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Decision No. 14,006

Appeal of PAUL STOLZENBERG, on behalf of MELISSA STOLZENBERG, from action of the Board of Education of the Chenango Forks Central School District regarding residency.

Decision No. 14,006

(September 2, 1998)

Hogan & Sarzynski, LLP, Esqs., attorneys for respondent, John P. Lynch, Esq., of counsel

Mills, Commissioner.--Petitioner appeals respondent's determination that his daughter, Melissa, is not a resident of the Chenango Forks Central School District (the "district"). The appeal must be dismissed.

Petitioner lives in the Susquehanna Valley Central School District. In 1996-97, Melissa attended respondent's school as an out-of-district, tuition-paying student. Petitioner claims that respondent's middle school principal advised him that he could establish residency in 1997-98 and avoid having to pay tuition by giving temporary custody of Melissa to her grandparents who live in the district.

In 1997-98, Melissa attended eighth grade as a resident student. During that school year, respondent notified petitioner that Melissa could not attend respondent's schools on or after March 23, 1998 without the payment of tuition. This appeal ensued. Petitioner's request for interim relief directing respondent to admit Melissa to the schools of the district, pending an ultimate determination on the merits, was granted on March 31, 1998.

Petitioner states that he established a temporary custody arrangement with Melissa's grandparents who live in the district. He contends that he and Melissa's mother are in the process of relocating and that it is in Melissa's best interest to "remain in as stable environment as possible." Petitioner admits that Melissa divides her time between her parents' home, located outside the district, and her grandparents' home, located within the district. Petitioner contends that respondent should be bound by the middle school principal's advice.

Respondent contends that petitioner has failed to establish residency for Melissa in the district. Respondent also contends that it is not bound by the advice purportedly given by the middle school principal. Finally, respondent contends that the appeal before the Commissioner is premature.

I will first address respondent's procedural defense that the appeal is premature. Section 100.2(y) of the Commissioner's regulations permits a board of education or its designee to make residency determinations. Respondent states that "only the Superintendent is authorized to act on the Board's behalf in regard to determinations of residency." Therefore, the superintendent is respondent's designee for the making of residency determinations. In this case, the superintendent made a residency determination and that determination is directly appealable to the Commissioner. Under the circumstances, nothing in the Commissioner's regulations requires petitioner to appeal the superintendent's residency determination to respondent board (Appeal of Brazile, 35 Ed Dept Rep 456). Therefore, I decline to dismiss the appeal as premature.

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 Cortes, 37 Ed Dept Rep 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Cortes, supra; Appeal of Helms, 36 Ed Dept Rep 95; Appeal of Keenan, supra; Appeal of Gwendolyn B., 32 id. 151). However, this presumption may be rebutted (Appeal of Brutcher, supra; Appeal of McMullan, 29 Ed Dept Rep 310). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total and presumably permanent transfer of custody and control to someone residing within the district (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Mullen, 35 id. 43; Appeal of Brutcher, supra; Appeal of Garretson, 31 id. 542).

In this case, petitioner admits that he lives outside of the district, that the custody arrangement with Melissa's grandparents is temporary and that Melissa divides her time between his home and her grandparents home. Petitioner has not established in the record before me that he has permanently relinquished custody and control of his daughter (Appeal of Galay, 37 Ed Dept Rep 128; Appeal of Warburton, 35 id. 74). Thus, he has failed to rebut the presumption that Melissa resides with him outside of the district. Respondent's determination that Melissa is not a resident of the district is reasonable.

Finally, petitioner claims that respondent should be bound by the middle school principal's purported advice that a temporary custody arrangement with Melissa's grandparents would suffice to establish residency. However, respondent has unequivocally stated that only the superintendent is authorized to act on its behalf in making residency determinations. A district is not estopped from disclaiming the unauthorized or unlawful acts of its employees (Appeal of Shravah, et al., 36 Ed Dept Rep 396, aff'dEducation Alternatives, Inc. v. Mills, Albany County, Supreme Court, Special Term, December 18, 1997, n.o.r.; Matter of Ceparano, 17 id. 298). The determination of whether a student is a resident of a district rests with the board of education or its designee (8 NYCRR "100.2[y]). In this case, respondent's designee is the superintendent. The advice purported to have been given by the middle school principal, that residency could be established by merely entering into the above-described temporary custody arrangement with Melissa's grandparents, is inaccurate. Accordingly, I will not disturb the superintendent's determination based on the contention that such advice was given.

On this record, I find that respondent acted reasonably when it determined that Melissa is not a resident of the district. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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