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Decision No. 13,814

Appeal of CHARLES M. SALIBA, on behalf of his sons JEAN-PAUL and PHILIP, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 13814

(August 13, 1997)

Ingerman, Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

CATE, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Sachem Central School District ("respondent") that his sons are not district residents for the purpose of attending its schools tuition-free. The appeal must be dismissed.

Petitioner claims that he and his sons reside at 7 Hazel Avenue, Farmingville, within the Sachem Central School District. Both of his sons have attended schools in the district since September 1995.

During November 1996, respondent's attendance officer became suspicious about the residence of petitioner and his sons. She consulted with respondent's security supervisor, who observed activities at the 7 Hazel Avenue address and at 40 King Avenue, Selden, an address outside the district, where the attendance officer suspected that petitioner and his sons were actually living. The security supervisor observed early morning activities on November 20, 1996, at King Avenue; on November 21 and 22 at Hazel Avenue; on November 26 and 27 at King Avenue; and on December 18, 1996, at King Avenue. On November 26, November 27, and December 18, the security supervisor, according to his affidavit which is made part of the record, observed petitioner drive at least one of his sons from the King Avenue address, outside the district, to a school inside the district.

On December 4, 1996, a conference was held with petitioner and the attendance officer, at which time he produced some evidence of his alleged residence at Hazel Avenue. When confronted with the surveillance evidence obtained prior to December 4, petitioner claimed that he sometimes stayed at the King Avenue address with his girlfriend.

After the December 4 conference, the school district conducted the surveillance mentioned above on December 18, and the attendance officer consulted the bus driver responsible for picking up students at Hazel Avenue. The bus driver indicated that she very rarely has made pickups at the Hazel Avenue address, but often made drop-offs at that address in the afternoon. Respondent further points out that the current NYNEX telephone directory lists Mr. Saliba at 40 King Avenue, Selden.

On December 9 the district made its final determination that petitioner and his sons were non-residents.

This appeal was commenced February 11, 1997. Petitioner's request for a stay was denied on February 20, 1997, and it appears that petitioner's sons have not attended respondent's schools since that time.

The evidence before me is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner and his sons are not residents of the district. In support of his contentions, petitioner has provided only a New York State insurance identification card, a library card for the Sachem Public Library, and a single fuel oil bill bearing the date "1-14" without any year indicated.

I find the evidence presented by respondent more convincing. Most significantly, petitioner has failed to serve a reply in this matter to rebut the surveillance claims made by respondent. The surveillance information and the other evidence presented are sufficient to support respondent's determination that petitioner and his sons are non-residents. Under these circumstances, that determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep , Dec. No. 13795, July 24, 1997; Appeal of Steinberg, 36 id. 65).