North Kingstown School Department v. Chariho Regional School District

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

COMMISSIONER OF EDUCATION

DECISION AND ORDER

Held: North Kingstown School Department’s petition for an order to withhold state education aid from Chariho Regional School District, which had refused to pay tuition with respect to two students who, despite residing in Chariho, chose to attend a career preparation program in North Kingstown, was granted by the Commissioner, who denied Chariho’s motion for the recusal of the RIDE Hearing Officer assigned to the case as no showing had been made that the Hearing Officer’s involvement in unrelated actions involving Chariho represented either a violation of the separation of functions doctrine or a risk of actual bias or prejudgment.

January 10, 2019

Petitioner, the North Kingstown School Department (the “NKSD”), requested that the Commissioner enter an order withholding some thirty-three thousand dollars ($33,000) of state education aid from Respondent, Chariho Regional School District (“Chariho”), and paying the sum to the NKSD due to Chariho’s refusal to pay tuition allegedly owed with respect to the attendance of two students who, while residing within Chariho, attended a career preparation program offered by the NKSD during the 2017-18 school year.

Thus, this is yet another chapter in what the Commissioner recently characterized as “a long saga involving Chariho’s willful refusal” to comply with what the Commissioner, the Council on Elementary and Secondary Education (the “Council”), and the Superior Court have all held was “clear and unambiguous language” in the Regulations Governing Career and Technical Education in Rhode Island (the “C&T Regs.”) providing that students have the right “to attend the career preparation program of their choice, regardless of their residence, and even if the school district where they reside offers a similar program.” See the Commissioner’s December 19, 2018 Supplemental Decision in Student H. Doe v. Chariho, RIDE No. 016-16 and Narragansett School System v. Chariho, RIDE No. 18-070 (the “Consolidated Cases”) at 2.^[1]

I. JURISDICTION AND BURDEN OF PROOF

The Commissioner has jurisdiction to hear the matter, and the NKSD has standing, under, inter alia, RIGL §§ 16-45-10 and 16-5-30. Section 16-45-10 provides that:

[i]f a sending school district fails to pay the requisite tuition to a school district hosting a vocational school, the commissioner of education may, based upon an affidavit filed by the host community, deduct the requisite sums from the state aid of the sending district and pay these sums over to the host district. The sending district may request a hearing if the debt is disputed, but the deductions and payments shall continue to be made during the pendency of the hearing and any appeal.

Id. And § 16-5-30 provides in pertinent part that:

[t]he commissioner of elementary and secondary education may . . . for nonpayment of tuition owed by one community to another . . . order the general treasurer to withhold the payment of any portion of the public money that has been or may be apportioned to the city or town . . . If the violation is for nonpayment of tuition and it has been determined by the commissioner that the tuition is owed, then the commissioner shall, subject to the debtor community's right to appeal to the superior court, order the general treasurer to deduct the amount owed from the debtor community's school aid and to pay the community which is owed the tuition.

Id. (emphasis added).^[2] In addition, the Commissioner is required by statute: “to interpret school law,” RIGL §16-1-5(10) and 16-60-6(9)(viii); to “require the observance” and “enforce the provisions of all laws relating to elementary and secondary education,” RIGL §§ 16-1-5(9) and 16-60-6(9)(vii); and to hear and decide “any matter of dispute . . .arising under any law relating to schools or education” as well as appeals from school committees. RIGL §§ 16-39-1 and 16-39-2.

As to the burden of proof, the Commissioner’s November 14, 2018 First Amended Order to Show Cause in the above action (the “Show Cause Order”) affording Chariho the opportunity to show cause why an order should not enter requesting that the General Treasurer withhold some $33,000 in state education aid did not alter the general rule concerning the burden of proof, which provides that it remains with the Petitioner seeking to alter the status quo.^[3] Thus, the burden remains with the NKSD.

II. FACTS AND PROCEDURAL HISTORY

An evidentiary hearing was conducted before the undersigned Hearing Officer on December 19, 2018, pursuant to the Show Cause Order. Counsel for both parties were present, as was Chariho’s Superintendent (the “Superintendent”).^[4] As was evident from the arguments and testimony at the hearing, the following facts, which were recited in the Show Cause Order, are not in dispute:

1. In June of 2017, after having successfully completed the academic year at Chariho Regional High School, Students H.S. and A.G. (“H.S” and “A.G.” and collectively, the “Chariho Students”) and their parents (the “Parents”) – who all resided in Chariho – requested that the Superintendent grant their separate requests to attend the North Kingstown High School Career and Technical Education Finance Academy (the “NK CTE”) during the 2017-2018 school year.

2. The Superintendent denied the requests, arguing that he was not required to permit them to enroll in the NK CTE, and that Chariho was not required to reimburse the NKSD for their attendance, since: (a) Chariho operated a “substantially similar” career preparation program to that offered by the NK CTE; and (b) the Chariho Students were both resident within the Chariho district boundary, and thus under RIGL § 16-64-1 (see supra at note 2), were required to attend school in Chariho.

3. On July 13, 2017, H.S.’s Parents wrote the Commissioner to appeal the Superintendent’s decision, and either the Superintendent or the Parents requested that the Chariho School Committee (the “School Committee”) review the decision.

4. On July 17, 2017, the Commissioner sent the Superintendent a letter reiterating – as he had on at least five prior occasions – that denying a request to attend an out-of-district career preparation program was, in most cases, a violation of the C&T Regs. See supra at 1 and note 1.^[5] The Commissioner also advised the Superintendent that failure to take immediate corrective action and rescind the denial could result in the Department of Elementary and Secondary Education (“RIDE’) taking further action with respect to Chariho’s state and/or federal funding.

5. On July 25, 2017, the School Committee affirmed the Superintendent’s decision to deny H.S.’s request.

6. On July 26, 2017, the Commissioner followed-up on his previous letter of July 17, 2017, and reiterated that unless Chariho provided proof of its compliance with the terms set forth in the Commissioner’s letter of July 17, he would issue an order to withhold state aid from Chariho in the amount of H.S.’s tuition at North Kingstown so as to allow H.S. to attend the NK CTE.

7. The Superintendent failed and refused to comply with the corrective actions called for by the Commissioner.

8. The NKSD permitted both H.S. and A.G. to enroll and attend the NK CTE during the 2017-18 school year, and they did attend, as reflected in documentation provided by the NKSD. Exhibits A and B to the Order to Show Cause contain documents evidencing the attendance of the Chariho Students at the NK CTE as well as the tuition bill that was sent to Chariho totaling some $33,000.

9. On June 22, 2018, Chariho’s Assistant Superintendent signed a Memorandum of Agreement (the “June 22, 2018 MOA”) with respect to the distribution of categorical funding reflecting a $16,500 reduction in aid to Chariho, representing the tuition that was owed the NKSD as a result of H.S.’s attendance in the NK CTE, and the amount was awarded to the NKSD as payment for the tuition incurred by H.S. during the 2017-18 school year.^[6]

10. In July of 2018, Chariho filed suit against both the Council and the Commissioner and filed a Complaint for Mandamus in the Superior Court for Providence County (the “Superior Court Action” and the “Superior Court Complaint,” respectively), see Chariho Regional School District v. Kenneth Wagner, et al., C.A. No. PC 2018-4682, and sought to compel the Commissioner to transmit the “record on appeal” to the Council.

11. Yet, there was no record to transmit as there had been no request for a hearing without which there could be no appeal.^[7] Although in the past it had been RIDE’s practice in such cases to follow the procedure recited in RIGL § 16-5-30 (quoted supra at 3) and order the General Treasurer to actually make the deduction in state aid, it is evident from RIGL § 16-45-10 (quoted supra at 3), that the Commissioner had every right to unilaterally deduct the $16,500 from Chariho – with or without a memorandum of agreement – subject to Chariho’s right to a hearing and appeal.

12. In any event, after it was served with the Superior Court Complaint, the Commissioner voluntarily provided Chariho with greater due process than was mandated by statute, and with NKSD’s agreement and cooperation, returned the $16,500 in state education aid that had been withdrawn from Chariho and informed Chariho that the Commissioner would hear its objections.

13. Chariho nonetheless refused to withdraw the Superior Court Complaint, and so the Commissioner and the Council promptly moved to dismiss, and the motion was granted, and the Complaint dismissed, on November 7, 2018. And Chariho has not appealed this dismissal.

14. As noted, the Order to Show Cause was entered on November 14, 2018 and Chariho was afforded the opportunity to show cause why an order should not enter requesting that the General Treasurer withhold some $33,000 in state education aid and provide said amount to the NKSD.

III. POSITIONS OF THE PARTIES

1. The NKSD

As to the relevant facts, the NKSD relied upon the record, and specifically, the documentary evidence that was entered into evidence concerning the attendance of both H.S. and A.G. at the NK CTE during the 2017-18 school year, as well as the tuition bills that were sent to Chariho. See Exhibits A and B to the Order to Show Cause (Hearing Officer Exhibit 1).

As to the law, the NKSD took the position that the reasons that the Chariho Students may have had for wanting to attend the NK CTE were irrelevant as they had the legal right to attend the career preparation program of their choice. See Tr. at 12.

2. Chariho

First, as it had argued in support of an unsuccessful recusal motions twice before in a similar case – see the December 19, 2018 Supplemental Decision at 8-12 and the September 19, 2018 Decision in the Consolidated Actions at 7, 10-12 – Chariho once again argued that since the Hearing Officer represented RIDE in two unrelated matters involving Chariho, hearing the case would result in a violation of the “separation of functions doctrine,” which precludes a state agency like RIDE from combining prosecutorial and adjudicative functions. See Tr. at 4-6. In addition, Chariho claimed that the fact that the RIDE Hearing Officer had heard the Consolidated Cases, meant that he had “pre-decided” this case. See Tr. at 7.

Second, on the merits, Chariho, while perhaps heightening its rhetoric,^[8] yet again simply repeated the same legal arguments that had been expressly rejected by the Commissioner and the Council on several occasions, as well as by the Superior Court, see supra at 1 and note 1, and argued that:

(a) the reason the Chariho Students wanted to enroll in the NKSD CTE was related to sports, rather than academics, citing, as the only evidence in support of this conclusion, a newspaper article recounting that at least one of the Chariho Students played on the NKSD volleyball team. See Respondent’s Ex. 1; and

(b) RIGL § 16-64-1 mandates that the Chariho Students can only legally attend career preparation programs in the district in which they reside, which, as noted, was Chariho. See Tr. at 13-14.

IV. DECISION

1. Recusal

As noted, this is the third time Chariho has argued for recusal of the undersigned Hearing Officer, although the goal posts have steadily moved. Initially, Chariho made no mention of the Hearing Officer’s role in its Superior Court Action, then that became the grounds for recusal. See December 19 Decision in the Consolidated Actions at 10. And now that the Superior Court Action has been dismissed, Chariho argues that the Hearing Officer’s involvement in two other matters – (a) DCYF v. R.I. Nurse’s Institute Middle College Charter High School and Pawtucket School Department, RIDE No. 18-087 A; and (b) Chariho v. RIDE – mandate recusal under the separation of functions doctrine, which in certain circumstances precludes an agency from combining prosecutorial and adjudicative functions.

However, RIDE was not and is not performing the role of prosecutor in either of the cited actions. Far from it. The first action, i.e., DCYF v. R.I. Nurse’s Institute, supra, is a dispute before the undersigned Hearing Officer involving responsibility for the education of a foster child and does not concern the issues germane to the above action. Moreover, Chariho’s counsel recently advised that “the parties have reached an agreement in principle to resolve this matter.”

And in the second matter, the Hearing Officer is representing RIDE before a separate RIDE Hearing Officer in a long-inactive matter involving Chariho’s request that RIDE include the administrative costs associated with the operation of its clinical day school for children with serious mental health problems when calculating the “extraordinary costs” used to determine Chariho’s eligibility to share in the High Cost Special Education Categorical Fund created pursuant to RIGL § 16-7.2-6(a).

As was noted in both the Commissioner’s September 19, 2018 Decision and the December 19, 2018 Supplemental Decision in the Consolidated Cases, the United States and Rhode Island Supreme Courts have made clear that “‘in order to challenge an administrative process successfully on the grounds of a combination of incompatible functions, a respondent must show that the procedures ‘pose such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” See December 19, 2018 Supplemental Decision at 11, citing La Petite Auberge v. R.I. Comm'n for Human Rights, 419 A.2d 274, 284 (R.I. 1980), quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975).

Yet here, Chariho has once again completely failed to make any such showing, notwithstanding its curious argument that the Hearing Officer’s application of the C&T Regs. as interpreted by the Commissioner, the Council and the Superior Court, is somehow disqualifying.^[9]

2. The Merits

Even less time need be spent addressing Chariho’s arguments on the merits since, as noted, they are part of a “long saga involving Chariho’s willful refusal” to comply with the clear interpretation of Section 5.1 of the C&T Regs. made by the Commissioner on no less than five separate occasions, and affirmed by the Council as well as by the Superior Court. See supra at 1, note 1 and note 5. Significantly, in East Providence School Dept. v. Rhode Island Board of Educ., supra note 1, Judge Rodgers of the Superior Court – while affirming Board of Education and RIDE decisions requiring that East Providence reimburse certain parents for the cost of their child’s attendance at an out-of-district career preparation program – cited § 5.1 of the C&T Regs. and noted that, as here, none of the three express conditions in the section limiting a student’s right to attend the approved, career preparation program of his or her choice was applicable. See id. at *2, n.2.

Thus, the notion: (a) that a student’s particular reason for desiring to attend an out-of-district career technical program is relevant to his or her right to attend such a program; or (b) that students can only attend career preparation programs in the school district in which they reside under RIGL § 16-64-1 – or can only attend out-of-district programs that are not offered in their school district of residence – has been flatly rejected by the Commissioner, the Council and the Superior Court. And although repeatedly ignored by Chariho, it is beyond dispute that this interpretation of the C&T Regs. by the Commissioner pursuant to his express statutory duties^[10] has the “force and effect of law.” See Lerner v. Gill, 463 A.2d 1352, 1358 (R.I. 1983), citing Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977) and Great American Nursing Centers, Inc. v. Norberg, 567 A.2d 354, 356-57 (R.I. 1989).^[11]

V. ORDER

For all of the above reasons:

1. The NKSD’s petition requesting an order to withhold state education aid from Chariho in an amount representing the total tuition payments due and owing it is hereby granted; and

2. An order pursuant to RIGL §§ 16-45-10 and 16-5-30 requesting that the General Treasurer withhold thirty-three thousand dollars and no cents ($33,000) from the state education aid owed to Chariho, and to then remit said amount to the NKSD, shall be executed forthwith.

Footnotes

[1] See also: (1) Providence School Dept. v. Rhode Island Board of Educ., 2018 WL 1895725 (K. Rodgers, J.) (April 13, 2018) at *2 -*3 and n.2 (citing § 5.1 of the C&T Regs, while holding that school department was required to pay tuition to the out-of-district provider of career preparation programs); (2) the Commissioner’s September 19, 2018 Decision in the Consolidated Cases at 8-10,12-19 (finding that Chariho’s arguments in defense of its failure to pay tuition were not “substantially justified”); (3) Student H. Doe v. Chariho, RIDE No. 016-16 (June 1, 2016) at 13 (“students' right of access to the career preparation program ‘of their choice’ is to be limited ‘only’ by three expressly enumerated conditions”), aff’d by the Council on October 11, 2016, Superior Court appeal pending at Chariho Regional School District v. Student H. Doe, C.A. No. PC-2016-5171; (4) Student H. Doe v. Chariho, RIDE No. 016-16 (June 1, 2016) at 11 (“parties agree that the relevant language in C&T Regs. is ‘clear and unambiguous’”); and (5) Metropolitan Regional Career and Technical Center v. Chariho, RIDE No. 010-16 (April 12, 2016) at 4 (§ 5.1 of the C&T Regs. provides “the only limitations on a student's choice of a RIDE-approved career preparation program”), aff’d by the Council on March 28, 2017, Superior Court appeal pending at Chariho Regional School District v. Metropolitan Regional Career and Technical Center, C.A. No. PC-2017-1866.

[2] By contrast, RIGL § 16-64-6 provides that: [w]hen a school district or a state agency charged with educating children denies that it is responsible for educating a child on the grounds that the child is not a resident of the school district or that the child is not the educational responsibility of the state agency, the dispute shall, on the motion of any party to the dispute, be resolved by the commissioner of elementary and secondary education or the commissioner's designee who shall hold a hearing and determine the issue. Id.

[3] See, e.g., Student P. Doe v. North Smithfield School Committee, RIDE No. 0027-11 (December 23, 2011) at 3 (Petitioner has burden of proof in typical residency case).

[4] Hereinafter, “Tr.” will refer to the transcript of the December 19 hearing.

[5] Section 5.1 of the C&T Regs. provides that: [a]ll students shall have the right to request, from their resident LEA, access to a RIDE-approved career preparation program of their choice. This right of access shall be limited only by the following three conditions: 1. Availability of enrollment seats: In the event that a student requests access to a RIDE-approved career preparation program that is fully enrolled, the resident LEA shall make every effort to identify and enroll the student in another RIDE-approved preparation program of the student's choice. 2. Geographic location: Students are guaranteed access to RIDE-approved career preparation programs. Students requesting access to RIDE-approved career preparation programs outside their established school transportation region may enroll in such programs, but the resident LEA shall not be responsible for the costs of the transportation. Students enrolled in career preparation programs between March 1, 2009 and September 1, 2012 shall maintain the transportation rights set forth under the 1991 Regulations of the Rhode Island Board of Regents Governing Career and Technical Education for the duration of their continuous enrollment in the career preparation program. 3. Fair, equitable, and reasonable admission standards: LEAs operating RIDE-approved career preparation programs are authorized to set reasonable, fair, equitable, and program-appropriate admission standards in accordance with section 5.3 of these regulations. Id. (emphasis added).

[6] It appears that the documentation with respect to the tuition owed as to A.G. was not sent or never reached RIDE, and thus the amount of his tuition was not included in the June 22, 2018 MOA.

[7] RIGL § 16-5-30 (quoted supra at 3) makes clear that appeals from the Commissioner’s orders concerning overdue tuition payments are made to Superior Court, not the Council.

[8] Chairo’s counsel argued in front of his client that the Commissioner “forgets that we are a government of laws and not a government of men . . . . makes up the rules as he goes along . . . and through a series of fiats, issued opinions inconsistent with the drafting of the [C&T Regs.] to allow students, or at least career and tech students, to attend schools on the basis of school choice,” see Tr. at 14, and has thereby “wreaked havoc on the system of career and technical education that was established by the General Assembly.” See id. at 15.

[9] Indeed, if Chariho’s approach to recusal were to be adopted, RIDE would be forced to hire outside counsel to hear matters involving it since all three Hearing Officers employed by RIDE are actively involved in at least one matter where the regional school district is a party.

[10] As noted, the Commissioner is required by statute “to interpret school law,” RIGL §16-1-5(10) and 16-60-6(9)(viii), to “require the observance” and “enforce the provisions of all laws relating to elementary and secondary education,” RIGL §§ 16-1-5(9) and 16-60-6(9)(vii), and to hear and decide “any matter of dispute . . .arising under any law relating to schools or education” as well as appeals from school committees. RIGL §§ 16-39-1 and 16-39-2.

[11] And it should be noted that although the Commissioner recently held that he lacks the legal authority to award attorneys’ fees to a school district under the state’s Equal Access to Justice Act, see the Commissioner’s December 19, 2018 Supplemental Decision in the Consolidated Actions at 13-17, that constraint would not apply to the Superior Court.

ANTHONY F. COTTONE, ESQ.,

as Hearing Officer for the Commissioner

KEN WAGNER, Ph.D.,

Commissioner

Dated: January 10, 2019