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Decision No. 16,586

Appeal of NEIL R. COMPASS, on behalf of his daughter HILDA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,586

(January 30, 2014)

 

Ingerman Smith, L.L.P., attorneys for respondent, Edward H.McCarthy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that his daughter, Hilda, is not a district resident. The appeal must be dismissed.

During the 2012-2013 school year, Hilda was a 14-year­old student in respondent’s high school. Petitioner asserts that Hilda has resided with and received support from him in the district since she was born in 1998, and intends to reside in the district for the duration of her high school years.

According to respondent, in or about May 2013, a question arose as to Hilda’s residency “based upon [respondent’s] information and belief that the student was actually residing with [her mother, Brenda Doyle] outside of the geographical confines of the District and within Roosevelt, New York.” As a result, respondent commenced a residency investigation, which consisted of sixdays of surveillance between May 23 and June 4, 2013. Based on the residency investigation, respondent concluded that Hilda was residing with her mother outside of respondent’s district.

According to petitioner, on or about August 27, 2013,Hilda was excluded from school. By letter dated August 29, 2013,2  respondent’s administrative assistant for central registration (“administrative assistant”) and superintendent advised Ms. Doyle that Hilda was “not eligible to attend Uniondale Public Schools,” and that the determination was “based on the following: Your child/children is/are not a resident(s) of the District.” The letter further advised that Hilda would be excluded as a non-resident and would not be allowed to attend respondent’s district for the 2013-2014 school year and that Ms. Doyle had a right to appeal the determination to the administrative assistant and the Commissioner of Education.

The administrative assistant conducted a residency review hearing on September 3, 2013, which Ms. Doyle and petitioner attended. At the hearing, Ms. Doyle stated that she has resided in petitioner’s house in the district with petitioner and Hilda for 17 years, but that she and petitioner have “separate lives” and that she stays with her boyfriend outside the district. Petitioner similarly stated at the hearing that Hilda resides with him in respondent’s district and occasionally stays at Ms. Doyle’s boyfriend’s residence. Petitioner stated that, at the end of the 2012-2013 school year and extending into July 2013, Hilda spent three to four days per week with her mother at the Roosevelt address. He added that he would not have let Hilda go with her mother had he known that it would affect her ability to attend school in respondent’s district.

By letter dated September 3, 2013,3  the administrative assistant informed Ms. Doyle that Hilda was not a district resident and would be excluded from school for the 2013­2014 school year. The letter stated as follows:

This determination is based on the following regulations:

  • New York State Education Law states, “School districts are required to admit only district residents ...”
  • Uniondale School District Policy #5152 states, “... non-resident students may not attend classes in district schools ...”

This appeal ensued. Petitioner’s request for interim relief was granted on September 18, 2013.

Petitioner asserts in his petition that Hilda resides with him at his residence within respondent’s school district. Petitioner requests a determination that Hilda is a resident of respondent’s school district and is entitled to attend school tuition-free.

Respondent generally denies petitioner’s allegations and asserts that the petition must be dismissed due to improper service and for failure to state a claim upon which relief may be granted. Respondent also maintains that its decision to exclude Hilda was well-founded and based upon surveillance evidence as well as “admissions” made by petitioner and Ms. Doyle during the September 3,2013 residency review hearing.

The appeal must be dismissed for lack of proper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530,Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). Pleadings may be served by any person not a party to the appeal over the age of 18 (8 NYCRR §275.8[a];Appeal of C.D. and P.D., 46 Ed Dept Rep 459, Decision No.15,563).

Petitioner’s affidavit of service indicates that the petition was served upon Gregory M. Singer (“Singer”) on September 10, 2013, at 1060 Cornelius Court, Uniondale, New York. Mr. Singer is respondent’s administrative assistant for central registration. An administrative assistant for central registration is not one of the individuals authorized by §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be properly effected. Indeed, respondent denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]) and submits affidavits from both Mr. Singer and the district clerk stating that Mr. Singer is not authorized to accept service and that the district clerk was not served. Petitioner submits no reply to rebut respondent’s claim of defective service. When there is no proof that the individual who received the petition is authorized to accept service on behalf of the school board, service on that individual is improper and the appeal must be dismissed (Appeal of Zayas, 53 Ed Dept Rep, Decision No.16,546; Appeal of McIntyre, et al., 49 id. 333, Decision No. 16,045; Appeal of Baker, 47 id. 280, Decision No.15,696).

In addition, petitioner’s affidavit of service indicates that the petition was served by Neil Compass, the petitioner in this appeal. However, §275.8(a) of the Commissioner’s regulations states that a petition may be served by any person not a party to the appeal. Accordingly, because service is defective, the appeal mustbe dismissed (Appeal of L.D., 52 Ed Dept Rep, Decision No.16,382; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).

In light of this disposition, I need not address the parties’ remaining contentions.

However, although the appeal must be dismissed on procedural grounds, I am compelled to comment on respondent’s apparent failure to comply with §100.2(y) of the Commissioner’s regulations in making its residency determination in this case. 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). The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse,46 Ed Dept Rep 24, Decision No. 15,430).

The record contains no evidence that respondent afforded petitioner the opportunity to submit information concerning his daughter’s residency prior to making its August 29, 2013 determination. Moreover, both the August29 and September 3, 2013 determination letters failed to state an adequate basis for the determination of non­ residency. Petitioner must be afforded sufficient information regarding the basis for the decision to initiate a meaningful challenge to respondent’s residency determination (see Appeal of Ogden, 37 Ed Dept Rep 141,Decision No. 13,826).

Moreover, on the record before me, it appears that respondent misapplied the substantive requirements of Education Law §3202, based on its assertion that “[p]etitioner has failed to produce any documentation in support of his claim that Hilda is physically present as an inhabitant within the District and intends to remain there permanently” (emphasis added).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is 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 Naab, 48 Ed Dept Rep 484,Decision No. 15,924). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156,Decision No. 15,288). In cases where parents have joint custody, the child’s time is "essentially divided" between

two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103,Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849). However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

Here, respondent does not dispute that petitioner resides in its district. Rather, respondent appears to have based its residency determination solely upon very limited surveillance which focused on the student’s location. However, just as a showing of a child’s physical presence in a school district, standing alone and without regard to the retention of parental control, is not sufficient to rebut the presumption that a child resides with his or her parent (Caitlin v. Sobol, 77 NY2d 552, 561[1991]), respondent’s surveillance evidence showing Hilda’s physical presence outside the district does not rebut the presumption that she resides with her parents, who both assert that their permanent residence is within the district (see e.g., Appeal of Cange, 53 Ed Dept Rep, Decision No. 16,532). Even assuming, arguendo, that Ms.Doyle resides outside the district in Roosevelt, the record before me contains no custody order or other evidence demonstrating that Hilda’s mother is the custodial parent or that her parents share joint custody and Hilda’s time is divided between petitioner’s household and her mother’s Roosevelt residence (see e.g., Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818).

Finally, I note that petitioner retains the right to reapply for admission to respondent’s schools on Hilda’s behalf at any time, and to submit any documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y). Respondent must consider all such evidence in accordance with 8 NYCRR §100.2(y), and I admonish respondent that it is obligated to comply with all such requirements in the future (see Appeal of Daniels, 37 Ed Dept Rep 557, Decision No. 13,926).

THE APPEAL IS DISMISSED.

END OF FILE

 

 

 

 

Footnote1

 

 

 

 

1 The affidavit of the administrative assistant for central registration describes six days of surveillance; however, only three days of surveillance notes were submitted with respondent’s answer: May 23, May28, and May 29, 2013.

 

 

 

 

Footnote2

 

 

 

 

2 Although respondent’s answer does not include as an exhibit a copy of the August 29, 2013 letter, it incorporates by reference the affirmation in opposition to petitioner’s request for interim relief, which included the letter as an exhibit.

 

 

 

 

Footnote3

 

 

 

 

3 Although respondent’s answer does not include as an exhibit a copy of the September 3, 2013 letter, it incorporates by reference the affirmation in opposition to petitioner’s request for interim relief, which included the letter as an exhibit.