Decision No. 16,984
Appeal of M.P. and J.T., on behalf of A.G., J.T. and W.P-T., from action of the Board of Education of the Copiague Union Free School District regarding residency.
Decision No. 16,984
(October 24, 2016)
Ingerman Smith, LLP, attorneys for respondent, Kerrin A. Bowers, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Copiague Union Free School District (“respondent”) that A.G., J.T. and W.P-T. (“students”), are not district residents. The appeal must be dismissed.
Petitioner M.P. is the mother of student A.G. and also the aunt and guardian of J.T. and W.P-T. Petitioner J.T. is the biological father of student W.P-T. Both petitioners allege that they live at the same address within the district with all three students (“in-district address”). In February 2015, the district received information that the students were living with M.P. at an address outside of the district (“Massapequa address”) and initiated an investigation into the students’ residency. The district conducted surveillance on nine weekday mornings between February 2015 and May 2015 at both the in-district address and the Massapequa address. The surveillance showed the students leaving the Massapequa address on eight of the nine mornings and revealed no activity at the in-district address at all over the surveillance period. An investigator submitted two written reports to the district, dated March 9, 2015 and May 21, 2015, respectively. The investigator determined that the students resided at the Massapequa address.
On June 8, 2015, the district’s assistant superintendent for student services (“assistant superintendent”) sent a letter to petitioners stating that it had come to the district’s attention that petitioners no longer resided within the district and inviting petitioners to submit additional documentation proving residency within the district by June 15, 2015. The record indicates that petitioners did not contact the district by June 15, 2015. The assistant superintendent sent follow-up correspondence on June 17, 2015 stating the bases for the district’s belief that petitioners and the students did not reside within the district, including surveillance and observation evidence statements from A.G., and vehicle registration information. The letter stated that the students would be excluded from the district’s schools as of June 25, 2015. The letter also stated that the assistant superintendent was prepared to meet with petitioners on June 23, 2015 to discuss the matter further and to consider any evidence petitioners wished to submit regarding residency. The letter also explained that if petitioners did not do so, such letter would constitute respondent’s final determination of non-residency, which could be appealed to the Commissioner. Again, petitioners did not respond to the June 17, 2015 letter. The assistant superintendent sent another letter dated June 25, 2015, informing petitioners of her final determination that the students were excluded from the district’s schools as of that date and of their right to appeal such determination to the Commissioner.
Petitioner M.P. sent a letter to the assistant superintendent dated June 29, 2015, stating that she could not respond in person due to a “personal issue” and requesting that the district consider her written submission instead. M.P. attached to her letter the title for the in-district residence and copies of three years of state income taxes and asked the district to reconsider its decision. By letter dated July 2, 2015, the assistant superintendent acknowledged receipt of M.P.’s June 29, 2015 letter and attached documentation but stated that this evidence was insufficient to overcome the district’s surveillance evidence. This appeal ensued. Petitioners’ request for interim relief was denied on August 3, 2015.
Petitioners contend that the students have attended the district’s schools since kindergarten, live with them at the in-district residence, and will continue to reside there for an “indefinite time.” Petitioners claim that the students spend weekends with A.G.’s biological father at the Massapequa address “as needed due to parents’ work scheduling,” but that they permanently reside at the in-district address. Petitioners also allege that they have been persecuted by the district for ten years. Petitioners claim that they made a request for admission of W.P-T. on July 6, 2015, which was denied on July 7, 2015, and seek immediate reinstatement of W.P-T. so that she may attend summer school.
Respondent asserts that the petition must be dismissed as untimely. Respondent also contends that petitioners have not established that the students permanently reside within the district and that the district’s decision to exclude the students from its schools based upon the surveillance evidence was not arbitrary or capricious.
I must first address two procedural matters. First, respondent objects to petitioners’ reply, which includes additional evidence. 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Although respondent asserted an affirmative defense that the petition was untimely, petitioners did not address this affirmative defense in their reply. Therefore, I have not considered the reply as it contains new allegations and exhibits that should have been in the petition and are not responsive to new material or affirmative defenses set forth in the answer.
Next, respondent asserts that the appeal is 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). 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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).
Here, respondent informed petitioners of its final determination that the students would be excluded from school on June 25, 2015 by letter of the same date. Counting 30 days from June 25, 2015 and affording five days for mailing, excluding Sundays and holidays, the petition needed to be served by July 31, 2015 to be considered timely. An affidavit of service indicates that the petition was served on the district on July 27, 2015, and respondent claims that the district clerk was personally served with the petition on July 28, 2015. Therefore, even under the district’s representation as to the date of service, the appeal was timely and will be considered.
Turning to 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).
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).
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).
In this case, the district conducted surveillance of both the in-district address and the Massapequa address over nine days between February and May 2015. Six days of surveillance took place in February 2015. At the Massapequa address, petitioner M.P. was observed leaving the address on four of the six mornings with all three students and dropping them off at the district’s schools. Additionally, on a fifth morning, M.P. was observed leaving the Massapequa address with one of the students and dropping him off at school. On the sixth morning in February, the students were not observed leaving the Massapequa address. On both the fifth and sixth days of surveillance, all three children attended the district’s schools.
By contrast, no relevant activity was observed at the in-district address on any of the six days. On four of the days, an adult male exited the residence and departed in a car; no relevant activity took place on the remaining two days. The car the adult male drove, which was present at the in-district residence on all six days, was not registered to either petitioner. None of the students were observed at the in-district address.
Additional surveillance at both addresses took place on the mornings of April 29, May 8, and May 14, 2015. With respect to the Massapequa address, on two of the three days an “adult female” was observed leaving the house with all three students and subsequently dropping them off at the district’s schools. On the third day, the adult female was observed leaving the in-district residence and driving to the Massapequa address, where she picked up two of the students and transported them to school.
At the in-district address, on all three days an adult male was observed leaving the residence and driving away in the same car observed during the February surveillance. As mentioned above, an adult female was observed leaving the in-district address on one of the three days, and she proceeded to pick up the students at the Massapequa address. None of the students were observed at the in-district address.
On appeal, petitioners submit evidence which they contend establishes residency at the in-district address. Specifically, petitioners submit the following information bearing the in-district address: a copy of petitioner M.P.’s driver’s license with an expiration date of December 14, 2015; a health insurance bill for student A.G. sent to M.P. bearing an invoice date of June 10, 2015; a notice of disapproved claim from the Social Security Administration dated October 16, 2014 addressed to an individual who is neither a petitioner nor one of the students; a water bill covering the period of January 17, 2015 through April 16, 2015 addressed to someone who is neither a petitioner nor one of the students; and a bargain and sale deed dated March 17, 2011 purporting to show M.P.’s ownership interest in the in-district address. The record also includes three tax bills for the in-district residence dated March 2012, March 2013 and March 2014 which were addressed to three individuals, one of whom is M.P.
The evidence submitted by petitioners does not refute the surveillance evidence summarized above, which revealed no evidence that petitioners and the students reside at the in-district address. Petitioners’ proffered evidence similarly fails to explain or rebut the fact that an investigator observed petitioner M.P. leaving the Massapequa address with some or all of the students and dropping them off at school on at least five of the nine days of observation. As noted above, respondent informed petitioners in a letter dated June 17, 2015 that it possessed “[s]urveillance and observation of the [in-district] residence,” which included “observation of actual residence outside the district.” Petitioners, then and now, did not address or rebut this surveillance evidence. Because this evidence is unrefuted, I cannot find the district’s residency determination arbitrary or capricious.
Moreover, even assuming that petitioners’ proffered evidence on appeal established ownership of the in-district residence, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779). Under the circumstances of this case, ownership and the payment of taxes would be insufficient to overcome the district’s surveillance evidence, which demonstrates petitioners’ and the students’ physical presence at the out-of-district address. Moreover, petitioners’ submission of mail and other documentation addressed to the purported in-district residence is not dispositive of residency, particularly in light of the fact that several of the documents do not even bear either of petitioners’ names. Based on this record, petitioners have not carried their burden of establishing physical presence and intent to reside in the district and I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable (see e.g. Appeal of Smythe, 51 Ed Dept Rep, Decision No. 16,303).
Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to respondent’s schools on behalf of the students in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 All letters were sent by the district to both the in-district address and the Massapequa address in both English and Spanish.
 While the April 2015 and May 2015 surveillance evidence is probative in many respects, I do not find its description of “adult female” sufficient to identify the observed individual as petitioner M.P. (see Appeal of J.M., 42 Ed Dept Rep 80, Decision No. 14,783).
 Petitioners’ assertion that the students spend weekends with A.G.’s biological father “as needed due to … work scheduling” is inapposite because all surveillance, which petitioners have failed to rebut, was conducted during weekdays.