Appeal of M.S. and M.R.F., on behalf of their son M.F., from action of the Board of Education of the Niskayuna Central School District and superintendent Dr. Cosimo Tangorra, Jr., regarding nonresident tuition.

Decision No. 17,347

(March 13, 2018)

Guercio and Guercio, LLP, attorneys for respondent, Erin M. O’Grady-Parent, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Niskayuna Central School District (“respondent board”) (collectively “respondents”) and Dr. Cosimo Tangorra, Jr. (“respondent Tangorra”), denying their request to waive nonresident tuition for the attendance of their son, M.F. (“the student”).  The appeal must be dismissed.

The record indicates that, in or about February 2017, petitioners entered into a contract to purchase a home located on Rosendale Road which is within the geographical boundaries of respondent board’s district (the “in-district property”).  At that time, petitioners enrolled the student in respondent’s schools using a contract for the purchase of the in-district property as proof of residency.  The student was admitted in accordance with Board Policy No. 5152(5), which permits the admission of “[c]hildren of future residents of the district ... provided the parents show evidence of a construction, purchase or rental agreement which guarantees residence within 3 months of the date of admission.”  Thereafter, future residents “who fail to occupy the ... purchased home and thus fail to establish residency” must “pay a monthly tuition payment for each month of attendance, beginning with the fourth month of attendance.”  In the event the family does not establish residency within one year of the student’s admission, the student will not be permitted to attend the district’s schools.

In or around August 2017, the district became aware that the in-district address was still for sale and petitioners had not yet moved into the house.  By letter dated August 3, 2017, respondent Tangorra notified petitioners that, as they had failed to establish residency in the district, the student was no longer eligible to attend school in the district and petitioners needed to take steps to enroll the student in the district of residence.  Thereafter, petitioners submitted additional documentation in support of the student’s continued eligibility to attend the district’s schools.

On August 14, 2017, petitioners met with respondent Tangorra to discuss the matter further.  At that time, petitioners were informed that, as the contract for purchase was in litigation and still potentially viable, the student could continue to attend the district’s schools in accordance with the second sentence of Board Policy No. 5152(5), which applies to future residents who fail to occupy the home within three months of admission.  In accordance with that policy, petitioners would be responsible for the payment of tuition in the amount of $857 each month.  Respondent Tangorra notified petitioners of this determination by letter dated August 16, 2017.  Petitioners appealed respondent Tangorra’s decision to respondent board by letter dated September 15, 2017.  In their appeal to the board, petitioners sought relief from the tuition obligation imposed by Board Policy No. 5152(5).  Respondent board considered petitioners’ appeal and, by letter dated September 27, 2017, affirmed respondent Tangorra’s application of Board Policy No. 5152(5).  This appeal ensued.  Petitioners’ request for interim relief was denied on November 6, 2017.

Petitioners assert that district policy guarantees their son the right to attend the district’s schools for a period of at least one year during litigation involving the purchase of the property at the in-district address.  Petitioners also appear to argue that respondent has improperly suspended their son from attendance at its schools without affording him appropriate due process as any suspension requires notice and a hearing.  In addition, petitioners assert that the amount of nonresident tuition must be reduced by the amount of the property taxes attributable to the in-district address,[1] and that respondent board’s failure to do so constitutes unjust enrichment and double taxation.  Petitioners appear to argue, in the alternative, that they have not yet closed on the in-district property and, therefore, are not subject to Board Policy No. 5152(5) which, they argue, applies to residents who have purchased but do not yet inhabit a property.  Petitioners seek a reduction in the nonresident tuition rate by the amount of property taxes attributable to the in-district address and a refund of two tuition payments already paid to respondent board “under protest.”

Respondents maintain that their actions were in all respects proper and neither arbitrary nor capricious.  Respondents contend that petitioners fail to state a claim upon which relief may be granted, that service of process was defective, and that petitioners received all the process due to them under the law.  In addition, respondents contend that an appeal to the Commissioner is not the proper forum to adjudicate novel claims of constitutional law.

I must first address the procedural issues.  Respondents object to petitioners’ reply, arguing that it should not be accepted as it is beyond the permissible scope of a reply and that the affidavit of petitioner M.F. is not notarized.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Further, while respondents contend that the affidavit of M.F. contained in the copy of petitioners’ reply is not notarized, I note that the original affidavit received in my Office of Counsel is notarized and I, therefore, decline to disregard it on that basis.

Respondents object to the “Affidavit of the particulars of the October 27, 2017 service of two copies of the papers including notice of petition herein (1^st supplemental affidavit of service)” and the “2^nd supplemental affidavit of service,” both executed by Nancy Thornton and dated November 9, 2017 (collectively, “Thornton affidavits”) submitted by petitioners in response to respondents’ opposition to petitioners’ stay request.  Respondents argue that the Thornton affidavits should not be considered as they were not submitted in accordance with §276.5 of the Commissioners Regulations.  I note that the Thornton affidavits are addressed in, and attached as exhibits to, the Gagnon affidavit, and are also addressed in respondents’ counsel’s affirmation, which were submitted with respondents’ answer and are, therefore, part of the record.  Moreover, where, as here, petitioners are not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondents (Appeal of Phillips, 37 Ed Dept Rep 204, Decision No. 13,843; Appeal of Loughlin, 35 id. 432, Decision No. 13,591; Appeal of Roxbury Taxpayers Alliance et al., 34 id. 576, Decision No. 13,414).  This is particularly appropriate here, where the Thornton affidavits respond to respondents’ claim of defective service in their papers in opposition to petitioners’ stay request, which is also raised as an affirmative defense in the answer.  Therefore, I have considered the Thornton affidavits.

Nevertheless, the appeal must be dismissed for lack of personal 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 C.D. and P.D., 46 Ed Dept Rep 459, Decision No. 15,563). 

Here, petitioners’ affidavit of service, as well as numerous affidavits submitted by petitioners, indicate that the papers were served on Cynthia Gagnon, the district clerk, by Nancy Thornton, a non-party to the proceeding.  However, in an affidavit submitted by respondents, Ms. Gagnon avers that petitioner M.R.F. physically served the papers on October 27, 2017, not Ms. Thornton.  Ms. Gagnon acknowledges that Ms. Thornton was present at the time of service, but that after inquiring whether she was authorized to accept service, petitioner M.R.F. “placed two copies of a Notice of Petition and Verified Petition ... in front of me.”

In response, Ms. Thornton submits an affidavit stating, in essence, that she delivered copies of the papers for service to Ms. Gagnon and “[M.F.] was not within 10 feet of me when I physically served The Papers....”

On this record, in light of the conflicting affidavits, I find that the evidence regarding service of the petition is in equipoise and petitioners have not met their burden of proving that proper service was made on respondents (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).  Therefore, because petitioners failed to effect proper service upon respondents, the appeal must be dismissed (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

In this case, petitioners have failed to demonstrate any legal right to a waiver of nonresident tuition.  Pursuant to Education Law §3202(2), “[n]onresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board.”  In accordance with such section, respondents’ Board Policy No. 5152 permits the admission of a nonresident student to the district’s schools under special circumstances if the student meets certain criteria and upon the payment of tuition.  The only exemption from payment of tuition exists for certain former residents or future residents of the district.  In this case, petitioners are not residents of respondents’ district and do not qualify for an exception to respondents’ tuition policy.  Further, petitioners do not allege, and the record does not show, that respondents have not implemented this policy in a consistent manner.  Therefore, I do not find respondents’ actions to be arbitrary, capricious or unreasonable.

Additionally, to the extent petitioners attempt to challenge respondents’ determination on the grounds that such decision was an improper suspension from attendance without due process, I note that such argument is premature.  The record in this matter indicates that petitioners’ son has not been excluded from attending the district’s school.  Further, the due process requirements related to student suspensions (Education Law §3214) are not applicable in cases such as this one regarding residency and non-resident tuition.

The record also indicates that, to the extent that petitioners’ son was entitled to any due process prior to respondents’ denial of petitioners’ request for admission as a non-resident student without the payment of tuition, such due process was afforded to him.  A student has a legal right to attend school only in the district in which the student resides (Education Law §3202[1]).  Non-resident students may be permitted to attend the schools of a district in which they do not reside but only upon the express consent of the district’s board of education (Appeal of Holzer, 37 Ed Dept Rep 549, Decision No. 13,924):

Nonresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board (Education Law §3202[2]) (emphasis supplied).

The decision to permit the attendance of non-resident students is discretionary with the board of education. Absent any right to attend respondents’ school district, petitioners’ son need only be afforded minimal due process (see Appeal of McAteer, 40 Ed Dept Rep 234, Decision No. 14,469).  Here, petitioners had an opportunity to speak with respondent Tangorra regarding the determination.  Petitioners also appealed respondent Tangorra’s decision to respondent board by letter dated September 15, 2017.  Respondent board considered petitioners’ appeal before rendering its September 27, 2017 decision to uphold respondent Tangorra’s decision.  I find, therefore, that petitioners’ son was afforded appropriate due process.

Finally, I note that, to the extent petitioners seek a “refund” of two tuition payments, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

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

THE APPEAL IS DISMISSED.

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