Decision No. 13,040

(November 9, 1993)

SOBOL, Commissioner.--Petitioners appeal respondent's determination that their children are not entitled to attend the public schools of the district tuition-free because they are not district residents. The appeal must be dismissed.

Petitioners' four children have attended school in respondent's district since kindergarten. According to respondent, questions first arose concerning petitioners' residency in 1988 when the district learned that Jennifer Gaffney did not reside there. Nevertheless, respondent did not pursue the matter because it had no knowledge of where petitioners actually lived. When respondent's supervisor of transportation observed petitioner Lynette Gaffney dropping off three of her children at one of respondent's school buildings in January 1993, however, questions again arose concerning their residency and an investigation was begun.

On February 23, 1993, respondent notified petitioners that, as nonresidents, their children would be excluded from respondent's schools. Petitioners requested a hearing which was held on March 15, 1993. The hearing officer concluded that petitioners were not residents of the district, finding that they had used a business address in the district as their residence when actually they resided in a single family home in St. Albans, Queens, outside of the district. The hearing officer's determination was based on a 17-day surveillance conducted by respondent's director of transportation, home visits to the alleged address within the district and documentary evidence submitted by both parties. Petitioners appealed the decision and respondent board upheld the determination. This appeal ensued.

Petitioners allege that respondent's decision was arbitrary, capricious and unreasonable. They also allege that respondent's decision was improper because the record was not fully reviewed. Petitioners further assert violations of the State Administrative Procedure Act (SAPA).

Respondent contends that it acted reasonably and was neither arbitrary nor capricious in its determination that petitioners are not residents of the district. Respondent also contends that its procedures were proper and conformed with Commissioner's regulations governing residency (8 NYCRR 100.2[y]).

Residency is a determination based upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (Appeal of Anthony Stokes, 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235). The term residence for purposes of Education Law refers to one's domicile (Appeal of Reifler, supra). While a person may have more than one residence, he may have only one domicile (Matter of Newcomb, 192 NY 316). As the party challenging petitioners' residence, the board of education has the burden of establishing that petitioners and their children do not reside there (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Lenz, 32 id. 132).

The hearing conducted by respondent included direct witness testimony and documentary evidence, including a sworn surveillance report that showed petitioners leaving the Queens address with their children every day and proceeding to drop them at respondent's schools. Petitioners' initial response to that report was that they stayed in St. Albans to care for elderly and ill relatives. Later, petitioners denied the accuracy of the surveillance. In addition, petitioners testified that they and their four children reside in an apartment on Wahl Avenue above petitioners' funeral home business, even though the utility bill for that address showed minimal utility usage for that apartment, inconsistent with residential customer averages. The documentary evidence submitted by respondent at the hearing included a telephone bill addressed to Jeremiah G. (sic) Gaffney's Funeral Directors, a 1993 Coles Directory listing showing petitioners registered as telephone customers at the St. Albans address, and a TRW report showing petitioners as owners of the St. Albans home. Petitioners supplied tax notices, bank statements and utility bills which evidenced an address within the district, but could have easily been procured by virtue of petitioners' business address.

Respondent also raises several inconsistencies in petitioners' testimony at the hearing and in the subsequent appeal to the board. At the initial hearing, petitioners claimed that they lived with their four children in a two bedroom apartment over the funeral home and that elderly relatives occupied the St. Albans home. At the appeal before respondent board, petitioners claimed that their apartment over the funeral home had three bedrooms and that the St. Albans home was vacant.

Based on my review of the record, including the surveillance report and the absence of credible evidence suggesting otherwise, I find that respondent has met its burden of proving that petitioners do not reside in the district. Accordingly, there is no ground for reversing the board's determination.

Petitioners also allege violations of SAPA and claim that a tape made of the hearing was inaudible and rendered their appeal ineffective. Upon review of the record, I do not agree that petitioners' rights were compromised in any way. While petitioners allege that the tape of the hearing was inaudible, they do not submit a transcript or any proof concerning prejudice in the appeal process by virtue of the allegedly inaudible tape. At the same time, respondent notes that petitioners were offered another tape of the proceeding which they never secured.

Petitioners also allege that the superintendent's decision was improper because he relied on the fact-finding of the assistant superintendent and did not personally listen to the tape of the hearing before rendering his decision. The Commissioner's regulations (8 NYCRR 100.2[y]) specifically permit a board of education or its designee to make residency determinations. There is no evidence in the record that respondent's designation of the assistant superintendent was improper or that the determination was made incorrectly.

As a result, I must conclude that petitioners do not in fact reside within the Lawrence Union Free School District, and their children are, therefore, not entitled to a free public education within that district. They may, however, be eligible for the deduction from tuition set forth in Education Law '3202(3), if they enroll their children in the district as nonresident students.

THE APPEAL IS DISMISSED.

END OF FILE

---