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Decision No. 13,565

Appeal of MARIA MONTEIRO, on behalf of her son, JEREMY, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 13,565

(March 8, 1996)

Krohn, Rosenblum & Hametz, Esqs., attorneys for petitioner, Charles B. Rosenblum, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that her son, Jeremy, is not a resident of the Uniondale Union Free School District and is therefore not entitled to attend its schools tuition free. The appeal must be sustained.

Jeremy has attended school in the Uniondale Union Free School District (the "district") since kindergarten. At the beginning of the 1994-95 school year, Jeremy was a third grader at the district's Northern Parkway Elementary School, using the address of 1021 Harrison Street, Uniondale. In February 1995, petitioner allegedly leased an apartment with her mother at 928 Goodrich Street, Uniondale. Subsequently, Jeremy began attending the district's Walnut Elementary School, using the address of 928 Goodrich Street.

In the spring of 1995, several unnamed "community informants" called the district to report that petitioner was driving Jeremy to 931 Goodrich Street each morning and was picking him up at that address each afternoon. These "informants" also reported that Jeremy was picked up at 931 Goodrich Street on Friday afternoons and was returned to that address on Sunday evenings. In addition, Jeremy allegedly told a school secretary that he stayed with his grandmother during the day but that his mother lived in an apartment in Hempstead.

Thereafter, the district's attendance officer surveilled 928 Goodrich Street before and after school on various unspecified occasions. On those occasions, the attendance officer allegedly did not observe Jeremy before school and did not observe petitioner's car after school. In addition, on one occasion, a private investigator employed by respondent allegedly observed petitioner drive to 600 Fulton Avenue, Hempstead, and enter the building at that address. The district also allegedly confirmed that petitioner has an unpublished telephone number at 600 Fulton Avenue.

In March 1995, the district's attendance officer notified petitioner that Jeremy was not a district resident and would be excluded from the district's schools effective April 7, 1995. Thereafter, petitioner met with the superintendent to discuss Jeremy's residency. Nonetheless, on June 14, 1995, the district's attendance officer issued a further determination of nonresidency. By letter dated June 15, 1995, the district's superintendent advised petitioner that Jeremy was not a resident and would be excluded from the district's schools on June 23, 1995.

Petitioner commenced this appeal on September 12, 1995 and requested a stay. Petitioner's stay request was denied on September 25, 1995.

By letter dated November 9 1995, petitioner requested a reconsideration of her stay request. Thereafter, pursuant to '276.5 of the Commissioner's regulations, my Counsel's office requested additional information concerning the district's surveillance activities. Upon receipt of this information, on December 7, 1995, I granted petitioner's stay request and ordered respondent to admit Jeremy to school pending a final determination on the merits of this appeal.

Before reviewing the merits, it is necessary to address a procedural issue. Respondent contends that this appeal should be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused for good cause shown (8 NYCRR 275.16). Respondent contends that this appeal is untimely because it made its decision on June 15, 1995. It appears, however, that petitioner submitted a copy of her lease to the district for the first time on or about September 6, 1995. Respondent rejected this new evidence on or before September 12, 1995. The commencement of this appeal on September 12, 1995 was, therefore, within 30 days of the submission and rejection of this new evidence. Accordingly, the appeal is timely (Appeal of Joiner, 34 Ed Dept Rep 110).

Turning to the merits of this appeal, Education Law '3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Residence is determined based upon an individual's physical presence as an inhabitant within the district combined with the intent to remain (Appeal of Rosen, 33 Ed Dept Rep 443; Appeal of Stokes, 32 id. 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235).

Upon review of the record, I find that the weight of the evidence supports petitioner's residence in respondent's district. Petitioner submitted a lease listing herself and Jeremy as occupants of 928 Goodrich Street, Uniondale. Respondent has not offered any evidence that this lease is not credible. Furthermore, although petitioner admits that Jeremy sometimes stayed with her sister at her sister's apartment at 600 Fulton Avenue, Hempstead, petitioner consistently maintains that she resides at 628 Goodrich Street, Uniondale.

While the evidence offered by petitioner is not overwhelming, respondent has offered inconclusive proof that petitioner does not reside in its district. Respondent apparently based its determination in part on a surveillance of petitioner. Despite my request, respondent has not provided any surveillance reports or the affidavit of any person who conducted the surveillance. Instead, respondent has merely provided an attorney's affidavit summarizing the district's surveillance activities.

According to the attorney's affidavit, the district's attendance officer allegedly observed 928 Goodrich Street on several occasions and did not see Jeremy leave the premises. Respondent, however, has not provided any information concerning the dates or times of these surveillances or whether Jeremy even attended school on the surveillance days. Respondent also alleges that the district's attendance officer observed the premises at 928 Goodrich Street on various evenings and did not see petitioner's car. Again, respondent has not provided any information concerning the dates or times of these surveillances. Accordingly, I find these alleged surveillances to be inconclusive.

In addition, respondent allegedly employed a private investigator to observe petitioner. Again, respondent has not provided a copy of the investigator's report or an affidavit of the investigator. Moreover, according to the attorney's affidavit, the investigator merely observed petitioner, on one occasion, drive her vehicle from 928 Goodrich Street to 600 Fulton Avenue and enter the building at that address. This is not unexpected, however, since petitioner admits that her sister lives at 600 Fulton Avenue. Therefore, I find this surveillance to be inconclusive as to petitioner's residency.

Respondent argues that petitioner acted in an evasive manner, making surveillance difficult. Even assuming petitioner acted in such a manner, that did not relieve respondent of gathering sufficient evidence to support its determination.

It appears from the record that petitioner resided at 600 Fulton Avenue, Hempstead for a period of time between August 1990 and July 1991. This fact, however, does not prove that petitioner currently resides at that address. Although respondent alleges that petitioner has an unlisted telephone number at 600 Fulton Avenue, respondent has offered no documentary evidence to establish that petitioner resides there. Petitioner, on the other hand, submitted a copy of her sister's lease and phone bill for 600 Fulton Avenue. Neither document indicates that petitioner resides at that address.

Lastly, respondent argues that Jeremy admitted to a school secretary that his mother lives outside the district. Specifically, the secretary alleges that Jeremy indicated to her, in words or substance, that he stayed with his grandmother during the day but that his mother lived in an apartment in Hempstead. The record indicates that Jeremy disputes this allegation and maintains that he, his mother and grandmother have resided at 928 Goodrich Street since February 1995. Moreover, the record indicates that Jeremy occasionally stayed with his aunt at 600 Fulton Avenue between February and June 1995 due to his grandmother's illness. In light of these conflicting statements, I find Jeremy's alleged admission to be unpersuasive in the absence of other credible evidence.

In sum, the record does not demonstrate that Jeremy resides outside the district. Accordingly, based on the evidence before me, I am constrained to conclude that Jeremy is a resident of the district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Jeremy to attend school in the Uniondale Union Free School District without payment of tuition.

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