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Decision No. 14,543

Appeal of MICHELE ZAVESKY, on behalf of RACHELE, WILLIAM, JOSEPH and MELINDA ZAVESKY, from action of the Board of Education of the Remsenburg-Speonk Union Free School District regarding residency.

Decision No. 14,543

(March 14, 2001)

Smith, Finkelstein, Lundberg, Isler and Yakaboski, LLP, attorneys for respondent, Gair G. Betts, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Remsenburg-Speonk Union Free School District ("respondent") that she was not a district resident for 12 days in September 2000, and thus owes respondent $2,640 for non-resident tuition. The appeal must be dismissed.

In early September 2000, prior to the start of the 2000-01 school year, petitioner enrolled her four children in respondent's district. As proof of residency, petitioner provided a signed lease (for six months with subsequent monthly options) commencing September 27, 2000, and a check made out to the landlord, dated September 25, imprinted with petitioner's prior address. She also provided a notarized letter from a family friend, Kathy Bergmann, that the four children would be residing at Ms. Bergmann's home in the district from September 6 through September 8, 2000.

Deborah Martel, a district employee, avers that when petitioner enrolled the children, she explained and provided petitioner with a copy of the district's revised residency policy, entitled "Important Residency Notice." The policy provides in part that "if you are planning to move into the district after the start of school in September, and wish to enroll your children immediately, you will be charged tuition up till [sic] the day you take up residency (not occupancy)." After observing that there was a gap between the date petitioner enrolled her children for school and the beginning date of her lease for an apartment in the district, Ms. Martel contacted Superintendent Irene Nowell. In addition, sometime in mid-September, Mr. Zavesky, in conversation with Superintendent Nowell, indicated that he thought the children were living with petitioner's mother outside the district.

By letter dated October 12, 2000, Superintendent Nowell notified petitioner that "according to the information you have submitted to our office, you were not a bonafide resident of our school district from September 11, 2000 through September 26, 2000." The letter requested that petitioner remit $2,640 for tuition for her children for 12 school days in accordance with district policy. This appeal ensued.

Petitioner contends that she resided with Ms. Bergmann between September 11 and September 27, when she and her children moved into the leased premises. She asserts that respondent's request for tuition is erroneous, arbitrary, capricious and irrational because she resided continuously in the district during the 12 days in question. She also states that during September she and Mr. Zavesky were involved in heated divorce proceedings and that any statements made by him were untrue and meant to gain advantage in the divorce proceedings. She seeks a rescission of respondent's tuition request.

Respondent asserts that petitioner failed to submit any evidence demonstrating that she was a district resident between September 11 and 26. The only evidence submitted, namely the lease, petitioner's check to the landlord imprinted with her previous address, and the letter from Ms. Bergmann, failed to establish petitioner's whereabouts following her stay with Ms. Bergmann from September 6 through 8, until she moved on September 27. Respondent also asserts that petitioner failed to exhaust her administrative remedies.

I will first address respondent's argument regarding exhaustion of remedies. Section 100.2(y) of the Commissioner's Regulations specifically states that the board of education or its designee may make residency determinations. In assessing tuition charges, Superintendent Nowell essentially determined that petitioner was not a district resident for the 12 days in question. Respondent does not deny that the superintendent was its designee for the purpose of making residency determinations. Thus, respondent cannot now claim that petitioner failed to exhaust her administrative remedies, when there is no showing that the superintendent was not authorized to act for respondent (Appeal of Smith, 40 Ed Dept Rep ___, Decision No. 14,452; Appeal of Berliner, 38 id. 181, Decision No. 14,010).

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). A child"s residence is presumed to be that of his parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). For purposes of Education Law "3202, residence is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Rodriguez, 40 Ed Dept Rep ___, Decision No. 14,496; Appeal of O'Herron, 40 id. ___, Decision No. 14,461; Appeal of Gentile, 39 id. 23, Decision No. 14,161).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10). Petitioner has failed to meet her burden. She failed to submit any evidence whatsoever to establish her whereabouts between September 11 and 26, even after receiving respondent's October 12 letter. Although petitioner asserts that she extended her stay with Ms. Bergmann, she provides no verification of that assertion. Based on the record before me, petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that petitioner and her children were not district residents between September 11 and 26. Consequently, respondent's request for tuition for that period, in accordance with its policy, is not arbitrary or capricious.

However, the Commissioner of Education has no statutory authority to make a finding awarding student tuition (Appeal of Smith, 40 Ed Dept Rep ___, Decision No. 14,438; Application of Pierrelus, 37 id. 502, Decision No. 13,913). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. of Lawrence Union Free School District v. Gaffney, 233 AD2d 357; Application of Pierrelus, supra).

THE APPEAL IS DISMISSED.

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