(June 27, 2001)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Menands Union Free School District ("respondent") that her children, Ronsheen Hall, Lawanna and Cierra Jones, and Terrell Limton, are not district residents. The appeal must be dismissed.

It appears from the record that on or about January 9, 2001, petitioner and her children, Ronsheen, Lawanna, Cierra, and Terrell, moved in with petitioner"s cousin, Pearlie Mingo, who resides within respondent"s district at 50 Clifford Road, Apt C, Menands, New York ("Menands residence"). Petitioner alleges that she and her children previously resided in Castleton and relocated to Ms. Mingo"s Menands residence because the lease on petitioner"s Castleton apartment had been terminated. Petitioner indicated that she and her children were living with Ms. Mingo temporarily until she could find another apartment.

Ronsheen, Lawanna and Terrell were enrolled in respondent"s district on January 10, 2001; Cierra was enrolled a few days later. On January 11, 2001, Ms. Mingo completed a residency affidavit for respondent"s district, indicating that petitioner and her four children resided with her at her Menands residence. On February 2, 2001, petitioner submitted a residency questionnaire to the district stating that she and her children were living at the Menands residence with Ms. Mingo.

Prior to Cierra"s enrollment, the district"s guidance office was contacted by a representative from Hackett Middle School ("Hackett") in the Albany City School District. The Hackett representative indicated that Cierra had been registered in the Albany City School District on January 4, 2001 and that her registration form listed her residence as 151 Knox Street, Albany, New York. The Hackett representative further stated that Hackett staff believed Cierra was living with her mother at an address other than the one listed on her registration form, indicating that at the time of registration, petitioner stated that she resided at 119 Broad Street, Albany, New York.

Dr. Mary Veitch Gridley, respondent"s superintendent, states that on February 16, 2001, Menands Village Building and Fire Inspector, Al Wright, contacted the district. Mr. Wright indicated that he observed a taxi drop off two adolescents between 6:45 and 7:00 a.m. in front of the Menands residence. Mr. Wright further stated that he had spoken with representatives of Plouff Real Estate, owner of the Menands residence, who indicated that the apartment contained "bedding for only one person" and further that Ms. Mingo"s next door neighbor stated that only one woman lived in Ms. Mingo"s apartment.

Dr. Gridley further states that the district"s staff had great difficulty reaching petitioner at the telephone number provided for the Menands residence and also had difficulty reaching her and other emergency contacts at other telephone numbers. When district staff left messages at the Menands residence, Ms. Mingo would return the call indicating that she would contact petitioner. The district was also unsuccessful in its effort to reach petitioner via mail regarding the residency questionnaire she submitted on February 2, 2001. The questionnaire was sent by certified mail to petitioner at the Menands residence on February 2, 2001 and it was returned to the district unclaimed on February 18, 2001.

David Klefbeck, a private investigator employed by the district also performed surveillance and background checks on petitioner. Mr. Klefbeck discovered that petitioner had three vehicles registered in her name, each listing a different Albany address. Mr. Klefbeck also indicated that petitioner"s driver"s license listed an Albany post office box as her address. Mr. Klefbeck obtained information from the Black and White Taxi Company confirming that on the evening of February 15, 2001, at least one child was picked up at 119 Broad Street and taken to the Phelan Apartments in Troy and that on the morning of February 16, 2001, a cab returned to the Phelan Apartments in Troy and transported two children to the Menands residence.

By letter dated February 22, 2001, Dr. Gridley advised petitioner that she had determined that her children were not district residents and as such were ineligible to attend school in the district. Petitioner was further advised that March 2, 2001 would be her children"s last day of attendance in the district. Dr. Gridley stated that her determination was based upon (1) information provided by Plouff Realty indicating that petitioner and her children were not living at the Menands residence; (2) information that at least two of petitioner"s children had been dropped off in the morning and picked up in the afternoon or evening by a cab company at the Menands residence and transported to the Phelan Apartments in Troy; and (3) that petitioner had three cars registered in her name listing three different Albany addresses, all outside the district.

Following Dr. Gridley"s determination, the district received additional information regarding the residency of petitioner and her children. Mr. Klefbeck stated that on February 25, 2001, he went to the three Albany addresses listed on petitioner"s motor vehicle registrations, the Menands residence and the Phelan Apartments and found that none of the vehicles registered in petitioner"s name were at those addresses. On the mornings of February 27, 2001, and February 28, 2001, Mr. Klefbeck indicated that he saw petitioner dropping her children off by car at school. On February 27, 2001, a hall monitor at Lawanna"s school contacted the district indicating that Lawanna was often late to school and that when questioned about her tardiness, Lawanna indicated that she lived with her aunt in Albany and that she was late because her aunt drove her to school. On March 7, 2001, respondent"s attorney mailed copies of Dr. Gridley"s and respondent"s attorney"s affidavits to petitioner at the Menand"s residence, return receipt requested. One attempt at delivery (at the Menands residence) was made and two notices were sent to petitioner (also at the Menands residence) informing her that the post office had mail for her requiring her signature. However, as of March 22, 2001, petitioner had not picked up the envelope containing the affidavits.

Petitioner seeks a determination allowing Ronsheen, Lawanna, Cierra and Terrell to attend school in respondent"s district. Respondent asserts that the appeal must be dismissed because petitioner"s children are not district residents and requests that petitioner be ordered to compensate respondent for services rendered to her children. Petitioner"s request for interim relief was granted on March 19, 2001.

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 Pierre, 40 Ed Dept Rep __, Decision No. 14,551; Appeal of Lapidus, 40 id. __, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

Residence is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside within the district (Appeal ofSilvestro, 40 Ed Dept Rep __, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal ofMorgan, 38 id. 207, Decision No. 14,016). For purposes of Education Law "3202, a person can have only one legal residence (Appeal of Chan, 39 Ed Dept Rep 200, Decision No. 14,214; Appeal of Ifill, 38 id. 97, Decision No. 13,992). Additionally, a child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818).

Rather than demonstrating physical presence as inhabitants within respondent"s district, the record supports respondent"s contention that petitioner and her children are not district residents. Petitioner"s multiple motor vehicle registrations listed different addresses, none of which were within respondent"s district. District employees have been unable to reach petitioner by phone or mail at the Menands residence. The surveillance report relied on by respondent documented the transportation of at least two of petitioner"s children into and out of the district. There was no evidence in the record to discredit or refute the statement of the hall monitor at Lawanna"s school indicating that Lawanna told her she lived with her aunt in Albany. Furthermore, petitioner"s admission that she and her children were residing with Ms. Mingo in the district temporarily evinces a lack of intent to reside within the district. Accordingly, I do not find respondent"s decision to deny petitioner"s children admission to its schools arbitrary, capricious or unreasonable.

With respect to respondent"s request that petitioner be ordered to compensate respondent for services rendered to her children, the Commissioner of Education does not have any statutory authority to make a finding awarding student tuition (Appeal of Marino, 40 Ed Dept Rep ___, Decision No. 14,404; Application of Pierrelus, 37 id. 502, Decision No. 13,913). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. of Lawrence Union Free SchoolDistrict v. Gaffney, 233 AD2d 357; Application ofPierrelus, supra).

THE APPEAL IS DISMISSED.

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