Y.Y., Etc. v. Board of Education of the Borough of North Arlington, Etc.

NOT FOR PUBLICATION WITHOUT THE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-4020-21

Y.Y., on behalf of minor

children, W.Y. and D.Y.,1

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF

THE BOROUGH OF NORTH

ARLINGTON, BERGEN COUNTY,

Respondent-Respondent.

_______________________________

Argued December 19, 2023 – Decided January 25, 2024

Before Judges Mayer, Enright and Paganelli.

On appeal from the New Jersey Commissioner of

Education, Docket No. 149-5/16.

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

Eric Labes Harrison argued the cause for respondent

Board of Education of the Borough of North Arlington

(Methfessel & Werbel, attorneys; Eric Labes Harrison,

on the brief).

1

We use initials and pseudonyms to protect the parties' privacy.

Matthew J. Platkin, Attorney General, attorney for

respondent New Jersey Commissioner of Education

(Sadia Ahsanuddin, Deputy Attorney General, on the

statement in lieu of brief).

PER CURIAM

Petitioner Y.Y. appeals from a July 13, 2022 final decision issued by

respondent New Jersey Commissioner of Education (Commissioner) directing

Y.Y. to reimburse respondent Borough of North Arlington Board of Education

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

This case returns to us after a limited remand, directing the Commissioner

to address the issue of tuition reimbursement and the arguments raised by Y.Y.

"about the September 2015 disenrollment of D.Y." See Y.Y., on behalf of W.Y.

and D.Y. v. Bd. of Ed. of Borough of North Arlington, No. A-5475-18 (App.

Div. Oct. 13, 2021) (slip op. at 22).

In our prior decision, "[w]e affirm[ed] the Commissioner's final agency

decision on the issue of domicile, finding it was not arbitrary, capricious, or

unreasonable." Id. at 2. However, we "reverse[d] and remand[ed] the tuition

issue to the Commissioner." Ibid.. In remanding, we stated:

[W]e are not able to determine whether the tuition

assessment is sustainable on appeal. Neither party

provided a transcript of the [Administrative Law

Judge's] hearing on February 14, 2019, nor copies of

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2

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.

. . . [T]he Commissioner did not address [Y.Y.]'s

argument about the period from September [22,] 2015

to November [2,] 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 [Y.Y.]'s arguments about the

September 2015 disenrollment of D.Y.

[Id. at 22.]

The background facts relevant to Y.Y.'s appeal are set forth in our October

13, 2021 opinion. We need not repeat them here.

Y.Y. did not seek a review of our October 13, 2021 decision before the

New Jersey Supreme Court. Thus, we do not consider Y.Y.'s arguments in this

appeal related to the issue of domicile because the matter was adjudicated and

our prior decision was dispositive of that issue.

On July 13, 2022, the Commissioner issued a final decision compelling

Y.Y. to pay the sum of $30,720.36 to the Board, representing tuition

reimbursement. The Commissioner explained the calculation for arriving at the

amount of tuition reimbursement due from Y.Y. to the Board. Additionally, the

A-4020-21

3

Commissioner found "[Y.Y.]'s arguments regarding the period of

homeschooling [between September 22 and November 2, 2015] [were] . . .

irrelevant, as no tuition was awarded to the Board for that time period."

Y.Y. appealed. On appeal, Y.Y. argues our October 13, 2021 decision,

affirming the Commissioner's domicile findings, was incorrect. She further

contends the Commissioner erred in ordering her to reimburse the Board for

tuition. We reject these arguments.

The sole issue on remand to the Commissioner was the calculation of

tuition reimbursement. Nowhere in her appellate brief does Y.Y. address this

issue. Because Y.Y.'s brief failed to address the Commissioner's calculation of

tuition reimbursement, the issue is waived. See N.J. Dep't of Env't Prot. v.

Alloway Twp., 438 N.J. Super. 501, 505-06 n. 2 (App. Div. 2015) ("An issue

that is not briefed is deemed waived upon appeal.").

Although we could decline to review Y.Y.'s challenge to the

Commissioner's July 13, 2022 decision calculating tuition reimbursement, we

elect to explain why the calculation is supported by substantial evidence in the

record and, therefore, proper.

"An agency's determination on the merits 'will be sustained unless there

is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks

A-4020-21

4

fair support in the record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret.

Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's

Ret. Sys., 206 N.J. 14, 27 (2011)). On appeal from an agency decision, we

consider:

(1) whether the agency's action violates express or

implied legislative policies, that is, did the agency

follow the law; (2) whether the record contains

substantial evidence to support the findings on which

the agency based its action; and (3) whether in applying

the legislative policies to the facts, the agency clearly

erred in reaching a conclusion that could not reasonably

have been made on a showing of the relevant factors.

[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle

Comm'n, 234 N.J. 150, 157 (2018) (quoting In re

Stallworth, 208 N.J. 182, 194 (2011)).]

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." Ibid. However, tuition may only be assessed for the

period during which the Commissioner's decision was pending "and for up to

one year of a student's ineligible attendance in [the] 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).

A-4020-21

5

At a February 14, 2019 hearing, an Administrative Law Judge reviewed

certifications submitted by Kathleen Marano, the North Arlington School

District Business Administrator and North Arlington Board of Education

Secretary; and John Susino, the Bergen County Technical and Special Services

School Districts Business Administrator and Secretary.

Marano certified the annual cost of D.Y.'s tuition was $10,844 for the

2014-15 school year and $12,290 for the 2015-16 school year. She further

certified that, beginning May 4, 2015, D.Y. attended school in the district for an

additional thirty and one-half school days during the 2014-15 school year and

ten school days during the 2015-16 school year. Based on the foregoing, Marano

calculated the total tuition reimbursement owed for D.Y. to be $2,520.23. 2

Marano also certified the annual cost of W.Y.'s tuition at Bergen Tech was

$8,568 for the 2014-15 school year, during which W.Y. was enrolled for thirty-

three days between May 4, 2015 and the last day of school. Therefore, she

2

In arriving at this calculation, Marano divided the annual tuition rate for each

year of attendance by 180, producing a daily tuition rate of $60.24 for the 2014 -

15 school year and $68.28 for the 2015-16 school year. Marano then multiplied

the daily rate by the number of days D.Y. attended school during that school

year, finding the total cost of D.Y.'s tuition to be $1,837.46 for the thirty and

one-half days D.Y. attended school during the 2014-15 school year and $682.78

for the ten days D.Y. attended school during 2015-16.

A-4020-21

6

calculated the total tuition reimbursement owed for W.Y. for that school year to

be $1,570.80.3

Marano and Susino further certified the North Arlington school district

paid Bergen Tech the following amounts for W.Y.'s tuition in subsequent years:

$8,730 for the full 2015-16 school year; $8,910 for the full 2016-17 school year;

and $9,126 for the full 2017-18 school year. Therefore, Marano calculated the

total tuition reimbursement owed for W.Y. to be $28,336.80.

Based on these calculations, Marano determined Y.Y. owed the North

Arlington school district $30,857.03. However, the Board granted a two-day

credit for D.Y.'s attendance during the 2015-16 school year, reducing the amount

of tuition owed by $68.28 per day for a total tuition reimbursement in the amount

of $30,720.36.

Having reviewed the record, the Commissioner's calculation of the

amount of tuition reimbursement due from Y.Y. comported with N.J.A.C.

6A:22-6.2(a) and the decision is amply supported by the evidence. Additionally,

on this record, it is clear the Commissioner did not assess tuition for D.Y. for

the period between September 22 and November 2, 2015, clarifying that issue

3

In arriving at this calculation, Marano divided the annual tuition rate by 180,

producing a daily tuition rate of approximately $47.60, which she multiplied by

the number of days W.Y. was enrolled at Bergen Tech that year.

A-4020-21

7

consistent with our remand instructions. Thus, we are satisfied the

Commissioner did not act arbitrarily, capriciously, or unreasonably i n

calculating the amount of tuition owed by Y.Y. to the Board.

Affirmed.

A-4020-21

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