Appeal of JENNIFER O’HARE, on behalf of her daughter CARLY FLORES, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 17,719

(August 5, 2019)

             Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel.

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

Petitioner’s daughter is a student at respondent’s Connetquot Elementary School (“Connetquot”).  According to the record, petitioner initially enrolled her daughter during the 2016-2017 school year, listing an address owned by petitioner’s mother which is located within respondent’s district (“in-district address”).  During the 2017-2018 school year, the student continued to attend school at Connetquot.

On August 16, 2018, petitioner withdrew her daughter from respondent’s schools prior to the start of the 2018-2019 academic year.  Petitioner explains that she had moved into her boyfriend’s residence in Middle Island, which is located outside of respondent’s district (“the out-of-district address”).  According to petitioner, after approximately one month in Middle Island, she and her daughter moved back to the in-district address.  On September 6, 2018, petitioner re-enrolled her daughter in respondent’s schools for the 2018-2019 school year.  Thereafter, respondent’s assistant superintendent of instruction/personnel (“assistant superintendent”) commenced a residency investigation in which he directed a security guard to surveil both the in-district and out-of-district addresses.

In November 2018 and January 2019, respondent conducted surveillance on eight different dates.  On four days, petitioner and her daughter were observed leaving the out-of-district address in the early morning hours before the student was dropped off at school.  On one date, the student was seen leaving the out-of-district address with an adult male and arriving at Connetquot during the morning hours of the school day.  On another date, the student was dropped off at school from a vehicle that returned to the out-of-district address.

Additional observations occurred at the in-district address on two separate occasions, one during the morning hours on November 9, 2018, and a subsequent observation during the morning hours on January 14, 2019.  On both dates, neither petitioner nor the student were seen at that address.

By letter dated January 23, 2019, the assistant superintendent informed petitioner of his initial determination that her daughter was not a district resident and would be excluded from attending respondent’s schools effective February 1, 2019.  Petitioner was afforded an opportunity to submit information regarding her daughter’s residency.  A residency hearing was convened on January 28, 2019 and was attended by the assistant superintendent, the district registrar, petitioner, and her boyfriend.  According to respondent, petitioner asserted at the hearing that she and her daughter were both residents of the district, but that they do stay with her boyfriend on occasion.  It appears that petitioner provided an unsworn letter from her mother and petitioner’s driver’s license listing the in-district address.

After the conclusion of the residency hearing, by letter dated January 28, 2019, the assistant superintendent notified petitioner of his final determination that she and her daughter were not district residents.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 11, 2019.

Petitioner contends that she and her daughter are residents of respondent’s district and therefore her daughter is entitled to attend its schools.

Respondent asserts that the appeal must be dismissed for improper service.  Respondent also maintains that petitioner has failed to establish that she and her daughter are district residents and that its decision to exclude the student from its schools as a non-resident was neither arbitrary nor capricious.

I must first address several procedural issues.  A review of the record indicates that, on January 28, 2019, petitioner personally served a copy of the petition upon respondent’s district clerk.  The petition that was served lacked the notice of petition required by Commissioner’s regulation §275.11(a).  The petition was returned to petitioner on January 30, 2019 by my Office of Counsel.  Petitioner was afforded two weeks to correct the deficiency and re-serve the pleading.  On February 4, 2019, a corrected pleading was personally served again by petitioner upon the district clerk.

Section 275.8(a) of the Commissioner’s regulations requires that pleadings in an appeal “be served by any person not a party to the appeal over the age of 18 years.”  In affidavits of service filed by petitioner, she avers that she served the petition herself upon the district clerk on January 28, 2019, and again on February 4, 2019.  I note that petitioner submits no reply to respondent’s challenge to the propriety of service.  Consequently, service is improper, and personal jurisdiction has not been obtained over respondent in this case.  As such, the appeal must be dismissed.

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

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On the record before me, I find that petitioner has failed to meet her burden of proving that she and her daughter reside in respondent’s district.  Respondent conducted surveillance at both the in-district and out-of-district addresses and observed petitioner and the student leaving the out-of-district residence in the early morning and driving to the school on five occasions.  On two other dates, surveillance was conducted at the in-district residence in the morning but neither petitioner nor her daughter were seen there.  Finally, the student was observed being dropped off at the school in the morning from a vehicle that returned to the out-of-district address.  Although petitioner claims that she and her daughter occasionally stay at that address with her boyfriend she, nevertheless, provides no evidence of her physical presence at the in-district address; the petition is devoid of any documentary evidence at all.  Petitioner has not, for example, submitted an affidavit from her mother describing the living arrangement at the in-district residence, nor has she submitted a lease, or an affidavit from her boyfriend corroborating her assertions.  Although no record of the residency hearing is contained in this record, respondent states that, at that hearing, petitioner provided an unsworn statement from her mother and a driver’s license indicating that petitioner lived at the in-district address.  As noted, petitioner failed to provide any statement (sworn or otherwise) from her mother in this appeal, nor has she submitted a copy of her driver’s license.  In any event, petitioner’s use of the in-district address on her driver’s license is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that the in-district address is owned by her mother, and does not establish her physical presence in respondent’s district (Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Gay, 54 id., Decision No. 16,636).

Based on the record before me, I cannot conclude that respondent’s determination that petitioner and her daughter are not district residents is arbitrary and capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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