Community Agencies Corp. OF NJ v. New Jersey Department of Agriculture, No. A-0499-08T2 (N.J. Super. 1/15/2010), A-0499-08T2.
| Decision Date | 15 January 2010 |
| Docket Number | No. A-0499-08T2.,A-0499-08T2. |
| Parties | COMMUNITY AGENCIES CORP. OF NJ, DOROTHY KNAUER, DOLLIE MUSA, KARL E. BECKER, TERENCE J. DWYER, and DOROTHEA HOFFNER, Appellants, v. NEW JERSEY DEPARTMENT OF AGRICULTURE, CHILD AND ADULT FOOD CARE PROGRAM, Respondent. |
| Court | New Jersey Superior Court |
On appeal from the New Jersey Department of Agriculture, Child and Adult Food Care Program, Agreement No. 07-13-963.
Jason D. Dalton argued the cause for appellants (Law Offices of Ronald V. McGuckin and Associates, attorneys; Mr. Dalton, on the brief).
Kristen D. Heinzerling, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Heinzerling, on the brief).
Before Judges Reisner and Yannotti.
Community Agencies Corp. of N.J. (CACNJ), Dorothy Knauer (Knauer), Dollie Musa (Musa), Karl E. Becker (Becker), Terence Dwyer (Dwyer) and Dorothea R. Hoffner (Hoffner) appeal from a final determination of the New Jersey Department of Agriculture (NJDOA or department), which terminated and disqualified appellants from future participation in the Child and Adult Care Feeding Program (CACFP). For the reasons that follow, we reverse and remand for further proceedings.
We briefly summarize the facts pertinent to our decision. The CACFP is a food service program established by the United States Department of Agriculture (USDOA), under the authority of the National School Lunch Act, 42 U.S.C.A. §§ 1751-1769e, and the Child Nutrition Act of 1966, 42 U.S.C.A. §§ 1771-1790. The purpose of the CACFP is to "safeguard the health and well-being of the Nation's children" by encouraging the "consumption of nutritious" foods. 42 U.S.C.A. § 1751.
The CACFP provides states with federal "grants-in-aid and other means" to initiate and maintain nonprofit food service programs for children in institutions providing child care." 42 U.S.C.A. § 1766(a)(1). States enter into agreements with the USDOA in which they agree to comply with all applicable federal laws and regulations governing the program. The states, in turn, distribute the funds pursuant to reimbursement agreements (RA) with local program sponsors who have been approved to participate in the CACFP. 7 C.F.R. §§ 226.1, 226.6(b)(4).
In January 2007, CAC and the NJDOA executed an RA governing CAC's participation in the CACFP during the 2007 federal fiscal year, which began on October 1, 2006. The agreement expired on September 30, 2007. It appears that in 2007, CAC provided food services to eligible children enrolled at a child care center called Wellspring II (Wellspring). In June 2007, the NJDOA conducted an onsite inspection of Wellspring's food service program and reviewed certain documents related thereto. NJDOA's representatives met with Musa and Esther Speight (Speight), who were both involved in the operation of the CACFP at Wellspring.
On June 26, 2007, the NJDOA issued a letter to CAC, which was addressed to Musa. The NJDOA identified certain operational deficiencies in the CACFP at Wellspring. According to the NJDOA, those deficiencies related to: (1) missing and/or incorrect applications from program beneficiaries that resulted in the misclassification of children in free versus reduced-rate reimbursements; (2) inaccurate meal counts; (3) inadequacies of the menus; (4) discrepancies between the attendance records and the number of meals served; (5) and failure to produce sanitation, training, and monitoring documentation; and (6) non-compliance with certain lunch service requirements.
In its June 26, 2007 letter, the NJDOA also stated that CAC's misclassification of children had resulted in an overclaim of $249.97 for April 2007. The NJDOA directed CAC to return that amount within thirty days. In addition, the NJDOA directed CAC to submit a corrective action plan and certain documentation by July 17, 2007. CAC did not respond to the NJDOA's letter.
On August 10, 2007, the NJDOA issued another letter to CAC, which also was addressed to Musa. In this letter, the NJDOA stated that CAC's failure to respond by August 14, 2007, to its earlier letter would result in a determination that CAC's operation of the CACFP at Wellspring was "seriously deficient[.]" CAC did not respond to this letter.
Musa submitted a voucher dated September 3, 2007, to the NJDOA seeking reimbursement for meals served at Wellspring in August 2007. On October 18, 2007, the NJDOA sent CAC a letter, which was addressed to Musa, advising that it was withholding the previously identified overclaim of $249.97 from the reimbursement sought for the meals served in August 2007.
In its letter of October 18, 2007, the NJDOA also said that CAC had not addressed the deficiencies identified in the department's June 26, 2007 letter. The NJDOA stated that CAC's failure to respond to future requests for information and corrective action would result in a determination that its operation of the CACFP was "'seriously deficient'" and possible termination of CAC and its principals from CACFP participation.
On October 26, 2007, the NJDOA issued a seriously deficient notice (SDN) to CAC, Becker, Knauer, Speight, Dwyer, Hoffner and Musa by fax and by overnight mail. In a Sponsor Management Plan (SMP) form that CAC executed in January 2007, Becker had been identified as CAC's "Board Chair/Owner/Department Head," Knauer as "Exec. Director/Department Head/Owner," Speight as "Substitute Person Responsible for CACFP Records," Dwyer as "Treasurer," Hoffner as "Secretary," and Musa as "Primary CACFP Contact Person." In the SDN, the NJDOA reiterated its findings from the June 2007 inspection and ordered CAC to submit by November 9, 2007, a corrective action plan and supporting documentation for the period from July 1, 2007 through September 30, 2007.
Upon receipt of the SDN, Knauer and other CAC representatives contacted the NJDOC and informed the department that Wellspring had closed on August 24, 2007, and they were unaware that were problems with Wellspring's food service program until they received the SDN. The NJDOA advised the CAC representatives that CAC was still required to respond to the SDN. On November 7, 2007, CAC submitted a corrective action plan and supporting documents for the period from July 1, 2007 to August 24, 2007. The NJDOA found that the submission was inadequate.
On March 27, 2008, the NJDOA issued a notice of intent (NIT) to terminate CAC, Becker, Knauer, Speight, Dwyer, Hoffner and Musa and disqualify them from future CACFP participation for a specified period of time. In the NIT, the NJDOA stated that it had determined that deficiencies in the operation of the Wellspring food service program had resulted in additional overclaims of $6,836.35.
The department informed appellants that they could appeal from the proposed termination and disqualification and the demand for re-payment of the overclaims. Appellants were advised that the matter would be heard by a NJDOA hearing officer and there would be no further administrative appeal from the hearing officer's decision.
Appellants sought administrative review, and on July 15, 2008, Dwyer, Hoffner, Knauer and Speight appeared before a NJDOA employee, along with certain NJDOA representatives, for a hearing. At the hearing, counsel for appellants stated that the overclaim issue was not an issue at the hearing. Apparently, the hearing officer and the NJDOA agreed.
Appellants then addressed the proposed termination and disqualification from CACFP participation. They argued, among other things, that they could not be terminated or disqualified from the CACFP because, although the NJDOA had identified certain program deficiencies at Wellspring in its June 26, 2007 letter, the department did not serve the SDN upon CAC and its principals until October 26, 2007, which was after Wellspring closed. Appellants said that they were unaware of the program deficiencies while the Wellspring program was in operation. They maintained that, by delaying the issuance of the SDN, the NJDOA failed to afford them sufficient time to take corrective action to avoid termination and program disqualification.
On August 21, 2008, the hearing officer issued a report upholding the proposed termination and disqualification of CAC and its principals, other than Speight. The hearing officer found no basis to disqualify Speight because she was not a principal of CAC. The hearing officer additionally directed CAC and the NJDOA to "negotiate and finalize any outstanding overclaim/underclaim amounts and that any amount due either party be satisfied within [forty-five] days of the receipt" of the report. We are advised that the parties did not thereafter resolve the amount of the outstanding "overclaim/underclaim." Appellants filed a notice of appeal from the hearing officer's decision on September 26, 2008.
We note at the outset that because the dispute between the parties regarding the "overclaim/underclaim" has not been resolved, the NJDOA's decision is not final for purposes of appeal. Rule 2:2-3(a)(2) provides that appeals to the Appellate Division may be taken as of right from final decisions of State administrative agencies. Such decisions must be "final both as to all issues and all parties." Caggiano v. Fontura, 354 N.J. Super. 111, 123 (App. Div. 2002) (citing Lawler v. Isaac, 249 N.J. Super. 11, 17 (App. Div. 1991)).
We are convinced, however, that because the parties have fully briefed the issues pertaining to the NJDOA's termination and disqualification decision, the interests of justice would be served by considering the appeal from that determination at this time. Accordingly, we grant leave to appeal nunc pro tunc from the NJDOA's decision pursuant to Rule 2:4-4(b)(2).
Appellants argue that the NJDOA's decision terminating and disqualifying CAC and its principals from CACFP...
To continue reading
Request your trial