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Decision No. 14,016

Appeal of PAULINE MORGAN, on behalf of ALPHONSO WRIGHT, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 14,016

(September 8, 1998)

 

Ingerman, Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

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

On October 30, 1996, petitioner submitted a registration form to respondent’s district seeking to have her son, Alphonso, admitted to respondent’s high school. On the form, petitioner represented that, since October 1996, she and Alphonso resided in rented premises located at 237 Perry Street, Hempstead, within respondent’s district. She listed her telephone number at that residence, and represented that these premises constitute her "permanent, actual and only residence." Petitioner also listed her telephone number and previous address as 187-23 Sullivan Road, St. Albans, Queens. The district approved petitioner’s registration and enrolled Alphonso in its Uniondale High School.

During the week of January 19, 1998, attendance teacher, Sheila Rosenblum, telephoned the Perry Street residence to advise petitioner that Alphonso had missed a test in school. In her affidavit before me, Ms. Rosenblum attested that someone answered the telephone and informed her that Alphonso did not reside at that residence, but that he would relay the message to Alphonso. Less than an hour later, petitioner telephoned Ms. Rosenblum and stated that Alphonso was not aware of the test.

This information precipitated the district’s investigation of Alphonso’s residency. To that end, the district hired an investigator, who conducted surveillance on the Perry Street residence on February 2, 5, 6, 9, 11, 13 and 23, 1998. The investigator reported that he observed Alphonso’s cousin, Kamaro, leave the residence for school on each of those days, but he did not see Alphonso leave even though the student was marked present in school on each of those days. The investigator noted further that he had observed Kamaro walking to school "on over 20 additional occasions", but had never seen Alphonso with him.

On February 17, 1998, Elaine Caluori, another district employee, telephoned the Perry Street residence. She reportedly spoke to Kamaro, who informed her that Alphonso did not reside there, and gave her the Queens address and telephone number. Caluori telephoned the Queens residence and spoke with petitioner, who, apparently believing that she was conversing with the dentist’s office, confirmed that she and Alphonso reside in Queens.

By letter dated February 13, 1998, respondent’s superintendent informed petitioner that, based upon its investigation, the district had determined that Alphonso was not a legal resident of the school district and would be barred from attending its schools, effective March 6, 1998. The letter invited petitioner to call with any questions and informed petitioner of her right to appeal the district’s decision to the Commissioner of Education.

Respondent hand-delivered the letter to Alphonso that day and mailed a copy, by certified mail, to petitioner at 187-23 Sullivan Road in Queens. On February 21, 1998, petitioner accepted delivery of respondent’s letter at the Queens address. Two days later, she met with a district representative to discuss Alphonso’s residency.

Petitioner attempted to commence the instant appeal on March 16, 1998 by serving the petition on the school’s assistant principal. Thereafter, on March 30, 1998, she re-served the petition on respondent’s superintendent. Petitioner’s request for a stay of respondent’s decision pending the ultimate determination of this appeal was granted on April 2, 1998.

Petitioner maintains that she and Alphonso have resided in Hempstead for more than one year and disputes the purported telephone conversations with respondent’s representatives. She submits, as proof of her Hempstead residency, a NYNEX telephone bill, a Bell Atlantic telephone bill and an Allstate insurance bill for insurance coverage of a 1989 Ford Econoline vehicle. These documents are addressed to petitioner at the Perry Street residence in Hempstead. The petition also includes a letter and deed from Edna Wilson, attesting that petitioner has been her tenant in Hempstead for the past eighteen months; a letter from the Calvary Tabernacle in Hempstead asserting that Alphonso has attended services at Calvary since April 1996 and that he actively participates in a mentoring program in the area; and a letter from the Alpha Phi Alpha Fraternity, Inc. mentoring program confirming petitioner’s participation in the program during the past four years.

Respondent counters that petitioner and her son are not residents of the district and that they, in fact, reside in St. Albans, Queens. As additional proof, respondent submits copies of Department of Motor Vehicles records, which show that, at least since July 1996, two vehicles, including the 1989 Ford Econoline, have been registered at the Queens address in petitioner’s name. The second registration expires on November 2, 1999. Additionally, petitioner’s current driver’s license lists 187-23 Sullivan Road, Queens as her residence. Respondent submits further that, as late as August 1997, the telephone company listed petitioner’s sister, Predella, as the owner of the telephone number in Hempstead, which petitioner now claims to own. Respondent asks that the appeal be dismissed on the merits and raises, as well, several affirmative defenses to the petition.

I will first address respondent’s procedural defenses. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be instituted within thirty days of the decision sought to be reviewed unless excused by the Commissioner for good cause. Respondent contends that the thirty-day period commenced on February 13, 1998, the date of the letter notifying petitioner that her son did not reside within the district, the basis for that determination and petitioner’s right to appeal pursuant to Education Law "310. However, I note that, at that time, the district had not provided petitioner an opportunity to present information concerning her son’s residence, as required by 8 NYCRR "100.2(y). Such opportunity was not afforded until at least February 23, 1998, when petitioner met with the district’s central registration supervisor after receiving the certified letter. Inasmuch as the district did not comply fully with the requirements of 8 NYCRR "100.2(y) until February 23, 1998, it is disingenuous for respondent to argue that the thirty-day period within which to commence an appeal accrued prior to that date. However, inasmuch as petitioner did not properly commence this appeal until March 30, 1998, more than thirty days after the February 23 meeting, and there being no good cause to excuse this delay, the appeal must be dismissed as untimely.

The petition must also be dismissed on 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 Kucherovsky, 37 Ed Dept Rep 241; Appeal of Cortes, 37 id. 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56). To ascertain whether it is obliged to provide education to a particular student, a board of education is sometimes required to investigate allegations that non-residents are attending schools in the district. Provided a school district has reliable indicators that a student is not a resident, such an investigation is appropriate (Appeal of Hoist, 35 Ed Dept Rep 99; Appeal of Blagrove, 32 id. 629).

A child’s residence is presumed to be that of his 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). For purposes of Education Law "3202, "residence" means "domicile" (Appeal of Ifill, 38 Ed Dept Rep _____, Decision No. 13,992, dated August 18, 1998), and is established by a demonstration of one’s physical presence as an inhabitant within the district as well as his intention to remain there permanently (Appeal of Ifill, supra; Appeal of Doyle-Speicher-Maldonado, 35 Ed Dept Rep 110; Appeal of Cupid, 34 id. 609). Further, for purposes of the statute, a person can have only one legal residence (Appeal of Daniels, 37 Ed Dept Rep 557; Appeal of Britton, 33 id. 198).

In this case, I find that the evidence supports respondent’s determination that petitioner does not reside in Hempstead, but resides, instead, in Queens. The evidence submitted by petitioner – two telephone bills, an insurance bill, the landlord’s letter and deed, and confirmation of Alphonso’s community ties – while relevant, is not conclusive of the question of Alphonso’s residency. Indeed, when considered with all the other evidence in the record, this proof is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner and her son are not residents of the district.

Petitioner admittedly owns the residence in Queens, at which she continues to register her vehicles, certify her driver’s license and accept mail eighteen months after allegedly relocating to Hempstead. Furthermore, petitioner has maintained her old telephone number at the Queens residence and respondent has consistently located her there. Finally, the record is devoid of petitioner’s voter registration, income tax returns, payroll stubs, residential lease and rent receipts, which would provide further proof of residency.

Petitioner offers additional proof in her reply. However, petitioner’s reply is submitted in violation of 8 NYCRR ""275.3 and 275.14 in that it impermissibly attempts to buttress allegations in the petition or add assertions that should have been in the petition (see, e.g., Appeal of Robnett, at al., 37 Ed Dept Rep 679; Appeal of Cole, et al., 37 id. 407; Appeal of Rampello, 37 id. 153). However, even if I were to consider these papers, they are not supportive of petitioner’s claim of residency. In her reply, petitioner explains, for the first time, that she was forced to vacate her Queens residence because of "a continuing domestic dispute" with her common-law husband. She submits, in support of this claim, a Family Court order of protection issued in March 1996 and a domestic incident report. The order of protection directed that the husband be allowed one opportunity "to pick up [his] belongings if accompanied by police [within 30 days]." Nothing in the record before me indicates whether the husband subsequently vacated the premises or continues to reside there. In any event, any claim that petitioner intended to reside permanently in respondent’s district – a necessary prerequisite to establishing residency – is undermined by petitioner’s reply papers, which specifically state that petitioner "did intend to move back to Queens in a few years once the threat that made her leave in the first place had subsided."

Petitioner, therefore, has not sufficiently demonstrated her physical presence as an inhabitant within respondent's district nor her intent to remain there permanently. Accordingly, I find no reason to disturb respondent’s decision that Alphonso is not a resident of the district. However, I remind respondent, when making residency decisions in the future, to comply with the procedures required by 8 NYCRR "100.2(y), including affording individuals the opportunity to submit information concerning residency prior to making a determination.

THE APPEAL IS DISMISSED.

END OF FILE

IN WITNESS WHEREOF, I, Richard P. Mills, Commissioner of Education of the State of New York, for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this day of September, 1998.

Commissioner of Education