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Decision No. 14,174

Appeal of ANTHONY C. CITARELLA, on behalf of KRISTOPHER A. CITARELLA, from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency.

Decision No. 14,174

(July 28, 1999)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, COMMISSIONER.--Petitioner, on behalf of his son, Kristopher, appeals the determination of the Board of Education of the Bayport-Blue Point Union Free School District ("respondent") that Kristopher is not a resident of the district. The appeal must be dismissed.

Petitioner, his wife, and three children apparently resided at 1 Division Avenue, Blue Point, within the district, for some period of time prior to the 1998-99 school year. In May 1998 a question arose as to the children's residence when a school nurse reported that the telephone at that address had been disconnected. Assistant High School Principal Vincent Mulieri, respondent's designee for residency matters, wrote to petitioner requesting further information. He never received a response but did not follow-up on the matter because it was the end of the school year.

In September 1998, petitioner's wife completed new emergency notification cards for two of the children, Corey and Tabitha, listing 8 Atlantic Avenue, Blue Point, as their address, but listing petitioner's and her address as 25 Highland Avenue, Patchogue, which is located in a neighboring school district. The home at 8 Atlantic Avenue apparently belongs to petitioner's father, Anthony P. Citarella ("Mr. Citarella"). After the school nurse reported that Corey called "home" using a Patchogue phone number, Mr. Mulieri again wrote to petitioner asking for clarification as to the children's residence.

On October 8, 1998, petitioner met with Mr. Mulieri and explained that he and his wife had separated and that he was living at the Patchogue address while his wife and children were staying with Mr. Citarella. Mr. Mulieri gave petitioner a residency affidavit to complete, but petitioner never returned it. Thereafter, respondent received anonymous letters stating that petitioner and his family were living in Patchogue and using the Atlantic Avenue address to establish residency within the district. In response, Mr. Mulieri directed an investigation of petitioner's residence.

On four consecutive mornings, the district's investigator observed petitioner or his wife leaving the Patchogue address and bringing Corey and Tabitha to respondent's schools. On three of those mornings, the investigator observed Mr. Citarella picking up Kristopher at the Patchogue address and taking him to the district's high school. On November 20, 1998, Mr. Mulieri wrote to petitioner and informed him that, based on this investigation, it had been determined that his children were not residents of the district and they could no longer attend on a tuition-free basis. On December 2, 1998, petitioner's wife withdrew Corey and Tabitha from respondent's schools.

Petitioner contacted Mr. Mulieri and told him that Corey and Tabitha were living with his wife in Patchogue, but he and Kristopher were living with Mr. Citarella. Mr. Mulieri again gave petitioner a residency affidavit to be completed by Mr. Citarella as owner of the residence. The completed affidavit indicated that the signatory was a tenant and was signed "Anthony Citarella" in what appeared to be petitioner's handwriting. When Mr. Mulieri requested an affidavit signed by petitioner's father, the same affidavit was returned with the word "tenant" changed to "owner", and no new signature. Mr. Mulieri requested an unaltered affidavit and suggested that petitioner's father come into the district's offices to sign it, but Mr. Citarella did not do so. In that same conversation Mr. Mulieri asked petitioner if Kristopher was living with his grandfather so that he could attend the district's schools. Petitioner replied that he was.

On December 18, 1998, Mr. Mulieri wrote to petitioner and advised him that Kristopher would not be allowed to attend respondent's schools after January 8, 1999. This appeal ensued. On January 29, 1999, petitioner's request for interim relief was denied.

Petitioner contends that he and Kristopher live with Mr. Citarella within respondent's district. In support of this contention, he submits an affidavit signed by Mr. Citarella, a copy of his driver's license, copies of envelopes mailed to him by the district and the district's attorney, a voter registration card certified on February 10, 1999, an employment verification letter and a library card, all listing the Atlantic Avenue address. He requests a determination that Kristopher is a resident of respondent's district.

Respondent contends that Kristopher is not a district resident and that petitioner is using his father's address for Kristopher to continue to attend respondent's schools. Respondent contends that its determination in this matter was not arbitrary or capricious.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997; Appeal of a Student with a Disability, 37 id. 173, Decision No. 13,833; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). Where a child's parents live apart, the child can have only one legal residence (Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13818; Appeal of Helms, 36 id. 95, Decision No. 13,668).

In this case, petitioner has provided little credible evidence to establish Kristopher's residence with him at the Atlantic Avenue address. I have examined the residency affidavits and it appears respondent had sufficient reason to question the authenticity of Mr. Citarella's purported signature. Although petitioner offers some documentary evidence, most of it was dated and submitted after respondent's determination. Furthermore, I note that all of the correspondence submitted by petitioner listing the Atlantic Avenue address was sent by the district, the district's attorney and my counsel's office -- all of whom relied upon petitioner's representations that Atlantic Avenue was his address.

Further, petitioner fails to provide any details of the custody arrangements he and his wife have devised for their children. Likewise, petitioner fails to offer any explanation why, on at least two occasions, he and his wife indicated that petitioner lived at the Patchogue address. Significantly absent is any affidavit from Kristopher's mother. Nor does petitioner attempt to explain the results of the surveillance which showed Mr. Citarella driving Kristopher from the Patchogue address to the district's school on three occasions.

While the evidence submitted by respondent is not overwhelming, I find petitioner has failed to provide sufficient evidence or explanation to refute respondent's findings. Thus, on the evidence before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Kristopher is not a resident of the district. Accordingly, respondent's determination will not be set aside.