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Decision No. 14,613

Appeal of a STUDENT WITH A DISABILITY, by her father, from action of the Board of Education of the City School District of the City of Rye regarding residency.

Decision No. 14,613

(August 3, 2001)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rye ("respondent") that his daughter is not a district resident, and therefore, is not entitled to attend its schools tuition free. The appeal must be sustained.

On September 29, 2000, petitioner purchased a home located at 64 New Street, Rye, within respondent"s district. Prior to that, petitioner resided with his wife and daughter in Cos Cobb, Connecticut. According to petitioner, he and his wife have temporarily separated. Petitioner"s wife continues to live at the Cos Cobb address, while petitioner and his daughter live at the New Street address. Petitioner and his wife plan to sell the Cos Cobb house, at which time petitioner"s wife will move to Rye.

In anticipation of his move to respondent"s district, petitioner submitted a pre-admittance application to the district. Petitioner"s daughter, who is a special education student with multiple disabilities, began attending school in the district on October 16, 2000. By letter dated November 6, 2000, Robert G. Walsh, Jr., respondent"s Executive Director for Business, Facilities and Technology, requested that petitioner and his wife submit additional documentation to establish their daughter"s eligibility to attend school in respondent"s district. Specifically, the notice requested a current electric bill, New York State driver"s license and verification of the closing on the New Street property. In response, petitioner apparently submitted, among other things, a gas and electric bill for the New Street property, dated October 23, 2000, which reflected that for a 15-day period in the beginning of October, petitioner"s electric bill was $8.77.

According to Mr. Walsh, petitioner"s low electric consumption led him to believe that the New Street property was "substantially unoccupied," and prompted Mr. Walsh to secure the services of an investigator. The investigator conducted surveillance at either the New Street or Cos Cobb property on five different dates between December 18, 2000 and January 3, 2001. In his report, the investigator notes that he did not observe anyone enter or exit the New Street house between 6:00 a.m. and 8:50 a.m. or between 2:00 p.m. and 4:15 p.m. on December 18, 2000. The investigator spoke that day to the owner of 54 New Street who indicated that petitioner had purchased the property and had begun renovating it, but had since stopped and that the house was unoccupied. On Tuesday, December 19, 2000, the investigator conducted surveillance at the Cos Cobb residence. At 8:20 a.m. he observed petitioner exit the house with his daughter and travel by car on I-95 south to Route 287 toward Rye. At 4:10 p.m. he observed petitioner and his daughter return to the Cos Cobb residence.

The following day, the investigator returned to the Cos Cobb residence at 6:00 a.m. At 8:00 a.m. he observed petitioner"s wife exit the house and followed her by car to petitioner"s dental office, and did not conduct further surveillance at the Cos Cobb residence that day. On Friday, December 29, 2000, the investigator drove by the Cos Cobb residence at 7:30 a.m. and observed two cars in the driveway, both of which are registered to petitioner.

Finally, on Wednesday, January 3, 2001, the investigator conducted surveillance again at the Cos Cobb address. At 8:25 a.m. he observed petitioner leave the house with his daughter and proceed south on I-95. Based on these observations, the investigator concluded that the New Street house was vacant and that petitioner lived with his wife and daughter in Cos Cobb, Connecticut.

By letter dated January 5, 2001, Mr. Walsh notified petitioner and his wife that the district "had reason to believe" that their daughter lived in Cos Cobb, and requested that they provide "any and all information" supporting their daughter"s right to attend school in respondent"s district by January 19, 2001. In response, petitioner apparently submitted, among other things, a $10.85 electric bill for a one-month period ending November 21, 2000 and a water bill reflecting usage of 100 cubic feet of water for the period of October 6, 2000 through November 22, 2000. Although it is not clear from the record exactly what information petitioner submitted, petitioner apparently explained that he and his wife were separated and that his wife picks up their daughter in Rye, brings her to Cos Cobb for home tutoring and "socialization," but that the child sleeps at the Rye address.

By letter dated January 25, 2001, Mr. Walsh informed petitioner and his wife that, based on the investigative report and information submitted by petitioner, the district had concluded that their daughter was not entitled to attend school in the district tuition free. Mr. Walsh further informed petitioner and his wife that their daughter would be permitted to continue attending school in the district for the remainder of the year if petitioner paid tuition of $6,672.75.

By letter dated February 5, 2001, petitioner submitted a check for tuition "under protest." This appeal ensued. Petitioner"s request for interim relief was denied on March 12, 2001.

Petitioner contends that his daughter is a district resident and is, therefore, entitled to attend school in respondent"s district tuition free. He also contends that respondent violated "100.2(y)(2) of the Commissioner"s regulations by failing to specify the basis for the district"s determination that his daughter is not entitled to attend school in the district and by failing to provide him with an opportunity to rebut the district"s evidence of non-residency.

Petitioner asserts that his daughter lives with him at the New Street address and intends to live there permanently. He explains that his wife is living temporarily in Cos Cobb while the family makes arrangements to sell the house. He asserts that his wife takes care of their daughter after school and at times, picks her up from school and takes her to Cos Cobb, where the child occasionally stays overnight. Petitioner estimates that his daughter spends 10 percent of her time in Cos Cobb and 90 percent at the Rye address. He explains though, that he and his daughter vacated the Rye house for about a week before Christmas due to severe problems with the sewer system. As a result, the two spent "significantly more time" at the Cos Cobb house during that week, as well as the following week, when school was closed for the holiday break.

Petitioner also explains that his utility bills were low because he had refrained from using electrical appliances while the house"s electrical system was undergoing "tedious" renovations. He also explains that he and his daughter spend much time outside the home taking advantage of various cultural, social, and other entertainment opportunities in and around New York City.

Petitioner also submits extensive documentation to support his contention that he and his daughter reside in Rye. Petitioner has submitted affidavits from, among others, his wife, his housekeeper at the Rye home, his dentist, a child care provider, his accountant, and a general contractor and a plumber, both of whom have performed renovations on the Rye house. These affidavits state that petitioner and his daughter reside at the New Street address. Many also corroborate various details provided by petitioner to substantiate his residency claim. For example, Sonia Ponce, petitioner"s housekeeper and nanny, verifies that petitioner has been renovating the New Street home and was forced to vacate the house shortly before Christmas because of a sewer problem. Alberto Contreras, a general contractor hired by petitioner to make various renovations to the New Street home, asserts that he has seen the child wake up in her bedroom at the New Street home. He also verifies that petitioner vacated the house shortly before Christmas because of a sewer problem and confirms that he advised petitioner not to use electricity while the electrical system was being renovated.

Petitioner also submits extensive documentary evidence to support his residency claim, including a copy of his 2000 W-2 form, 2000 New York State and Federal income tax returns and New York State driver"s license; a receipt for medical services for his daughter, dated October 23, 2000; and a cover letter from a bank statement, which all reflect the New Street address. In addition, he supplies photographs showing the excavation and replacement of the sewer pipe at the New Street home.

For relief, petitioner requests a determination that his daughter is a district resident and a refund of the tuition paid under protest.

Respondent contends that it reasonably concluded that petitioner"s daughter does not reside in the district based on, among other things, evidence of petitioner"s low utility usage at the New Street address, the surveillance report, and the fact that petitioner has two cars registered in the state of Connecticut. Respondent also asserts that the petition was not properly served because it was left with a temporary district employee who was not designated by respondent to accept service of process.

Preliminarily, I find no merit to respondent"s claim that petitioner did not properly serve his petition. Pursuant to "275.8 of the Commissioner"s regulations, when a school district is named as a respondent, service upon such school district "shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Petitioner submits an affidavit from his wife explaining that she and petitioner went to the superintendent"s office and asked for the superintendent or someone who was designated to accept service of the petition and were directed to "Mr. Walsh"s secretary." Petitioner requested that the secretary make "absolutely sure" that she was authorized to accept service of the petition. According to petitioner"s wife, the secretary returned approximately 15 minutes later and stated that she had verified with respondent that she was authorized to accept service of the petition. Petitioner also submits a signed receipt from the secretary acknowledging receipt of the petition. Under these circumstances, I find that the petition was properly served (see, Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113). The affidavit from petitioner"s wife establishes that Mr. Walsh"s secretary accepted service of the petition and represented that she was authorized to do so. This proof is sufficient to overcome respondent"s conclusory assertion that the secretary was not authorized to accept service on behalf of respondent.

Commissioner"s regulation "100.2(y) sets forth the procedures that a district must follow in determining whether a child is entitled to attend district schools. Among other things, this provision requires the board or its designee to provide the parent with an opportunity to submit information concerning the child"s right to attend school in the district before making a residency determination. In addition, when a board or its designee determines that a child is not a resident, the regulation requires that it provide written notice to the parent, including the basis for the determination. I find no merit to petitioner"s claim that respondent did not comply with this regulation. Petitioner clearly had the opportunity to present information to the district prior to the January 25, 2001 determination, which includes reasons for the determination.

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 Johnson, 40 Ed Dept Rep ___, Decision No. 14,411; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Residency for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district, and an intent to reside in the district (Appeal of Johnson, supra; Appeal of Dimbo, supra; Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466). A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Samuel, 39 Ed Dept Rep 94, Decision No. 14,183; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). Where a child"s parents live apart, the child can have only one legal residence (Appeal of Bouttry-Martin, 37 Ed Dept Rep 125, Decision No. 13,820).

Based on the record before me, I find that petitioner"s daughter is a resident of respondent"s district and is, therefore, entitled to attend school in the district tuition free. Respondent does not dispute that petitioner purchased the home at 64 New Street within respondent"s district. Rather, respondent contends that petitioner did not occupy the home after purchasing it, but instead, continued to reside in Cos Cobb with his daughter. Respondent appears to base this conclusion in large measure on the surveillance report and petitioner"s low utility consumption during the latter part of 2000. I find respondent"s proof insufficient to establish that petitioner and his daughter are not district residents. The surveillance report reflects that respondent"s investigator did not see petitioner"s daughter leave the New Street house in the morning or return there after school on December 18, 2000, but observed her leave from and return to the Cos Cobb residence on December 19, 2000. The only other observation of the student noted in the report is that she was seen leaving the Cos Cobb house with petitioner on the morning of January 3, 2001.

These limited observations are insufficient to establish that petitioner and his daughter are not district residents. It is beyond dispute that petitioner"s daughter has significant ties to the Cos Cobb residence. Her mother continues to reside in the house and the student resided there before moving to Rye. Petitioner freely acknowledges that his daughter spends time in Cos Cobb, explaining that his wife often transports the child to her home to care for the child after school. Under these circumstances, the child"s presence at the Cos Cobb address is neither surprising nor inconsistent with petitioner"s claim that the child resides with him in respondent"s district. Petitioner has also provided a reasonable explanation for his daughter"s overnight visits to Cos Cobb during the week before Christmas, when he experienced sewer problems at the New Street home.

The extensive evidence supplied by petitioner to support his claim of residency is far more persuasive than the evidence relied upon by respondent to conclude that petitioner is not a district resident. Petitioner"s license, W-2 form and income tax returns, each reflecting the New Street address, coupled with the numerous affidavits substantiating the child"s presence at the New Street home provide compelling evidence to support petitioner"s claim.

Although it appears that petitioner"s utility bills for the first few months of occupancy at the New Street house were low, petitioner has explained that he limited his use of electricity during that period because the house was undergoing significant electrical renovation. He also asserts that he spent a substantial amount of time out of the house with his daughter enjoying various activities in and around New York City. Based on the totality of the record before me, I find that petitioner has established that his daughter is a district resident and has resided in respondent"s district since she began attending school there. Although petitioner requests an order directing the district to refund the tuition payment, I note that the Commissioner of Education lacks authority to award money damages (Appeal of Kozak, 40 Ed Dept Rep ___, Decision No. 14,459; Appeal of Wendy and Robert L., 39 id. 224, Decision No. 14,222). Petitioner is free to seek tuition reimbursement from respondent in a court of competent jurisdiction.

I have examined petitioner"s remaining claims and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent admit petitioner"s daughter to the schools of the district without payment of tuition.

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