NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2195-21
IN THE MATTER OF THE CHARTER AMENDMENT REQUEST OF COLLEGE ACHIEVE GREATER ASBURY PARK CHARTER SCHOOL. _________________________
Argued September 20, 2023 – Decided March 11, 2024
Before Judges Vernoia and Gummer.
On appeal from the New Jersey Department of Education.
Stephen J. Edelstein argued the cause for appellant Neptune Township Board of Education (Weiner Law Group, LLP, attorneys; Mark A. Tabakin, of counsel and on the briefs; Dustin F. Glass, on the briefs).
Thomas Owen Johnston argued the cause for respondent College Achieve Greater Asbury Park Charter School (Johnston Law Firm, LLC, attorneys; Thomas Owen Johnston, of counsel and on the brief; Barbara Jean Bohi, on the brief).
Carolyn G. Labin, Deputy Attorney General, argued the cause for respondent Commissioner of Education (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Carolyn G. Labin, on the brief).
Methfessel & Werbel, attorneys for respondent Asbury Park Board of Education, join in the brief of appellant Neptune Township Board of Education.
PER CURIAM
The Neptune Board of Education (Neptune BOE) appeals from a March
3, 2022 Commissioner of Education (Commissioner) final agency decision 1
approving College Achieve Greater Asbury Park Charter School's (College
Achieve) request for an amendment to its charter permitting College Achieve to
expand a school it operates to include grades ten through twelve and reduce the
school's maximum enrollment from 961 to 858 students.2 Neptune BOE argues
the Commissioner's decision is arbitrary, capricious, and unreasonable bec ause
it is based on findings that are not supported by evidence in the record and the
1 Neptune BOE also appeals from a February 8, 2022 decision which, as we explain, is not the final agency decision and is identical to the March 3, 2022 decision in all matters relevant to the issues on appeal. 2 While this matter was pending before the New Jersey Department of Education (the Department), the Department was headed at different times by Acting Commissioners of Education Angelica Allen-McMillan and Kevin Dehmer. Although during the times pertinent to this appeal they served as Acting Commissioners, for purposes of clarity and simplicity, we refer to them respectively as Commissioner Allen-McMillan and Commissioner Dehmer. A-2195-21 2 Commissioner otherwise ignored Neptune BOE's public comments opposing the
amendment. We affirm.
I.
College Achieve has operated a public charter school in Asbury Park since
2017. In a February 1, 2021 letter, Commissioner Allen-McMillan granted
College Achieve a renewal of its charter through June 30, 2026, for grade levels
kindergarten through grade nine with a maximum enrollment of 961 students.
The Commissioner denied College Achieve's request to expand to include grades
ten through twelve.
In rendering her decision, the Commissioner explained she had utilized
the Department's required Performance Framework "to evaluate the relative
success of the elementary, middle, and high school programs offered by charter
schools." See N.J.A.C. 6A:11-1.2; N.J.A.C. 6A:11-1.2; see also Off. of Charter
& Renaissance Schs., N.J. Dep't of Educ., Performance Framework (rev. July
2017) [hereinafter Performance Framework],
https://www.nj.gov/education/chartsch/accountability/docs/PerformanceFrame
work.pdf. The Performance Framework is "the accountability system that shall
be used by the Department to evaluate the academic, financial, and
organizational performance of each charter school." N.J.A.C. 6A:11-1.2.
A-2195-21 3 The February 18, 2021 Charter Amendment Request
In a February 18, 2021 letter to Commissioner Allen-McMillan, College
Achieve sought a charter amendment permitting one of two options. College
Achieve requested an amendment expanding the grade configuration for its
school to kindergarten through grade ten with a decrease in maximum
enrollment from 961 to 930 students or, in the alternative, expansion of the grade
levels through grade twelve by June 2024 with a decrease in maximum
enrollment to 858 students by the end of the charter term in 2026. Before a
response to the request was provided, Commissioner Dehmer replaced
Commissioner Allen-McMillan.
In an August 13, 2021 letter, Commissioner Dehmer denied the request
after reviewing College Achieve's "academic, operational, and fiscal standing
based on the criteria outlined in the . . . [Performance Framework]." The
Commissioner explained the Performance Framework required measurement of
the school's academic performance based on the "relative success of the
elementary, middle[,] and high school programs offered" by the school. The
Commissioner further noted the February 1, 2021 letter granting College
Achieve's charter renewal had explained that a statewide assessment for the
2017-2018 school year resulted in a Tier 3—"low performing"—rank for the
A-2195-21 4 school and a Tier 2—"middle performing"—rank for 2018-2019.3 The
Commissioner determined that "[a]bsent the results of statewide assessments for
the 2019-2020 school year," the request for the charter amendment "fails to
articulate local assessment data that would bolster the Department's confidence
that College Achieve . . . continues to make academic gains."
Commissioner Dehmer also denied the requested charter amendment
based on concerns about College Achieve's financial performance, as assessed
under the Performance Framework. The Commissioner explained that a review
of College Achieve's fiscal year 2020 had "indicate[d] that the school met few
standard rated measures in the Fiscal Performance Framework." More
particularly, the Commissioner determined "[t]he current ratio and unrestricted
days cash variance" had not met the "standard for the first two years of the
charter, while enrollment variance fell far below standards for all three years of
the charter," and "[a]ctual enrollment fell far below maximum enrollment and
was significantly below budgeted enrollment since inception."
3 Under the Performance Framework, academic performance is measured using a tier system, with Tier 1 indicating a "high performing" school, Tier 2 indicating a "middle performing" school, and Tier 3 indicating a "low performing school." Performance Framework, at 5-6. A-2195-21 5 The Commissioner further rejected the requested charter amendment
based on concerns about the school's organizational performance. The
Commissioner explained the organizational performance matrix of the
Performance Framework required consideration of whether College Achieve
had "demonstrated the organizational capacity to sustain the amendment
request." Commissioner Dehmer noted "[t]he ability to serve grades not
approved within the current charter is not [guaranteed]," the school "has an
obligation to ensure that systems are in place for the seamless transition of
students post the grade levels authorized to serve," and "the amendment request
failed to articulate the additional instructional staff required to provide robust
high school instruction and how College Achieve . . . would provide rich high
school programming for the additional grades."
The Commissioner further explained he had considered letters supporting
and opposing the requested charter amendment. As noted, Commissioner
Dehmer denied the requested amendment in the August 13, 2021 letter. At some
point following issuance of the August 13, 2021 denial, former Commissioner
Allen-McMillan replaced Commissioner Dehmer.
A-2195-21 6 The November 30, 2021 Charter Amendment Request
Three and a half months after the August 13, 2021 letter rejecting its
charter amendment application, College Achieve submitted a November 30,
2021 letter to Commissioner Allen-McMillan again seeking a charter
amendment to add grades ten through twelve and reduce maximum enrollment.
College Achieve acknowledged it had made an identical request in February
2021, that had been rejected in Commissioner Dehmer's August 13, 2021 letter.
College Achieve asserted it was entitled to the charter amendment because in its
view, it had addressed, or was addressing, the stated bases for the August 13,
2021 denial.
For example, College Achieve stated the Commissioner's August 13, 2021
letter had denied the charter amendment in part because the school had received
a Tier 3—"low performing"—rating. College Achieve disputed the purported
finding, asserting the school had "recently been designated as being advanced
to Tier 2."
College Achieve's assertion misstated the Commissioner's August 13,
2021 rejection decision, which noted College Achieve had obtained a Tier 3
ranking for 2017-2018 but also recognized the school had obtained a Tier 2
ranking for 2018-2019. That is, contrary to College Achieve's claim, the
A-2195-21 7 improvement of its tier ranking was considered by Commissioner Dehmer in the
August 13, 2021 denial. In fact, Commissioner Dehmer had rejected the
amendment application despite the improvement in the tier ranking, noting the
school had a "low" Tier 2 ranking of only 38.3 points.4 Commissioner Dehmer
had also explained there had been no statewide assessments permitting a
revision of the tier ranking for the most recently completed 2019-2020 school
year and College Achieve had not provided "local assessment data" supporting
a determination that the school "continues to make academic gains."
Despite its misstatement about Commissioner Dehmer's purported failure
to consider the school's Tier 2 ranking, in its November 30, 2021 amendment
application, College Achieve acknowledged the August 13, 2021 denial was
based in part on the absence of local assessment data showing improved student
performance. Addressing the deficiency, College Achieve asserted: a New
Jersey Start Strong (Start Strong) assessment showed a "participation rate" of
approximately ninety percent and an increase—from the second to the twenty-
4 Under the Performance Framework, the range for a Tier 2 rating is between 35 and 64.9 percent of points possible based on the academic performance metric. Performance Framework, at 5-6. As noted by the Commissioner, College Achieve's Tier 2 ranking for the 2018-2019 school year was only 38.3 percent, just 3.3 percent above the minimum score for the ranking. See id. at 6.
A-2195-21 8 fifth percentile—in an "ESSA 5 summative ranking" from 2018-2019; the
school's chronic absenteeism rate had been reduced from 26.6 percent in 2018-
2019 to 2.6 percent in 2020-2021; and a "new assessment platform"—
Fastbridge—had established increased schoolwide averages for math and
English language skills in 2019-2020.
College Achieve also addressed the financial performance concerns
Commissioner Dehmer had noted in the August 13, 2021 denial. College
Achieve represented that its current working capital ratio satisfied the
Performance Framework standard for 2021, but acknowledged its unrestricted
days cash "does not meet the standard." Similarly, College Achieve addressed
the Performance Framework's requirement for "[l]onger term financial
sustainability," claiming it "now" met the "[d]efault" standard but also
acknowledging it did not meet the framework's "cash flow" standard. College
Achieve further asserted it had "now met" the financial audit and financial
management and compliance standards in the Performance Framework.6
5 "ESSA" is an acronym for the Every Student Succeeds Act, 20 U.S.C. §§ 6301 to 7941. 6 The various standards to which College Achieve referenced in its November 30, 2021 letter request for the charter amendment are defined in the Performance Framework. See Performance Framework, at 19-21 (defining "current [working
A-2195-21 9 College Achieve further addressed the issue of enrollment variance,
claiming its enrollment had grown to ninety percent of the planned enrollment
at the school and offering explanations—issues related to taking occupancy of a
new facility and student uncertainty attendant to not having a viable high school
program—as to why its enrollment was not higher. College Achieve
acknowledged enrollment variance is a metric under the Performance
Framework that requires ninety-five percent enrollment to satisfy the metric's
standard. See Performance Framework, at 20.
College Achieve's November 30, 2021 request for an amendment to its
charter also addressed Commissioner Dehmer's August 13, 2021 concerns
regarding organizational capacity. College Achieve explained it had "added key
staff including a high school principal, high school pathway guidance counselor,
additional social workers and a high school certified teaching staff." It further
represented it had established "a complete high school program aligned with [the
Department's] credit requirements for graduation including opportunities for
advanced placement and dual enrollment."
capital] ratio," "[u]nrestricted days cash," "[d]efault," "[f]inancial audit," "[f]inancial [m]anagement and [c]ompliance," "[c]ash flow," and other metrics used to assess the performance of charter schools). A-2195-21 10 Neptune BOE submitted a letter to Commissioner Allen-McMillan in
opposition to College Achieve's November 30, 2021 request for the charter
amendment. The letter noted the improvement in College Achieve's tier
ranking—from Tier 3 to Tier 2—but pointed out the improved ranking was based
on the 2018-2019 school year and College Achieve had not provided any ranking
for the two school years—2019-2020 and 2020-2021—prior to its November 30,
2021 charter amendment request.
Neptune BOE further alleged deficiencies in College Achieve's reliance
on the Start Strong data, explaining it did not measure educational progress but
served only "as a beginning point for districts to use for planning purposes."
Neptune BOE also asserted the Start Strong data on which College Achieve
relied was not supported by necessary details, such as the number and percentage
of students tested or the manner in which they were tested.
Neptune BOE further questioned College Achieve's reliance on ESSA
data and College Achieve's claim the school had moved in one year from the
second percentile to the twenty-fifth percentile in one measured standard.
Neptune BOE claimed the ESSA reports for 2017-2018 did not support College
Achieve's claim and questioned why that information, which had been available
prior to the August 13, 2021 rejection of the identical request for a charter
A-2195-21 11 amendment, now supported an application made two years after the school year
in which the purported improvement occurred.
Neptune BOE also challenged the validity of College Achieve's claim that
local assessment tools utilized during the 2019-2020 and 2020-2021 school
years showed increased rates of academic improvement. The Neptune BOE
asserted the local assessments were "diagnostic in nature" and the alleged gains
shown were the product of unreliable tests taken at home in June 2020, when
schools were closed and the students attended school virtually. Also, according
to Neptune BOE, the information provided by College Achieve did not include
the number of students tested, the test setting, or the information used as the
baseline for assessing progress.
Additionally, Neptune BOE noted that although College Achieve had
claimed its chronic absenteeism was reduced to 2.6 percent in 2020-2021, its
school performance reports did not include any information for 2019-2020 and
otherwise reflected no assessment of the factor for 2020-2021. Neptune BOE
also asserted that College Achieve had consistently over-estimated its
enrollment and thereby adversely affected Neptune BOE's budget planning.
In a January 14, 2022 letter, Neptune BOE's counsel submitted an
additional letter on the board's behalf opposing College Achieve's charter
A-2195-21 12 amendment request. In pertinent part, counsel noted the November 30, 2021
letter request was based solely on conclusory assertions of academic
improvements; did not include any "supportive documentation"—as required by
the Charter Amendment Guidelines (Guidelines) promulgated by the
Department7—supporting College Achieve's claims; included admissions
College Achieve did not satisfy Performance Framework standards for working
capital ratio and cash flow; and relied on College Achieve's belief it would
satisfy the standards in the future.
Counsel further averred College Achieve had inaccurately represented
that its three facilities could accommodate 961 students in grades kindergarten
through grade twelve because one of its facilities—located on West Banks
Avenue—is approved only for use for kindergarten through grade eight.
Counsel also asserted College Achieve had failed to include information
required under the Guidelines detailing the "key components of the educational
7 See Charter Amendment Guidelines, N.J. Dep't of Educ. [hereinafter Guidelines], https://www.nj.gov/education/chartsch/about/info/amendment_gui delines.shtml (Aug. 2022) (providing in part an application to amend a charter school application must include "[a] formal cover letter of request to the Commissioner . . . that includes the rationale for the requested amendment and other supportive documentation"). A-2195-21 13 model" and "the team's individual and collective qualifications for
implementing" the addition of grades ten through twelve.
In a February 8, 2022 letter, Commissioner Allen-McMillan approved the
charter amendment, explaining she did so after considering the public comments
received by Neptune BOE and the Asbury Park Board of Education and after
evaluating the application based on the Performance Framework. As to
academic performance, the Commissioner found College Achieve had improved
to a Tier 2 rank for the 2018-2019 school year and its rank had not been
redetermined during the 2019-2020 and 2020-2021 school years due to a lack of
"statewide assessment[] results" available during those times.
The Commissioner concluded the "2021 Start Strong and interim and end-
of-year assessments results[] suggest[ed]" that College Achieve "maintains data
systems to continue measuring academic achievement and progress" and
"ongoing presentation of locally administered assessments over the terms of the
charter signals significant growth."
Addressing the financial performance metric of the Performance
Framework, the Commissioner found that College Achieve "met many standard
rated measures" in the Performance Framework. The Commissioner also found
College Achieve would meet all "fiscal performance indicators" because the
A-2195-21 14 Department "believes" College Achieve will do so "through the reduction in
charter enrollment" it had proposed as part of the requested charter amendment.
The Commissioner further found College Achieve satisfied the
organizational performance metric, accepting College Achieve's representation
that it had added a high school principal, certified high school teaching staff,
and will implement a high school program with advanced placement courses and
also because the Department believes College Achieve will implement the
requisite educational programs for the proposed added grades—ten through
twelve.
On March 3, 2022, the Commissioner issued a modified decision granting
the charter amendment. With one minor exception, the modified decision is
identical to the February 8, 2022 decision; it differs only in that it includes a
different calculation of projected student enrollment not relevant to the issues
presented on appeal. The March 3, 2022 decision constitutes the Department's
final agency decision addressing College Achieve's charter amendment request.
Neptune BOE appealed from the Commissioner's final agency decision
approving the charter amendment. The Commissioner later submitted a
Statement of Items Comprising the Record on Appeal (Statement of Items),
which included two reports that post-dated the initial February 8, 2022 decision
A-2195-21 15 granting College Achieve's request. More particularly, the Statement of Items
included a February 24, 2022 Comprehensive Annual Financial Report of the
College Achieve Greater Asbury Park Charter School of New Jersey for the
Fiscal Period Ended June 30, 2021 (the February 24, 2022 CAF Report), and a
March 8, 2022 College Achieve Paterson Charter School Auditors Management
Report on Administrative Findings Financial Compliance and Performance for
the Fiscal Year Ended June 30, 2021 (the March 8, 2022 AFFC Report). Neither
College Achieve nor Neptune BOE moved to settle the record based on the
inclusion of the two reports that post-dated the Commissioner's February 8, 2022
decision. See R. 2:5-5 (permitting a motion to settle the record on appeal).
II.
Our scope of review of the Commissioner's decision is narrow. We "may
reverse an agency decision if it is arbitrary, capricious, or unreasonable ," In re
Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370,
385 (2013) (citing In re Petitions for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-
4.1, 117 N.J. 311, 325 (1989)), or "when 'it is clear that the agency action is
inconsistent with its mandate[,]'" ibid. As our Supreme Court has explained:
[A]lthough sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role [in reviewing an agency action] is generally restricted to three inquiries: (1) whether the agency's
A-2195-21 16 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.
[Id. at 385-86 (second alteration in original) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
We also owe deference to a commissioner's findings because of his or her
expertise in the educational field. See id. at 389. In our review of a decision
concerning a charter school's application for a charter amendment, we must
recognize the Commissioner performs a quasi-legislative function. In re
Renewal Application of TEAM Acad. Charter Sch., 247 N.J. 46, 74 (2021). In
fulfilling that role, the Commissioner is not required "to provide 'the kind of
formalized findings and conclusions necessary in the traditional contested
case.'" Ibid. (quoting In re TEAM Acad. Charter Sch., 459 N.J. Super. 111, 140
(App. Div. 2019)). The Commissioner's "reasons [for her decision] need not be
as detailed or formalized as an agency adjudication of disputed facts; they need
only be inferable from the record considered by the agency." In re Englewood
on the Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div. 1999), aff'd
as modified, 164 N.J. 462, 476-77 (2000). "For 'more policy-driven, quasi-
A-2195-21 17 legislative acts' such as those at issue here, 'the record may be less extensive'
than the record of a contested case." Renewal Application of TEAM Acad., 247
N.J. at 74 (citation omitted). Nonetheless, "[t]he basis for the
determination . . . 'must be discernible from the record' considered by the
agency." Id. at 75 (quoting In re Red Bank Charter Sch., 367 N.J. Super. 462,
476 (App. Div. 2004)).
A reviewing "court's determination [of] whether the record contains
'substantial evidence to support the findings on which the agency based its
action' requires 'a sifting of the record, and the ability to find support for the
conclusions reached by the Commissioner under the statutory framework within
which she [or he] must act.'" Id. at 75 (citation omitted); see also Red Bank,
367 N.J. Super. at 476. For example, in Englewood the Court explained the
manner in which the Commissioner is to assess the racial impact a charter school
would have on the district in which the charter school operates. 164 N.J. at 329.
The Court explained that it did not express a "view on the formality or structure
of that analysis except to state that it must take place before final approval is
granted to a charter school applicant." Ibid. The Court otherwise left "the form
and structure of that analysis to the Commissioner and State Board to
determine." Ibid.
A-2195-21 18 Measured against these standards, we are not persuaded the
Commissioner's findings and conclusions concerning the academic, financial,
and operational prongs of the Performance Framework, or the March 3, 2022
final agency decision granting the requested charter amendment, were arbitrary,
capricious, and unreasonable. Neptune BOE challenges the Commissioner's
reliance on, and questions the validity of, the local assessments, including the
Fastbridge, Start Strong, and ESSA data, as proper measures of College
Achieve's academic performance under the Performance Framework, in the
absence of available statewide assessments for the 2019-2020 and 2020-2021
school years.
We recognize Neptune BOE argues the data is, for various reasons, not a
reliable indicator of College Achieve's academic performance and progress at
the school, but the results of the various assessments are included in the record
and we must defer to the Commissioner's expertise in interpreting the data and
applying it in fulfilling her quasi-legislative role of determining College
Achieve's satisfaction of the academic performance metric of the Performance
Framework. See generally In re Stallworth, 208 N.J. 182, 194-95 (2011)
(citation omitted) (explaining a reviewing court may not substitute its judgment
for an agency's, "particularly . . . when the issue under review is directed to the
A-2195-21 19 agency's special 'expertise and superior knowledge of a particular field'").
Stated differently, we discern no basis to conclude the Commissioner's reliance
on the data, and conclusions based on the data, are arbitrary, capricious, or
unreasonable.
We similarly reject Neptune BOE's claim the Commissioner arbitrarily,
capriciously, or unreasonably assessed the organizational performance metric of
the Performance Framework. Neptune BOE argues College Achieve failed to
submit information in its charter amendment request that is required under the
Guidelines. More particularly, Neptune BOE claims College Achieve did not
supply, and the record does not otherwise include, information concerning
educational approaches, instructional strategies, the individual and collective
qualifications of the school's leadership, administration, and governance,
staffing and recruiting, performance management, and curriculum, instruction
and assessment as required by the Guidelines.
We reject this argument because it is based on a misinterpretation of the
Guidelines. The Guidelines' requirement for submission of the information
Neptune BOE claims is lacking is inapplicable to College Achieve's request to
amend a charter to permit the addition of grades ten through twelve. Those
grades are within the nine-through-twelve-grade band, and the Guidelines'
A-2195-21 20 requirement on which Neptune BOE relies is expressly limited to requests to
amend a charter to add "another grade span." Guidelines (Increasing Enrollment
or Expanding Grade Levels). Thus, by its plain terms, the guideline cited by
Neptune BOE does not apply where, as here, a charter school seeks a charter
amendment to allow only additional grade levels within a grade span.
We are also not persuaded the Commissioner acted arbitrarily,
capriciously, or unreasonably by concluding College Achieve satisfied the
operational performance metric of the Performance Framework. The
Commissioner accepted College Achieve's representations it had added a high
school principal and social workers and had certified high school teaching staff,
its high school program would be consistent with the Department's graduation
requirements and included advanced placement courses and dual enrollment,
and it had hired a shared services business professional to support its
expenditure of funds from various sources. Given the nature of the requested
amendment to the charter—adding grade levels progressively over a multiyear
period—the Commissioner reasonably relied on College Achieve's
representations as to what it had done, and what it committed to doing in the
future, to ensure satisfaction of the operational performance metric. And the
Commissioner's determinations concerning the operational performance metric
A-2195-21 21 are "discernable" and "inferable from the record," and therefore are not arbitrary,
capricious, or unreasonable. Englewood, 320 N.J. Super. at 217.
The record also supports the Commissioner's determination concerning
the financial performance metric of the Performance Framework. The
Commissioner found that College Achieve "met many standard rated measures
in the [f]iscal Performance Framework." In its brief on appeal, the
Commissioner relies on, and cites extensively to, the February 24, 2022 CAF
Report as evidence supporting the Commissioner's determination under the
financial performance metric. 8
Neptune BOE argues the Commissioner could not have considered the
February 24, 2022 CAF Report because it was issued following the
Commissioner's February 8, 2022 decision approving the charter amendment.
We need not address that contention because the final agency decision in this
8 For example, in support of its claim the Commissioner's determination and conclusions concerning College Achieve's financial performance satisfied the financial performance metric in the Performance Framework, the Department relied on the following information gleaned from College Achieve's February 24, 2022 CAF Report: College Achieve's fund balance grew from fiscal year 2019-2020; College Achieve's fund increased $134,885, or 2.4 percent, from fiscal year 2019-2020; College Achieve's unreserved, unassigned fund balance for 2021 was four percent of its total operating budget and its working capital ratio increased from 1.02 in fiscal year 2019 and 1.39 in fiscal year 2021; College Achieve met the standard for debt service and did not have any debt; and the school's enrollment substantially increased from fiscal year 2019-2021. A-2195-21 22 matter was issued on March 3, 2022, and, as such, the information in the report
was available to the Commissioner prior to the issuance of the final agency
decision from which this appeal was taken.
We defer to the Commissioner's interpretation of the data included in the
report as supporting College Achieve's charter amendment application.
Although the report shows—and College Achieve admits—the financial data
does not precisely satisfy all the standards in the financial performance metric
under the Performance Framework, Neptune BOE offers no basis to conclude
that any deviation from the standards requires a rejection of a charter amendment
when, in the exercise of the Commissioner's discretion and expertise, there is
evidence supporting a conclusion the deviations will be remedied. Indeed, the
Commissioner noted College Achieve satisfied "most" of the financial standards
in the Performance Framework metric and determined College Achieve's
financial performance otherwise supported the charter amendment in part
because the requested amendment would improve its financial performance by
decreasing enrollment from 961 to 858 students. Again, we defer to the
Commissioner's expertise on such issues. See Proposed Quest Acad., 216 N.J.
at 389.
A-2195-21 23 A proper analysis of each of the three criteria—academic, financial, and
organizational performance—that the Commissioner is required to evaluate
under the Performance Framework is essential to a valid determination of a
whether a charter school is entitled to a charter amendment. See N.J.A.C.
6A:11-2.6(b) (requiring in part that the Commissioner "review a charter school's
performance data in assessing the need for a possible charter amendment"); see
also N.J.A.C. 6A:11-1.2 (explaining a charter school's performance data is
determined under the three criteria included in the Performance Framework).
As we have explained, the Commissioner's evaluation, reasoning, conclusions
concerning academic, financial, and operational criteria of the Performance
Framework appear supported by the record and are subject to deference based
on the Commissioner's expertise and fulfillment of the quasi-legislative role she
played in the assessment of the charter amendment application. We therefore
find no basis to conclude the Commissioner's final decision is arbitrary,
capricious, or unreasonable. See Stallworth, 208 N.J. at 194-95.
Neptune BOE also argues the Commissioner's decision granting College
Achieve's charter amendment request should be reversed in part because the
Commissioner failed to consider the comments and evidence included in
Neptune BOE's January 13, 2022 letter opposing the amendment. Neptune BOE
A-2195-21 24 claims the failure to consider the comments and evidence is established by the
fact that the original Statement of Items does not include Neptune BOE's January
13, 2022 submission. Neptune BOE argues that if the Commissioner had
considered the comments and evidence in granting the charter amendment, they
would have been included in the Statement of Items.
In the March 3, 2022 decision granting the amendment, the Commissioner
expressly noted she had considered the public comments submitted by Neptune
BOE. Moreover, we are not persuaded the record establishes the Commissioner
did not consider Neptune BOE's January 13, 2022 submission. Following the
filing of the original Statement of Items, the Attorney General's Office advised
that the statement erroneously failed to include Neptune BOE's submission in
opposition to the requested charter amendment. The Attorney General's Office
then submitted an Amended Statement of Items that included Neptune BOE's
January 13, 2022 submission. Neptune BOE offers no basis to suggest the
failure to include the submission in the original Statement of Items was the
product of anything other than an inadvertent failure to include it, and we
therefore reject the claim that the failure to refer to the submission in the original
statement established the Commissioner did not consider it in granting the
charter amendment.
A-2195-21 25 Affirmed.
A-2195-21 26