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Decision No. 13,995

Appeal of IBIS PACHECO, on behalf of MITZI and DAVID PACHECO, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 13,995

(August 20, 1998)

Leon & Deffet, Esqs., attorneys for petitioner, Michael E. Deffet, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Sachem Central School District ("respondent") that she is not a resident of its school district and that, therefore, her children may not attend the public schools of the district without the payment of tuition. The appeal must be sustained in part.

Petitioner contends that she resides with her children at 56 Avis Drive within respondent's district. Her sixteen year old daughter, Mitzi, has been continuously enrolled in the district. Her five year old son, David, was enrolled for the first time during the 1997-98 school year. Petitioner and her husband also own a house at 4 Maple Lane, outside the district. Petitioner asserts that she is separated from her husband, that he resides at the Maple Lane location and that the Maple Lane house has been listed with a realtor for sale. She indicates that she and the children "sometimes spend time at that location."

By letter dated November 3, 1997, respondent's attendance officer indicated that he had reason to believe that petitioner and her children did not reside in respondent's school district but, instead, reside at the Maple Lane address outside the district. On November 12, 1997, pursuant to 8 NYCRR "100.2(y), respondent provided petitioner an opportunity to present information regarding the issue of residency. After petitioner met with the attendance officer, petitioner was notified by letter dated November 24, 1997 that the officer had determined that petitioner and her children were not residents of the district. The letter indicated that the determination was based on three findings: 1) that the telephone book listed petitioner's husband's residence as 4 Maple Lane, outside the district; 2) that tax assessment rolls indicated petitioner and her husband paid taxes on the Maple Lane property since 1989; and 3) that petitioner had been observed driving the children from 4 Maple Lane to school in respondent's district. Based on those findings, respondent's attendance officer determined that petitioner and her children did not reside in the district. The letter further indicated that, as of January 5, 1998, petitioner's children would be excluded from attendance in the public schools in respondent's district. This appeal ensued. As part of her appeal petitioner requested that the Commissioner of Education issue an interim order pursuant to 8 NYCRR "276.2 directing respondent to permit her children to continue to attend school in its district pending a final determination on the merits of this appeal. The Commissioner issued such interim order on January 26, 1998.

Petitioner asserts that she resides at 56 Avis Drive within respondent's school district and submits documentary evidence in support of her claims. She also contends that respondent's procedures for making the residency determination were flawed, in that she was provided inadequate notice of the November 12, 1997 meeting at which she was to present information regarding her residency. Finally, petitioner claims that respondent uses its residency policy to investigate and remove a disproportionate number of students with disabilities and students with Hispanic names and Latino heritage. She seeks a determination that she is a resident of respondent's school district and an investigation into respondent's allegedly discriminatory practices.

Respondent contends that the appeal is untimely. Respondent further claims that its determination that petitioner is not a resident of its school district is in all respects proper.

Prior to deciding the merits of this appeal, I must first address several procedural issues. First, I note that petitioner has submitted a memorandum of law in which she sets forth certain factual material not contained in her pleadings. The purpose of a memorandum of law is to advance legal arguments; it may not include factual allegations not set forth in the verified pleadings (8 NYCRR ""275.3, 276.4). Consequently, I am unable to consider any new factual allegations in petitioner's memorandum of law that were not made part of the record through properly verified pleadings.

Respondent further contends that the appeal is untimely because it was commenced January 5, 1998, more than 30 days from respondent's November 24, 1997 letter informing petitioner of its residency determination. Pursuant to "275.16 of the Commissioner’s regulations, an appeal to the Commissioner of Education pursuant to "310 of the Education Law must be brought within 30 days of the action complained of. Delay in commencing an appeal may be excused by the Commissioner for good cause. The Commissioner has previously excused delays in residency cases where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of Mitchem, 37 Ed Dept Rep 231; Appeal of Murphy, 37 id. 162). Those factors are present here. Moreover, the record indicates respondent would not be prejudiced by excusing the delay instead of requiring the student to reapply for admission. Accordingly, I will not dismiss the appeal as untimely.

Turning to the merits, 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 Murphy, supra; Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56).

In support of her position that she is a district resident, petitioner submits a copy of her driver's license issued September 1996, her Suffolk County Board of Elections voter registration, 1996 W-2 wage and tax statement, New York State Department of Motor Vehicles notice of hearing, local property tax bill, and several items of correspondence. All of these list her address as 56 Avis Drive. In addition, petitioner submits unsworn letters from four individuals stating that petitioner resides at the Avis Drive address. She also submits a letter from the Richard J. Kaufman law firm dated November 17, 1997 which indicates that the firm represents petitioner in her marital separation proceeding. Finally, petitioner submits a copy of a realtor agreement listing the Maple Lane property for sale.

Respondent relies on the telephone listing of petitioner's husband at the 4 Maple Lane address, a property tax bill indicating that petitioner and her husband own the Maple Lane property and a surveillance report indicating that petitioner left the Maple Lane address to drive her children to school on three occasions in October, 1997. Respondent also notes that a 1991 student registration form completed for petitioner's niece and naming petitioner as the emergency contact person lists petitioner's address as 4 Maple Lane. Respondent also discredits the validity of petitioner's claim that she is separating from her husband, based on its assertion that she made similar claims in 1995 during a prior investigation of petitioner's residency.

After careful review of the evidence presented by the parties relating to petitioner's residency, I find the record does not support respondent's determination. The telephone listing and tax assessment information showing joint ownership of the Maple Lane property is not dispositive. The telephone listing is in petitioner's husband's name only, and the tax assessment statement merely indicates joint ownership of the Maple Lane property for tax purposes. I also note that the 1991 school registration form relied on by respondent listing petitioner's address as Maple Lane is seven years old. The documentary evidence submitted by petitioner, including a current Board of Elections voter registration form and a 1996 W-2 Wage and Tax form, clearly refute the information relied on by respondent.

Respondent also places great weight on the surveillance report which indicates that petitioner drove her children from the Maple Lane address to school on three days in October 1997. However, petitioner's statement that she and her children sometimes stay at the Maple Lane address sufficiently explains those observations and is not inconsistent with her claim of residency in respondent's district. Although respondent questions the validity of petitioner's assertion that she is seeking a legal separation from her husband, the November 1997 letter from petitioner's attorneys and documentation indicating the Maple Lane property is being sold support her claim.

In sum, I find respondent's evidence insufficient to support its determination. Respondent's determination is largely based upon the results of the surveillance it conducted. Petitioner provides documentary evidence of her residence and a reasonable explanation for the days in which she drove her children to school from the Maple Lane address. Therefore, I find that the record does not support respondent's decision to deny petitioner's children admission to its schools. Accordingly, it must be set aside.

Finally, petitioner claims that respondent, through its residency policy, "investigates and removes" a disproportionate number of students with disabilities and students of Hispanic or Latino descent. Petitioner makes this assertion in a conclusory fashion, and provides no evidence to support her claim. Based upon the record before me, I cannot sustain such claim.

In view of my findings regarding petitioner's residency, I need not address petitioner's remaining claims.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Board of Education of the Sachem Central School District admit petitioner's

children to the schools of the district without payment of tuition.

END OF FILE