Appeal of A.N., on behalf of her daughter N.N., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,132

(July 24, 2017)

Ricotta & Marks, P.C., attorneys for petitioner, Thomas Ricotta, Esq., of counsel

Ingerman Smiith L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her child, N.N. (“the student”), is not a district resident.  The appeal must be sustained.

In 2014 the student was enrolled in respondent’s Plaza Elementary School.  Shortly after the student’s enrollment in the district, respondent questioned petitioner’s residency and ran a credit history report to verify petitioner’s residence within the district. Respondent indicates that the credit history report did not reveal the in-district address, but only noted an address outside the boundaries of respondent’s district. Thereafter, respondent commenced a residency investigation.  Respondent conducted surveillance on six separate mornings at both the in-district address and the out-of-district address, at which respondent believed petitioner and the student actually resided.  The surveillance report indicated that the student was observed on five of the six mornings exiting the out-of-district address, and was not observed exiting the in-district address on any of those dates. 

On October 9, 2014, respondent held a residency meeting wherein petitioner indicated that she works as a private home health aide at the out-of-district address and sometimes stays there overnight with the student.  Petitioner attended the meeting with her mother and stepfather, the homeowners of the in-district address.  Petitioner further provided documentary evidence to support her claim of residence within the district, including an Assignment of Wages, Salary, Commissions or Other Compensation for Services to the Nassau County Social Services District; petitioner’s New York State Department of Motor Vehicles interim permit; and a bank statement.  Petitioner also submitted a mortgage statement from the homeowner of the out-of-district residence; a school tax statement from the homeowner of the in-district residence (petitioner’s stepfather); an unsworn affidavit from the out-of-district homeowner indicating that petitioner and the student reside at the in-district address and that he is a family friend and the student’s tutor; and a notarized affidavit from the out-of-district homeowner dated October 8, 2014 stating that petitioner serves as a part-time caretaker at his address, and that petitioner and the student do not reside at the out-of-district address.  Nevertheless, by letter dated October 14, 2014, respondent determined that the student was not a resident of the district, and would be excluded from school on October 17, 2014.

On January 6, 2015, petitioner again sought to enroll the student in the district and provided respondent with documentary evidence of her residence within the district.  Respondent enrolled the student in the schools of the district effective January 8, 2015.  The record indicates that on or about December 16, 2016, respondent received information questioning petitioner’s residence within the district. Thereafter, respondent initiated a residency investigation and conducted surveillance at both the in-district address, and the same out-of-district address at issue during the 2014 residency investigation.  Respondent conducted surveillance at both addresses on five mornings: December 22, 2016; December 23, 2016; January 3, 2017; January 4, 2017; and January 5, 2017.  On each of these dates, the student was observed exiting the out-of-district address.  By letter dated January 5, 2017, respondent questioned the student’s residency status and invited petitioner to a residency meeting on January 18, 2017. 

Prior to the residency meeting, respondent conducted another credit history report for petitioner which again did not contain the in-district address, but included the out-of-district address.  The record indicates that during the residency meeting, petitioner again asserted that she is a home health aide and provides private care at the out-of-district address, working from 7 p.m. to 3 a.m.  Petitioner provided respondent with the following additional documentary evidence in support of her residence at the in-district address: an unsworn affidavit from the out-of-district homeowner submitted to the Nassau County Department of Social Services; a rental verification form from petitioner’s mother and the owner of the in-district residence;  a childcare verification form bearing the in-district address submitted to the Nassau County Department of Social Services; an earnings statement from petitioner’s employer bearing the in-district address; a Nassau County Department of Social Services Day Care Services employment verification form; petitioner’s New York State learner’s permit; and the New York State driver’s license of the out-of-district homeowner.  Petitioner also submitted two bank statements, one for the period between October 1, 2015 and December 31, 2015 which indicates the in-district address.  However, petitioner also submitted a statement from the same bank for the period of January 1, 2016 to March 31, 2016 indicating the out-of-district address.

By letter dated January 20, 2017, respondent determined that the student was not a resident of the district, and informed petitioner that the student would be excluded from school on January 25, 2017.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 8, 2017.

Petitioner asserts that she and her child reside at the in-district address and, therefore, her child is entitled to attend respondent’s schools tuition-free.

Respondent contends that petitioner and N.N. reside outside of the district, and that petitioner has failed to meet her burden to establish that they do in fact reside within the district.  Respondent also contends that the petition is untimely.

I must first address a procedural matter.  Respondent contends 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).

However, the Commissioner has previously excused delays in residency cases where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of Faucett, 38 id. 117, Decision No. 13,996).

The record indicates that petitioner received respondent’s final determination that the student was ineligible to attend the schools of the district on January 20, 2017.  Petitioner’s affidavit of service indicates that the petition was personally served upon respondent’s district clerk on February 27, 2017.  Thirty days from January 20, 2017 was February 19, 2017.  However, because February 19, 2017 fell on a Sunday, and was followed by a legal holiday, the appeal should have been commenced no later than February 21, 2017.  Nevertheless, although the appeal was not commenced within 30 days, I find that such delay in commencing the appeal was de minimus and that the facts in this case indicate residency in the district as described below.  Therefore, I decline to dismiss the petition as untimely.

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).

In support of her residence within the district, petitioner provided respondent with several documents on at least four different occasions.  These documents included several documents provided by petitioner to the Nassau County Department of Social Services, all bearing the in-district address.  Included in the petition, petitioner further submitted her federal W-2 tax forms, employment records, New York State voter registration, a parent affidavit of residency, and correspondence from petitioner’s health insurance company, all of which bear the in-district address.

While respondent does provide two separate credit history reports which bear the out-of-district address without any mention of the in-district address, respondent’s limited surveillance combined with the totality of documentary evidence provided by petitioner does not support its determination.  Specifically, respondent’s determination is not supported by sufficient evidence to contradict petitioner’s explanation for her presence at the out-of-district address.  The record indicates that in addition to her full-time position as a home health aide working Monday through Friday from 9 a.m.-5 p.m., petitioner has asserted that she provides private care at the out-of-district residence from the hours of 7 p.m.-3 a.m.  Petitioner explained to respondent that as a result of this schedule, the student sometimes stays overnight with her at the out-of-district residence.  On this record, the limited surveillance conducted by respondent was not tailored to rebut petitioner’s explanation of her unique employment circumstances which require her to work at the out-of-district-address during the overnight hours.  For example, surveillance was not conducted on weekends, or even during the evening hours after the conclusion of petitioner’s regular work day and prior to the beginning of her 7 p.m. shift at the out-of-district residence.

On this totality of this record, I find that, in light of petitioner’s explanations and documentary evidence including employment documents and several documents submitted by petitioner to the Nassau County Department of Social Services, respondent’s limited surveillance is not dispositive (see e.g. Appeal of A.D.J., 56 Ed Dept Rep, Decision No. 16,973).  While I acknowledge respondent’s concerns arising from the credit history reports, under these circumstances, the totality of the evidence in the record does not support the district’s decision.  On this record, I find that petitioner provided significant documentation showing proof of residency within the district, and that documents relied on by respondent to show that petitioner resides at the out-of-district address are inconclusive.

Therefore, while respondent is free to conduct further residency investigations, and would be within its rights to request a work schedule, or other substantiating documentation which further explains the details of petitioner’s employment at the out-of-district address, on the record before me, I find that petitioner has met her burden of proof and that there is insufficient evidence in the record to support respondent’s determination that petitioner is not a district resident.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit petitioner’s child to attend school in the Baldwin Union Free School District without payment of tuition.

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