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Decision No. 15,460

Appeal of DEBORAH PEACOCK, on behalf of her son BRETT, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

 

Decision No. 15,460

 

(August 29, 2006)

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her son, Brett, is not a district resident.  The appeal must be dismissed.

The Hewlett-Woodmere Union Free School District (“district”) requires all students to re-register upon entering the 2nd, 6th and 9th grades.  Pursuant to this policy, on June 13, 2003, petitioner submitted a re-registration form and an affidavit to enroll Brett in respondent’s high school.  At that time, petitioner represented that she, Brett and her daughter resided with her parents (Brett’s grandparents) on Union Avenue within the district.  Petitioner’s mother also submitted a school tax bill and an affidavit stating that petitioner, Brett and her granddaughter resided at the Union Avenue residence with her and her husband.

Subsequently, the district received an anonymous phone call alleging that petitioner and Brett were not residing at the Union Avenue residence.  The district commenced a residency investigation on February 16, 2005 and hired a private investigator to conduct surveillance.

By letter dated May 16, 2005 and addressed to a residence in East Rockaway, respondent notified petitioner that Brett was not a district resident and that he would be excluded from respondent’s schools effective June 24, 2005.  The letter was sent certified mail, return receipt requested and was signed for by someone named “Peacock.”

Petitioner requested an administrative hearing which was held on June 16, 2005.  Petitioner claimed that she had resided at the Union Avenue residence since separating from her former husband approximately six years earlier and denied that she and Brett lived at the East Rockaway address.  However, petitioner testified that she had rented the East Rockaway residence for her daughter because she was student teaching there.  She further claimed that she and Brett occasionally spend nights at her daughter’s apartment to avoid confrontations with her older son.  Petitioner also maintained that her daughter drives the auto observed at the East Rockaway residence even though it is registered to petitioner.

Respondent’s investigator also testified at the hearing.  The investigator conducted surveillance at the Union Avenue residence on various occasions between March 3 and June 15, 2005 and at the East Rockaway residence between April 14 and June 15, 2005.  Petitioner and Brett were not observed leaving the Union Avenue residence on any of the nine mornings of surveillance at that address.  Further, on one morning, petitioner was seen leaving the East Rockaway residence with Brett and then dropping him off at the district’s high school.  On another morning, petitioner was observed leaving the East Rockaway residence with a teenage male.  The investigator also saw petitioner at the East Rockaway address one evening and Brett at the same address on another evening.

During the hearing, petitioner submitted a copy of her New York State driver’s license, her 2004 New York State and federal income tax returns, a 2004 W-2 wage and tax statement, a bank statement, investment account statements, a health insurance claim statement, letters from ING Direct, her matrimonial attorney and accountant, a US Post Office priority mail mailing label addressed to her, a telephone bill and a library card, all reflecting the Union Avenue address.

By decision dated June 16, 2005, respondent's designee determined that petitioner and Brett were not district residents and that Brett was not entitled to attend respondent’s schools after June 30, 2005.  This appeal ensued.  Petitioner's request for interim relief was granted on July 27, 2005.

Petitioner contends that both she and Brett are district residents because they reside at the Union Avenue address.  To substantiate this contention, she submits all the documents she submitted at the June 16, 2005 hearing.  Respondent contends that petitioner has failed to establish that she and Brett are district residents.

In her reply, petitioner claims that her daughter no longer resides at the East Rockaway residence.  Petitioner further maintains that her daughter now resides with her, Brett and her parents at the Union Avenue residence.  To substantiate this claim, petitioner submits an affidavit from the owner of the East Rockaway residence stating that petitioner had rented the residence for her daughter and that both petitioner and her daughter had vacated the residence on July 21, 2005.  Petitioner also submits a lease between herself and her parents that indicates that she, Brett and her daughter will be residing at the Union Avenue residence from July 15, 2005 to July 15, 2008.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law �3202 is established by one’s 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., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Based on the record before me, I find respondent’s determination that petitioner and her son are not district residents to be reasonable.  Between March 3 and June 15, 2005, surveillance was conducted at the Union Avenue residence on 10 occasions and Brett was observed only once.  On that occasion, Brett was driven from the Union Avenue address, at approximately 7:00 p.m., by his grandmother and then dropped off at the district’s high school.  He was subsequently picked up by another vehicle and driven to the East Rockaway address.  Brett was never observed leaving the Union Avenue residence in the morning to go to school.  In contrast, petitioner was observed, on at least one morning, leaving the East Rockaway residence with Brett and then dropping him off at the district’s high school.

Additionally, petitioner has failed to provide any explanation as to why Brett was never observed leaving the Union Avenue residence in the morning to go to school during nine separate days of surveillance from March 3 to June 15, 2005.  The surveillance also undermines her claim that she and Brett only stayed at her daughter’s residence on rare occasions.

In this appeal, petitioner produced several documents with the Union Avenue address.  However, these documents are not dispositive of petitioner’s residency, particularly in light of the district’s investigation, which included approximately 15 surveillances during a three-month period (seeAppeal of Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023).

Based on the record before me, I find that petitioner has failed to establish actual physical presence in the district.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petition must be dismissed upon the record before me, I note that petitioner has the right to reapply to the district for admission on her son's behalf if circumstances have changed.

 

THE APPEAL IS DISMISSED.

END OF FILE