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Decision No. 13,424

Appeal of WAYNE BOWERS, on behalf of his nephew, FELIX RAMOS, from action of the Board of Education of the Fort Plain Central School District regarding residency.

Decision No. 13,424

(June 7, 1995)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of the Board of Education of the Fort Plain Central School District ("respondent") that his nephew is not a resident of the district. The appeal must be dismissed.

Petitioner is a resident of respondent's district, and his nephew, Felix Ramos, is a twelve year old boy who has attended school in respondent district since September 22, 1994. Felix's mother is deceased and his father's whereabouts are unknown. Charlotte Brown, petitioner's wife and Felix's legal guardian, registered Felix in respondent's school.

The district first became concerned about Felix's residency on September 26, 1994, when Felix gave the principal a telephone number in the adjacent Canajoharie Central School District. After obtaining further evidence from tax records and the superintendent of the Canajoharie district indicating that Ms. Brown lived within the Canajoharie Central School District, respondent's superintendent wrote three letters to Ms. Brown concerning Felix's residency. The superintendent also gave both petitioner and Ms. Brown an opportunity to respond to his concerns and offered to conduct a hearing to determine Felix's residency. He also advised petitioner and Ms. Brown that, in the absence of any response, Felix would be presumed to be enrolled in the Canajoharie district, and his attendance at Fort Plains schools would be terminated. The superintendent received no response from petitioner other than the filing of this appeal.

Petitioner alleges that Felix is a resident of the Fort Plain district and is entitled to attend its schools. He also seeks the removal of the superintendent, Mr. Metallo. Respondent contends that Felix resides within the Canajoharie Central School District because his lawful custodian, Charlotte Brown, resides there. Respondent also contends that petitioner's removal petition should be dismissed because it does not set forth specific allegations and supporting facts that would constitute a willful violation of Education Law. Additionally, respondent alleges numerous procedural violations. Respondent contends that petitioner does not set forth a clear and concise statement of his claim, has failed to exhaust his administrative remedies, did not serve his petition in accordance with 8 NYCRR 275.8(a) and lacks standing.

Before addressing the merits, I will discuss the procedural issues. Respondent contends that the petition does not set forth a clear and concise statement of petitioner's claim. I note that petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Johnson, 34 Ed Dept Rep 59; Appeal of Cerilli, 33 id. 385; Application of a Child with a Handicapping Condition, 28 id. 519). I find that the petition sufficiently frames petitioner's claim for relief and that respondent adequately addressed petitioner's allegations in its answer. Because respondent has failed to establish that it was prejudiced by petitioner's drafting, I will not dismiss the appeal on that basis (Appeal of Johnson, supra; Appeal of Schechter, et al., 28 id. 118).

Respondent also contends that the petition should be dismissed because it was not served in accordance with the requirements of 8 NYCRR 275.8(a). To commence an appeal against a board of education, a copy of the petition must be personally delivered to the district clerk, to any trustee, to 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)). Petitioner served the papers on the principal of respondent's elementary schools. That individual is not a proper person to accept service according to the Commissioner's regulations, and he has not been designated by the superintendent or the board of education to accept service for the district. When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper (Matter of Alcorn, et. al., 24 Ed Dept Rep 201; Appeal of Cauley, 33 id. 359). Accordingly, since I find service of the notice of petition and petition to be improper, I must dismiss the appeal.

The appeal should also be dismissed on the merits. I find that there is insufficient evidence that Felix resides in respondent's district. A student's residence is presumed to be that of his or her parents' or legal guardian's (Appeal of Roxanne Marie, 34 Ed Dept Rep 113; Matter of Shelmidine, 22 id. 206; Matter of Delgado, 24 id. 279). However, this presumption may be rebutted by examining the totality of the circumstances (Appeal of Ambris, 31 Ed Dept Rep 41). Specifically, the presumption is rebutted when it has been demonstrated there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Matter of Van-Curran and Knop, 18 Ed Dept Rep 523). While it is not necessary to establish parental custody and control through formal legal proceedings, it is necessary to demonstrate that a particular location is a child's permanent residence, and the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Pernell, 30 Ed Dept Rep 380).

Petitioner alleges that he is Felix's custodial parent and that he has established Felix's residency within respondent's district. Petitioner maintains that Felix has been residing with him within the Fort Plain district since September 1994. He also alleges that he has been supporting Felix and has been exercising parental control over him. However, petitioner's wife is the child's legal custodian, and she lives in the Canajoharie district. There is no evidence that Ms. Brown has relinquished complete custody and control of Felix to petitioner. Specifically, there is no evidence that Ms. Brown has ceased supporting Felix financially or that she is no longer responsible for him. Although petitioner submits affidavits from his neighbors stating that Felix is residing with him within respondent's district, these alone are insufficient to show that petitioner has custody and complete control of Felix. Ms. Brown's affidavit giving petitioner permission to enroll Felix in respondent's district is also insufficient. Based on the evidence before me, I am constrained to conclude that Felix is not a resident of respondent's district.

Petitioner's claim that Mr. Metallo should be removed must also be dismissed. Section 277.1(a) of the Commissioner's regulations, which governs proceedings for the removal of a school officer pursuant to Education Law '306, states:

[T]he petitioner must distinctly state the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established; such facts must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet; if the charge is willful disobedience of a decision or order of the commissioner, a copy thereof must be attached to the petition.

The petition does not set forth any facts, which if true, would afford a basis for concluding that Mr. Metallo was guilty of a willful violation of the Education Law. Therefore, the removal petition is dismissed.

In view of the foregoing disposition, it is not necessary to address respondent's remaining procedural contentions.