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Decision No. 13,996

Appeal of JOHNNYTUFF FAUCETT from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 13,996

(August 21, 1998)

Long Island Advocacy Center, Inc., attorneys for petitioner, Sherrie Levine, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Freeport Union Free School District ("respondent") that he is not a district resident entitled to attend its schools tuition free. The appeal must be dismissed.

Prior to March 1995, petitioner lived with his mother at 24 William Street, Roosevelt, and attended the Roosevelt Union Free School District. On March 16, 1995, the Nassau County Surrogate's Court appointed petitioner's grandmother, Mamie Faucett, as his guardian. Petitioner contends that since that time, he has resided with his grandmother at 34 Oak Street, Freeport, within respondent's school district.

On or about January 8, 1997, respondent's attendance officer advised petitioner's grandmother that its Office of Central Registration had conducted an investigation and concluded that petitioner did not reside at the Oak Street address. By letter dated January 15, 1997, petitioner's grandmother requested an administrative review of the determination. A hearing was held on January 29, 1997, at which both petitioner's mother and grandmother testified. By letter dated February 10, 1997, respondent's superintendent notified petitioner's grandmother that she had determined that guardianship was transferred for the purpose of attending respondent's school district, that petitioner was not a bona fide resident of its school district, and that petitioner would be excluded as of February 28, 1997. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on May 7, 1997.

Respondent contends that the appeal is untimely and that the petition fails to state a claim that provides a basis for relief. As to the merits, respondent argues that petitioner's guardianship was changed for school attendance purposes and that petitioner's mother continues to provide financial support for him. Respondent bases its position on its surveillance and the testimony of petitioner's mother and grandmother. Respondent contends that, based on this evidence, its determination that petitioner is not a district resident was not arbitrary, capricious, nor unreasonable.

The appeal must be dismissed as untimely. Pursuant to ' 275.16 of the Commissioner's regulations, an appeal to the Commissioner of Education under ' 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 shown. Petitioner commenced this appeal on April 17, 1997, more than 30 days after the district's February 10, 1997 determination and more than 30 days from the effective date of his exclusion, February 28, 1997. Petitioner states that he contacted counsel on or about March 14, 1997 and that further delay was due to circumstances beyond their control. The Commissioner has previously excused delays in residency cases where, interalia, the facts suggest residency in the district, the delay is deminimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy. Those factors are not present here. Therefore, I must dismiss the appeal as untimely.

Of course, petitioner retains the right to reapply to the district for admission at any time (Appeal of Digilio, 37 Ed Dept Rep 25; Appeal of Blagrove, 32 id. 629).

THE APPEAL IS DISMISSED.

END OF FILE