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Decision No. 16,103

Appeal of STEPHANIE BUTLER and GEMIKA DUNHAM, on behalf of their children ASANTE DUNHAM, KIANTE DUNHAM, TERELL BUTLER and TIFFANY HAMLET, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,103

(July 27, 2010)

Crowley & Powis, LLP, attorneys for petitioners, Patricia A. Powis, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

STEINER, Commissioner.--Petitioners challenge the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that their children are not district residents.  The appeal must be dismissed.

Petitioner Stephanie Butler (“petitioner Butler”) is the mother of Tiffany Hamlet and Terell Butler.  Tiffany began attending respondent’s schools in October 1993, and Terell began attending respondent’s schools in September 1998.  On March 6, 2006, petitioner Butler married petitioner Gemika Dunham (“petitioner Dunham”) who is the father of Asante and Kiante Dunham.  Both Asante and Kiante registered with respondent’s district on July 10, 2006.  The address provided for all of petitioners’ children was Summer Avenue in Great Neck, New York, which is within respondent’s district.

On April 6, 2009, respondent’s registrar was advised by a private investigator working on another matter that several students were seen arriving at the Summer Avenue address that morning.  Based on this information, respondent’s registrar authorized an investigation into whether petitioners’ children were district residents.  Over the course of approximately seven weeks, respondent’s investigators observed several instances of students - identified as petitioners’ children – either leaving a Queens address located outside of respondent’s district (which respondent determined was owned by petitioner Dunham), or arriving at the Summer Avenue address in the morning.  By letter dated May 29, 2009, respondent’s registrar notified petitioners that their children were not district residents.

On June 1, 2009 petitioner Butler met with respondent’s registrar to provide additional evidence of residency.  By letter dated June 2, 2009, respondent’s registrar affirmed her determination that petitioners’ children were not district residents and sent petitioners a bill for non-resident tuition.  Petitioners appealed this determination to respondent which, by letter dated June 23, 2009, denied their appeal.  This appeal ensued.  Petitioners’ requests for interim relief were denied on August 12 and 25, 2009.

Petitioners maintain that they are temporarily separated, and that petitioner Dunham is temporarily residing at the Queens address where his children have “some weekend and holiday overnight visitation.”  Petitioners contend, however, that petitioner Butler and all four of their children reside at their “marital home” on Summer Avenue, which is owned by petitioner Butler’s grandmother.  Petitioners submit a number of documents, including copies of drivers’ licenses, identification cards, tax records, bank statements and bills, which all display the Summer Avenue address.  In addition, petitioners submit statements from a number of people, including petitioner Butler’s mother and grandmother, in support of their contention.  Petitioners claim that respondent failed to consider all of their evidence, and they argue that respondent’s June 23 letter was procedurally defective and “fatal” to its case.  Petitioners request that I find that their children are (or were) entitled to attend respondent’s schools without the payment of tuition.

Respondent claims that it acted within its lawful authority and discretion and asserts that its determination was based on “substantial and credible evidence.”  In addition, while respondent acknowledges that its June 23 letter did not fully comply with the requirements of §100.2(y) of the Commissioner’s regulations, it argues that it advised petitioners of their right to appeal to the Commissioner of Education and was in “substantial compliance” with the regulation.  Among other things, respondent asserts that petitioners have failed to establish a legal entitlement to the relief that they seek, that petitioners’ appeal is untimely and that the appeal is moot with respect to Tiffany and Terell.

Before reaching the merits I must address a number of procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In addition, by letters dated November 12, 2009 and December 11, 2009, respondent requested permission to file two additional affirmations; a “sur-reply affirmation” in response to petitioners’ reply, and an affirmation from respondent’s attorney apprising me of events that transpired after respondent submitted its answer.  Petitioners do not oppose either request.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (see 8 NYCRR 276.5).  A sur-reply, however, may not improperly buttress allegations that should have been asserted in an answer (seeAppeal of Malone and Trombley, 39 Ed Dept Rep 135, Decision No. 14,194).  Accordingly, I have accepted respondent’s “sur-reply affidavit,” but have not considered those portions that should have been submitted with respondent’s answer.  I have also accepted respondent’s affidavit apprising me of events that have transpired since the submission of its answer.

Respondent contends that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Petitioners contend (and respondent does not dispute) that they received respondent’s June 23 letter on June 25, 2009.  As such, petitioners would normally be required to commence this appeal on or before July 25, 2009, which was a Saturday.  Where, as here, the 30-day period in which to commence an appeal ends on a Saturday, Sunday or a public holiday, a petition may be served on the next succeeding business day (8 NYCRR §275.8[a]).  Petitioners, therefore, had until July 27, 2009 to serve their petition, which they did.  Accordingly, the appeal is not untimely.

The appeal with respect to Tiffany and Terell, however, must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  It is undisputed that both Tiffany and Terell have graduated from respondent’s district.  Accordingly, their residency is no longer at issue.

Petitioners argue that the appeal is not moot with respect to Tiffany and Terell because respondent has sent them non-resident tuition bills for their attendance at its schools.  The Commissioner, however, has historically declined to award tuition in residency appeals (seee.g.Appeal of Azatyan, 49 Ed Dept Rep 65, Decision No. 15,959; Appeal of C.S., 47 id. 407, Decision No. 15,737; Appeal of Bennett, 45 id. 110, Decision No. 15,274).  Such relief should be sought in a court of competent jurisdiction (Appeal of Azatyan, 49 Ed Dept Rep 65, Decision No. 15,959; Appeal of C.S., 47 id. 407, Decision No. 15,737; Appeal of Bennett, 45 id. 110, Decision No. 15,274).  Therefore, any discussion of the merits as they pertain to Tiffany and Terell would be advisory in nature, and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (seee.g.Appeal of Azatyan, 49 Ed Dept Rep 65, Decision No. 15,959; Appeal of Marino, 40 id. 13, Decision No. 14,404).  The appeal is not moot, however, with respect to the residency of Asante and Kiante.

Petitioners argue that respondent’s June 23 letter failed to comply with §100.2(y) of the Commissioner’s regulations.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  This notice must also advise that the procedure for taking an appeal to the Commissioner of Education may be obtained from my Office of Counsel (“Office of Counsel”), and it is required to give the website address, mailing address and telephone number for the Office of Counsel (see 8 NYCRR §100.2[y]).

The record in this matter reflects that respondent’s June 23 letter failed to comply with §100.2(y) in a number of respects.  In particular, respondent’s letter failed to state the basis of its residency determination, and it failed to provide a website address and proper telephone number for the Office of Counsel.[1] Accordingly, I admonish respondent to comply henceforth with the requirements of §100.2(y).  Nevertheless, while it appears from the record that respondent’s omissions may have created unnecessary difficulties for petitioners, I find that they were not deprived of the opportunity to appeal respondent’s determination to me, and that they have had an ample opportunity to present evidence here in support of their residency claim.  I will therefore address the merits of petitioners’ appeal as they pertain to Asante and Kiante (seee.g.Appeal of Striano, 47 Ed Dept Rep 137, Decision No. 15,651; Appeal of Clark, 46 id. 143, Decision No. 15,468).

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

I am unable to find on the record before me that petitioners met their burden of proving that Asante and Kiante are district residents.  While petitioners attempt to discredit respondent’s investigators and the surveillance evidence in this matter, they do not dispute that petitioner Dunham is the owner of the Queens address, or that it was his children that investigators observed either leaving that address or arriving at the Summer Avenue address on various mornings.  In addition, while petitioners attempt to explain the surveillance by claiming that petitioner Dunham is only temporarily residing at the Queens address and that his children have “some weekend and holiday overnight visitation” with him, this does not account for observations that were made on weekdays and non-holidays.  While the evidence submitted by petitioners is relevant to the issue of residency, it alone is not conclusive of the question.  When considered in light of respondent’s surveillance and the other evidence in the record, I am unable to conclude that respondent’s determination that Asante and Kiante are not district residents was arbitrary or capricious.

In light of this disposition, I need not consider the parties’ remaining contentions.  However, I note that petitioners retain the right to reapply to the district for the children’s admission should circumstances change, and to present any new information for the district’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The June 23 letter also failed to provide the date that petitioners’ children would be excluded from respondent’s schools, but the record reflects that petitioners were provided with this information in previous letters from respondent.