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Decision No. 13,619

Application to reopen the appeal of DANIEL LEBRON, JR., on behalf of ELIUD LEBRON, from action of the Board of Education of the Liverpool Central School District regarding residency.

Decision No. 13,619

(June 8, 1996)

O'Hara & O'Connell, P.C., attorneys for petitioner, Dennis O'Hara, Esq., of counsel

MILLS, Commissioner.--This is an application to reopen Decision No. 13,570, dated March 13, 1996 (35 Ed Dept Rep 359). The Liverpool Central School District ("petitioner") contends that the decision was rendered under a misapprehension of fact and that there is new evidence regarding Eliud's residency which was not available at the time the original decision was made. The application must be denied.

In the original appeal, I concluded that the presumption of parental residence had been rebutted. Eliud's mother and brother, Daniel, provided affidavits attesting that Daniel had sole custody of Eliud and was his sole source of support. Since no conflicting evidence was provided, the school district's determination that Eliud was not a resident was set aside.

In this application to reopen, petitioner maintains that new and material evidence supporting its residency determination is available which was not available at the time the original decision was rendered. This new material indicates that Eliud's mother claims him as her dependent and a member of her household for public assistance purposes. Petitioner contends that the original appeal should be dismissed because Eliud resides in New York City with his mother.

Applications for reopening are governed by 8 NYCRR 276.8, which states in pertinent part:

Applications for reopening are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.

However, '100.2(y) of the Commissioner's regulations establishes procedures which school districts must follow in making residency determinations. That regulation specifically requires districts to provide parents with basic due process protections, including notice and an opportunity to submit information concerning their child's right to attend school in the district, prior to excluding a student for lack of residency. It is that determination, as supported by the evidence on which that determination was made, which is reviewable by the Commissioner. It would therefore be inappropriate to reopen the prior appeal to add evidence in a residency case where, as here, the parent did not have an opportunity to respond to those allegations during the residency determination. However, petitioner is free to reexamine Eliud's residency status in accordance with the procedures set forth in the Commissioner's regulations based on the information currently before it.