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Decision No. 17,030

Appeal of A.F., on behalf of her son D.U., from action of the Board of Education of the City School District of the City of Long Beach regarding residency.

Decision No. 17,030

(January 24, 2017)

Harris Beach, PLLC, attorneys for respondent, Susan E. Fine, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Long Beach (“respondent”) that her son, D.U. (“the student”), is not a district resident.  The appeal must be dismissed. 

At the start of the 2016-2017 school year, petitioner’s children[1] attended school in respondent’s district.  According to respondent, it received information that petitioner was not living at her claimed in-district address and therefore, it commenced an investigation into petitioner’s residency. 

Surveillance was conducted on three mornings in November 2016 at an address outside of the district’s geographic boundaries (“out-of-district address”).  Additionally, emergency contact information for the student listed a contact-person living at the out-of-district address.  A review of Department of Motor Vehicle records, completed in conjunction with the surveillance, indicated that on October 28, 2016, petitioner surrendered the license plates to a 2004 blue Jeep (“vehicle”) registered in her name at the in-district address.  That same day, a vehicle of the same make and year was registered in a different name[2] to the out-of-district address.  During surveillance, the vehicle was seen being driven by a woman believed to be petitioner.

According to the surveillance report, on one morning “an adult female” was seen leaving the out-of-district address with a “young boy” in the vehicle.  The vehicle stopped one block away from the in-district address, picked up a “teenage girl” and drove toward respondent’s elementary school.  On the second morning, “the woman believed to be” petitioner drove from the out-of-district address to a parking lot for the Long Island Railroad, located near the in-district address, and petitioner’s children were observed walking from “the direction” of the in-district address.  They entered the vehicle, and the vehicle was “driven directly” to respondent’s elementary school.  On the third morning, petitioner and the student left the out-of-district address, entered the vehicle and again drove to a parking lot for the Long Island Railroad, located near the in-district address.  Petitioner’s daughter was observed walking from “the direction” of the in-district address.  She entered the vehicle and the vehicle was driven to respondent’s elementary school. 

By letter dated November 16, 2016, respondent’s executive director notified petitioner that respondent received information that petitioner and her family were residing at the out-of-district address.  The letter did not include any details of the residency investigation but did offer petitioner the opportunity to discuss her living situation and to provide documentary evidence supporting her claim of residency.  The letter stated that if she chose not to present additional evidence, the letter would serve as a final determination and that the student’s last day of attendance at the district would be November 23, 2016.  Finally, the letter advised petitioner of her right to file this appeal. 

According to respondent, on November 28, 2016, petitioner appeared at the district’s administrative offices and “insisted that she lived in Long Beach and her son should not have been excluded from school.” The secretary to the superintendent (“secretary”) advised petitioner that if she brought in proof of residency, it would be forwarded to the executive director who oversees registration for the district. 

On December 6, 2016, petitioner returned to the district’s administrative offices with a letter from her landlord, a copy of her driver’s license, a bank statement, and several “earning statements,” all of which listed the in-district address.  According to an affidavit from the secretary, the documents produced by petitioner also included “a copy of forms downloaded from the New York State Education Department’s website” which were “partially filled out.”  The secretary avers that petitioner stated that she needed something notarized and was referred to the district clerk.  According to the affidavit from the district clerk, petitioner showed her an affidavit of personal service that she needed notarized because she was “mailing papers to the Commissioner.”  The district clerk asserts that she advised petitioner that she could not notarize the affidavit because “mailing was not personal service.”

The petition was received by my Office of Counsel on December 14, 2016.  Petitioner’s request for interim relief was denied on December 21, 2016. 

Petitioner asserts that she and the student reside at the in-district address and, therefore, the student is entitled to attend respondent’s schools without the payment of tuition.  In support of her petition, she submits a letter from her landlord, a copy of her driver’s license and a change of address form for her online bank account. 

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 or that the district acted arbitrarily or capriciously or abused its discretion.

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).  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 Prusak, 54 Ed Dept Rep, Decision No. 16,659).  The affidavit of service submitted with the petition and signed by petitioner clearly states that she herself served the district clerk.[3]  As petitioner is a party to the action, the petition was not properly served and must be dismissed (see Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Hughes, 48 Ed Dept Rep 299, Decision No. 15,865).

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

Although I am constrained to dismiss this appeal on procedural grounds, I note that petitioner retains the right to reapply for admission to respondent’s schools at any time.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] According to the record, petitioner’s daughter, A.P., is a senior in high school in the 2016-2017 school year.  Despite respondent’s determination that petitioner and her children were not district residents, because she was in her final year, A.P. was permitted to continue to attend school.  Therefore, A.P.’s attendance is not at issue in this appeal. 

 

[2] This person is also listed as an emergency contact for the student.

 

[3] An affidavit from the district clerk denies that she was personally served with the petition.  The district clerk asserts that “[a]t no time did [petitioner] show me any [n]otice of [petition] or [p]etition, and she never gave any documents to me and never tried to give any documents to me other than showing me the exclusion letter and form affidavit.”