Frequently Asked Questions: Controversies and Disputes
What is the Bureau of Controversies and Disputes?
This office assists the Commissioner in using the process established by the Administrative Procedure Act to hear and decide disputes under the State school laws. The office receives, dockets and reviews petitions filed by parties seeking rulings from the Commissioner. It arranges for hearings at the Office of Administrative Law (OAL), where parties present argument and evidence, and works with the Commissioner in subsequent review of case files and OAL recommendations. It assists the Commissioner in preparation of final written decisions and maintains records of decisions issued. It also provides, upon inquiry, general information about State school law and procedures for appeal to the Commissioner. As of July 7, 2008, it also hears appeals of State Board of Examiner and School Ethics Commission decisions which were previously appealable to the State Board of Education; these types of appeals do not proceed as described below and are governed by special rules and procedures as set forth at N.J.A.C. 6A:4, Appeals.
What is a controversy or dispute under the State school laws?
A controversy or dispute under the State school laws arises when one party alleges that another has violated State statutes governing education (Title 18A) or rules of the State Board of Education, generally as a result of divergent views of the meaning and application of the law, and seeks a legal ruling from the Commissioner resolving the dispute. Typical parties in school law disputes are parents, who may file on their own behalf and/or on behalf of their minor children; adult students; school officials and employees; boards of education and board members; charter schools; private schools for the handicapped; and, in cases where decisions of Department officials are appealed to the Commissioner, the State Department of Education. Common types of cases include disputes about student discipline, student residency/domicile status, tenure/seniority claims, tenure charges, actions of local boards of education, certain decisions of the New Jersey State Interscholastic Athletic Association (NJSIAA), and final decisions on penalties recommended by the School Ethics Commission upon finding that school officials have violated the School Ethics Act. Other significant types of cases include severance of sending-receiving relationships, transportation disputes, audit appeals, and disputes regarding payment of tuition or State funding. Hearings on appeal to the Commissioner for issuance of bonds (N.J.A.C. 6A:26-3.7(i)) following defeat of referenda under the Educational Facilities Construction and Financing Act (EFCFA) are also arranged through Controversies and Disputes.
What types of matters are not handled through Controversies and Disputes?
- Disputes arising under the laws governing special education are pursued through the Department's Office of Special Education.
- Complaints against school officials under the School Ethics Act are pursued through the School Ethics Commission.
- Complaints under the federal No Child Left Behind (NCLB) act are handled in accordance with the Department's NCLB complaint policy.
- Matters appropriate for Department of Education investigation or audit, such as overspent budgets, financial malfeasance, and compliance with criminal history record check laws, are best directed to the Department's Office of Compliance Investigation.
- Call the Office of Grants Management at (609) 633-6974 for information on the appeal process for grant decisions.
- Certain types of school-related disputes do not arise under State education law, and resolution of them must be pursued through other State agencies or the courts, or at the federal level. For example, generally speaking: Claims of employment discrimination are heard by the Division on Civil Rights even though an alleged violation has occurred in a school setting. Challenges to the facial validity of a Statute or rule, even though a school law, are taken to State courts or federal courts. Matters involving negotiated agreements or the collective bargaining process fall under the Public Employment Relations Commission, and matters involving school employee pensions under the Division of Pensions in the Department of Treasury. Issues arising under the Open Public Records Act are decided by the courts or through the Government Records Council and alleged "Sunshine Law" (Open Public Meetings Act) violations are heard in Superior Court.
- Many day-to-day issues commonly concerning parents, students and the public are not appropriate for judicial-type hearings and legal rulings at the State level and are best pursued through the local school district administration and board of education. Where problems or questions persist, assistance with resolution may be available through the office of the County Superintendent of Schools.
- Complaints about school personnel are not generally heard as disputes before the Commissioner of Education. In New Jersey, hiring, evaluating, disciplining, and deciding whether to retain the services of teaching staff members rests with the local school district administration and board of education rather than the State. Effective August 6, 2012, pursuant to P.L. 2102, C.26, tenure charges are heard and decided by arbitrators, not the Commissioner of Education. The Commissioner's role is limited to determining whether the charges are sufficient, if true, to warrant removal or reduction in salary of the teaching staff member. The Commissioner then assigns the case to an arbitrator for adjudication. Similarly, any action against a teaching staff member's license, other than suspension for resignation on insufficient notice, must be requested through the State Board of Examiners, not the Commissioner.
- Persons challenging the nonrenewal of their employment may not appeal to the Commissioner unless they allege the reasons for such renewal were statutorily or constitutionally proscribed and set forth a factual basis for such allegation(s), although they may under some circumstances seek a hearing for "name-clearing" purposes.
- Disagreement with a local board of education, in the absence of allegations that the law is being violated, does not create a viable dispute before the Commissioner. When a board exercises its discretion and takes action within the scope of authority granted it by statute or rule, unless a petitioner can demonstrate on appeal that the board's action was taken without rational basis or in bad faith, or was contrary to law, the Commissioner may not substitute his judgment for that of the board and must uphold the board's action.
How do I initiate an appeal to the Commissioner?
Before initiating an appeal to the Commissioner, a petitioner must generally have pursued available rights of appeal at lower levels, including the local board of education. If still aggrieved, a party may appeal to the Commissioner within 90 days (less where a specific law so requires) of receipt of notice of final action, by filing a Petition of Appeal with the Bureau of Controversies and Disputes according to the procedures detailed in N.J.A.C. 6A:3-1.1. et seq.
These rules require, in the form of a petition as described at N.J.A.C. 6A:3-1.4:
- Name, address, telephone number and, if available, fax number of petitioner and respondent (generally, the board of education);
- The specific allegation(s), and the facts supporting them, which constitute the basis of the controversy;
- A statement of the relief which petitioner is seeking; and
- Signature of petitioner, or his/her attorney, if applicable.
Additionally, the petitioner must write or type the statement contained in N.J.A.C. 6A:3-1.4 attesting to the truthfulness of the allegations set forth in the Petition of Appeal; the statement must be signed by petitioner and notarized. Finally, the petitioner must serve a copy of the petition on each respondent and must submit to the Bureau of Controversies and Disputes, with the Petition of Appeal, proof that each respondent was served. Such proof may be in any one of the following forms:
- An acknowledgment of service signed by the attorney for respondent, or signed and acknowledged by the board or its agent;
- A sworn affidavit of the person making service (mailing or delivering the petition);
- A certificate of service signed by the attorney making service; or
- A receipt (or copy) of certified mailing to the board secretary or the board's attorney.
If relief is sought on an emergency basis, the petitioner must additionally file a motion accompanied by a memorandum addressing the standard for granting such relief pursuant to Crowe v. DeGioia, 90 N.J. 126 (1982); see N.J.A.C. 6A:3-1.6. This means the petitioner must demonstrate that:
- The petitioner will suffer irreparable harm if the requested relief is not granted;
- The legal right underlying petitioner's claim is settled;
- The petitioner has a likelihood of prevailing on the merits of the underlying claim; and
- When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted.
Please note that – unless other applicable law provides a shorter time frame – there is a 90-day filing deadline for petitions of appeal, pursuant to N.J.A.C. 6A:3-1.3(i), and that efforts to resolve a matter informally do not generally absolve petitioners from compliance with this deadline, and failure to observe it may result in dismissal of a petition. Also note that submissions received after the close of Department business at 4:15 pm will be deemed filed the next business day.
Papers are to be submitted to the following address: Commissioner of Education, c/o Director of Bureau of Controversies and Disputes, New Jersey State Department of Education, P.O. Box 500, Trenton, NJ 08625. With the prior permission of the Bureau of Controversies and Disputes and up to a limit of 10 pages, a petition may also be faxed to (609) 292-4333, with the hard copy to follow by mail.
Do different types of appeals have different filing requirements?
Special regulatory requirements pertain to declaratory rulings, tenure charges, uncontested applications for severance of sending-receiving relationships, appeals from decisions of the NJSIAA, "Abbott" appeals, and appeals from district determinations of ineligibility to attend school based on residency/domicile. These are set forth in the pertinent sections of N.J.A.C. 6A:3-1.1. et seq. A package of informational materials and sample forms for residency/domicile issues/appeals is also available.
What happens after an appeal is filed?
Filing a Petition of Appeal initiates a "contested case proceeding" where the petitioner will bear the burden of proving the allegations made in the petition through presentation of evidence and argument. In most cases, the alleged violator ("respondent") will be required to answer the petitioner's allegations within 20 days, and the matter will be sent to the Office of Administrative Law (OAL) for hearing of testimony and argument and consideration of evidence by an Administrative Law Judge (ALJ) in accordance with the Administrative Procedure Act (52:14B-1). At the conclusion of OAL proceedings, the ALJ issues an initial decision recommending findings of fact and conclusions of law to the Commissioner. The initial decision and entire case record are then sent to the Commissioner, who has 45 days from the filing of the initial decision to review the matter, receive exceptions from the parties, and issue a final decision adopting, rejecting or modifying the initial decision of the ALJ. The ALJ's decision is, in itself, of no force and effect, but final Commissioner decisions have the force of law unless stayed or reversed on appeal.
If a party is dissatisfied with the Commissioner's decision, can it be appealed?
Yes. Prior to enactment of P.L. 2008, c. 36 on July 7, 2008, Commissioner decisions – other than appeals from New Jersey Interscholastic Athletic Association (NJSIAA) decisions and Department of Education determinations in certain matters involving "Abbott" districts, which were, by law, appealable directly to the Appellate Division of the Superior Court – could be appealed to the State Board of Education and thereafter to the courts. As of July 7, 2008, all Commissioner decisions are final agency decisions appealable to the Appellate Division of the Superior Court.
How many cases are filed each year? Where can I find past Commissioner decisions?
Between 500 and 600 Petitions of Appeal are filed most years. Many of these are withdrawn or resolved by settlement, but many others result in substantive decisions of the Commissioner. Substantive Commissioner decisions issued since mid-1997 are available on the Department's website at New Jersey School Law, as is information about where to find earlier decisions.