                                NOT FOR PUBLICATION WITHOUT THE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


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                                         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
                                         10
      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
                                       14
