Appeal of SARAH CAMPBELL, on behalf of her children, from action of the Board of Education of the Marcellus Central School District regarding residency.

Decision No. 18,014

(July 6, 2021)

Bond, Schoeneck & King, PLLC, attorneys for petitioner, Bethany A. Centrone, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Marcellus Central School District (“respondent”) that her two children (“the students”) are not district residents and, therefore, not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Prior to the events leading to this appeal, the students were enrolled in respondent’s district based upon petitioner’s representation that she resided at a location within the district (the “in-district address”).  By letter dated October 27, 2020, respondent received a tip that petitioner and the students resided at a location outside of respondent’s district (the “out-of-district address”).  Respondent’s superintendent subsequently learned that when school staff attempted to deliver remote learning supplies to the students at the in-district address in spring 2020, neighbors stated that no children resided on their street.  Additionally, the district’s human resources staff discovered that petitioner’s address in the New York State Education Department’s (“SED”) electronic TEACH system, as of spring 2020, was identified as the out-of-district address.[1]

Based on this information, the superintendent referred the matter to the district’s resource officer, who interviewed petitioner’s supervisor and the manager of the apartment complex at the out-of-district address.  Both individuals provided sworn statements indicating that petitioner resided at the out-of-district address.  The property manager’s statement indicated that she was familiar with petitioner’s family, and that petitioner, her husband and the students “[we]re all listed on the lease” and were “all here [at the out-of-district address] on a daily basis.  They have been here since 2017.”  Petitioner’s supervisor indicated in her statement that petitioner told her she and the children had moved to the out-of-district address, and that the family planned to build a house in respondent’s district.

Subsequently, respondent retained a private investigator who conducted surveillance in November and December 2020.  On November 12, 2020, the investigator observed that a vehicle registered to petitioner was parked in the parking lot of the out-of-district address during the day.  Petitioner’s vehicle was later observed picking the students up from school, driving to the in-district address and retrieving mail, then driving the students to the out-of-district address where petitioner and the students entered an apartment.  The next morning, the investigator observed petitioner’s vehicle parked at the out-of-district address.  He saw petitioner load the students into the vehicle, drive to school, and drop off the students.  On November 19, 2020, the investigator observed petitioner pick up the younger student from school and bring him to the out-of-district address.  He also observed petitioner take the students to school from the out-of-district address on December 3, 2020.  The investigator performed additional spot-checks of the in-district address and never observed petitioner’s vehicle at that address, except for the one occasion that he observed petitioner retrieve mail described above. 

By letter dated December 11, 2020, respondent’s superintendent informed petitioner of her determination that she and the students were not district residents and that the students would be excluded from schools as of December 23, 2020.[2]  This appeal ensued.  Petitioner’s request for interim relief was denied on February 8, 2021.

Petitioner argues that she and the students reside at the in-district address.  She asserts that the students’ father resides at the out-of-district address and that she and the children are only identified on the lease to utilize amenities at the apartment complex.[3]  Petitioner also presents an explanation for her absence when the district attempted to deliver remote learning supplies in spring 2020.  Petitioner seeks a determination that the students are district residents.

Respondent contends that the appeal must be dismissed as untimely because petitioner initially failed to serve a notice of petition that complied with the Commissioner’s regulations.  On the merits, respondent argues that petitioner has failed to meet her burden of proving that she resides within the district.

With respect to petitioner’s procedural defense, the notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the appeal and answer the allegations contained in the petition (8 NYCRR 275.11 [a]; see e.g. Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Gaynor, 51 id., Decision No. 16,293; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  Petitioner initially served a petition that lacked the required notice.  By letter dated January 20, 2021, my Office of Counsel informed petitioner that she needed to serve a corrected petition containing the notice required by Commissioner’s regulations sections 275.11 and 276.1.  If she did, the appeal would be deemed, for the purposes of the 30-day time limitation, to have been initiated on the day a copy of the petition was personally served on respondent.  The record reflects that petitioner complied with these instructions.  Accordingly, I decline to dismiss the appeal as untimely.

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; 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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has not met her burden of proving that the students reside in respondent’s district.  In support of her argument, petitioner submits a signed letter from the students’ father stating that petitioner resides at the in-district address.  He further asserts that petitioner and the children are identified as occupants on the lease of the out-of-district address only so that they can use the apartment complex’s amenities.  Petitioner also provides a telephone bill and paycheck bearing the in-district address.  Finally, petitioner submits rental agreements signed by her and a landlord for the in-district address.

Although this proof is probative of the students’ residency, it is insufficient to overcome respondent’s evidence (see Appeal of Mays, 55 Ed Dept Rep, Decision No. 16,822).  In this respect, I find the sworn statements obtained by the investigator from petitioner’s employer and the apartment manager to be particularly probative.  There is no evidence in the record that, unlike petitioner and the students’ father, these individuals have a personal interest in the outcome of this matter.  Additionally, petitioner has not explained why the TEACH system indicates that her address is the out-of-district address, a change that only she could have made.[4]  Petitioner has also failed to explain why respondent’s surveillance evidence consistently portrayed her at the out-of-district address in November and December 2020.  Therefore, I find that petitioner has failed to carry her burden of showing that respondent’s determination was arbitrary or capricious, and I decline to disturb it.

While the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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