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Decision No. 14,783

Appeal of J.M., on behalf of her son S.M., from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding residency.

Decision No. 14,783

(August 21, 2002)

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") that her son, S.M., is not a district resident. The appeal must be sustained.

Respondent admitted S.M. as a seventh grade student at the start of the 2001-2002 school year, and he began attending respondent"s middle school on September 5, 2001. Shortly thereafter, the middle school principal notified respondent"s deputy superintendent that he suspected that S.M. was not a district resident. Respondent alleges that the basis for the principal"s suspicion was that on one afternoon, S.M. was picked up at the end of the school day by a taxicab rather than by the school bus. Accordingly, the deputy superintendent instructed the district"s residency consultant to perform surveillance to ascertain S.M."s residence.

By letter dated November 27, 2001, respondent"s director of pupil personnel services notified petitioner that S.M. was "not entitled to attend the schools of the District because he is not a resident of the District," and that he would be excluded from respondent"s schools effective December 21, 2001. The letter further advised that information had been received by the district indicating that petitioner and S.M. reside with S.M."s father in a neighboring town outside respondent"s district.

After the November 27, 2001 letter was sent to petitioner, the deputy superintendent was advised by respondent"s counsel that "100.2(y) of the Commissioner"s regulations require that, prior to making a residency determination, a board of education or its designee must afford the child"s parent, or person in parental relation to the child, the opportunity to submit information concerning the child"s right to attend school in the district. Respondent had not afforded petitioner such an opportunity. Accordingly, by letter dated December 11, 2001 the deputy superintendent offered petitioner and S.M."s father an opportunity to present information in support of petitioner"s residency claim. By separate letter also dated December 11, 2001, respondent"s counsel informed my Office of Counsel that it had "repealed its previous determination regarding petitioner"s son"s residency," and that it would "afford petitioner an opportunity to present evidence in person to the Board of Education designee..."

Petitioner and S.M."s father met with the deputy superintendent on December 19, 2001. By letter dated December 21, 2001, the deputy superintendent notified petitioner and S.M."s father that after reviewing the additional information they had provided at the December 19 meeting, and after consulting with the district"s investigator, he had determined that S.M. was not a district resident. The letter further advised petitioner that she could appeal his determination to respondent.

In response to the November 27 letter (i.e., respondent"s initial notification to petitioner that her son was not entitled to attend respondent"s schools), petitioner commenced the instant appeal. Because she had already commenced this appeal prior to the deputy superintendent"s decision to repeal and reconsider his original residency determination, petitioner chose not to appeal the deputy superintendent"s subsequent (i.e., December 21, 2001) determination to respondent. However, because the deputy superintendent was not, in fact, designated by respondent pursuant to "100.2(y) to make residency determinations, the matter was referred to respondent board. At a January 7, 2002 meeting, respondent reviewed the matter and, by letter dated January 9, 2002, informed petitioner that S.M. would be excluded from its schools effective January 18, 2002 because he was not a district resident. Petitioner"s request for interim relief was granted on January 18, 2002.

Petitioner alleges that she and S.M."s father are seeking a divorce and that she and S.M. reside within the district, apart from S.M."s father, who lives outside the district. In support of her residency claim, petitioner furnishes several pieces of evidence. First, she provides a summons with notice, dated November 20, 2001, purporting to show that she is seeking a divorce from S.M."s father. Petitioner"s address listed on the summons is the address within the district at which she alleges she resides. Petitioner also provides an affidavit from S.M."s father, attesting to the fact that petitioner left his premises as of August 1, 2001 and currently resides at the address within the district. In the affidavit, S.M."s father also attests that he has agreed to allow S.M. to live with petitioner at the address within the district as of September 3, 2001, but that he has visitation rights and the right to have S.M. spend weekends with him. The affidavit further provides that these arrangements were agreed to freely, pending any custody determination to be made by the court. Petitioner also provides a copy of an order, dated September 24, 2001, signed by a family court judge, placing S.M. on parole under the supervision of the Nassau County Director of Probation. This order lists S.M."s address as the address within respondent"s district. In addition, petitioner provides a copy of a telephone bill, dated November 10, 2001, addressed to petitioner"s husband at the address within the district. Finally, petitioner provides a copy of a lease, dated August 1, 2001, purporting to show that petitioner has entered a two-year lease for a residence located within the district. The lease is signed by both petitioner and the lessor.

Additionally, respondent included with its papers two documents that petitioner had given to respondent"s deputy superintendent during his December 19 meeting with petitioner and S.M."s father. The first document is a copy of three cancelled checks purporting to show that petitioner paid rent (as well as a security deposit) on August 1, September 1 and October 1, 2001 for the residence within the district. The second document is a copy of a sworn statement, dated December 14, 2001, signed by petitioner"s landlord, attesting to the fact that he has been renting property within the district to petitioner and her son since August 1, 2001.

Respondent asserts that its determination should be upheld since it was based on an investigation, including surveillance, and because petitioner has failed to present credible evidence that she and S.M. reside within the district.

Under the circumstances of this appeal (i.e., where respondent initially failed to follow the procedures prescribed in "100.2[y] of the Commissioner"s regulations, and where the parties have had an opportunity to address the evidence submitted), I will entertain this appeal, notwithstanding the fact that it was commenced following respondent"s November 27 determination rather than its subsequent January 9 determination. And I would remind respondent to be cognizant of its obligations under "100.2(y) in the future. Additionally, I have considered the affidavit of S.M."s father, submitted by petitioner pursuant to "276.5 of the Commissioner"s regulations.

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 L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). Residence 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 Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Smith, 39 id. 67, Decision No. 14,175; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Silvestro, supra; Appeal of Monahan, 39 Ed Dept Rep 188, Decision No. 14,209; Appeal of Ifill, 38 id. 97, Decision No. 13,992).

Respondent"s determination that petitioner and her son are not district residents was based, in large part, on the results of its surveillance. In support of those findings, respondent submits an affidavit from its residency consultant who conducted the surveillance. The surveillance was performed over a period of approximately three months, at both the claimed residence within the district and the address outside the district at which respondent believes petitioner, S.M. and S.M."s father continue to reside.

After careful review, I find the information contained in the affidavit of respondent"s residency consultant to be unpersuasive. First, nowhere in the affidavit does the consultant ever identify the people he was, in fact, investigating. For example, the affidavit contains statements such as: "I observed a male adult and a male child leave the residence"; and "I observed an adult female exit the garage...I followed the vehicle and observed, as the vehicle left the...neighborhood, a child emerge in the back seat of the automobile." (Emphasis added). Nowhere, however, does he indicate his belief that the people observed were, in fact, petitioner, S.M. or S.M."s father.

The consultant"s affidavit is also unpersuasive because he does not attest to the fact that he ever saw S.M. being transported by either of his parents from a point outside respondent"s district and dropped off at respondent"s school. Rather, the affidavit contains statements such as: "I further observed the vehicle exit the expressway and head towards the POBMS" (i.e., the middle school attended by S.M.); and "I further observed this vehicle proceed out of [the town in which respondent"s husband resides] and in the direction of the POBMS"; and "The vehicle exited at the Wallace Drive exit in the direction of the POBMS"; and "I followed her to the ... Expressway where she was travelling southbound and exited at the Wallace Drive exit toward the POBMS." [Emphasis added]. Again, however, nowhere in the affidavit does the consultant state that he ever actually witnessed S.M. being dropped off near or at respondent"s school.

The consultant"s affidavit does not include any statements indicating that based on his investigation he has concluded that petitioner and S.M. live outside the district. Further, respondent has not submitted any formal report from the consultant indicating that he had reached such a conclusion. The inconclusive nature of the surveillance is revealed in the affirmation submitted by respondent"s counsel (in support of respondent"s answer and in opposition to petitioner"s stay request). In that affirmation, when referring to the surveillance evidence, respondent"s counsel states that "[The consultant] observed, on repeated occasions, a boy being driven to Plainview and towards POBMS from the [residence outside the district]." (Emphasis added).

In addition to the affidavit of the residency consultant, respondent also provides an affidavit from its deputy superintendent. In that affidavit, the deputy superintendent describes the meeting he had with petitioner and S.M."s father on December 19, 2001, and opines that petitioner and her husband suffer from an "overall lack of credibility." To support his conclusion, the deputy superintendent attests that: "I also informed petitioner and her husband of statements made by a probation officer assigned to [S.M.] by the Nassau County Department of Probation in connection with legal issues [S.M.] had encountered. [S.M."s principal] reported to me that a probation officer informed him that [S.M.] and petitioner resided [outside the district with S.M."s father and S.M."s older brother]. In response to this evidence, [S.M."s father] claims that he was advised not to inform the court that he and his wife were separated for fear of having S.M. removed from the house by the court. In essence [S.M."s father] claims to have perjured himself before the judge presiding over the matter." Accordingly, respondent asserts that the credibility of petitioner and S.M."s father has been impugned, and that credibility is a valid basis on which to make a residency determination.

While respondent is correct that credibility can be an important factor in making residency determinations, I decline to give credence to respondent"s claim that S.M."s father admitted to perjuring himself in court. First, petitioner submits an affidavit from S.M."s father strongly denying the deputy superintendent"s allegation. Second, the only document submitted by either party relating to the deputy superintendent"s claim is a copy of an order, dated September 24, 2001, signed by a family court judge, placing S.M. on parole under the supervision of the Nassau County Director of Probation. The order lists S.M."s address as the address within respondent"s district. This signed court order therefore casts doubt on the deputy superintendent"s claim that petitioner and S.M."s father told the county probation department and the family court that they resided together in S.M."s home outside the district.

In an attempt to cast further doubt on the credibility of petitioner and S.M."s father, the deputy superintendent also notes in his affidavit that in response to the surveillance evidence presented to him at their meeting, "petitioner"s father claimed that [S.M.] stays with him "three or four times a week" at the [residence outside the district]." And according to the affirmation submitted by respondent"s counsel, "This representation by petitioner"s husband contradicts Exhibit "A" to the petition, an affidavit stating that he agrees to let [S.M.] live with his mother [at the residence within the district]." Respondent"s counsel further affirmed that: "...both petitioner and her husband acknowledge that the terms of an alleged joint custody arrangement set forth in an affidavit submitted by petitioner is inaccurate. Petitioner"s husband stated [at the meeting with the deputy superintendent] that S.M. stays [at his father"s residence] "three or four times a week." This fact is not set forth in the affidavit. There is no credible evidence submitted by petitioner substantiating her claim of a joint custody agreement."

However, petitioner does not claim to have a formal joint custody agreement. Rather, the affidavit of S.M."s father, submitted by petitioner as Exhibit "A", purports only to show the living arrangement agreed to by petitioner and S.M."s father "pending any custody determination by the court." Furthermore, the affidavit clearly states that S.M."s father agreed to allow S.M. to reside with his mother, "as long as I have visitation rights and [S.M.] is allowed to stay at my home on the weekends." Nothing in the agreement limits S.M. from staying at his father"s home on days other than the weekend. Accordingly, the statement allegedly made by S.M."s father at his meeting with the deputy superintendent (i.e., that S.M. stays with his father three or four days a week) is not contradicted by his affidavit.

Respondent has provided weak and inconclusive surveillance evidence and has not provided sufficient evidence concerning petitioner"s credibility. Accordingly, I am constrained to find, on the record before me, that respondent"s determination that petitioner"s son is not a district resident is based upon insufficient evidence and is therefore arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit S.M. to the schools of the Plainview-Old Bethpage Central School District without the payment of tuition.

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