Decision No. 13,851

(December 3, 1997)

Jeffrey F. Pam, Esq., attorney for petitioner

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") that her son Steven is not a district resident for the purpose of attending district schools tuition-free. The appeal must be sustained.

Petitioner contends that she and Steven reside at 1301 Harbor Road, Hewlett Harbor, within respondent’s district. Her father, Misha Urman, who lives at 2840 Ocean Parkway, Apartment 8D, Brooklyn, with petitioner's mother, Geta Urman, owns the house at 1301 Harbor Road. It is undisputed that Alex Urman, petitioner’s brother, his wife and two children reside at the Harbor Road residence. Alex's children attend respondent’s schools. Petitioner contends that she and Steven have lived with her brother since August 1995. Respondent contends that petitioner and her son live at 2840 Ocean Parkway, Apartment 8B, Brooklyn, presumably the same building as her parents.

In March 1997, respondent notified petitioner that Steven would no longer be able to attend its schools as a resident. On April 10, 1997, respondent's assistant superintendent held a hearing on the issue of Steven's residency. Petitioner, her brother, sister and sister-in-law all attended that hearing. On April 14, 1997, respondent issued a determination that Steven was not a resident of the district, and this appeal ensued.

Petitioner raises a number of procedural issues, including adequacy of notice and lack of due process. Respondent contends that it complied with all procedural requirements. On March 13, 1997, respondent sent letters by both certified and regular mail, informing petitioner that Steven would no longer be entitled to attend its schools because he was not a legal resident of the district. The letters were mailed to the Brooklyn address and a copy was given to Steven at school. Petitioner claims that she never received the letters and learned of the situation from her brother. Although the facts are in dispute, petitioner admits that she was made aware that respondent was questioning Steven's residency by March 27, 1997. A hearing was originally scheduled for April 9 and petitioner retained an attorney. However, petitioner was unable to attend the meeting and asked her brother and sister to attend in her place. She also discharged her attorney but neglected to inform the district. Respondent informed petitioner's brother and sister that the hearing could not proceed without petitioner and rescheduled it for the next morning. Petitioner then hired the attorney who represents her in this appeal and consulted with him on the evening of April 9. His request for a brief adjournment of the hearing was refused by respondent's counsel. Consequently, petitioner alleges that she was denied the opportunity to discover the nature of the allegations and the evidence supporting respondent's determination.

Section 100.2(y) of the Regulations of the Commissioner of Education provides, in pertinent part:

Petitioner submits a copy of the March 13, 1997 letter from respondent that includes the procedure for requesting a hearing to challenge the district's determination. Petitioner had sufficient opportunity to gather information in support of her contention that she is a resident of the district and was afforded the opportunity for a hearing to present that information. The fact that she switched attorneys at the last moment does not alter the fact that she had at least two weeks to prepare and she had a meaningful opportunity to address respondent's concerns at the hearing. She was also properly informed of her right to file this appeal pursuant to 8 NYCRR 100.2(y).

Turning to the merits, Education Law "3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education only to district residents (Appeal of Garbowski, 36 Ed Dept Rep 54; Appeal of Allen, 35 id. 112). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Simond, 36 Ed Dept Rep 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374).

In support of her position that she is a district resident, petitioner submitted her driver’s license issued October 9, 1996, a blank check from her bank account, her bank statement for November 1996, her automobile insurance card, a refund check dated March 27, 1997 from the New York City Department of Finance, a phone bill for February 1997, and her 1996 W-2 Wage and Tax Statement. All of these list her address as 1301 Harbor Road, Hewlett Harbor.

Respondent relies upon an investigator’s report, the registration form completed by petitioner and Steven’s father, and petitioner’s own statements at the residency hearing. Respondent contends petitioner and her family have engaged in an address-trading scheme in order to take advantage of its schools, among other things. For instance, Misha Urman's automobile is registered in petitioner’s name at the Hewlett Harbor address, rather than his own name at the Brooklyn address. Respondent implies that this was done in order to take advantage of the lower insurance rates in Hewlett Harbor. There is also an automobile registered to petitioner’s supervisor at the Harbor Road address, although the car apparently belongs to a member of petitioner’s family.

The investigator's report claims that there is an unlisted telephone number in petitioner's name at the Brooklyn address and alleges that petitioner answered that phone and confirmed her address as the one in Brooklyn. There is no indication, however, as to how the investigator obtained the phone number. Respondent also alleges that petitioner and her family submitted a fraudulent lease for petitioner at the Harbor Road address. Respondent points to these as evidence of the entire family's tendency to lie about addresses in order to gain certain favorable outcomes. Respondent alleges that because petitioner’s supervisor is a friend of petitioner’s sister-in-law, and has a car registered in her name at the Harbor Road address, the address on the W-2 form is also false. Respondent also implies that petitioner and her former husband intentionally failed to complete accurately the school registration form by not checking the appropriate line indicating that petitioner and her husband are divorced, and by listing identical addresses (1301 Harbor Road), places of employment, and telephone numbers for both of them.

Petitioner responds by explaining that she is part of an extended Russian immigrant family whose customs may appear strange to others, but it is how her family survived as a persecuted minority in the former Soviet Union. She contends that she never reviewed the school registration form, instead allowing her ex-husband to complete and sign it. Petitioner admits to having some difficulty with English, but she is unsure of her ex-husband's fluency since they only communicate with each other in Russian. Petitioner also submits the lease that she admits was drawn up for the purpose of registering Steven at respondent’s school. She contends that before registering Steven she contacted the school concerning documentation and was told a lease was required to prove residence. Her sister-in-law drew up the lease for that purpose. She admits that she pays no rent. Additionally, petitioner charges that respondent instructed the investigator to construct a case in support of its own position and that some of the information in the report is false.

Petitioner states that her ex-husband lives in Brooklyn and that Steven often spends time with him, occasionally spending the night. Petitioner’s place of employment is also in Brooklyn, near her parents' apartment. When Steven visits his father, arrangements are made for Steven to be brought to his grandparents' address in Brooklyn by relatives or other members of the extended family. Steven’s father picks him up from, and returns him to, that address. Petitioner contends that she then picks up Steven from her parents' apartment and brings him home to Hewlett Harbor. She states that until her mother’s recent surgery, on rare occasions she and Steven spent the night at her parents' apartment, with petitioner sleeping on a pull-out sofa in the living room and Steven sleeping on a love seat in the same room. She contends that at the Harbor Road house, petitioner has her own bedroom and Steven shares a bedroom with his cousin. Petitioner also submits a copy of her mother's surgical report and contends that most of the investigator's report reflects an extraordinary time period during which she spent a great deal of time assisting her parents.

Respondent, according to the April 14, 1997 final residency determination letter, places great weight on the investigator’s report, stating that "...the information you (petitioner) and your family presented simply was not credible compared to (the investigator’s) 'black and white' observations." However, I find that much of the report is inconclusive, most notably for the number of times the investigator failed to observe Steven at all, at either address. The report only identifies one occasion where Steven was listed as absent from school. For example, the report contains these observations on the following dates:

November 18, 1996 - The investigator did not see Steven leave the Harbor Road home in the morning for school. Neither did he see Steven leave school in the afternoon.

December 11, 1996 - The Assistant Principal reported seeing Steven in a taxicab. There is no evidence to show where the cab took Steven.

December 16, 1996 - Steven was picked up at school, along with his cousin, by petitioner’s brother-in-law and a woman, presumably his wife (petitioner’s sister) who brought them to the Harbor Road residence. The couple drove off, leaving Steven and his cousin playing football on the lawn.

January 14, 1997 - Steven was picked up from school in a car that headed westbound on the Belt Parkway toward New York City. The investigator was unable to follow the car due to heavy traffic.

January 15, 1997 – Surveillance near the JFK Expressway spotted the same car seen the previous day proceeding toward the school where it dropped Steven off.

Respondent contends that these few observations indicate that Steven is regularly transported to and from Brooklyn where he stays overnight. However, only on January 14 and 15 is there any evidence to support that contention. Up to this point, the other observations submitted in support of respondent's contentions are entirely unpersuasive.

On January 16, 1997, petitioner’s mother had knee replacement surgery. Petitioner contends that after her mother’s knee surgery on January 16, 1997, she spent a great deal of time at her parent’s apartment in order to care for them. Respondent continued its surveillance on the following dates: January 22, 23, 28, 29, 30, February 13, 14, 24, 26, 27, 28, and March 5, 1997.

Based on my review, I find the investigator’s report on these dates to be consistent with petitioner’s explanation. It is apparent that Steven spent the nights of February 27 and March 4, 1997 at the Brooklyn address. However, there was no sign of Steven at that address on January 28, January 30, February 14 or February 26. Of the remaining observations, on one occasion it was reported that Steven was not seen at the Harbor Road address or school and on three occasions Steven was picked up from school and driven westbound toward the Belt Parkway where the investigator was unable to follow. It is unknown if Steven returned to the Harbor Road house later in the evening on those occasions. Therefore, these observations fail to establish that Steven spent the night at the Brooklyn address, especially in light of the fact that the investigator observed Steven being taken toward Brooklyn after school on January 29, yet Steven was not seen leaving that address the next morning for school. The only date the report has Steven listed as absent from school is February 14.

The investigator’s report states that the investigator spoke to a Mr. David Okon who had been seen picking Steven up from school on several occasions after Geta Urman’s surgery. Respondent points out that during the hearing petitioner did not recognize Mr. Okon’s name initially and found it incredulous that she would allow her son to be driven by a stranger. Petitioner explains that she was only briefly confused when the question was posed and that Mr. Okon is the retired boyfriend of her aunt, who only recently joined their family circle and is only referred to as David. The report states that Mr. Okon, when questioned by the investigator, said that he brought Steven home to Ocean Parkway every day. Petitioner claims that Mr. Okon does not speak English and contends the conversation could not have taken place or that Mr. Okon misunderstood the question.

The investigator’s report also includes a credit report, which lists several former addresses for petitioner, including the Ocean Parkway, Apartment 8B address, but at least one appears to be erroneous and it is unclear how current the information is. On January 27, 1997 the investigator also placed pretext phone calls to two different numbers purportedly associated with petitioner. The first call was to the former non-published number of petitioner's ex-husband Emmanual Kucherovsky at 2814 West 8^th Street, an address that is also listed on petitioner's credit report, and allegedly answered by petitioner's brother who gave out a second number supposedly belonging to Emmanuel. The report states that the investigator made a second call to this number, ostensibly a non-published number for petitioner. Allegedly, petitioner answered the phone on that date, and Steven answered a call to the same number on February 13, 1997, and both confirmed petitioner's address as 2840 Ocean Parkway, Apartment 8B, Brooklyn. Petitioner denies ever having received that call, claims to not recognize the numbers and alleges that she called those numbers herself and does not know the persons who answered the phone. She also denies that members of her family received those calls or ever gave out any such information. The investigator’s report indicates that the name on the mailbox for Apartment 8B is B. Krass. Petitioner states that B. Krass, the occupant of that apartment, is her friend.

The investigator did find petitioner’s name on the lobby directory at 2814 West 8^th Street, Apartment 11C, Brooklyn. Petitioner explains that she lived in that apartment for 15 years, until December 1994 when she moved into a fifth floor apartment at the same address. She states that she subsequently moved to Hewlett Harbor in 1995. The investigator conducted surveillance at 2814 West 8^th Street on two occasions, but did not observe petitioner, any member of her family or any of their cars.

In sum, the investigator’s report is not inconsistent with petitioner’s account of her lifestyle. The observations both before and after petitioner’s mother’s surgery depict a very close family structure in which the raising of children and caring for an ill parent are considered a community responsibility. Petitioner's sister stated at the hearing that petitioner's mother was unable to walk for more than two months after the surgery. Petitioner's brother stated that he has been visiting his mother on a daily basis. Additionally, Steven’s father is in Brooklyn and petitioner states that Steven sees him two to three times per week. There is no way to tell from the investigator’s report where Steven was headed whenever the car that picked him up was lost in traffic. Petitioner contends that it is possible that Steven returned to Hewlett Harbor later in the evening on those occasions. The report indicates that of the six days respondent conducted morning surveillance outside the Brooklyn address, Steven was seen leaving from there on only two occasions.

The investigator's pretext phone calls allegedly answered by petitioner and her family are troublesome, but not compelling. Respondent offers no verification from the telephone company in support of the investigator's allegation that the phone at the Brooklyn address is registered to petitioner. Additionally, there is no evidence to indicate that the investigator would recognize petitioner's voice. Much more compelling is the documentary evidence submitted by petitioner. Respondent does not contest petitioner's testimony that she has had a phone listed in her name at the Harbor Road address since August 1995. Petitioner’s driver license, W-2 form, bank statement and phone bill, among other items, all list her address as 1301 Harbor Road.

Respondent points to the car registrations as further evidence of some type of scheme. However the car registrations themselves are unclear because the New York State Department of Motor Vehicle report contains previous vehicles, license plates and insurance information and petitioner testified that she no longer had some of the cars listed in the record. One car is listed twice, once under petitioner's name and again under her father's business name. Petitioner testified that this was her only car. She admits that her father's personal vehicle and a car belonging to her sister-in-law are registered in her name. The fact that other members of her family register their cars in her name at that address could be interpreted to further substantiate her contention that she resides there. At any rate, I do not find these car registrations to be compelling evidence of petitioner's or Steven's residency.

Respondent's position appears to be that because petitioner's family life is not straightforward, everything petitioner and her family says or does is suspicious. Respondent seizes upon small details as evidence of petitioner's alleged address-trading scheme, such as petitioner's inability to remember, in the middle of the hearing, the building number of her ex-husband's address, despite her statement that she knows where he lives and how to get there. Respondent also charges that the bank statement submitted by petitioner is from an inactive account because there were no deposits and only one check was drawn from that account that particular month. Contrary to respondent, I do not find these examples to be conclusive evidence of either a scheme or non-residency.

It is apparent from this record that respondent went to considerable lengths to establish Steven's residency outside the district. The transcript of the hearing records the district's hearing officer as stating that respondent is under pressure from district residents who do not want their tax dollars paying for the tuition of non-resident students. The hearing officer also states that the number of these types of hearings have "exploded" over the last seven years. The extended investigation simply created additional confusion and is inconclusive. Petitioner has adequate documentation of her residence within the district. If, as respondent contends, the documents are false, then the next best evidence is the surveillance report. The surveillance report is too sparse and inconsistent before Mrs. Urman's surgery and altogether inconclusive after that date. If respondent's case were indeed proven by surveillance, there would have been no need to delve into petitioner's credit history and past automobile registrations, which do not shed any further light on the situation.

In sum, I find respondent's evidence insufficient to support its determination. Respondent's determination is largely based upon the results of the surveillance conducted by its investigator. Petitioner provides documentary evidence of her residence and a reasonable explanation for Steven's travel to Brooklyn. Therefore, I find respondent's decision to deny petitioner admission to its schools arbitrary, capricious, and an abuse of discretion. Accordingly, it will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Hewlett-Woodmere Union Free School District admit petitioner's son to the schools of the district without payment of tuition.

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