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Decision No. 15,078

Appeal of ROBIN L. CRAIG, on behalf of ASHLEY and SHADONNA PENDLETON, from action of the Board of Education of the South Colonie Central School District regarding residency.

 

Decision No. 15,078

 

(July 15, 2004)

 

Tabner, Ryan and Keniry, LLP, attorneys for respondent, William F. Ryan, Jr., Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the South Colonie Central School District ("respondent") that her daughters, Ashley and ShaDonna, are not district residents.  The appeal must be sustained.

Petitioner enrolled her daughters in respondent"s schools in September 2003.  Previously they attended the schools of a neighboring district.  By letter dated October 27, 2003, respondent"s superintendent notified petitioner that a residency hearing would be held on October 31, 2003.  At that hearing, petitioner stated that she and her daughters had recently moved to a Launfal Street residence ("Launfal") within the district, and she submitted a temporary driver"s license.  Several days later, petitioner submitted a letter from the owner of the Launfal residence stating that petitioner resided there.  Thereafter, petitioner"s daughters continued to attend respondent"s schools. 

After receiving information that petitioner resided at a Lark Street residence ("Lark") in the neighboring district, the district on February 11, 2004 conducted a second residency hearing.  At that hearing, petitioner maintained that she resides at the Launfal residence, within the district.  She explained that she is separated from her husband who resides at the Lark address with his niece and the niece"s children. 

At the February hearing, the district presented evidence it had acquired with the assistance of a private investigator purportedly showing that petitioner still resides at the Lark address.  By letter dated February 12, 2004, the superintendent notified petitioner that her daughters would no longer be entitled to attend respondent"s schools because they were not district residents.  This appeal ensued.  Petitioner"s request for interim relief was granted on February 27, 2004.

Petitioner claims that her daughters live with her at Launfal and requests a determination that they are district residents entitled to attend the district's schools without the payment of tuition.  Respondent claims that its residency determination was rational and supported by the record.  In addition, respondent requests attorney"s fees and costs.

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 (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of B.C., 43 Ed Dept Rep __, Decision No. 14,946; Appeal of B.O. and D.O., 42 id. 42, Decision No. 14,769; Appeal of Metze, 42 id. 40, Decision No. 14,768).  Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., supra; Appeal of B.C., supra; Appeal of B.O. and D.O., supra; Appeal of Metze, supra). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of B.C., supra).

Petitioner states that she and her husband separated in August 2003 and that, while her husband is not her daughters" biological or adoptive father, he acts as their father in all other respects, and her daughters spend weekends with him.  She also states that she and her husband own the Lark house, but that she moved out because she could not afford the house on her own.  Petitioner further asserts that her father lives across the street from the Lark house and that she often helps him there.  Petitioner also contends that her husband"s niece frequently uses petitioner"s car.  Petitioner has submitted photocopies of mail she received at the Launfal residence, including bank and credit card statements.  She also submitted unsworn statements from her husband, her father, her husband"s niece and a neighbor. 

Respondent relies on three computer search reports and observations by its private investigator. Respondent also points to the lack of separation or custody documents. 

The first computer report, by Locate Plus, shows eight separate addresses for petitioner, including the marital residence and her father"s residence.  The dates overlap and cover a period from 1985 until July 1, 2003.  Even if the report covered only the relevant period of time, it is impossible to ascertain from this list any single address where petitioner lived at a date certain.  The report also lists a telephone search, but petitioner"s name does not appear on the list.  Similarly, her name does not appear on the list of vehicle registrations included in the report.

The second computer search, the Comprehensive Report, identifies the owner and nine other past and current residents of the Launfal address, again with overlapping dates, from October 1992 to January 2004.  Petitioner"s name does not appear on the list.

The third computer search, another Comprehensive Report, details numerous addresses purportedly occupied by petitioner dating from 1984.  Again, there are overlapping dates so that it appears that petitioner has had an Alabama address, as well as the Lark address, as recently as December 2003. 

Respondent also relied on the private investigator"s testimony regarding his surveillance.  Respondent states that on January 20, 2004 the investigator observed a gray minivan enter the Launfal driveway.  Three females exited the house and were driven in the minivan to the school bus stop.  On January 21, 2004, the investigator observed two females leave the Lark residence at 6:15 a.m. and drive away in the minivan with a third female.  After arriving at the Launfal residence, three females exited that house and drove in the same minivan to the school bus stop.  The investigator also testified that he made several evening observations at the Launfal residence and did not observe the minivan at that address. 

Although petitioner"s evidence is not overwhelming, I find respondent"s evidence even less compelling and insufficient to support its determination that petitioner is not a district resident.  The computer searches provide an abundance of conflicting information while failing to confirm where petitioner resides. 

The investigator"s observations are also unconvincing.  There is no indication that the investigator positively identified petitioner or her daughters on the two observation dates.  This is especially important given petitioner"s explanation that she loans her vehicle, which appears to be registered to her husband, to her husband"s niece.    Respondent does not provide information on the number and length of evening observations purportedly made by the investigator.  It is, therefore, impossible to evaluate the significance, if any, of his failure to observe the vehicle at the Launfal residence on those occasions. 

Petitioner"s explanation of her personal circumstances also reasonably accounts for respondent"s evidence.  Petitioner asserts that she lives with a friend at the Launfal residence while trying to improve her financial situation.  She does not pay rent, but instead helps with childcare and groceries.  Petitioner explains that she does not have a separation agreement because of the cost of an attorney and feels it is unnecessary.  There is apparently no custody agreement because there is no legal relationship between her husband and her daughters.  Petitioner"s name is still connected to the Lark address because she still owns it with her husband.  Her daughters visit there frequently and petitioner is often at her father"s house nearby.  And petitioner"s husband"s niece and her children may well have been the individuals the investigator observed leaving the Lark residence, using petitioner"s vehicle.

 In sum, I find that respondent had an insufficient factual basis to determine that petitioner resides outside the district, and I therefore set aside that determination (See, Appeal of Trapani, 40 Ed Dept Rep 653, Decision No. 14,576; Appeal of Staton, 40 id. 134, Decision No. 14,440).  Respondent may revisit the issue of petitioner"s residency in the future if it obtains additional information indicating that petitioner and her children are not district residents.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent allow Ashley and ShaDonna Pendleton to attend school in the South Colonie School District without the payment of tuition.

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