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Decision No. 14,604

Appeal of THOMAS REYNOLDS, on behalf of MICHAEL and SEAN REYNOLDS, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 14,604

(July 20, 2001)

Humbert V. Maggiacomo, Esq., attorney for petitioner

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Spackenkill Union Free School District ("respondent") that his sons, Michael and Sean, are not district residents. The appeal must be dismissed.

Petitioner owns a house in Poughkeepsie, New York, within respondent"s district and asserts that he and his two sons reside there. He also owns a house in Wappingers Falls, New York, outside respondent"s district, but asserts that he is separated from his wife who resides at that address.

Respondent"s superintendent obtained information from the Dutchess County Board of Elections that petitioner had registered on October 10, 2000 and voted in November 2000 using the Wappingers Falls residence as his address. An investigator employed by respondent observed petitioner"s house in Poughkeepsie between 7:00 a.m. and 7:20 a.m. on January 29, 2001 and witnessed a male exit the house and drive away, but did not see any children exit the house. On February 9 and 12, 2001, the investigator observed the house in Wappingers Falls between approximately 6:40 a.m. and 7:30 a.m. and witnessed a young woman exit the house and drive away in a vehicle with other young occupants. According to the surveillance report, the investigator was unable to obtain the license plate numbers of the vehicles or follow the vehicles to determine their destination.

On February 26, 2001, a residency hearing was held. By letter dated March 9, 2001, respondent"s superintendent of schools determined that petitioner was not a district resident based upon the surveillance report and documentation showing that petitioner had registered and voted using the Wappingers Falls address as his legal residence. This appeal ensued. Petitioner"s request for an interim order was granted on April 6, 2001.

Petitioner asserts that respondent"s residency determination was arbitrary and capricious. Respondent asserts that petitioner does not reside in its district and his children are not entitled to attend its schools without the payment of tuition.

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Smith, 39 Ed Dept Rep 67, Decision No. 14,175; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Moreover, for purposes of Education Law "3202(1), a person can only have one legal residence (Appeal of Monahan, 39 Ed Dept Rep 188, Decision No. 14,209; Appeal of Ifill, 38 id. 97, Decision No. 13,992).

Although petitioner owns two houses, he asserts that he resides with his children in respondent"s district. The only documentary evidence submitted with his petition, however, is a New York State driver"s license issued subsequent to the residency determination and a copy of an envelope addressed to petitioner and his wife at the Poughkeepsie address. Although respondent"s superintendent requested additional documentation, and even extended the time period for its receipt, petitioner failed to produce any other documentation or information that would support his assertion that he resides in respondent"s district.

In his determination dated March 9, 2001, respondent"s superintendent states that a surveillance report over a three-day period shows that petitioner"s children were observed leaving the house in Wappingers Falls and being driven to school. In fact, the report indicates that young persons were observed leaving the Wappingers Falls property on two mornings but it does not indicate where they were driven. The value of the report, therefore, is questionable.

Respondent"s determination, however, is also supported by evidence that petitioner registered to vote and voted in the fall 2000 election using the Wappingers Falls residence as his address and the sworn affidavit of respondent"s District Clerk and Secretary to the Superintendent indicating that petitioner was at the Wappingers Falls residence on two occasions when she hand-delivered district correspondence there. Noticeably absent from the record is any supporting documentation (other than the driver"s license issued after the superintendent"s determination) or any statement from petitioner"s wife describing the custody arrangement with petitioner. Moreover, petitioner who is represented by counsel, failed to submit any reply to respondent"s answer or the sworn affidavits submitted in support thereof.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (Appeal of S.H., 40 Ed Dept Rep ___, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164).

Although respondent"s evidence is minimal, petitioner offers virtually no documentary proof of residency nor does he rebut respondent"s contentions. Essentially all petitioner submits is his assertion that he owns property in respondent"s district and that he resides there. Mere ownership of property, however, without more, does not establish residency (Appeal of Felenczak, 39 Ed Dept Rep 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991). Accordingly, on the record before me, I cannot conclude that respondent"s decision was arbitrary or capricious.