NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2768-12T3
A-2826-12T3
A-1943-13T3
A-1968-13T3
TOWNSHIP OF BERKELEY,
Petitioner-Appellant,
v.
CENTRAL REGIONAL BOARD OF
EDUCATION,
Respondent/Cross-Petitioner-
Appellant,
v.
TOMS RIVER REGIONAL SCHOOLS
BOARD OF EDUCATION,1
Respondent/Cross-Respondent-
Respondent,
and
BOROUGH OF ISLAND HEIGHTS, BOARD OF
EDUCATION OF THE BOROUGH OF ISLAND
HEIGHTS, BOROUGH OF SEASIDE HEIGHTS,
BOARD OF EDUCATION OF THE BOROUGH OF
SEASIDE HEIGHTS, BOROUGH OF OCEAN
GATE, BOARD OF EDUCATION OF THE
1
Improperly pled as Board of Education of Toms River Regional
School District.
BOROUGH OF OCEAN GATE, and
MICHAEL RITACCO,
Respondents.
___________________________________
TOWNSHIP OF BERKELEY,
Petitioner-Appellant,
v.
CENTRAL REGIONAL BOARD
OF EDUCATION,
Respondent/Cross-Petitioner-
Appellant,
v.
BOROUGH OF SEASIDE PARK, and
BOARD OF EDUCATION OF THE
BOROUGH OF SEASIDE PARK,
Respondents/Cross-Respondents-
Respondents,
and
BOROUGH OF ISLAND HEIGHTS, BOARD
OF EDUCATION OF THE BOROUGH OF
ISLAND HEIGHTS, BOROUGH OF SEASIDE
HEIGHTS, BOARD OF EDUCATION OF THE
BOROUGH OF SEASIDE HEIGHTS, BOROUGH
OF OCEAN GATE, and BOARD OF EDUCATION
OF THE BOROUGH OF OCEAN GATE,
Respondents.
____________________________________
Argued March 28, 2017 – Decided August 10, 2017
Before Judges Reisner, Rothstadt and Sumners.
2 A-2768-12T3
On appeal from the Commissioner of Education,
Agency Docket No. 348-11/09.
Francis J. Campbell argued the cause for
appellant Township of Berkeley (Campbell &
Pruchnik LLC, attorneys; Mr. Campbell, of
counsel and on the briefs; Roslynne G. Novack,
on the briefs).
Christopher Dasti argued the cause for
appellant Central Regional Board of Education
(Dasti, Murphy, McGuckin, Ulaky, Koutsouris &
Connors, attorneys; Arthur Stein, on the
briefs).
Vito A. Gagliardi, Jr., argued the cause for
respondents Seaside Park Board of Education
and Borough of Seaside Park (Porzio, Bromberg
& Newman, PC, attorneys; Mr. Gagliardi, of
counsel; Kerri A. Wright and Phillip C.
Bauknight, on the brief).
Marguerite Kneisser argued the cause for
respondent Toms River Regional Schools Board
of Education (Carluccio, Leone, Dimon, Doyle
& Sacks, LLC, attorneys; Stephan R. Leone, of
counsel; Ms. Kneisser, on the brief).
Lauren A. Jensen, Deputy Attorney General,
argued the cause for respondent Commissioner
of Education (Christopher S. Porrino, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Ms. Jensen, on
the brief).
PER CURIAM
In these four consolidated appeals, petitioners Berkeley
Township and Central Regional School District (collectively,
petitioners) have each appealed from two final decisions issued
by the Commissioner of Education. The Commissioner's January 10,
3 A-2768-12T3
2013 decision adopted the initial decision of an administrative
law judge (ALJ) dismissing as moot petitions filed against the
Toms River Board of Education and its former superintendent,
Michael Ritacco. The Commissioner's November 4, 2013 decision
adopted an initial decision denying petitioners' motions to amend
their petitions, because the amendments sought to add a party over
which the Commissioner had no jurisdiction and sought relief that
was beyond the Commissioner's jurisdiction to provide. Agreeing
with the ALJ, the Commissioner concluded that the new claims,
which petitioners sought to assert, should be adjudicated in
Superior Court or elsewhere, and not before the Commissioner. For
the reasons that follow, we affirm the January 10, 2013 and
November 4, 2013 final decisions.
The history of the underlying dispute was exhaustively
detailed in this court's prior opinion in Borough of Seaside Park
v. Commissioner of New Jersey Department of Education, 432 N.J.
Super. 167, 177-90 (App. Div.), certif. denied, 216 N.J. 367
(2013), and in the ALJ's and Commissioner's decisions in this
case. The Central Regional school district consists of five Ocean
County municipalities, including Seaside Park and Berkeley
Township. For approximately a decade, Seaside Park, which is
smaller and more affluent than most of the other municipalities
in the district, has been trying to either withdraw from the
4 A-2768-12T3
regional district or obtain a modification of the formula by which
it contributes to the district's costs.
In 2009, some of the parents in Seaside Park began sending
their children to school in nearby Toms River, rather than sending
them to the Central Regional district schools. Initially, by
agreement with the Seaside Park Board of Education, Toms River
allowed the children to attend its schools without paying out-of-
district tuition. However, after petitioners complained to the
Commissioner, Toms River began charging tuition. According to
petitioners, a local citizens group known as Citizens Aligned for
Responsible and Equitable Schools (C.A.R.E.S.) actually paid the
students' tuition. Petitioners contend that C.A.R.E.S. obtained
the tuition funding through an illegal scheme in which Seaside
Park awarded C.A.R.E.S. a no-bid municipal contract for work the
group did not actually perform.
The Seaside Park opinion addressed the right of individual
Seaside Park parents to send their children to out-of-district
schools. "They [the parents] are not required to send their
children to Central Regional. They can send their children to
other schools at their own expense, relocate to another school
district, or even home-school their children." Id. at 222.
The pertinent education statute, N.J.S.A. 18A:38-3,
authorizes any school district to permit out-of-district students
5 A-2768-12T3
to attend its school system, with or without paying tuition.
Putting aside whether Toms River could lawfully permit Seaside
Park students to attend without paying tuition in the circumstances
of this case, the dispute over the "free tuition" policy was
rendered moot in 2011, when Toms River instituted a policy of
requiring tuition payments. See Greenfield v. N.J. Dep't of Corr.,
382 N.J. Super. 254, 257-58 (App. Div. 2006) (addressing the
mootness doctrine). Accordingly, substantially for the reasons
stated by the ALJ and adopted by the Commissioner, we affirm the
January 10, 2013 decision dismissing the original petitions as
moot.
Considering the record in light of the applicable standard
of review, we likewise find no basis to disturb the Commissioner's
decision denying the motions to file amended petitions. See Bd.
of Educ. of Bor. of Englewood Cliffs v. Bd. of Educ. of the City
of Engelwood, 257 N.J. Super. 413, 455-56 (App. Div. 1992), aff'd
o.b., 132 N.J. 327 (1993). The new claims petitioners sought to
assert raised legal issues that were beyond the Commissioner's
jurisdiction. As we have previously recognized, although the
Commissioner has plenary jurisdiction to determine controversies
arising under the school laws, N.J.S.A. 18A:6-9, that does not
mean the Commissioner has jurisdiction over every conceivable
controversy that concerns a board of education. See Archway
6 A-2768-12T3
Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super.
420, 424-26 (App. Div. 2002). In Archway, for example, we held
that a breach of contract claim against a board of education did
not fall within the Commissioner's jurisdiction, but instead was
properly filed in the Law Division. Id. at 431. However, to the
extent that the contract claim implicated legal issues within the
Commissioner's jurisdiction, the court might, under the doctrine
of primary jurisdiction, refer that discrete issue to the
Commissioner for resolution. Id. at 425.
In this case, petitioners allege that the Seaside Park
municipal government, and the Seaside Park Board of Education
(BOE), conspired with C.A.R.E.S. to illegally provide public funds
with which to pay local students' tuition to attend the Toms River
schools. According to petitioners, the conspiracy involved the
awarding of an allegedly illegal no-bid contract to C.A.R.E.S.,
for work that the organization itself did not actually perform.
Petitioners also alleged that one or more members of the municipal
governing body or the BOE had conflicts of interest in approving
or facilitating the contract, and that C.A.R.E.S. was not operating
as a legitimate charitable organization.
We agree with the Seaside Park respondents that, so long as
the Toms River Board of Education permits it, Seaside Park parents
can lawfully pay tuition and send their children to the Toms River
7 A-2768-12T3
schools.2 See Seaside Park, supra, 432 N.J. Super. at 222;
N.J.S.A. 18A:38-3. The parents can raise the tuition by holding
bake sales, soliciting private donations, or by any other lawful
means. However, the crux of petitioners' claims is that the
tuition money was obtained by unlawful means, and that the alleged
unlawful funding conspiracy should cease. Their proposed amended
petitions asserted that the various named respondents (including
C.A.R.E.S.) committed fraud and money laundering, N.J.S.A. 2C:21-
25, as well as violations of the Local Public Contracts Law, local
government ethics laws, and statutes governing non-profit
corporations. None of those causes of action arose under the
school laws. We agree with the Commissioner that such claims,
against the municipal defendants and C.A.R.E.S., should be
asserted in the Superior Court. See, e.g., R. 4:69-1.
Additionally or alternatively, some of the claims may fall within
the jurisdiction of the Local Finance Board, see N.J.S.A. 40A:9-
22.4, or the county prosecutor.3
2
We do not mean to imply that Toms River must charge tuition;
that issue is moot and we do not address it. Nor do we address a
situation, not present here, where a sending and receiving
agreement, or a private-tuition arrangement, will increase racial
segregation in the public schools. See Englewood Cliffs, supra,
257 N.J. Super. at 450-51, 473-74.
3
For the sake of completeness, we note that, if petitioners prove
their underlying claims in the trial court, but some aspect of the
8 A-2768-12T3
Petitioners' remaining arguments are without sufficient merit
to warrant discussion, beyond the following brief comments. See
R. 2:11-3(e)(1)(E).
The parties engaged in discovery for over a year. We find
no abuse of discretion on the part of the ALJ or the Commissioner
in not delaying the decisions here to permit more discovery. See
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
Further, additional discovery would not have affected the
jurisdictional decision or the mootness issue.
Contrary to petitioners' arguments, the Commissioner did not
implicitly or explicitly approve either a de-regionalization plan
or the withdrawal of Seaside Park from the Central Regional school
district. The fact that a handful of parents in a tiny school
district chose to send their children to a school in another
district, pursuant to N.J.S.A. 18A:38-3, did not constitute de-
regionalization or withdrawal from the district. As the
Commissioner noted, given the few students involved and the
termination of the "free tuition" arrangement, he would not
"exercise the extraordinary remedy of injunction to preclude Toms
relief they seek concerns a remedy that is within the
Commissioner's exclusive jurisdiction to provide, the court could
refer that discrete issue to the Commissioner under the doctrine
of primary jurisdiction. See Archway, supra, 352 N.J. Super. at
425.
9 A-2768-12T3
River from allowing individual Seaside Park students from
attending its schools on a tuition-payment basis."
As previously addressed above, to the extent petitioners
contend that an unlawful scheme is being used to raise the tuition
money, that claim belongs in a forum other than the Department of
Education.
Affirmed.
10 A-2768-12T3
TOWNSHIP OF BERKELEY VS. CENTRAL REGIONAL BOARD OF EDUCATION VS. TOMS RIVER REGIONAL SCHOOLS BOARD OF EDUCATIONTOWNSHIP OF BERKELEY VS. CENTRAL REGIONAL BOARD OF EDUCATION VS. BOROUGH OF SEASIDE PARK(COMMISSIONER OF EDUCATION)(CONSOLIDATED)
Combined Opinion