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Decision No. 13,992

Appeal of GEORGENA IFILL, on behalf of MARTIN MITCHELL, from action of the Board of Education of the Freeport Union Free School District and Josephine N. Moffett, Superintendent, regarding residency.

Decision No. 13,992

(August 18, 1998)

Peter G. Albert, Esq., attorney for petitioner

Ingerman, Smith, LLP, attorneys for respondents, Neil Block, Esq., of counsel


CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") and its superintendent, Josephine N. Moffett ("respondent superintendent"), that her son, Martin Mitchell, is not a resident of the district. The appeal must be dismissed.

In September 1997, petitioner registered her son in the district’s schools for the second grade. As proof of her residency at 110 Brooklyn Avenue, apartment 2M, Freeport, New York, within the district, she submitted copies of an electric bill, cable television bill and postal change of address form. Petitioner did not provide a copy of a lease, since she was living with her sister in whose name the apartment was leased. Petitioner asserts that she moved to 110 Brooklyn Avenue to assist her sister who was pregnant. From September 1994 through August 1997, petitioner resided at 44 Mt. Joy Avenue, Freeport, outside the district, with her parents.

In October 1997, a secretary at the Archer Street Elementary School telephoned the school attendance officer, Donald Turner, and informed him that on October 9 and 16, Martin had advised his teacher that he resided at 44 Mt. Joy Avenue. The secretary also informed Mr. Turner that Martin was being driven to school in the mornings. On October 28, 1997, Mr. Turner began a surveillance of Martin.

On November 12, 1997, the district notified petitioner that she was not a district resident, and her son could not continue to attend the district’s schools after November 20, 1997. Petitioner appealed and was notified that Martin could stay in school pending the outcome of an administrative hearing to be held on December 8, 1997. Petitioner and Mr. Turner testified at the residency hearing. By letter dated December 11, 1997, respondent superintendent upheld the hearing officer’s determination that Martin was not a district resident. Petitioner initiated this appeal on January 5, 1998 and requested interim relief allowing Martin to remain in school. I granted petitioner’s request for interim relief on January 15, 1998.

At the December 8, 1997 residency hearing, the district provided information concerning petitioner’s car registration, car insurance and telephone numbers, all of which related to the Mt. Joy address. Mr. Turner testified that he often observed petitioner’s automobile in the evenings and following mornings at the Mt. Joy address, and further observed petitioner driving Martin to school from that address. He also observed petitioner’s car at the Mt. Joy address on weekends and holidays. Mr. Turner testified that during the course of his investigation from late October through the date of the hearing, he never observed Martin take the bus to school from 110 Brooklyn Avenue. Nor did he observe petitioner’s car parked overnight at 110 Brooklyn Avenue. He further testified that Martin never entered 110 Brooklyn Avenue after exiting the bus, but was met by petitioner and driven to Mt. Joy Avenue. In addition, there was an incident where Martin could not identify his residence to the bus driver and had to be driven back to school when petitioner was late meeting him at the bus.

Petitioner argues that the hearing officer failed to consider compelling evidence of her residence within the district, including Martin’s pediatric records, a life insurance policy, her payroll and checking account records, an automobile loan and her New York State tax refunds. She also claims that she spends considerable time at her parents’ home at Mt. Joy Avenue because she is seeking to expand her business as a computer systems consultant and her computer equipment is located there. She alleges that as often as three nights a week, she travels to the Mt. Joy address to work on her computers and often stays overnight to avoid disrupting Martin’s sleep. She also contends that Martin spends significant time at the Mt. Joy address since his grandparents provide afternoon childcare after picking him up at 110 Brooklyn Avenue. Petitioner asserts that the attendance officer confused her automobile with her sister’s, which is of a similar color, and it is her sister’s car which is often parked at Mt. Joy Avenue. She explains that the telephone at Mt. Joy Avenue is in her name because her parents owe money to the telephone company and cannot get a phone.

Respondent asserts that the hearing officer did not consider petitioner’s documentary evidence because she failed to present such evidence at the hearing. Respondent states that in fact, petitioner submitted no evidence at the hearing, and submitted this evidence for the first time with her petition. Respondent argues that even if such evidence were considered at this stage, the evidence is contradicted by its surveillance report and evidence regarding petitioner’s car and telephone registration. In addition, respondent asserts that there is no confusion about the automobile sighted at 44 Mt. Joy Avenue; that automobile was registered to petitioner, not her sister. Respondent argues that petitioner has at most shown an intention to reside temporarily with her sister at 110 Brooklyn Avenue since she testified at the hearing that the arrangement was a temporary one and that she planned to move after her sister’s baby was born. Finally, respondent argues that petitioner is attempting to take advantage of the district's educational program, since she testified that she was dissatisfied with Martin’s previous education at a private school during the 1996-1997 school year and that the services available in the district are better.

On June 30, 1998, my Office of Counsel requested information from petitioner’s counsel pursuant to 8 NYCRR "276.5. Specifically, the letter noted that on page three of the petition, petitioner stated that the reason for her move in September 1997 to 110 Brooklyn Avenue was to assist her sister who was pregnant. Since the move occurred in September 1997, the pregnancy would have concluded at the very latest by May or June 1998. Thus, the letter inquired whether petitioner was remaining at 110 Brooklyn Avenue, and if not, whether there was a need to continue this appeal.

Petitioner’s counsel informed my Office of Counsel in mid-July and again on August 10, 1998, that his attempts to contact petitioner had been unsuccessful and her whereabouts were unknown. He submitted an envelope addressed to petitioner at 110 Brooklyn Avenue, which was returned to him unopened.

Accordingly, it appears that petitioner is not residing at 110 Brooklyn Avenue, apartment 2M, Freeport. Absent evidence to the contrary, the appeal is now moot. It is well settled that the Commissioner will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Boehm, 37 Ed Dept Rep 208; Appeal of Postal, 36 id. 1).

Even if the petition were not dismissed as moot, 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 Schwartzburt, 37 Ed Dept Rep 139; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446).

For the purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Schwartzburt, supra; Appeal of a Student with a Disability, 36 Ed Dept Rep 113; Appeal of Britton, 33 id. 198). A "residence" means "domicile" which is established by one's physical presence and the intention to remain there permanently (Appeal of Doyle-Speicher-Maldonado, 35 Ed Dept Rep 110; Appeal of Cupid, 34 id. 609). Petitioner has failed to submit sufficient evidence to meet this standard. To the contrary, her testimony at the December 8 residency hearing and the petition attest to petitioner’s intent to remain only temporarily at her sister’s apartment at 110 Brooklyn Avenue and to leave once her sister’s baby was born. In addition, I find respondent’s evidence regarding petitioner’s lack of physical presence in the district persuasive.

Since the appeal is dismissed, I need not address the parties’ remaining contentions. However, I remind respondent, when making residency determinations in the future, to comply with the procedures required by 8 NYCRR "100.2(y), including affording individuals the opportunity to submit information concerning residency prior to making a determination.