Appeal of L.W., on behalf of her children C.W. and M.T., from action of the Board of Education of the Half Hollow Hills Central School District regarding residency. 

Decision No. 16,983

(October 24, 2016)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her children, C.W. and M.T. (“the students”), are not district residents.  The appeal must be dismissed.

The students have been attending school within respondent’s district since 2005 and 2010, respectively. When petitioner enrolled the students, she claimed that they resided with her mother at an address within the district (“in-district address”).  In March 2015, based on multiple telephone calls to respondent’s district registrar (“registrar”) from two separate district residents reporting that petitioner and the students did not reside at the in-district address, respondent commenced an investigation into petitioner’s residency.

Surveillance was conducted on two mornings in May and four mornings in June 2015 at an address outside of the district’s geographical boundaries (“out-of-district address”).  A vehicle registered to petitioner was observed at the out-of-district residence on two occasions.  On four mornings, one of the students left the residence with an adult male at approximately 8:35 a.m., entered a vehicle, and departed the residence.  The student attended school on each of those four days. 

By letter dated June 17, 2015, the assistant superintendent for finance and facilities (“assistant superintendent”) notified petitioner that the district had reason to believe that her children were not district residents and, therefore, were not entitled to attend respondent’s schools without the payment of tuition.  Petitioner was provided an opportunity to submit documentation regarding the students’ right to attend respondent’s schools. 

On June 30, 2015, petitioner and her mother attended a meeting with the assistant superintendent and the registrar.  Petitioner explained that she resided at the in-district address but that, due to her work schedule, the students frequently stayed with an acquaintance at the out-of-district address.  By letter dated July 6, 2015, the assistant superintendent notified petitioner that, based on petitioner’s representations, respondent would permit the students to continue to attend school in the district.  The letter cautioned petitioner that the district would continue to review, monitor and examine her residency status. 

In the fall of 2015, the registrar received additional reports that the students were not residing in the district.  The district subsequently resumed its residency investigation, during which surveillance was conducted at the out-of-district address on five school mornings from October 15, 2015 through October 30, 2015. On each of the five mornings, between 6:00 a.m. and 6:45 a.m., one of the students was seen leaving the residence with an adult male, entering a vehicle and departing the residence.  The student subsequently attended school on each of those days.  A vehicle registered to petitioner was observed at the out-of-district residence on three of the five days. 

The district also conducted surveillance at the in-district address on five mornings in November 2015 between 6:00 a.m. and 7:19 a.m.  Neither petitioner nor the students were seen leaving the residence on any of those days; however, both students attended school.  Petitioner’s vehicle was not observed at the residence on any of the five days. 

By letter dated December 8, 2015, the assistant superintendent notified petitioner that, based on the surveillance conducted by the district, the district had reason to believe that her children were not district residents and, therefore, were not entitled to attend respondent’s schools without the payment of tuition.  Petitioner was provided an opportunity to submit documentation by December 15, 2015, regarding the students’ right to attend respondent’s schools.  The letter further stated that the students would be excluded from respondent’s district on December 23, 2015. 

By email dated December 10, 2015, petitioner claimed that she and the students resided at the in-district address, but admitted that there were “often times” when she and the students spent “a lot” of time at the out-of-district address.  Petitioner explained that her work hours varied and that the students stayed with her acquaintance at the out-of-district address while she was at work.

By letter dated December 15, 2015, the assistant superintendent, designated by respondent to review residency matters, stated that petitioner’s email of December 10, 2015 was insufficient to rebut the evidence that petitioner and the students were not district residents.    This appeal ensued.  Petitioner’s request for interim relief was denied on February 5, 2016.

Petitioner asserts that she and her children reside at the in-district address and, therefore, her children are entitled to attend respondent’s schools without the payment of tuition.  Petitioner contends that her children stay with her acquaintance at the out-of-district address while she works “unorthodox” hours for her job.  Petitioner further asserts that she lives with her mother, and that her mother is often unwilling to provide child care while petitioner is at work.  Finally, petitioner asserts that the district’s residency investigation was initiated by an individual who intended to harass her.

Respondent argues that the appeal must be dismissed for failure to effectuate proper service.  Respondent further contends that petitioner has failed to meet her burden of proof to establish residency in its district.

The appeal must be dismissed for improper 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 (8 NYCRR §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).

Petitioner’s affidavit of service indicates that the petition was served on January 29, 2016 and that the process server knew the person served as “Anne Marie Caliendo who is Assistant Superintendent for Finance and Facilities in said distric[t] and who [is] duly authorized to accept service.”  In an affidavit, Ms. Caliendo states that she was not personally served with the notice of petition and papers in the instant appeal, nor is she authorized to accept service on behalf of respondent.  Petitioner submits no reply or other evidence to refute respondent’s claim of improper service.[1]  When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).  On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed.

Even if the appeal were not dismissed on a procedural ground, it would be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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 §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 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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On this record, petitioner has failed to meet her burden of proof to show that she and the students reside at the in-district address.  Petitioner submits no documentary evidence, but merely asserts that she and the students live with her mother at the in-district residence and that her relationship with her mother is “strained.”  Petitioner admits that there are nights when her children stay over at the out-of-district residence, but asserts that this is due to her “unorthodox” work hours which consist of shifts that can “vary in time as much as [t]welve hours or more.”  She also states that her acquaintance at the out-of-district address is the only reliable individual who can watch the students while she is at work. 

These assertions, however, do not overcome respondent’s surveillance evidence.  As noted above, the district conducted surveillance on five mornings in October 2015 at the out-of-district residence and on all five mornings, one of the students was observed leaving the residence and subsequently attended school.  Further, petitioner’s car was observed at the out-of-district residence on three of those days.  The district also conducted surveillance at the in-district address on five mornings in November 2015.  Neither petitioner nor the students were observed although the students attended school on each of those days.  Additionally, petitioner’s vehicle was not present. Petitioner submits no evidence to rebut or otherwise explain the surveillance evidence.[2] 

Although the appeal must be dismissed, I note that petitioner retains the right to re-apply for admission to the district on her children's behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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