, the ALJ found the other witnesses

to be more credible, placing greater weight on that evidence. However, the

record did not permit the Commissioner to "calculate the amount of tuition owed

to the Board for D.Y.'s ineligible attendance." Further information also was

needed about the tuition for W.Y. Thus, the Commissioner remanded the case

to the OAL to calculate the tuition due to the Board and permitted

supplementation of the record "as warranted." We denied petitioner's motion

for leave to appeal on October 9, 2018, and dismissed the appeal as

interlocutory.

The ALJ conducted an in-person hearing on February 14, 2019. 8 On May

23, 2019, the ALJ determined the amount of tuition owed by petitioner was

$30,720.47. He found the supporting certifications9 by the business manager for

8
We have not been provided with a transcript of the February 14, 2019 in-
person proceeding.
9
Neither certification was included in the record on appeal.

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the District and the business manager of Bergen Tech to be "accurate and

creditable," allowing for two days of credit as agreed to by the District.

On July 8, 2019, the Commissioner issued the Final Decision on Remand,

which adopted the ALJ's Initial Decision as final and dismissed petitioner's

residency claim. Petitioner was directed to reimburse the Board for tuition costs

of $30,720.36 10 for the time W.Y. and D.Y. were ineligible to attend school in

North Arlington. Petitioner appealed.

On appeal, petitioner raises the following issues:

I. THE AGENCY ERRED IN ACCEPTING ALJ'S
DETERMINATION THAT PETITIONER WAS NOT
DOMICILED IN NORTH ARLINGTON

A. THE AGENCY SHOULD REJECT
ALJ'S INITIAL DECISION . . . THAT IT
LACKS FACT FINDING

B. PETITIONER HAD PRESENTED
PREPONDERANCE EVIDENCE
SUPPORTING HER DOMICILE OF
NORTH ARLINGTON

C. AGENCY'S DECISION IS
ARBITRARY, CAPRICIOUS AND
UNREASONABLE

II. THE AGENCY ERRED IN ORDERING
PETITIONER TO REIMBURSE TUITION TO

10
The eleven-cent difference was attributable to "a difference in rounding of
the daily tuition cost."
A-5475-18
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RESPONDENT

III. PETITIONER'S AND HER CHILDREN'S
RIGHTS HAD BEEN VIOLATED

A. Petitioner's and D.Y.'s Right
of Due Process.

B. Petitioner's Rights of Parenting
Her Children

C. Petitioner's Right to Choose her
Domicile

D. Petitioner's Constitutional
Protected Rights as a Homeowner

E. Petitioner's Constitutional
Protection Right of Equal Protection
(Not Raised Below)

IV. ALJ ERRED IN ADMITTING THE
FRAUDULENT EVIDENCE, AND PERJURED
TESTIMONIES AND EVIDENCE VIA
ILLEGAL SEARCH

A. The Video Evidence and Printouts from
These videos Admitted by ALJ are
Hearsay, Therefore Should Have Been
Suppressed.

B. Some of the Video Recordings are
Fraudulent and Their Printout are
Fraudulent

C. Malicious Perjury by Respondent's
Witnesses

A-5475-18
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 D. ALJ Erred in Accepting Evidence of
Illegal Search

V. AGENCY ERRED IN TUITION
REIMBURSEMENT CALCULATION
(Not Raised Below)

II.

A.

The scope of our review in an appeal from a final decision of an

administrative agency is limited. Russo v. Bd. of Trs., 206 N.J. 14, 27 (2011)

(citing In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should

be upheld unless there is a "clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." Ibid. (quoting

Herrmann, 192 N.J. at 27-28). "[A]n appellate court ordinarily should not

disturb an administrative agency's determinations or findings unless there is a

clear showing that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was not supported by

substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees

For A Certificate of Need, 194 N.J. 413, 422 (2008).

An action is arbitrary, capricious, or unreasonable if it (1) violates the law,

including express or implied legislative policies, (2) is unsupported by

substantial evidence in the record, or (3) "in applying the legislative policies to

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the facts, the agency clearly erred in reaching a conclusion that could not

reasonably have been made on a showing of the relevant factors." Proposed

Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013)

(quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

We "defer to the specialized or technical expertise of the agency charged

with administration of a regulatory system." K.K. v. Div. of Med. Assistance &

Health Servs., 453 N.J. Super. 157, 160 (App. Div. 2018) (quoting In re Virtua-

West Jersey Hosp., 194 N.J. at 422). However, we are not bound by the

"agency's interpretation of a statute or its determination of a strictly legal issue."

McClain v. Bd. of Rev., Dep't of Labor, 451 N.J. Super. 461, 467 (App. Div.

2017) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

Petitioner alleges the Commissioner erred by adopting the ALJ's finding

that the children's domicile was in Kearny not North Arlington. She argues the

ALJ did not make appropriate findings of fact, the decision was against the

weight of the evidence and was arbitrary and capricious.

N.J.S.A. 18A:38-1(a) provides that every person in New Jersey between

the ages of five and twenty is entitled to a free education if they are "domiciled

within the school district." "Domicile" means a permanent home from which a

person does not intend to move. Lipman v. Rutgers-State Univ. of N.J., 329 N.J.

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Super. 433, 444 (App. Div. 2000). Although a person may have multiple

residences, he or she can only have one domicile. Somerville Bd. of Educ. v.

Manville Bd. of Educ., 332 N.J. Super. 6, 12 (App. Div. 2000). A child's

domicile is normally that of his parents. Roxbury Twp. Bd. of Educ. v. West

Milford Bd. of Educ., 283 N.J. Super. 505, 521-22 (App. Div. 1995). If

separated parents live in different school districts, "the student's domicile is the

school district of the parent or guardian with whom the student lives for the

majority of the school year," regardless of the parents' custody arrangement.

N.J.A.C. 6A:22-3.1(a)(1)(i).

It is "the totality of information and documentation offered by an

applicant" that informs the district's decision. N.J.A.C. 6A:22-3.4(c). Factors

to consider include "the physical characteristics of each [place], the time spent

and the things done in each place, the other persons found there, the person's

mental attitude toward each place, and whether there is or is not an intention,

when absent, to return." Mercadante v. City of Paterson, 111 N.J. Super 35, 39-

40 (Ch. Div. 1970).

A school district may seek a child's disenrollment from its schools and

seek tuition reimbursement if a child is attending but domiciled in another

district. N.J.S.A. 18A:38-1(b)(2). The parents or legal guardian of the child are

A-5475-18
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entitled to a hearing where they have the burden of proving domicile by a

preponderance of the evidence. Ibid.

We agree that the Commissioner's decision was supported by substantial

credible evidence taking into consideration all of the information and

documentation by the parties. The Commissioner specifically relied on

the September 2015 surveillance that showed petitioner
leave the Kearny address with W.Y., followed by a man
leaving with D.Y. and dropping him off at school in
North Arlington; the October 2016 surveillance that
showed petitioner leaving the Kearny address with
W.Y. and dropping him off at Bergen Tech; and the
surveillance conducted over several dates in May and
June 2017 that showed petitioner leaving the Kearny
address on four occasions and driving W.Y. to Bergen
Tech.

It was Detective Scala's testimony that explained the residency checks over a

two-day period in September 2015. He testified that on both dates, petitioner's

children were not present at her North Arlington home, but rather, were in

Kearny. It was Melber's investigation that in October 2016 and on several dates

in May and June 2017, showed petitioner drive W.Y. to Bergen Tech from the

Kearny home and then drive D.Y. to school from Kearny. Melber did not find

petitioner at the North Arlington address. He testified about what he observed,

and about his report that documented those observations in photographs made

from videos.

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 Petitioner's own testimony showed the extent the children were in Kearny.

She testified W.Y. stayed in Kearny with her husband. She testified that W.Y.

"came to North Arlington sometime but not all the time." Once the younger son,

D.Y., was not able to attend school in North Arlington, he too spent "a lot of

time in Kearny, sleeping in Kearny." D.Y. would go to Kearny "very often" to

play the piano. She used the internet at the Kearny home at times and was

present in Kearny to care for her husband's medical needs. Petitioner testified

the children would eat dinner in Kearny and leave during the weeknights to stay

in North Arlington, but the ALJ found this was unlikely.

The ALJ concluded petitioner and the children had "at least two

residences." However, he also found that "[b]e it piano, the internet access, or

the need for her nursing skills for her husband it is apparent that much more time

was spent in Kearny than in North Arlington" and that the children were

domiciled with their father at the Kearny address. The Commissioner adopted

this finding. Our careful review of the record shows there was substantial,

credible evidence for that finding.

Petitioner claims the ALJ erred by admitting videotapes and printouts

from them into evidence because they were false and lacked authenticity.

"[O]rdinarily, an evidentiary determination made during trial is entitled to

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deference and is to be reversed only on a finding of an abuse of discretion . . . ."

Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

Rulings on evidence "must stand unless it can be shown that the trial court

palpably abused its discretion." State v. Carter, 91 N.J. 86, 106 (1982). Under

the abuse of discretion standard of review, reversal is only appropriate in cases

where the trial court's finding was "so wide of the mark that a manifest denial

of justice resulted." Ibid.

In New Jersey, "[a]uthentication of a videotape is similar to the

authentication of a photograph." State v. Brown, 463 N.J. Super. 33, 52 (App.

Div. 2020) (citing State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996)). The

videotape must be "an accurate reproduction of that which it purports to

represent and the reproduction is of the scene at the time the incident took

place." Ibid. (citing State v. Wilson, 135 N.J. 4, 15 (1994)). "The photographer

or videographer need not testify." Ibid. Thus, "any person with the requisite

knowledge of the facts represented in the photograph or videotape may

authenticate it." Wilson, 135 N.J. at 14.

Melber testified about what he observed and then documented in his report

with photographs from the videos. Petitioner did not object to his rep ort's

admission in evidence with the photographs. Gilmore testified that photographs

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made from the flash drive by her grandson were of the side of her house. She

was able to identify petitioner and family members in the videos. 11 We discern

no abuse of discretion by the ALJ or Commissioner on this issue. Petitioner's

citation to cases from North Carolina about authentication and chain of custody

are not controlling or persuasive here.

Petitioner claims Gomes was lying about how she gained access to the

third-floor apartment door in North Arlington, and that she was colluding with

the District's attorney. In response to petitioner's allegations, the Commissioner

noted the ALJ had the opportunity to assess the credibility of the witnesses who

testified. The Commissioner found no basis to disturb the ALJ's findings in that

regard. Our review of the hearing record does not differ from the

Commissioner's, namely that we defer to the ALJ's findings because he had the

ability to see and hear the witnesses. See State v. Locurto, 157 N.J. 463, 474

(1999) (providing that "[a]ppellate courts should defer to trial courts' credibility

findings that are often influenced by matters such as observations of the

11
Petitioner contends that Gilmore's videos were fraudulent based on an email
from ADT dated July 26, 2016, but that email was never admitted into evidence
at the July 2017 hearing.

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character and demeanor of witnesses and common human experience that are

not transmitted by the record.").

Petitioner alleges evidence provided by Detective Scala was obtained

through an illegal search and should be suppressed on grounds that he violated

her Fourth Amendment rights by conducting a search for her motor vehicle

information without probable cause or consent. We disagree with this argument.

"[E]vidence illegally obtained in violation of the Constitution is generally

deemed inadmissible only in a criminal prosecution and only because of the

illegal conduct of government officials." Tartaglia v. Paine Webber, 350 N.J.

Super. 142, 148 (App. Div. 2002). This appeal involves an administrative and

not a criminal proceeding. Moreover, N.J.S.A. 18A:38-1.3 authorizes a school

district to request information from the Motor Vehicles Commission where there

is a dispute between a district and parent about eligibility to enroll a student.

On this record, we discern no abuse of discretion.

Petitioner raises other issues that were not part of the residency appeal to

the Commissioner. Determining where the children were domiciled did not

involve petitioner's right to parent her children, the right to choose her domicile,

or her rights as a property owner. After carefully reviewing the record and the

applicable legal principles, we conclude that petitioner's arguments on these

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issues are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Petitioner's equal protection clause claim was raised for the first time on

appeal. Generally, an appellate court will not consider issues that were not

raised previously, including constitutional issues. See Deerfield Ests., Inc. v.

Twp. of E. Brunswick, 60 N.J. 115, 120 (1972) (providing that constitutional

issues that were not raised and argued below will not be considered unless

raising a question of jurisdiction or "present[ing] a matter of real public

importance"). We will not exercise our original jurisdiction to consider this

claim.

Petitioner claims she and her children's due process rights were violated.

However, the Superintendent's November 2, 2015 letter outlined the procedures

and appeal rights for the hearing which commenced in December 2015. The

Superintendent issued a Notice of Final Ineligibility on May 4, 2016. That

Notice also advised petitioner of her appeal rights. Petitioner appealed to the

Commissioner and she was afforded a contested case hearing in the OAL. The

record shows that petitioner was provided notice and an opportunity to be heard,

which satisfied procedural due process concerns. See Klier v. Sordoni Skanska

Constr. Co., 337 N.J. Super. 76, 84 (App. Div. 2001) (providing "[t]he minimum

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requirements of due process of law are notice and an opportunity to be heard[,]

. . . mean[ing] an opportunity to be heard at a meaningful time and in a

meaningful manner." (citing Doe v. Poritz, 142 N.J. 1, 106 (1995))).

B.

A school district may seek tuition reimbursement where a student attended

but was not domiciled in the district. N.J.S.A. 18A:38-1(b)(2). The

Commissioner's computation of tuition, "shall be . . . 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 [C]ommissioner are enforced." Ibid. However, tuition may only

be assessed for the period during which the hearing was pending "and for up to

one year of a student's ineligible attendance in a school district prior to the

appeal's filing and including the [twenty-one]-day period to file an appeal."

N.J.A.C. 6A:22-6.2(a).

Petitioner contends that reimbursement should be calculated starting

September 22, 2015, around the time D.Y. was removed from school, and that

she should not have to pay for the 2014-2015 school year for D.Y. or W.Y.12

12
The Commissioner found that D.Y. attended school for thirty and a half days
from May 4, 2015, through the end of 2014-2015, at a rate of $60.24 per day;

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The Commissioner used May 4, 2015, to start the date for tuition reimbursement

because this was twelve months before the Superintendent's May 4, 2016 Notice

of Ineligibility decision. Under N.J.A.C. 6A:22-6.2(a), the District could only

assess petitioner for a year prior to the Superintendent's May 4, 2016 notice of

final ineligibility.

Although we agree that the regulation provides a twelve-month limitation,

the state of this record is such that we are not able to determine whether the

tuition assessment is sustainable on appeal. Neither party provided a transcript

of the in-person hearing on February 14, 2019, nor copies of the certifications

that apparently detail how the tuition was calculated. All that we have is the

Commissioner's summary of the attendance dates and amounts due without an

explanation of the hourly rates.

Petitioner also alleges that D.Y. was disenrolled beginning in September

2015 but that the Superintendent's letter about the residency hearing was not

provided until November 2, 2015. She claims she home schooled D.Y. in

September 2015 for the remainder of the year. The Commissioner did not

and eight days in 2015-2016 at a rate of $68.28 per day. For W.Y., the cost of
tuition at Bergen Tech was $47.60 per day for thirty-three days from May 4,
2015, to the end of the 2014-2015 school year; $8730 for the 2015-2016 school
year; $8910 for the 2016-2017 school year; and $9126 for the 2017-2018 school
year.
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address petitioner's argument about the period from September 2015 to

November 2015. Although this would not affect the domicile issue, it is not

clear if this would affect the tuition calculation either in amount or duration, or

even if this disenrollment occurred as alleged. For this reason, we reverse and

remand the tuition issue to the Commissioner for factual findings regarding the

tuition and consideration of petitioner's arguments about the September 2015

disenrollment of D.Y.

Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.

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