Appeal of YUNSUNG CHOI, on behalf of his daughter SUNG WON, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15788

(July 19, 2008)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent” or “board”) that his daughter Sung Won, is not a district resident.  The appeal must be sustained in part.

In September 2007, petitioner enrolled his daughter in respondent’s schools as a seventh grade student.  On the enrollment application, petitioner listed an address on Lowell Avenue (“Lowell Avenue address”) within respondent’s district as their residence.

In October 2007, respondent received mail addressed to petitioner with a forwarding address of Flushing, New York.  As a result, respondent’s attendance teacher conducted a home visit to the Lowell Avenue address, wherein a tenant advised the teacher that she rents the home from petitioner. 

By letter dated November 6, 2007, respondent’s administrative assistant to the superintendent (“assistant”) notified petitioner and his wife that their daughter was not entitled to attend the district’s schools because she resided outside the district.  Petitioner appealed this determination by letter dated November 16, 2007.  In his letter, petitioner admitted that he did not reside at the Lowell Avenue address, but stated that his family rented property on North 6th Street (“6th Street address”), within respondent’s district.  Thereafter, surveillance was conducted at the 6th Street address on six mornings between November 20 and December 11, 2007.  Neither petitioner nor his daughter were observed leaving the home.  However, the district’s attendance supervisor confirmed that the student was in school on time on those dates. 

A residency appeal review was conducted on December 7 and 20, 2007. Surveillance was also conducted on the morning of December 20, 2007 at the 6th Street address and petitioner’s daughter was not observed exiting the home. By letter dated February 29, 2008, respondent’s administrative review officer notified petitioner and his wife of her determination that their daughter was not a district resident and would be excluded from respondent’s schools effective March 25, 2008.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 28, 2008. 

Petitioner contends that his daughter resides with him in respondent’s district.  To support his claim, he submits a copy of the lease for the 6th Avenue address, ending June 30, 2008, rent receipts and hearing testimony from the owner of the 6th Avenue address that petitioner lives at this address.  Petitioner also contends that the surveillance conducted by respondent was illegal and should not be considered. 

Respondent contends that it properly determined that petitioner and his daughter are not district residents.  Respondent relies on its surveillance of the 6th Avenue address and petitioner’s failure to provide an explanation as to his whereabouts on the surveillance dates.  Respondent also contends that it was within the district’s right to conduct surveillance to determine the residency of petitioner’s daughter.

At the time petitioner commenced this appeal, he identified the 6th Avenue address as his residence and respondent’s initial residency determination was based on that address.  The record, however, reflects that petitioner’s lease for the 6th Avenue address expired on June 30, 2008, and petitioner has verified that he no longer resides at that address.  Petitioner further indicates that he has relocated to the Lowell Avenue address.  In view of this apparent change in circumstances, it is appropriate to remand this matter to respondent for a determination of residency based on the totality of circumstances, including the expiration of petitioner’s lease, and alleged relocation. 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of the date of this order, respondent make a new determination as to whether Sung Won Choi is entitled to attend the schools of the district, and that prior to making such determination, petitioner shall be afforded a full opportunity to submit any and all information concerning Sung Won Choi’s residency.

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