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Decision No. 14,023

Appeal of TONIA DIMBO, on behalf of her son, JUSTIN BAIZ, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 14,023

(October 13, 1998)

Plunkett & Jaffe, P.C., attorney for respondent, Marc E. Sharff, Esq., of counsel.

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of White Plains ("respondent") that her son is not a resident of the district. The appeal must be dismissed.

At the start of the 1997-98 school year, petitioner’s son, Justin, was enrolled in the George Washington Elementary School in respondent's district. Respondent commenced an investigation into petitioner’s residency after Justin consistently arrived late to school. Respondent's investigator conducted a surveillance of petitioner and Justin on December 8 and 9, 1997. On both occasions, the investigator observed petitioner and Justin leaving an apartment at 50 White Street in Tarrytown, and driving to the George Washington Elementary School. A third surveillance was conducted on February 4, 1998. On that occasion, the investigator observed petitioner and Justin leave 50 White Street, drive to 16 Minerva Place, in White Plains, where a man identified as Richard Thomas entered the car, and then drive to George Washington Elementary School. On February 5, 1998 the investigator again observed petitioner leaving the Tarrytown address with her son and taking him directly to school.

In addition, the investigators checked NYNEX computer records and found no listing for petitioner in Westchester County. The investigators also visited petitioner's purported residence at 16 Minerva Place, White Plains, and found no listing for petitioner in the lobby directory or on the mailboxes. The investigators also discovered that the car driven by petitioner was registered to her mother, Frances Kyle, of 50 White Street, Tarrytown. Respondent’s investigator interviewed Richard Thomas of 16 Minerva Place who stated that petitioner was a close friend, occasionally stayed over, but primarily lived with her mother in Tarrytown. The building manager of 50 White Street, Tarrytown informed the investigator that petitioner and her son lived at that apartment complex.

As a result of this investigation, respondent concluded that petitioner did not reside in the district, but was actually living with petitioner's mother or grandmother in Tarrytown. By letter dated January 7, 1998, Robert Greenberg, respondent’s assistant superintendent for pupil services, notified petitioner that based on the district's investigation, her son would no longer be able to attend the district's schools tuition-free. Mr. Greenberg gave petitioner until January 14, 1998 to submit information concerning Justin's residence.

In response, petitioner submitted a residency affidavit, signed by Richard Thomas, her purported landlord, on January 22, 1998. On February 13, 1998 Mr. Greenberg notified petitioner in writing that her son was not a district resident and would be unable to attend the district's schools tuition-free as of February 27, 1998. Petitioner sent a written response to the district on February 16, 1998. Petitioner commenced this appeal on March 4, 1998 and requested interim relief allowing Justin to attend respondent's schools pending a determination in this appeal. Thereafter, respondent continued its investigation by making a site visit to petitioner’s alleged White Plains address and interviewing petitioner and Richard Thomas, her alleged landlord, on March 9, 1998. Petitioner’s request for interim relief was granted on March 13, 1998.

Petitioner claims that she has been living with her mother in Tarrytown on a temporary basis. Petitioner further asserts that she, Justin, Justin's father and her daughter were living at the White Plains address until late 1997 when she began working as a nurse on the 3 to 11 p.m. shift. Petitioner’s mother and grandmother, provided child care while petitioner worked the late shift. Petitioner claimed that because she often worked very late she would stay overnight at her mother's.

In her petition, petitioner alleges that Justin's father is away on business in California for two months and she needs to stay at her mother’s for child care reasons. Additionally, she alleges that she is helping her mother care for her ill father. Petitioner maintains that the family plans to resume its residence in White Plains as soon as Justin's father returns from California. As proof of her residence in White Plains, petitioner submits an affidavit of residence signed by her purported landlord, and the following documents which all list the White Plains address: a 1997 income tax return, a pay stub from petitioner's employer, a student loan account statement, a health insurance premium statement, and an undated voter registration card.

Respondent contends that petitioner’s White Plains address is nothing more than a "mail drop." Respondent became suspicious about Justin’s residence at the beginning of the school year due to his excessive tardiness. It hired an investigator to conduct a surveillance of Justin in December 1997. The surveillance conducted in December 1997 and February 1998 showed petitioner’s son being driven to school in White Plains from his grandmother’s home in Tarrytown. Respondent concluded from this surveillance and the other information contained in the investigator’s report that petitioner and her children were living with her mother in Tarrytown.

After notifying petitioner that her son would not be allowed to attend its schools tuition-free, respondent conducted a follow-up investigation. On March 9, 1998 its investigators went to the apartment in White Plains to interview Mr. Thomas, the alleged landlord. While interviewing Mr. Thomas, petitioner arrived with Justin and was interviewed. Mr. Thomas told the investigators that petitioner was living with her mother due to child care problems. Petitioner confirmed this. The investigators also observed that the apartment was too small and unkempt to house a family of four and Mr. Thomas. Specifically, the investigators observed that there was only one bedroom, which had a mattress on the floor and a crib piled with bags. Respondent maintains that this report confirms that petitioner does not reside within the district.

Respondent also contends that the documents presented by petitioner are meaningless as most of them are dated after the district's first residency notice of January 7, 1998. Respondent contends that petitioner had time from this notice in January, to have had added the White Plains address to these documents.

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 Daniels, 37 Ed Dept Rep 557; Appeal of Keenan, 36 id. 6; Appeal of Allen, 35 id. 112; Appeal of Brutcher, 33 id. 56).

A child’s residence is presumed to be that of his parents or legal guardians (Appeal of Plesko, 37 Ed Dept Rep 238; Appeal of Farkash, 36 id. 410; Appeal of Mountain, 35 id. 382). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district (Appeal of Daniels, supra; Appeal of Anand, 35 Ed Dept Rep 65; Appeal of Varghese, 34 id. 455), and an intent to reside in the district (Appeal of Daniels, supra; Appeal of Anand, supra; Appeal of Varghese, supra). Moreover, for purposes of Education Law "3202, a person can have only one legal residence (Appeal of Daniels, supra; Appeal of Somma, 36 Ed Dept Rep 51; Appeal of Britton, 33 id. 198).

Based on the record before me, I find respondent's determination that petitioner and her son are not district residents to be reasonable. On four separate occasions respondent's investigators observed petitioner driving her son from Tarrytown to school. Furthermore, interviews with the alleged landlord of 16 Minerva Place revealed that petitioner may have stayed there at times, but was living with her mother in Tarrytown. Petitioner herself admitted this to respondent's investigators in March 1998. Additionally, the building manager of the Tarrytown apartment complex where petitioner’s mother lived told the investigators that petitioner and her son lived there with her mother. Finally, there was no phone listing for petitioner in Westchester County according to a computer search, or any other physical evidence that petitioner resided in White Plains.

In this appeal, petitioner produced some documents with the White Plains address. However, these documents, several of which are undated, are not dispositive of petitioner's residency, particularly in light of the district's investigation and petitioner's admission.

Based on the record before me, I find that petitioner has failed to establish actual physical presence in the district. Thus, it was reasonable for respondent to conclude that Justin resides outside of respondent’s district and is not entitled to attend the schools of the district tuition-free.

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 October, 1998.

Commissioner of Education