Decision No. 14,017

(September 15, 1998)

MILLS, Commissioner.--Petitioner challenges the determination by the Board of Education of the Pine Bush Central School District ("respondent") that Jason and Elliot Noble are not residents of the district, and denying them admission. Petitioner also requests a stay pending a determination on the merits herein. The application for a stay is denied and the appeal is dismissed.

Petitioner Genevieve Noble-Silverberg and her husband, John E. Silverberg, are residents of the Pine Bush Central School District. Petitioner's sister, Theowanna Noble, is the mother of Jason and Elliot Noble, and lives in Queens County, in the city of New York.

In February 1998, Theowanna Noble and her sons lived in the Bronx, in New York City. After her sons were involved in a threatening incident, Theowanna Noble sent Jason to live with another of her sisters in Queens, and joined him there shortly thereafter. Elliot went to live with petitioner and her husband, who at that time lived in another part of New York City. Thereafter, petitioner and her husband moved to the Pine Bush Central School District in July 1998, and both boys have lived with them since mid-August 1998.

On August 14, 1998, petitioner and her husband executed an agreement with Theowanna Noble whereby custody of Jason and Elliot was purportedly transferred to petitioner and her husband. That same day, respondent conducted a residency hearing pursuant to 8 NYCRR "100.2(y). During the course of that hearing, Theowanna Noble and John Silverberg also were required to execute form affidavits with respect to custodial and financial arrangements.

On August 18, respondent's designated hearing officer for residency purposes issued a decision, based upon the agreement, form affidavits, and oral representations made at the hearing, that Elliot and Jason were not residents of the district and could not attend schools of the district tuition-free. (The district does not accept tuition-paying students.) The hearing officer's decision noted that the purported custody agreement granted custody only for a limited time, and reserved to the mother significant control over the health, welfare, and education of her children. The mother also agreed to pay the costs of the children's support, and retained the right to claim them as exemptions on her income tax returns.

Thereafter petitioner, her husband, and Theowanna Noble entered into a second custodial agreement dated August 26, 1998, and executed several new affidavits with substantially different facts from those alleged in the August 14 form affidavits. On August 25, respondent's hearing officer spoke with petitioner's husband, who indicated that he wished to present additional information. The hearing officer offered to meet with Mr. Silverberg on August 27, at which time he was presented a copy of the new August 26 agreement. After consulting with the district's attorney, the hearing officer advised Mr. Silverberg that he would be willing to reopen the hearing. According to the hearing officer's affidavit, Mr. Silverberg indicated that he would only participate in a re-hearing upon the express condition that both Jason and Elliot first be admitted into the district's schools on a tuition-free basis. The hearing officer declined to do so without having the opportunity to clarify some of the information contained in the August 26 agreement. This appeal was commenced on September 2.

The appeal must be dismissed. It is clear from the record that the agreement of August 14, 1998, and the accompanying form affidavits of that same date do not indicate that a complete, permanent transfer of custody and control of Jason and Elliot was made (see, Appeal of C.D., 37 Ed Dept Rep 676; Appeal of Rivkin, 37 id. 370; Appeal of Galay, et al., 37 id. 128; Appeal of Digilio, 37 id. 25; Appeal of Simond, 36 id. 117). To the contrary, the record evidence, demonstrating the limited duration of the purported transfer as well as the mother's intention to continue providing her sons with financial and other assistance, clearly supports the hearing officer's determination that Jason and Elliot were not residents of respondent's district.

Furthermore, petitioners have failed to present their new material to respondent for a determination in the proper manner as contemplated by 8 NYCRR "100.2(y). Pursuant to that regulation, it is the local school district which should make the initial determination of residency. Here, although the district offered to reopen the hearing, petitioner instead elected to bring an immediate appeal to the Commissioner of Education based upon new material which has not yet been considered by the district. Pursuant to Education Law "310, the Commissioner of Education has appellate authority to examine determinations made at the school district level. Here, there has been no determination by the school district with respect to the alleged new material. Taken together, the statute and regulation set forth an orderly process whereby a school district must make the original residency determination. The Commissioner's role is limited to reviewing actual determinations.

The appeal is therefore dismissed. However, if petitioner wishes to present the purported new information to the school district for a proper determination, she may do so, and the school district remains obligated to consider such new material in accordance with "100.2(y).

THE APPEAL IS DISMISSED.

ENF OF FILE