Our Partner Russell Lichtenstein represents Levinson and Formica and argued the motion that resulted in their dismissal from the sex discrimination lawsuit against county prosecutor.

As seen in The Press of Atlantic City July 16, 2019 edition
by MICHELLE BRUNETTI POST Staff Writer

A judge on Friday dismissed Atlantic County Executive Dennis Levinson and Freeholder Frank Formica from the lawsuit alleging discrimination against women by County Prosecutor Damon Tyner.

“The reason I was put in, in the first place, is I went to a rally at a church in Pleasantville in support of Damon Tyner,” said Levinson on Monday. “Not about whether he was guilty or innocent (of the charges of discrimination), but in support of him as a human being and what he has given to the community.”

Levinson credited Tyner with successfully bringing murder and drug charges against Linwood doctor James Kauffman, in the 2012 death of his wife April Kauffman. The case had gone cold under previous prosecutors.

Kauffman killed himself in prison.

The suit, filed in January by former Assistant Prosecutor Diane Ruberton, former Lt. Heather McManus and current Assistant Prosecutor Donna Fetzer, alleges gender discrimination, retaliation and other illicit behavior by the prosecutor and others in his office.

The attorney representing Levinson and Formica said Monday that Cumberland County Superior Court Judge James R. Swift found no merit to any of the claims against his clients, and dismissed the case against them with prejudice. That means the plaintiffs can’t file an amended claim to bring them back in, he said.

The case was moved to Cumberland County in March.

“It appears the plaintiffs were trying to silence County Executive Levinson and Freeholder Formica from speaking out in support of the fine job Damon Tyner has done,” said Russell Lichtenstein, a partner at Cooper Levenson.

Lawyers for the women released a written statement via email Monday afternoon.

“We believe that Dennis Levinson and Frank Formica engaged in actions that were retaliatory and that failed to protect these three women from discrimination,” said Michelle Douglass and Philip Burnham, the lawyers for the women. “New Jersey law makes clear that these actions can be the basis of a legal claim of discrimination even if the retaliation comes after an employee is no longer at her job.”

Tyner, whose office did not respond to a request for comment Monday, released a statement about the suit at the time it was filed.

“It is apparent that the plaintiffs are living in an alternative universe,” the statement said. “The very same conduct they accuse me and the members of my administration of committing was actually carried out by them and others during their brief, ineffective period of leadership of the Atlantic County Prosecutor’s Office.”

Levinson called his inclusion in the sex discrimination case “preposterous,” pointing out that he and the county have no say over who is appointed prosecutor, or how the office is run.

“As their lawyers should know … he is appointed by the governor,” Levinson said, and the prosecutor’s office operates independently.

Formica was named in the suit, according to Levinson, because his brother, Mario Formica, worked for the Prosecutor’s Office.

County Counsel Jim Ferguson estimated the inclusion of Levinson and Formica has already cost county taxpayers at least $20,000 in legal bills and expenses related to the case.

And the expenses will continue, Ferguson said, because the county itself is still named in the lawsuit.

“It’s an outrage. We don’t appoint, direct or hire anybody for that office,” Levinson said. “All we do is pay for it.”

He said the lawsuit will stretch out for quite some time, and cost the county taxpayers plenty.

“It is what it is. We have to live with it,” Levinson said.

The women allege in the suit that Tyner demoted high-ranking women while giving men raises, paid newly hired women at a lower rate than newly hired men, covered up complaints of gender discrimination and spoke in a derogatory fashion about women in general.

In addition to allegations of gender discrimination, the three women claim Tyner was involved in mortgage fraud, failed to investigate a claim that a police officer was leaking confidential information about the April Kauffman murder case and failed to tell defense counsel about the possible leak. They also accuse him of firing employees to hire his brother, and refusing to investigate after an assistant prosecutor exchanged advice via texts with a defendant in a pending domestic violence case.

Regarding Levinson and Formica, the lawsuit alleged they “refuse to look deeper at gender bias and systemically devalue plaintiffs, as women, in the workplace” and “have publicly announced their support of the male defendants even before this lawsuit was filed and even before all the facts were and/or have been disclosed.”

Contact: 609-272-7219 mpost@pressofac.com Twitter @MichelleBPost

Cooper Levenson Tax Group Conducts New Jersey Society of CPAs Breakfast Seminar

Understanding the Bankruptcy process.
Presented by: Eric A. Browndorf, Esq.

The Essentials of Asset Protection Planning for CPAs
Presented by:  Michael L. Salad, Esq., LL.M.

New Jersey’s New Sick Leave Law: What CPAs Need to Know
Presented by: Amy E. Rudley, Esq. 

Recent IRS Rulings and Pronouncements from the United States and New Jersey Tax Courts, as well as Legislative and Regulatory Changes in the Tax Law
Presented by:  Robert E. Salad, Esq., LL.M.

Linwood Country Club
500 Shore Road
Linwood, NJ 08221
Breakfast & Registration 7:30 a.m.

Seminar 8:00 a.m. – 10:00 a.m.

REGISTER HERE

or call 973.226.4494

Atlantic City boys basketball coach reinstated: Atlantic County Superior Court

We are pleased to announce that today, November 28, 2018 Judge Michael J. Blee, P.J. Ch., of the Atlantic County Superior Court, entered an order immediately reinstating Coach Allen, as Boys Basketball coach for Atlantic City High School.   Coach Allen is reinstated until further Order of the Court and should be at practice today.

From the Press of Atlantic City article today, 11/28/18: “…The Atlantic City Board of Education voted at a Nov. 20 meeting not to reappoint Allen. The coach filed a lawsuit Tuesday, seeking to be reinstated. The suit said the board’s decision violated New Jersey law, board contracts and Allen’s rights.”

“I’m pleased for the coach,” said William Donio, Allen’s attorney. “But I’m really pleased for the student athletes. They should have their season without disruption. That’s what we want, and we hope that the board will still do the right thing and reinstate him immediately.” Read the entire Press of Atlantic City article by Michael McGarry, Staff Writer – https://www.pressofatlanticcity.com/sports/local/highschool/gene-allen-reinstated-as-atlantic-city-boys-basketball-coach/article_5b220df8-3dff-58d0-88a7-e2c92c9dde00.html

Banking and Marijuana-Related Businesses, by Michael L. Salad and Brittany A. Bonetti

Click here for a printable copy: Michael Salad and Brittany Bonetti article Banking and Marijuana-Related Businesses  NJ Lawyer mag Oct 2018

This article was originally published in the October 2018 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

Since federal regulators began reinterpreting the United States’ position on marijuana in 2014, the number of state-sanctioned marijuana-related businesses (MRBs) has exploded, leaving MRBs with an abundance of cash, but not many places to deposit it. The New Jersey Department of Health approved six alternative treatment centers (ATCs), which pro-vide qualifying patients with medicinal marijuana and related paraphernalia. These ATCs are a type of MRB. On July 16 of this year, the department released a request for applications (RFA) for up to six additional ATCs. The department expects to release future RFAs this fall and in the winter of 2019.

This year’s forecast for nationwide sales of state-sanctioned marijuana is estimated to be $11 billion.1 However, the vast majority of the United States’ financial services industry has declined to enter the MRB market due to uncertainties in state and federal marijuana laws, rules, regulations, and policies. While it is undisputed that the mechanisms for harmonizing jurisdictional treatment of marijuana are incomplete, banks and credit unions may utilize certain tools to mitigate the risk of serving MRBs. Financial institutions seeking to serve MRBs must implement enhanced risk assessment and customer due diligence.

Examination of Federal Law

Marijuana remains classified as a Schedule I controlled substance by the federal Controlled Substances Act (CSA), and as such, manufacturing, distributing, or dispensing marijuana remains illegal at the federal level.2 The Bank Secrecy Act (BSA) requires all banks to file suspicious activities reports (SAR) for transactions conducted or attempted by, at, or through the bank and aggregating $5,000 or more, if the bank suspects, or has reason to suspect the transaction: 1) may involve potential money laundering or other illegal activity; 2) is designed to evade the BSA or its implementing regulations; or 3) has no business or apparent lawful pur-pose.3 The Money Laundering Control Act makes it a criminal offense to carry out certain monetary transactions with funds derived from specified unlawful activities, including funds derived from marijuana-related conduct.4 Regardless of whether a state has sanctioned MRBs, funds derived from MRBs trigger SAR filing obligations for banks depositing those funds.

From 1970 to 2013, federal regulators strictly construed the meaning of enforcement actions under the CSA and BSA. As such, the United States Department of the Treasury could find financial institutions to be in violation of the Money Laundering Control Act, jeopardizing such institutions’ eligibility with the Federal Deposit Insurance Corporation and participation with the Federal Reserve.

On Aug. 29, 2013, the Department of Justice released the now-defunct Cole memo issued by then Deputy Attorney General James M. Cole, which advised federal prosecutors to limit marijuana prosecutions to eight priorities. In response to the Cole memo, on Feb. 14, 2014, the Department of the Treasury, via the Financial Crimes Enforcement Network (FinCEN), clarified the obligations of financial institutions under the BSA, and instructed that:

  • A financial institution providing financial services to a marijuana-related business that it reasonably believes, based on its customer due diligence, does not implicate one of the Cole memo priorities or violate state law should file a “Marijuana Limited” SAR.
  • A financial institution filing a SAR on a marijuana-related business that it reasonably believes, based on its customer due diligence, implicates one of the Cole memo priorities or violates state law should file a “Marijuana Priority” SAR.
  • If a financial institution deems it necessary to terminate a relationship with a marijuana-related business in order to maintain an effective anti-money laundering compliance pro-gram, it should file a SAR and note in the narrative the basis for the termination. Financial institutions should use the term “Marijuana Termination” in the narrative section.

FinCEN’s Feb. 2014 guidance offers banks a way to comply with BSA obligations while engaging in financial trans-actions with state-sanctioned MRBs. Fin-CEN emphasized that banks with MRB accounts must implement enhanced due diligence procedures to identify conduct that implicates the eight Cole memo priorities. While the Cole memo was rescinded on Jan. 4 of this year, the Department of the Treasury confirmed that “The SAR reporting structure set forth in FinCEN’s Feb. 2014 guidance remains in place.”5 In effect, the eight Cole memo priorities still dictate the type of SAR that banks must file when accepting funds from MRBs. The Feb. 2014 FinCEN guidance does not, however, provide banks with immunity from civil or criminal penalties for serving MRBs. Instead, the guidance clarified the way in which banks may meet their BSA obligations while providing services to MRBs. Constant SAR filings and maintenance of an enhanced due diligence pro-gram can be a burden on banks that hold MRB accounts. It is the authors’ experience that some banks choose to hire out-side consultants to assist with the enhanced due diligence required for handling MRB accounts.

The Cole memo no longer provides banks with the level of comfort it once did; however, the Rohrabacher–Blumenauer Amendment remains in effect,6 meaning that no federal funds allocated to the Department of Justice may be used to prevent states from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Thus, the Rohrabacher–Blumenauer Amendment arguably shields banks serving state-sanctioned medical marijuana businesses from federal prosecution, provided those entities are compliant with state law.

Banks accepting MRB accounts must understand that the FinCEN guidance does not change the law and that the practical effect of FinCEN guidance can be limited when MRB issues arise in federal court. Federal judges have expressed reluctance to use their equitable powers to facilitate marijuana-related conduct that remains illegal under federal law.7

Examination of New Jersey Law 

New Jersey approved the issuance of the original six ATC permits through the New Jersey Compassionate Use Medical Marijuana Act in Jan. 2010.8 The act required these first six ATCs to be non-profit entities.9 The New Jersey Department of Health reports that 10,000 patients have joined the state’s medicinal marijuana program since Phil Murphy took office as governor in January of this year.10 As a result, the New Jersey Department of Health found that an additional six ATCs were necessary to meet the needs of the state’s growing patient population. Unlike the original six ATCs, the second set of ATCs may be either for-profit or nonprofit entities.11 In an effort to create more options for patients, the commissioner of the New Jersey Department of Health is encouraging physicians to view medicinal marijuana as a safe, effective method of treatment.

Even with the act and the Murphy administration’s support for New Jersey’s medicinal marijuana program, the manufacturing, distribution, and dispensing of medicinal marijuana remains illegal at the federal level. Accordingly, banks that accept ATC depository accounts, must comply with FinCEN’s SAR guidelines. While some banks in New Jersey have taken on MRB depository accounts, these same banks may be reluctant to provide MRBs with loans. As such, MRBs have heavily relied upon private financing. Some of the original six ATCs reportedly experienced financing challenges due to their nonprofit status.12 In April of this year, as a further obstacle to MRB financing, the U.S. Small Business Administration updated its standard operating procedures, which now explicitly prohibit SBA loans to businesses that directly derive revenue from marijuana-related activities (e.g., marijuana growers and marijuana dispensaries) or support the end-use of marijuana (e.g., marijuana testing services; entities providing lights, hydroponic equipment, or smoking devices; and leasing space to marijuana businesses).13 The second set of ATCs have the option of being for-profit, and, as such, will likely have better luck attracting private financing.

With regard to criminal implications at the state level, New Jersey law grants immunity from state prosecution through the act.14

Qualifying patient, primary caregiver, alternative treatment center, physician, or any other person acting in accordance with the provisions of this Act, shall not be subject to civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of marijuana as authorized under the Act.15

Although the act does not define ‘per-son,’ New Jersey law states that the default definition of a ‘person’ includes “corporations, companies, associations, societies, firms, partnerships and joint stock companies” in the absence of a contrary definition.16  As such, the act arguably protects New Jersey financial institutions from state prosecution arising from financial transactions with ATCs.

Conclusion

Federal guidance and state laws have given New Jersey financial institutions a path for offering depository services to New Jersey ATCs with reduced risk. Though the current guidance may expand or contract in time, banks and credit unions, which comply with SAR filing requirements delineated by Fin-CEN and implement enhanced customer due diligence, may provide services to a highly underserved market. The need for banking will be magnified by New Jersey’s ongoing expansion of its medicinal marijuana program and the need will be further magnified if recreational marijuana use is legalized in the state.

Endnotes

  1. Aaron Smith, The U.S. Legal Marijuana Industry is Booming, CNN Money (Jan. 31, 2018) available at https://money.cnn.com/2018/01/31/news/marijuana-state-of-the-union/.
  2. 21 U.S.C.A. § 812.
  3. 31 C.F.R. § 1020.320(a)(2).
  4. 18 U.S.C.A. § 1956.
  5. Letter from Drew Maloney, assistant secretary for legislative affairs, Department of the Treasury, to the Hon. Denny Heck, congressman for Washington’s 10th Congressional District (Jan. 31, 2018).
  6. The federal Rohrabacher-Blumenauer Amendment provides that no federal funds, made available to the Department of Justice, may be used to prevent states from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana. This federal prohibition was initially passed in 2014 and has been intermittently renewed since then. The amendment was most recently renewed on March 23, in the Consolidated Appropriations Act, 2018 (Pub. L. 115–141), which remains in effect through Sept. 30, and will be up for renewal at that time.
  7. Fourth Corner Credit Union v. FRB, 861 F.3d 1052 (10th Cir. 2017).
  8. N.J. Stat. 24:61-1 et seq.
  9. New Jersey Compassionate Use Medical Marijuana Act provides that the Department of Health “shall seek to ensure the availability of a sufficient number of alternative treatment centers throughout the State, pursuant to need, includ-ng at least two each in the north-ern, central, and southern regions of the State. The first two centers issued a permit in each region shall be nonprofit entities, and centers subsequently issued permits may be nonprofit or for-profit entities.” N.J. Stat. § 24:6I-7(a).
  10. ew Jersey Department of Health, Medicinal Marijuana Program Grows by 10,000 Patients Since Start of Murphy Administration (July 2, 2018) available at https://www.state.nj.us/health/news/2018/approved/20180702b.shtml.
  11. New Jersey Department of Health, Division of Medicinal Marijuana, Request for Applications (July 16, 2018) available at https://nj.gov/health/medicalmarijuana/docu-ments/ATC_RFA_July2018.pdf.
  12. Susan K. Livio, N.J. Issues Permit to Second Medical Marijuana Dispensary, NJ.Com (Sept. 11, 2013, at 10:40 p.m.) https://www.nj.com/politics/index.ssf/2013/06/nj_issues _permit_to_second_med.html.
  13. SBA Policy Notice, “Revised Guidance on Credit Elsewhere and Other Provisions in SOP 50 10 5(J),” No. 5000-17057 (April 3, 2018).
  14. N.J. Stat. § 24:6I-6.
  15. Id.
  16. N.J. Stat. § 1:1-2.

MICHAEL L. SALAD is a partner with Cooper Levenson, P.A. and a member of the firm’s business and tax, cannabis law, and cyber risk management practice groups.

BRITTANY A. BONETTI is an associate with Cooper Levenson, P.A. and a member of the firm’s healthcare and cannabis law practice groups.

 

New Jersey State Bar Association Appoints Brittany Bonetti to Cannabis Law Committee

The New Jersey State Bar Association appointed Cooper Levenson Attorney Brittany A. Bonetti to its Cannabis Law Committee. The committee will focus on the intricacies of cannabis issues from a legal perspective.

“The legalization of recreational cannabis in New Jersey will change the playing field,” said Bonetti. “I’m looking forward to working with my colleagues to fully explore the implications before such legislation is passed.”

Bonetti is an associate in the Cooper Levenson’s Healthcare, Cyber Law and Cannabis Law practice groups. She assists hospitals and health systems, medical staffs, individual physicians and physician groups in business and regulatory legal matters of all types, helping them navigate complicated healthcare regulations such as Stark, Fraud and Abuse, Anti-Kickback and state regulatory concerns. With a Master’s in Public Health concentrating in health systems and policy, Bonetti has a particular interest in the intersection of public policy and law.  She was recently named a top attorney in Health Care law for 2018 by SJ Magazine.

A Synopsis of Significant Cannabis Bills for the current New Jersey Legislative Session

The first three bullet points pertain to recreational use. Please note this is not an exhaustive list.

  • S2703 – “New Jersey Marijuana Legalization Act”; legalizes possession and personal use of marijuana for persons age 21 and over; creates Division of Marijuana Enforcement and licensing structure; introduced on June 7, 2018 by Senators Scutari and Sweeney and referred to Senate Judiciary Committee http://www.njleg.state.nj.us/2018/Bills/S3000/2703_I1.PDF
  • S2702 – Legalizes possession and personal use of marijuana for persons age 21 and over; creates Division of Marijuana Enforcement and licensing structure; revises requirements for medical marijuana program; introduced on June 7, 2018 by Senators Scutari and Sweeney and referred to Senate Judiciary Committee  http://www.njleg.state.nj.us/2018/Bills/S3000/2702_I1.PDF
  • A3819 – Legalizes possession and personal use of small amounts of marijuana for persons age 21 and over; creates Division of Marijuana Enforcement and licensing structure; introduced on April 12,2018  by Assembly members Holley, McKnight, and Timberlake, and referred to Assembly Oversight, Reform and Federal Relations Committee http://www.njleg.state.nj.us/2018/Bills/A4000/3819_I1.PDF
  • S10 – Revises requirements to authorize and access medical marijuana; establishes requirements for institutional caregivers; revises permit requirements for alternative treatment centers; and establishes additional legal protections for patients and caregivers; introduced on May 12, 2018 by Senators Vitale, Scutari, and O’Scanlon, and referred to Senate Health, Human Services and Senior Citizens Committee http://www.njleg.state.nj.us/2018/Bills/S0500/10_I1.PDF
  • S1847 – exempts from sales and use tax sales of medical marijuana; introduced by Senator Turner on February 15, 2018 and referred to Senate Health, Human Services and Senior Citizens Committee; on March 28, 2018 reviewed by the Sales Tax Review Commission recommended to enact; http://www.njleg.state.nj.us/2018/Bills/S2000/1847_I1.PDF
  • A4097 – Provides for workers’ compensation reimbursement for medical marijuana; introduced on June 4, 2018 by Assembly member Downey and referred to Assembly Labor Committee; http://www.njleg.state.nj.us/2018/Bills/A4500/4097_I1.PDF
  • A3828 – Revises and expands list of debilitating medical conditions for medical marijuana program to include new qualifying conditions and remove restrictions on certain current conditions; introduced on April 12, 2018 by Assembly members Jasey, McKeon, and Timberlake and referred to Assembly Health and Senior Services Committee; http://www.njleg.state.nj.us/2018/Bills/A4000/3828_I1.PDF
  • A4015 – Authorizes medical marijuana for treatment of substance use disorder, authorizes all patients to be dispensed medical marijuana in edible form; introduced on May 24, 2018 by Assembly member Rooney and referred to Assembly Health and Senior Services Committee; http://www.njleg.state.nj.us/2018/Bills/A4500/4015_I1.PDF
  • A3740/AA3437 introduced on March 22, 2018 by Assembly members Conaway, Gusciora, Eustace, and Murphy, and referred to Assembly Health and Senior Services Committee; on March 22, 2018 reported as an Assembly Committee Substitute and Referred to Assembly Appropriations Committee; AHE  Voting 3/22/2018  –  r/ACS  –  Yes {6}  No {2}  Not Voting {3}  Abstains {2} http://www.njleg.state.nj.us/2018/Bills/A4000/3740_I1.PDF
  • A4235 – Establishes requirements for home delivery of medical marijuana; introduced on June 25, 2018 by Assembly members Jainieri Huttle and Downey, and referred to Assembly Health and Senior Services Committee; http://www.njleg.state.nj.us/2018/Bills/A4500/4235_I1.PDF
  • A2454 – Requires registered qualifying patient’s authorized use of medical marijuana to be considered equivalent to use of any other prescribed medication; introduced on February 1, 2018 by Assembly member Quijano and referred to Assembly Health and Senior Services Committee;
    http://www.njleg.state.nj.us/2018/Bills/A2500/2454_I1.PDF
  • A3621– provides gross income tax and corporation business tax credits for qualified business expenses incurred by business that cultivates marijuana located in UEZ; introduced on March 12, 2018 by Assembly members Quijano and Wimberly and referred to Assembly Commerce and Economic Development Committee; http://www.njleg.state.nj.us/2018/Bills/A4000/3621_I1.PDF
  • A1838 – Establishes protection from adverse employment action for authorized medical marijuana patients; introduced on January 9, 2018 by Assembly members Lampitt and Gusciora and referred to Assembly Health and Senior Services Committee http://www.njleg.state.nj.us/2018/Bills/A2000/1838_I1.PDF
  • A3421 – “Jake Honig’s Law”; removes limits on amount of medical marijuana that may be dispensed at one time and expands access to edible forms, including oils; introduced on February 15, 2018 by Assembly members Conaway, Downey, Houghtaling, Gusciora, Eustace, Murphy, Holley, Vaninieri Huttle, Jasey, and referred to Assembly Health and Senior Services Committee; on April 5, 2018 trasnferred to Assembly Appropriations Committee and Reorted from Assembly Comm. As Substitute, 2nd Reading; Committee voting AAP  4/5/2018  –  r/ACS  –  Yes {11}  No {0}  Not Voting {0}  Abstains {0} http://www.njleg.state.nj.us/2018/Bills/A3500/3421_U1.PDF

Sessions Memo Makes Waves for Cannabis Industry

by Brittany Verga Bonetti

Attorney General Jeff Sessions’ rescission of the Obama-era “Cole Memo” on January 4, 2018 created a stir in the expanding domestic cannabis industry. In a single page the Sessions Memo rescinds previous Department of Justice guidance, which limited federal prosecution of marijuana-related activity.

The Sessions Memo gives federal prosecutors more latitude in determining which marijuana activities to prosecute, stating that prosecutors should weigh multiple elements, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.

Although the announcement is certainly significant, the federal government has traditionally relied on state and local law enforcement to prosecute individuals in violation of narcotic laws. This, however, is no consolation for financial institutions that have taken on marijuana-related accounts as a result of Financial Crimes Enforcement Network (FinCEN) guidance issued on February 14, 2014. FinCEN guidance, which was premised upon Cole Memo enforcement priorities, gave banks a way to comply with their federal Banking Secrecy Act obligations, while accepting marijuana-related business accounts. The FinCEN guidance was meant to enhance the availability of financial services for marijuana-related businesses, but the uncertainty surrounding the legitimacy of that guidance in the wake of the Sessions Memo is expected to have a chilling effect upon banking within the cannabis industry.

Additionally, on the horizon is the January 19, 2018 expiration of the Rohrabacher-Blumenauer Amendment, which prohibits funds available to the Department of Justice from being used to prevent states from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana. The expiration of the Rohrabacher-Blumenauer Amendment and any forthcoming FinCEN guidance are developments that marijuana-related businesses should closely monitor.

Notwithstanding the Sessions Memo, New Jersey Governor-Elect Phil Murphy and New Jersey State Senator Nick Scutari, the prime sponsor of the New Jersey Compassionate Use Medical Marijuana Act, intend to proceed with efforts to legalize recreational marijuana in New Jersey. New Jersey Senator Cory Booker and politicians from states where marijuana is legal have all expressed concern about the confusion that the Sessions Memo will cause. Attorney Craig Carpenito, appointed by Jeff Sessions as interim U.S. Attorney for the District of New Jersey last week, has not publicly stated his position on marijuana laws.

Boundary Lines: Student residency issues…by Amy Houck Elco, Esq. and Kelli A. Prinz, Esq.

This article appeared in the New Jersey School Board Association School Leader Magazine.
NOVEMBER/DECEMBER • 2017 • VOLUME 48 • NO. 3

Is this student eligible to attend our school district? It seems to be a simple question, but one that often does not have a simple answer.

Student residency questions abound as school districts face increasingly challenging registration issues, from family custody and guardianship disputes to homelessness and transient housing concerns. New Jersey Division of Children Protection and Permanency (CP&P) placements, and parents school district “shopping” for a school outside of their permanent residence, can also raise residency questions.

Schools are often left to act initially as judge and jury as they make a fact-sensitive analysis as to whether a student will be permitted to attend the school district. New Jersey school residency laws, and proper use of them, can help districts sort through these challenging issues, however.

Laws Aim for Balance The state’s school residency laws, N.J.S.A. 18A:38-1, et seq. and N.J.A.C. 6A:22-1.1, et. seq., are designed to strike a balance between the right of students to a free public education, and the financial obligations of local school districts to ensure that students attending school within their jurisdictions are entitled to do so. School districts can initially alleviate many basic registration and enrollment questions by ensuring proper procedures and forms for registration are being used.

Registration Coordination The New Jersey Department of Education (NJDOE) issues registration forms for school districts to utilize. School districts can develop their own forms, but they should be consistent with state laws and regulations in that they must:

  • Not seek prohibited information;
  • Properly summarize criteria for attendance for applicant reference;
  • Specify the nature and form of any sworn statements to be filed;
  • Clearly state the purpose in relation to such criteria for which requested information is sought; and
  • Provide notice to applicants that any initial determination of eligibility is subject to more thorough review and reevaluation and that there is a potential for assessment of tuition if an applicant initially admitted is later found ineligible.

School employees make initial determinations of eligibility upon presentation of an application for enrollment. Enrollment must take place immediately in all cases except those of clear, uncontested denials. The applicant shall be placed on notice that student removal will result if defects in the application are not corrected, or an appeal is not filed in accordance with subsequent notice to the applicant. The student’s enrollment or attendance at school shall never be conditioned on advance payment of tuition in whole or in part.

If the school district determines a student is ineligible, then a formal “Notice of Ineligibility” must be sent and the district must advise the student that an appeal may be filed with the state commissioner of education within 21 days of the notice.

Proper Proofs and Procedures Students can be denied initial enrollment by a school district in very limited circumstances. School districts may have what they typically request as required documentation for registration, but they must accept a variety of documents, including but not limited to: property tax bills, deeds, contracts of sale, leases, mortgages, signed letters from landlords and other evidence of property ownership, tenancy or residency, voter registrations, licenses, permits, financial account information, utility bills, delivery receipts, and other evidence of personal attachment to a particular location.

However, this is not an exhaustive list, and school districts may accept forms of documentation not listed here. Importantly, a school district is required to consider any proof of residency that is submitted.

Immigration Status Not a Factor School districts may not inquire as to immigration status, require a Social Security card or driver’s license, or request as a condition of enrollment any information or document protected from disclosure by law, or pertaining to criteria that are not a legitimate basis for determining eligibility to attend school. This includes: income tax returns, documentation/information relating to citizenship or immigration/visa status (with certain exceptions), documentation/information relating to compliance with local housing ordinances or conditions of tenancy.

The district only may consider this type of information if it is voluntarily submitted by the applicant. School districts cannot deny enrollment due to the fact that the student is residing in a motel, campground, 65-and-older community, or other lodging that may be in violation of local municipal codes. It is the municipality’s, not the school district’s, obligation to enforce local ordinances.

Lack of birth certificate or immunization records at registration does not prevent a student from enrolling in a school district. However, there are specific time frames for those documents to be supplied. In fact, failure to provide immunization records within the allotted time frame can exclude a student from school.

Regulation Interpretation The majority of students attending school in a district will be living with their parent or guardian. The parent or guardian must permanently reside in the school district. A home is considered permanent when the parent, guardian or student intends to return to it when absent and has no present intent of moving from it. If a student’s parent or guardian has more than one home, the student’s domicile is considered the permanent home.

In family custody cases, where a student attends school is often in the divorce decree or child custody order. If there is no court order establishing residency, the student is considered domiciled in the district in which he or she spends the majority of time. Court orders may often be a source of uncertainty for a school district. If a school employee is presented with an order pertaining to a student and is uncertain of its effect, he or she should contact the district’s solicitor for assistance.

Homeless Students and Families Notably, a family that moves to a school district as a result of being homeless is entitled to attend the school district or their previous school district, at the previous school district’s expense while they remain homeless. Homeless student tuition contracts are often on board agendas for board members to approve. The educational rights of homeless students in New Jersey are governed by state regulation as well as federal regulation, known as the McKinney-Vento Act.

Students placed in the home of a district resident by court order, such as with foster parents, may attend that school district. For example, this includes students placed by the CP&P or a court order specifying a school district for educational purposes.

Students may attend school in a district if they are living in the home of someone residing in the district who is watching the student while their parent or guardian is away on active military duty with the National Guard or reserves.

Students may attend school in a district with permission from the local board of education. This often includes tuition students, senior privilege students, or other students permitted by local board policy.

Other Circumstances Students may also attend school in a district if they are living with a person, other than their parent or guardian, who is domiciled in the school district and that person is supporting the student without compensation, as if the student were his or her own child, because the parent cannot support the child due to family or economic hardship. These students are commonly known as “affidavit students.” In these cases, the district may require a person supporting a child to submit a sworn statement that he or she:

  • Is domiciled in the district;
  • Is supporting the child gratis;
  • Will assume all personal obligations for the child relative to school requirements; and
  • Intends to keep and support the child gratuitously for longer than the school term. The student’s parent or guardian must submit a sworn statement that he or she is not capable of supporting or providing care for the child due to family or economic hardship, and that the child is not residing with the resident of the district solely for the purpose of receiving a free public education within the school district, as well as any supporting documentation required by the school district.

Students may attend school in a district when they are living with a parent or guardian who is temporarily residing in a district notwithstanding domicile elsewhere as long as the reason for such residency is, “not solely for purposes of a student attending a district of temporary residence.” The burden is on the parent to prove this. For example, the parent may have temporarily moved to the district to be closer to a medical treatment facility or to work on a long-term professional endeavor in the area.

Removing an Enrolled Student School districts may use staff to investigate allegations of enrolled students not residing in the school district. School districts may also employ investigators to uncover fraudulent residency activity. If a school district believes a student is not residing in the district based upon evidence and information the school district obtains, the school district sends the parent or guardian an Initial Notice of Ineligibility.

The Initial Notice of Ineligibility provides the parent or guardian with the option to remove the student from the school district or request a hearing appealing the determination before the board of education. If the parent or guardian requests a board hearing, the student is allowed to remain in school until the board makes its determination following the hearing. During the hearing the parent or guardian may present evidence in support of their claim that the student does reside in the school district.

A Determination of Ineligibility If the board determines the student is ineligible to attend school in the school district, the parent or guardian will receive a Final Notice of Ineligibility. The Final Notice of Ineligibility notifies the parent or guardian they have 21 days to appeal the board’s decision to the state commissioner of education, and the student is allowed to continue to attend school during this time period. If no appeal is filed by day 21, the student is removed from school.

If the parent or guardian does appeal to the commissioner and withdrawals the appeal, fails to prosecute the case, or loses at trial, the parent or guardian may be assessed tuition for any period of ineligible attendance, including the initial 21-day filing period.

Residency Revisited Residency determinations require an informed investigation into the facts underlying each particular student’s unique situation. Adhering to proper procedures and proofs will ensure that students are treated consistently and afforded an education as mandated by law, and will greatly reduce a school district’s potential liability in contested residency cases.

Captain’s Table Event Details Announced

Captain’s Table VIP Reception
At The 2018 Atlantic City Boat Show
Thursday, March 1, 2018 • 6:00 pm – 9:00 pm
Atlantic City Convention Center

Dear Friends:

The Community FoodBank of New Jersey, Southern Branch (CFBNJ-SB), the state’s largest provider of donated food to hundreds of partner charities serving the emergency food needs of the poor throughout the state, and ‘Let Us Eat, Please,’ a summer feeding program helping to ensure that poor kids get enough to eat over the summer months while out of school, depend heavily on the generosity of our friends and supporters to help keep those in need fed.
Childhood Food Insecurity by county in our area:
Atlantic County 19.3% of children are food insecure
Cape May County 19.8% of children are food insecure
Cumberland County 18.2% of children are food insecure
What we do:
-CFBNJ-SB distributed 1.4 million pounds of food last month, a 45% increase over October 2016
-CFBNJ-SB went from serving 700 families a month to over 1100 from this time last year
-‘Let Us East, Please,’ every two weeks over the summer, saw that 810 families and their 2,300 children, identified by the schools as needing assistance, received a 30 pound box of groceries, valued at more than $40, at no cost to them

All of this means just one thing… in the face of such increasing need, we are seeking help from our community.

We are planning a unique event, designed to provide some of the funds needed to help us make a positive difference in the lives of those less fortunate. We hope you will consider being a sponsor and/or joining us at our Captain’s Table event at the Progressive Insurance Company’s Atlantic City Boat Show at the Atlantic City Convention Center on Thursday, March 1, 2018, from 6:00 – 9:00 pm.

Gratefully,

Kenneth J. Calemmo,Jr., Chief Operatng Officer, Cooper Levenson, Attorneys at Law
609-572-7500 or kcalemmo@cooperlevenson.com

Richard Uniacke, Vice President, Community FoodBank of New Jersey, Southern Branch
609-383-8843, ext. 109 runiacke@cfbnj.org