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Decision No. 14,161

Appeal of LISA GENTILE, on behalf of GINA GENTILE, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 14,161

(July 15, 1999)

Ingerman Smith LLP, attorneys for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sachem Central School District ("respondent"), that her daughter is not a resident of the district. The appeal must be dismissed.

In November 1997, respondent's attendance officer visited petitioner's address of record in respondent's district and discovered that petitioner and her daughter were not living at that address, but were instead living with petitioner's friend in Selden, New York, outside of respondent's district. Further investigation was conducted in February 1998, which confirmed the attendance officer's earlier finding that petitioner and her daughter were living outside of respondent's district.

On March 10, 1998, the attendance officer and petitioner met to discuss petitioner's residence status and at that time petitioner admitted that she was not living within the district, but was living at the Selden address. By letter dated March 11, 1998, the attendance officer informed petitioner of his determination that she and her daughter were not district residents and that her daughter would be excluded from attendance at the district's schools. Petitioner was also informed of her right to appeal his decision to the Commissioner of Education. Respondent's superintendent of schools subsequently permitted petitioner's daughter to continue to attend school within the district for the remainder of the 1997-98 school year to avoid disruption to her education.

However, in September 1998, petitioner returned her daughter to the Sachem schools, but district officials didn't immediately become aware of the student's continued attendance. By letter dated October 8, 1998, the superintendent advised petitioner that her daughter would not be permitted to attend the district's schools beyond October 23, 1998. The deadline was subsequently extended to November 25, 1998 and thereafter to January 4, 1999 so that petitioner could appeal the district's determination to the Commissioner of Education.

Thereafter, petitioner commenced this proceeding. Petitioner claims she had to give up her home in the district because of marital difficulties with her husband. Petitioner alleges that her daughter has attended school in respondent's district for over 10 years, and is now in junior high school. Petitioner further alleges that her absence from the district is temporary and that she intends to move back into the district after she has saved enough money to do so. By letter dated March 12, 1999, I granted petitioner's request for a stay requiring respondent to admit petitioner's daughter to the district's schools pending a final determination of petitioner's appeal.

Respondent contends that the appeal should be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811). The record indicates that respondent informed petitioner of its decision that she and her daughter were not residents of the district by letter dated March 11, 1998. Petitioner failed to commence her appeal within 30 days of the March 11, 1998 decision. While respondent went to great lengths to accommodate petitioner and her daughter by extending the time within which she would be allowed to remain in attendance in respondent's schools, respondent reiterated in its October 21, 1998 letter that its decision stands that petitioner and her daughter are not residents of the district. Even if I deem such extensions as having extended the 30 day time period, petitioner still failed to commence her appeal within 30 days of the last extension, which ended on January 4, 1999. Since petitioner does not provide any basis for excusing her failure to timely commence the appeal, the petition must be dismissed for untimeliness.

Respondent also contends that the appeal must be dismissed for defective service. It appears from the record that petitioner attempted to commence an appeal in late December 1998 or early January 1999, but my Office of Counsel returned the petition on January 29, 1999, as defective for improper format, no proof of service, and lack of the notice required by 8 NYCRR ""275.11 and 276.1(b). Thereafter, petitioner attempted service on February 26, 1999. However, respondent submits the affidavit of its attorney, which states that on that date respondent received only the notice under ""275.11 and 276.1(b) and did not receive a copy of the petition, as required by 8 NYCRR "275.8(a). Therefore, in addition to untimeliness, the appeal must also be dismissed for defective service.

The appeal must also be dismissed on the merits. Education Law "3202(1) provides in pertinent part:

A person over five years 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675). Residency is based, in part, upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (Appeal of Keenan, 36 Ed Dept Rep 6, Decision No. 13,635; Appeal of Garbowski, 36 id. 54, Decision No. 13,653; Appeal of Bowers, 34 id. 603, Decision No. 13,424).

It appears from the record that petitioner and her daughter have resided at the Selden, New York address since at least November of 1997. While petitioner contends that she and her daughter intend to return to reside in the district when petitioner is financially able, such statement alone is insufficient to establish petitioner's residency in the district (Appeal of Kenneth R., 30 Ed Dept Rep 297, Decision No. 12,471).

The record before me provides no basis to find that respondent acted arbitrarily in determining that petitioner and her daughter are not residents of the district.