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Decision No. 14,496

Appeal of ROBERT RODRIGUEZ, on behalf of ROBERT M., TAILYN and TIERRA RODRIGUEZ, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 14,496

(November 30, 2000)

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that his children Robert M., Tailyn and Tierra, are not district residents. The appeal must be dismissed.

In October 1999, the district began notifying parents of the need to re-register their children. On March 23, 2000, petitioner registered Robert Rodriguez, date of birth ("DOB") March 23, 1988. Petitioner gave his address as 419 Bedford Avenue, Uniondale, which is within respondent's district and owned by petitioner's parents, Robert and Josephine Rodriguez. He also listed four other children living at that address [Randisha (DOB 9/27/81); Tierra (DOB 7/31/85); Tailyn (DOB 8/1/90); and another son Robert (DOB 4/5/87)] along with their stepmother, Rashell Rodriguez. Tierra, Tailyn and the first Robert, who is known as Robert M. (DOB 3/23/88), are petitioner's children from his first marriage. The second Robert (DOB 4/5/87) is petitioner's son with Laureen Warlix, and is known as Robert A. Randisha is not involved in this appeal.

Sometime during the 1999-2000 school year, respondent received an anonymous note that petitioner and his children no longer resided at 419 Bedford Avenue. Respondent somehow became aware that petitioner was residing at 14 Meriam Street in Hempstead, an address outside the district owned by a "Rashell Jackson." In addition, in March 2000, Ms. Warlix, accompanied by petitioner, attempted to change the bus route for Robert A. because she and Robert A. were moving to 419 Bedford Avenue. Gloria Lebby, the district's Administrative Assistant for Central Registration, states that petitioner never indicated at that time that he lived with Ms. Warlix at the Bedford Avenue address. This inconsistent information apparently prompted respondent to undertake surveillance of petitioner.

Surveillance was conducted on June 5, 6 and 7, 2000 between 6:00 to 8:00 a.m. The surveillance report revealed no sightings of petitioner, Robert M., Tierra or Tailyn leaving Bedford Avenue during those hours. The district then conducted surveillance at the Meriam Street address on June 8, 9, 12 and 14 during the same time period. The investigator observed petitioner on all days leaving that house at approximately 7:30 a.m. with two boys and two girls and dropping the girls off at Uniondale High School. By letter dated June 23, 2000, respondent advised petitioner of its determination that his children were no longer eligible to attend district schools because he resided outside the district. Respondent gave petitioner until July 7, 2000 to present evidence of district residency, otherwise his children would be excluded as of July 14, 2000.

According to Ms. Lebby, petitioner requested if he could use the proof of residency he had submitted when he re-registered Robert in March. That proof consisted of a driver's license in the name of Robert Rodriguez, Jr., and an electric bill in the name of Robert Rodriguez, both with the Bedford Avenue address. Ms. Lebby told petitioner that those documents were insufficient because subsequent surveillance indicated that petitioner lived outside the district. Ms. Lebby avers that she told petitioner to file an appeal with the Commissioner.

On July 15, 2000, the day after petitioner's children were to be excluded from the district, respondent discovered that petitioner was sending his children to summer school in the district. Further surveillance of 14 Meriam Street on July 18 and 19 revealed petitioner leaving that address with one girl in his car and dropping her at the high school at 9:45 a.m.

Petitioner asserts that on September 11, 2000, he attempted to register Robert M., Tailyn and Tierra in the Uniondale Schools. Respondent contends that petitioner requested admission only for Robert A. Ms. Lebby states that she told petitioner that only Ms. Warlix could register Robert A. since petitioner did not reside at 419 Bedford Avenue. This appeal ensued. Petitioner's request for interim relief was denied on September 20, 2000.

Petitioner asserts that he resides with his girlfriend, Ms. Warlix, and all four children at 419 Bedford Avenue, Uniondale. He states that his parents now live in Arizona and have given him legal right to the property. Petitioner contends that because his job requires him to work overnights and travel for days at a time, he has arranged for Robert M., Tailyn and Tierra to stay overnight with their aunt (and his ex-sister-in-law) Rashell Jackson, who resides at 14 Meriam Street. Petitioner asserts that when he finishes work at 3:00 a.m., he goes to Ms. Jackson's house, waits for the children to awaken, and drives them to school from there.

Respondent asserts that it properly excluded petitioner's children because they are not district residents. Respondent contends that petitioner and Rashell Jackson are married, that petitioner resides with her and Robert M., Tailyn and Tierra on Meriam Street in Hempstead, and that he is attempting to use his experience as a former residency investigator with the district to thwart the system. Respondent asserts further that the appeal is untimely.

The appeal must 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). Respondent's June 23, 2000 letter notified petitioner that his children would be excluded from district schools on July 14, 2000, yet an appeal was not filed until September 12, 2000, almost two months later. Petitioner acknowledges the lateness of his appeal and requests that I excuse his untimeliness because he contends that Ms. Lebby led him to believe that he could re-apply for admission in September prior to filing an appeal if he had all the required documents at that time. Ms. Lebby denies giving petitioner that information.

Petitioner has failed to demonstrate good cause for his late appeal. Neither a request for reconsideration nor ignorance of the appeal process extends the time in which to commence an appeal (Appeal of Baselice, 39 Ed Dept Rep 387, Decision No. 14,268; Appeal of Tomassetti, 39 id. 513, Decision No. 14,296). Respondent's June 23, 2000 letter specifically informed petitioner of his right to appeal to the Commissioner within thirty days, but he failed to do so. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, 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 and related services to students whose parents or legal guardians reside within the district (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787).

For purposes of Education Law "3202, "residence" means "domicile" (Appeal of O'Herron, 40 Ed Dept Rep ___, Decision No. 14,461; Appeal of Ifill, 38 id. 97, Decision No. 13,992), and is established by a demonstration of one’s physical presence as an inhabitant within the district as well as his intention to remain there (Appeal of O'Herron, supra). Further, for purposes of the statute, a person can have only one legal residence (Appeal of Morgan, 38 Ed Dept Rep 207, Decision No. 14,016; Appeal of Daniels, supra). Ownership of property in a school district does not confer residency status (see, e.g., Appeal of Felenczak, 39 Ed Dept Rep 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10). Petitioner has failed to rebut respondent's evidence that he is not a district resident. Petitioner relies on the utility bill in the name of "Robert Rodriguez" as proof that he resides at 419 Bedford Avenue. However, that bill merely demonstrates that the account is in the name of "Robert Rodriguez." Since petitioner's father, who owns that house, is also named Robert Rodriguez, that bill is insufficient proof of petitioner's residency. Nor does petitioner's father's unnotarized letter -- stating that he has given "custody" of the house to his son -- demonstrate that petitioner actually resides there. Moreover, the utility bill was submitted prior to the surveillance reports and petitioner has provided no additional information to counter that evidence.

In addition, on the registration form he filled out in March 2000, petitioner listed "Rashell Rodriguez" as the children's stepmother, not their aunt. Also, Ms. Lebby avers that when she filled out district census cards in petitioner's presence and with information he provided, he instructed her to list Rashell Rodriguez as the stepmother of Tierra, Robert M. and Tailyn, and gave as their address 419 Bedford Avenue. However, the telephone number petitioner gave is registered to Rashell Jackson at 14 Meriam Street, and is a different number than the number recorded for Robert A., who resides at 419 Bedford Avenue. All this conflicting information predated the district's surveillance, yet petitioner provides no new or dispositive evidence to clarify his marital status or otherwise demonstrate his residency within the district. Instead, he now asserts that he and the children reside on Bedford Avenue with his girlfriend, Ms. Warlix, and that the children sometimes stay with their "aunt," Rashell Jackson, on Meriam Street.

Based on the record before me, petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that Robert M., Tailyn and Tierra are not district residents. Accordingly, respondent’s determination will not be set aside. I also note that respondent asserts that petitioner attempted to register only Robert A. on September 11, and did not attempt to register the other children. In that case, the appeal would be moot as to Robert M., Tailyn and Tierra. However, in light of the foregoing disposition, I need not address that issue.