JAMES AND BARBARA Rutgers Law Library Camden by jolinmilioncherie

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									                                    State of New Jersey
                           OFFICE OF ADMINISTRATIVE LAW



                                                             INITIAL DECISION
                                                             OAL DKT. NO. EDU 924-03
                                                             AGENCY DKT. 70-1/03



JAMES AND BARBARA
BAILEY,

       Petitioners,
              v.
BOARD OF EDUCATION OF
MAURICE RIVER TOWNSHIP,
CUMBERLAND COUNTY,

       Respondent.
___________________________________


       Gary Wodlinger, Esq., for petitioners (Lipman, Antonelli, Batt, Dunlap, Wodlinger &
       Gilson, attorneys)

       Frank DiDomenico, Esq., for respondent

Record Closed: October 28, 2003                                   Decided: November 10, 2003

BEFORE W. TODD MILLER, ALJ:


             STATEMENT OF THE CASE AND PROCEDURAL HISTORY


       The New Jersey Department of Education Bureau of Controversies received a request for
relief on March 6, 2003. Petitioners assert that respondent, Maurice River Township Board of
Education, arbitrarily refused the relocate a school bus stop. The matter was transmitted to the



                                New Jersey is an Equal Opportunity Employer
OAL DKT. NO. EDU 924-03


Office of Administrative Law (OAL) on March 20, 2003. The Director of the OAL assigned the
undersigned to hear this matter pursuant to pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A.
52:14F-1 to -13. A prehearing telephone conference was held on June 24, 2003. A plenary
hearing was conducted on September 4, 2003. The evidentiary hearing concluded on that date.


       The matter was carried until October 3, 2003, so that petitioners could present their
motion for reconsideration to the district. It was previously presented to the district in February
2003, but certain facts and pertinent engineering information was held back. It was held back
under the advice of counsel due to pending litigation. During the evidentiary hearing, it was
apparent the Board did not consider a letter from the Township Engineer that directly addressed
a question regarding the adequacy of the road and location of the bus stop proposed by
petitioners. Therefore, the district did not consider all of the information offered by petitioners at
the time the motion for reconsideration was denied. Accordingly, in order to avoid any
procedural issues, the motion, with all supporting documents, was re-offered to the Board for its
consideration.


       The Board considered the matter at its September 16, 2003, meeting. The Board voted
not to alter its original decision. Post hearing briefs were submitted on September 30, 2003,
(respondent) and October 27, 2003 (petitioner). Additionally, the minutes from the Board of
Education meeting, as well as a video tape of the September 16, 2003, meeting, were submitted
on October 28, 2003. (C-2, P-8)




                             SUMMARY OF RELEVANT FACTS


       Petitioners, Mr. and Mrs. James Bailey, (hereinafter “petitioners or Bailey”) are the
parents of two children, ages 9 and 13, both whom attend the Maurice River Township Public
Schools (hereinafter “respondent, Board or district”). They are currently in eighth grade and
fourth grade. Petitioners live on Carlisle Place Road, Maurice River Township, New Jersey.
Carlisle Place Road is a Township dedicated roadway, which is unpaved and has a gravel
surface. Petitioners are concerned for the safety of their children. They must walk approximately



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OAL DKT. NO. EDU 924-03


one mile down Carlisle Place Road to the nearest bus stop. The unpaved road is not well marked
in terms of traffic safety devices. It does not have a signage for speed, guardrails, sidewalks or
other similar safety devices. Carlisle Place Road is not well lighted. During rain, snow or ice the
road becomes filled with potholes and the surface becomes bumpy, much like rumble strips
found on the shoulder of highways. The Township has the responsibility to maintain the
roadway. The testimony revealed that the Township performs a reasonable job maintaining the
gravel road. Nevertheless, petitioners urge that it is not safe for their children to walk one mile to
the bus stop in view of the aforementioned conditions. Petitioners’s explored other options, but
were unable implement any other alternative. For instance, petitioners both work in the morning
and therefore they cannot oversee the bus pick up. Presently, the children’s grandmother must
drive them to petitioner’s sister’s house where they are picked up by a school bus. They also
explored a developing a bus turn-a-round in front of the home, unsuccessfully.


       During August 2002, petitioners appeared before the Maurice River Township Board of
Education requesting a change of the school bus stop. The Bailey children’s bus stop was and is
located at the intersection of Carlisle Place Road and Route 47 (Delsea Drive). Carlisle Place
Road extends approximately two miles between Route 47 and Route 347.                   Route 347 is
recognized as a high fatality road; therefore, the Board does not schedule any bus stops on Route
347. The Baileys appeared before the Board on several additional occasions between September
and December 2002, with regards to the bus stop issue. They urge that Carlisle Place Road is
safe for a school bus.


       Petitioners regularly drive this road and are familiar with its conditions. Contrary to the
Board’s opinion, petitioners suggest the road is more dangerous to walk than for a bus to
transverse. Petitioner’s offered several pictures depicting the conditions they regularly observe.
(P-1, 2 & 7). Petitioners argue that the pictures and video reflect a smooth well-maintained road
that is safe for bus travel. Additionally, they support their conclusion by reference to the
Township Engineer’s letter. The Engineer concludes, “It is my professional opinion that this
section of Carlisle Place Road is serviceable as a local street, and as such is sufficient for use by
school busses.” (P-4, 8).




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OAL DKT. NO. EDU 924-03


          In December 2002, the Board, during its public meeting, voted not to change the
scheduled bus stop. The Board minutes reflect the following:


          Take from table Resolution #02/03-34.

          (#02/03-34 - Approve bus stop at Carlisle Place Road with the stipulation that a
          60’ by 90’ turnaround be placed at the location.
          (Tabled at August 27, 2002 Board Retreat Meeting).

          Motion made by Mr. Chard, seconded by Mr. Ciaurelli to withdraw resolution
          #02/03-34. Motion passed by roll call vote with Mrs. Hess abstaining.

          Mr. Baumgarten noted that the condition of the dirt road at issue (Carlisle Place
          Road) is such that sometimes you can drive down it at 40 mph and at other times
          only 5 mph and it feels like the front end of your car will fall off. After a rain, the
          road is a mess. He is not sure what the Township can do or cannot do but
          suggests that Mr. & Mrs. Bailey go to the Township and request that the road be
          paved. He believes in its current condition, the road is unsafe for a bus of
          children to travel.

          Mrs. Costello stated that she believes the bus stop change request of the Baileys
          has been reviewed extensively by the board. She stated that the current location
          of the bus stop at Route 47 and Carlisle Place Road is in accordance with policy,
          regulation and law.

          Motion made by Mrs. Costello, seconded by Mr. Chard that the current location
          of the bus stop remain at Route 47 and Carlisle Place Road. Motion carried by
          roll call vote with Mrs. Hess leaving the room, and therefore being absent for the
          vote.

          (R-6)

          The Board’s written policy is that it will not require the bus driver to leave the main
highway for pupils residing within one and one-half miles of the of the bus route. (R-3). The
district explained, however, that Petitioner’s request was not rejected based solely upon Board
policy.


          Prior the making a final decision, the Board referred the matter to its transportation
committee. This is reflected in the Board minutes, supra. The committee included Robert Chard,
a Board member and Eleanor Whildin, Transportation Supervisor. Both members testified at the



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OAL DKT. NO. EDU 924-03


OAL hearing. Mr. Chard was a five-year member of the Board and a retired police officer. Ms.
Whildin has thirty-seven years experience as a bus driver for the district. Both committee
members personally inspected and drove Carlisle Place Road on various dates and under various
conditions. They concluded that it would not be safe for a school bus, with school-aged children,
to drive on this road. The basis of their conclusions was that the road was too bumpy, it lacked
traffic control devices such as speed signs, middle lane dividers, guardrails and the bus could not
turn around or perform a K-turn without risking getting stuck.


       In February 2003, petitioners filed a motion for reconsideration. The motion was
discussed, but the written materials containing a letter from the Township Engineer were not
presented. The Engineer had opined that Carlisle Place Road, while gravel, was safe for school
bus operation and transportation. The letter was not presented to the Board prior to its vote in
December 2002, or during reconsideration motion in February 2003. During the OAL hearing,
the ALJ urged the parties to re-offer the motion for reconsideration, in its entirety, to the Board.
This included the presentation of the Township Engineer’s letter concluding that a school bus
could be operated on Carlisle Place Road. Also, in February 2003, Whildin reported to the
Board as follows:


       As the Board of Education is aware, I have lived in Maurice River Township for
       the past 63 years. I have worked for the Maurice River Township Board of
       Education for 37 years in the capacity of a school bus driver, and for the past 33
       years I have been the Transportation Supervisor. I am very familiar with the
       Township and its roads. Carlisle Place Road is a gravel road that runs between
       Rt. 47 and Rt. 347. When Carlisle Place Road became an issue with the
       Transportation Committee, at the Committee’s request, I drove down the road
       with an empty school bus during a dry period, after it had been scraped. With the
       road in this condition, I was able to drive at 25 mph in spots, but other spots were
       rutty and I had to slow down to maneuver the road. Although I was traveling at
       such a slow speed, the bus shook a great deal. I also drove an empty school bus
       down this road after a wet spell and I could not go over 15 mph. At 15 mph, with
       the road in this condition, the bus was jumping around because of the ruts and
       potholes.

       It is the District’s practice not to go down gravel roads, and if a bus stop is placed
       on this road, a precedent will be established that can affect other roads and routs
       in the District. Additionally, it is my opinion as a school bus driver that this road
       is unsafe during inclement weather conditions to drive a 54 passenger bus down it



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OAL DKT. NO. EDU 924-03


       with students on board. A bus stop is provided for residents on this road at the
       corner of Carlisle Place Road and Rt. 47.

       Finally, for the Transportation Committee’s information, there is no adequate turn
       around on Carlisle Place Road. If a stop is placed on the road, the bus would have
       to travel straight through to Rt. 347, which is a very dangerous road. Rt. 347 has
       had more accidents and deaths than any other road in the Township, and because
       of this, I have designed routs so as to travel this road minimally.

       (R-2)

       On September 16, 2003, the Baileys, through their attorney, re-offered the motion for
reconsideration to the Board. The Baileys presented testimony from Kent Schellinger, P.E.,
Township Engineer. The Board also reviewed and considered the report of Ken Schellinger
marked as Exhibit P-4. The Board again denied the request to relocate the bus stop. (See, letter
of Frank DiDomenico, September 23, 2003 marked as C-1) (See also video tape of meeting, P-
8) At the Board’s September 16, 2003, meeting, it fully reconsidered petitioner’s prior motion
for consideration as well as new evidence. Petitioners came prepared with counsel and offered
live testimony from Kent Schellinger, P.E., Township Engineer. Mr. Schellinger testified, under
oath, that he was familiar with Carlisle Place Road. Again he opined that the road was suitable
for a 54-passenger bus to traverse. However, he indicated he had not actually driven a 54-
passenger bus on this particular road. The proper maintenance of Carlisle Place Road was of
particular importance to the Board members. Mr. Schellinger indicated the road is adequately
maintained by the Township, but that it is not on any fixed maintenance schedule. He was also
questioned as to whether the Township had asked him to make any particular recommendations
concerning Carlisle Place Road. His recommendations included signage, guardrails and a speed
study. (C-2, p.3) The minutes reflect the following discussions and reasons:


              Motion made by Mr. Baumgarten, seconded by Mr. Chard to reconsider
       the board’s earlier denial of a bus stop on Carlisle Place Road. After discussion
       by individual board members, (as detailed in the presentation summary attached),
       the motion was denied by roll call vote with Mrs. Hess recusing herself, six board
       members voting no and zero board members voting yes. Prior to voting, Mr.
       Ewan stated that after considering the reports of Kent Schellinger and Eleanor
       Whildin, he was voting no. Prior to voting, Mrs. Ireland stated that based upon
       Eleanor Whildin’s report and safety issues, she was voting no.




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OAL DKT. NO. EDU 924-03


       (C-2)



                                      LEGAL ANALYSIS

       Based upon the petition and evidentiary hearing, two issues must be decided: 1) Whether
the Board’s bus stop policy is valid? 2) Did the petitioner meet its burden of proof the by the
preponderance of credible evidence establishing that the Board’s application or interpretation of
its policy was unreasonable? The thrust of petitioner’s argument is that the Board acted in an
unreasonable and arbitrary manner when it denied petitioner’s request to relocate the bus stop.


       It is undisputed that a Board of Education has both the prerogative and obligation to
establish bus stop locations. N.J.S.A. 18A:39-1 et seq. and N.J.A.C. 6A:27-1.1. The applicable
regulations provide a minimum standard for students who live in remote locations from their
school. For instance, for K-8 students transportation must be provided if they reside beyond two
miles and for grades 9-12 two and one-half miles. N.J.A.C. 6A:27-1.1(a)1.


       It is a well-settled principle that policy, legislative and quasi-legislative determinations
are committed to the judgment of local governmental bodies. Riggs v. Long Beach Tp., 109 N.J.
601, 610-11, 538 A.2d 808 (1988); United Advertising Corp. v. Metuchen, 42 N.J. 1, 8, 198 A.2d
447 (1964). Such determinations enjoy a distinct presumption of validity, First Peoples Bank of
N.J. v. Medford Tp., 126 N.J. 413, 418, 599 A.2d 1248 (1991); Hutton Park Gardens v. West
Orange Town Council, 68 N.J. 543, 564, 350 A.2d 1 (1975), and will remain undisturbed absent
a showing of arbitrary, capricious or unreasonable action on the part of the governmental agency.
Palamar Constr., Inc. v. Pennsauken Tp., 196 N.J. Super. 241, 250, 482 A.2d 174
(App.Div.1983).


       These principles apply to policy determinations made by local Boards of Education. See
Parsippany-Troy Hills Educ. Ass'n v. Board of Ed. of Tp. of Parsippany-Troy Hills, 188 N.J.
Super. 161, 167, 457 A.2d 15 (App.Div.), certif. denied, 94 N.J. 527, 468 A.2d 182 (1983);
Kopera v. Board of Ed. of West Orange, 60 N.J. Super. 288, 294, 158 A.2d 842 (App.Div.1960).
When such a body acts within its authority, its decision is entitled to a presumption of



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OAL DKT. NO. EDU 924-03


correctness and will not be upset unless there is an affirmative showing that such decision was
arbitrary, capricious or unreasonable. The agency's factual determinations must be accepted if
supported by substantial credible evidence. Quinlan v. Board of Ed. of North Bergen Tp., 73 N.J.
Super. 40, 179 A.2d 161 (App.Div.1962); Schinck v. Board of Education of Westwood Consol.
School Dist., 60 N.J. Super. 448, 159 A.2d 396 (App.Div. 1960).


       In the present matter, there was little dispute regarding the validity of the Board’s bus
stop policy. The policy provides that school buses will not leave the main route unless the
student is within one and one half miles of the route for K-8 children and two miles for high
school students. (R-3). The policy is presumed to be correct. I FIND and CONCLUDE that
presumption was not overcome in the matter at hand. The policy is consistent with N.J.A.C.
6A:27-1.1(a)1. In fact, the Board’s policy is more favorable to petitioner than the administrative
regulations. (1.5 and 2 miles vs. 2 and 2.5 miles).


       Therefore, the only issue to be addressed is whether the District acted in an arbitrary or
capricious manner when it denied petitioner’s request to move the bus stop. Petitioner presented
safety and hardship issues. Moreover, petitioner suggested that the Board failed to appreciate or
understand the issues. For instance, the Board concluded that the gravel road was unsafe for a
bus with school-aged children. The bus would bounce and rattle. The District’s bus driver tested
the road and concluded the road was unsafe as the bus was “jumping around because of ruts and
potholes.” (R-2). The transportation supervisor candidly admitted that, at times, the road was
safe to drive at 15-25 miles per hour. However, she was not comfortable driving the road. Issues
such as ice, snow, potholes, road maintenance as well as bus mechanical maintenance were a
concern for her and the Board. Several members of the Board transportation committee test-
drove the road on their own or in a 54-passenger bus with the transportation supervisor. They
reached the same conclusions. Parties offered numerous photographs and a VHS video into
evidence. (P-7) The photographs depict the road on various dates and times that reflect
conditions favorable to positions asserted by the both parties.


       In the law, “arbitrary” and “capricious” means having no rational basis. Bicknell v.
United States, 442 F.2d 1055, 1057 (5 Cir. 1970). The terms “arbitrary” and “capricious”



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OAL DKT. NO. EDU 924-03


embrace a concept which emerges from the due process clauses of the 5th and 14th Amendments
of the United States Constitution and operate to guarantee that acts of government will be
grounded on established legal principles. See Canty v. Bd. of Education, City of New York, 312
F.Supp. 254, 256 (D.C.S.D.N.Y.1970). Arbitrary and capricious action of administrative bodies
means willful and unreasoning action, without consideration and in disregard of circumstances.
Where there is room for two opinions, action is not arbitrary or capricious when exercised
honestly and upon due consideration, even though it may be believed that an erroneous
conclusion has been reached.         State v. Jones, 66 Wash.2d 199, 401 P.2d 841, 842
(Wash.Sup.Ct.1965). Moreover, the court should not substitute its judgment for that of an
administrative or legislative body if there is substantial evidence to support the ruling. Kansas
City Southern Ry. Co. v. Louisiana Public Service Comm'n, 254 La. 160, 223 So.2d 132, 136
(La. Sup. Ct., 1969).


       This rationale has been applied to bus stop location controversies. The Commissioner of
Education will not overturn a district’s decision pertaining to the location of school bus stops and
will not second guess such exercise of discretion unless it is arbitrary, capricious or
unreasonable. See Lemma v. Branchburg Board of Education, EDU 8953-97 Initial Decision
(July 22, 1998), adopted Commissioner (August 28, 1998) (upholding the local district’s refusal
to change the bus stop): Mandaglio v. Mendham Township Board of Education 1998 S.L.D.
1380, 1384 (Comm’r 1990) (upholding uniformly – applying school policy prohibiting the
school buses from turning around on dead end streets); J. O’D. v. Peapack Gladstone Board of
Education, 1989 S.L.D. 1303, 1313 (Comm’r March 15, 1989) (upholding appropriateness of
the local district’s bus stop and rejecting a proposed alternate route as patently dangerous).


       Based upon the evidence, including the investigation performed by the transportation
committee together with the testimony of the Board members, I FIND that a reasonable person
could come to two different opinions. The Board struggled with the decision for several months.
The original request for relief was presented to the Board in or around August 2002. The matter
was tabled for investigation. Various options were explored. This included construction of a
turn-a-round in front of petitioner’s home. A thorough investigation followed. The Board
decided the not relocate the bus stop at its December 2002 meeting. The minutes from the



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OAL DKT. NO. EDU 924-03


meeting reflect the debatable concerns. A motion for reconsideration was filed in February 2003.
The motion was not fully discussed and reviewed by the Board. A letter from the Township
Engineer opining that the gravel road was safe for school bus travel was not presented or
considered. The motion for reconsideration was not fully discussed because of pending litigation.
Between the conclusion of the evidentiary portion of the within matter and the close of the
record, the Board was directed to reconsider the motion. This was completed at the Board’s
September 16, 2003 meeting. The Board reaffirmed its earlier decision not to relocate the bus
stop. (C-1, C-2). The import from the abovementioned history is that the Board fully, fairly and
justly considered the issue. The Board made a rational decision based upon facts derived from an
investigation that spanned several months. A Court should not substitute its judgment for that of
an administrative or legislative body if there is substantial evidence to support the ruling. Bacoli
v. Board of Education of Ramapo Indian Hills Regional School District, OAL Dkt. No. EDU
1839-98 (January 22, 1999) citing, Bayshore Sewerage Company v. The Department of
Environmental Protection, 122 N.J. Super. 184, 199-200 (Ch. Div. 1973), affirmed 131 N.J.
Super. 37 (App. Div. 1974). The Board’s factual conclusions, while possibly debatable, were
nevertheless reasonable. I so FIND.


       Petitioner also eluded that the Board was engulfed in a small town controversy.
Consequently, petitioner argues that the Board did not approach petitioner’s request for relief
with an open mind. The proofs offered by petitioner in this respect were mere inferences or
allegations. While that may have been the impression by petitioner, I FIND that there were no
reliable proofs offered to support this belief. Stated differently, the proofs offered on the issue
were not to the degree that I can conclude the Board acted with malice, bias or unfairly.


       Petitioner’s presented legitimate safety concerns for their children. The road in question
clearly poses real concern for parents of school aged children. It is dark during winter mornings,
and the gravel road lacks the ordinary traffic control devices of a paved road. The area is
developing and more children are using the unpaved portion of the road. Unfortunately,
petitioners are both employed and their work hours do not allow them to oversee the bus pickup.
If the road were paved, the Board may consider altering the bus route. I encourage the Board and
petitioners (and the Township) to revisit this matter in the future if the circumstances materially



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OAL DKT. NO. EDU 924-03


change. This includes, additional paving or temporary paving, increased students living on
Carlisle Place Road or other significant changes.


                                CONCLUSION AND ORDER


       I CONCLUDE that the school district’s bus stop location policy is valid and its
application in the present matter was reasonable. Therefore, the petition requesting a change in
the bus stop at the intersection of Rt. 47 and Carlisle Place Road must be DENIED and the
petition is DISMISSED.


       I hereby FILE this initial decision with the COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.


       This recommended decision may be adopted, modified or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Commissioner of the Department of Education
does not adopt, modify or reject this decision within forty-five (45) days and unless such time
limit is otherwise extended, this recommended decision shall become a final decision in
accordance with N.J.S.A. 52:14B-10.




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OAL DKT. NO. EDU 924-03


       Within thirteen (13) days from the date on which this recommended decision was mailed
to the parties, any party may file written exceptions with the COMMISSIONER OF THE
DEPARTMENT OF EDUCATION, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton,
New Jersey 08625-0500, marked "Attention: Exceptions." A copy of any exceptions must be
sent to the judge and to the other parties.




11/10/03
DATE                                               W. TODD MILLER, ALJ


E-mail Receipt of Initial Decision Confirmed by the Department of Education on:



11/10/03
DATE
                                                   Mailed to Parties:




DATE                                               OFFICE OF ADMINISTRATIVE LAW


sd




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OAL DKT. NO. EDU 924-03


                                               EXHIBITS


For Petitioner:


       P-1        Photographs (1 page)
       P-2        Photographs (1 page)
       P-3        Letter dated November 14, 2002 from Karen Johnson (1 page)
       P-4        Memo dated January 24, 2003 from Kent W. Schellinger, P.E. (1 page)
       P-5        Maurice River Township Board of Education Equal Educational Opportunity (2
                  pages)
       P-6        Letter dated February 4, 2003 from James and Barbara Bailey (6 pages)
       P-7        Video Tape (9/3/03)
       P-8        Video tape presented at the September 16, 2003 Board Meeting


For Respondent:


       R-1        Letter dated February 19, 2003 from Donald E. Beineman, Ed.D. (1 page)
       R-2        Memorandum dated February 10, 2003 from Eleanor Whildin (1 page)
       R-3        Maurice River Township Board of Education Transportation Routes and Services
                  Policy (4 pages)
       R-4        Maurice River Township Board of Education Retreat Meeting Minutes dated
                  August 27, 2002 (2 pages)
       R-5        Maurice River Township Board of Education Regular Meeting Minutes dated
                  October 15, 2002 (4 pages)
       R-6        Maurice River Township Board of Education Regular Meeting Minutes dated
                  December 17, 2002 (4 pages)
       R-7        Maurice River Township Board of Education Regular Meeting Minutes dated
                  February 18, 2003 (7 pages)
       R-8        Maurice River Township Bus Stop File Information Listing as of 8/07/02 (14
                  pages)
       R-9        EMC Student Transportation System (16 pages)



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OAL DKT. NO. EDU 924-03




       R-10       Interrogatories propounded by petitioner on respondent (5 pages)
       R-11       Respondent’s answers to petitioner’s interrogatories (5 pages)
       R-12       Photographs (4 pages)
       R-13       Photographs (1 page) and 7 individual photographs
       R-14       Letter dated February 3, 2003 from Frank DiDomenico, Esq. (3 pages)


For Court:


       C-1        Letter dated September 23, 2003 from Frank DiDomenico, Esq. (2 pages)
       C-2        Board of Education Minutes from September 16, 2003 meeting


                                            WITNESSES


For Petitioner:


       Barbara Bailey


For Respondent:


       Robert Chard, Board of Education Member


       Eleanor Whilden, Transportation Supervisor


       Ellyn Walters, Board of Education Member


       Patricia Powell, School Board Secretary




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