Decision No. 12,985
Appeal of TRUDY WALLACE from action of the Board of Education of the Sewanhaka Central High School District and Dr. George Goldstein, as superintendent of schools, regarding residency.
Decision No. 12,985
(August 16, 1993)
Nassau/Suffolk Law Services Committee, Inc., attorneys for petitioner, Jeanne Schieck, Esq.,
Douglas E. Libby, Esq., attorney for respondent
SOBOL, Commissioner.--Petitioner appeals on behalf of her daughter, Melinda McKinney, challenging the determination of respondent board of education of the Sewanhaka Central High School District ("the district") that her daughter is not a resident of the district. The matter is remanded to respondent's hearing officer for further proceedings.
Petitioner's daughter enrolled in the eighth grade at the district's Elmont Memorial High School on September 9, 1992. At that time, petitioner indicated that she and her daughter resided within the district at 58 Salem Road, Valley Stream. Petitioner alleges that she has resided at that address since July 1, 1992. She informed the district that she and her daughter had previously lived with her fiance at 217-44 100th Avenue, Queens Village, within the City School District of the City of New York.
The district retained a private security firm to investigate petitioner's residence. On October 29 and October 30, 1992, petitioner and her daughter were observed leaving 217-44 100th Avenue, Queens Village, and proceeding to Elmont Memorial High School. On November 2 and November 4, 1992, petitioner's automobile was found parked at the Queens address, although petitioner's daughter was not observed. On November 16, 1992 the investigators saw neither the automobile nor petitioner's daughter at 217-44 100th Avenue, but observed petitioner leaving from that address. In three observations, the investigators never saw petitioner or her daughter at 58 Salem Road, Valley Stream.
According to the investigators, petitioner has a telephone in her name at the Queens address. At 58 Salem Road, Valley Stream, there is a telephone in the name of "J. Wallace". Petitioner is unknown to the Valley Stream Post Office. The Queens Village Post Office, however, reports that she receives mail at 217-44 100th Avenue.
By letter dated November 20, 1992, the district's director of pupil personnel services advised petitioner that her daughter was not a resident of the district and, consequently, that she would no longer be permitted to attend school there tuition-free. At petitioner's request, the district held a hearing on December 8, 1992, in accordance with '100.2(y) of the Regulations of the Commissioner of Education (8 NYCRR 100.2[y]). At the hearing, petitioner produced eleven documents supporting her claim of residence at 58 Salem Road, including a letter from her alleged landlord; two letters from her doctor; materials from the New York State Department of Social Services; a telephone bill addressed to "J. Wallace" at 58 Salem Road; her landlord's deed for the premises at 58 Salem Road; and her lease for an apartment at that address. The district introduced the private firm's surveillance report, dated November 18, 1992.
In a decision dated December 17, 1992, the hearing officer concluded that petitioner's daughter was not a resident of the district. Petitioner commenced this appeal on January 19, 1993. She requested an interim order directing respondent to maintain her daughter in its schools pending a decision on the merits. The Commissioner of Education granted interim relief on January 28, 1993.
On appeal, petitioner contends that she stayed at the Queens address on several occasions to be closer to the hospital where she receives treatment for cancer. She also states that she is separated from her fiance because he physically abused her. Petitioner asserts that she has been a client of the Nassau County Coalition Against Domestic Violence since July 1, 1992, and that her move to 58 Salem Road was an attempt to extricate herself and her daughter from her allegedly abusive relationship. She explains that, for medical reasons, she and her daughter occasionally stay overnight at the Queens address when her former fiance is not present.
In an affidavit, the hearing officer states that petitioner never presented this explanation for her presence at the Queens Village address. The hearing officer states,
had Mrs. Wallace made these statements during the hearing, I would have pursued additional lines of inquiry with respect to her claims and certainly would have considered them in making my determination.
In its answer, respondent asks me to remand this matter to the hearing officer if I find petitioner's new allegations relevant. Because I find that petitioner's statements could be relevant to her status as a resident of the district, I will grant respondent's request and remand the matter to the hearing officer for further proceedings. I will also retain jurisdiction of this appeal so that, if the hearing officer's determination is unfavorable, petitioner may seek the Commissioner's review without having to commence the appeal process anew. Petitioner shall have 30 days after the date of the hearing officer's determination to renew her request for review.
The interim order dated January 28, 1993 shall terminate in the event petitioner fails to renew her request for review within 30 days after the hearing officer's determination. If petitioner seeks a timely renewal of her request, the interim order shall remain in effect pending a determination on the merits of her appeal.
IT IS ORDERED that this matter be, and the same hereby is remanded to respondent's hearing officer for further proceedings, to be held within 30 days after the date of this decision, at which petitioner and respondent shall have the opportunity to present additional evidence relevant to the issue of petitioner's residence; and
IT IS FURTHER ORDERED that the interim order dated January 28, 1993 shall terminate in the event petitioner fails to renew her request for review within 30 days after the hearing officer's determination, but that if petitioner timely renews said request, said interim order shall remain in effect pending a determination on the merits.
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