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Decision No. 14,624

Appeal of GARY ROBINSON, on behalf of GARY ROBINSON, JR., from action of the Board of Education of the Oceanside Union Free School District regarding residency.

Decision No. 14,624

(August 14, 2001)

Anthony D. Denaro, attorneys for petitioner, Steven E. Shumer, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals a determination of the Board of Education of the Oceanside Union Free School District ("respondent") that his son is not a district resident. The appeal must be sustained in part.

Petitioner"s son has attended school in respondent"s district since January 2001. Prior to that, he resided with his parents, sister and grandmother in Inwood and attended the schools of the Lawrence Union Free School District ("Lawrence").

By letter dated March 23, 2001, respondent"s superintendent of schools advised petitioner that he and his son were not district residents and that his son would be excluded from attending its schools, effective March 29, 2001. In response, petitioner submitted his federal 1040A tax return dated February 10, 2001, a W-2 wage and tax statement for 2000, and an identification card issued by the Department of Motor Vehicles (DMV). After reviewing the materials submitted by petitioner, the superintendent issued a letter on March 26, 2001 stating that the information indicated petitioner did not reside in Oceanside and confirming that his son would be excluded from school effective March 29, 2001. Petitioner"s attorney requested a hearing on March 29, 2001 that was scheduled to take place on April 11, 2001 at 3:30 p.m. at the district"s board room. The time and place of the hearing was set forth in a letter dated April 6, 2001 from respondent"s attorney to petitioner"s attorney. A clerk for the law firm representing petitioner telephoned petitioner"s employer on April 6, 2001 and left a message for him with a co-worker. However, the message, which included the hearing date, time and location, was not received by petitioner.

A hearing was held on April 11, 2001, at which the assistant superintendent testified that petitioner"s 2000 tax return indicating his address to be Solomon Avenue in Inwood with his wife, daughter and son, was more persuasive than the DMV identification card which listed his residence in Oceanside. Petitioner was represented by his attorney but did not appear at the hearing. Petitioner"s attorney requested an adjournment upon learning that petitioner had not received notice of the hearing date and was unable to appear on April 11, 2001. The request for an adjournment was denied by the hearing officer and the hearing proceeded without petitioner present. The hearing officer issued a decision on April 11, 2001 that petitioner was not a district resident, and that his son would be excluded from its schools as of April 17, 2001. Petitioner commenced this appeal on May 14, 2001. Petitioner"s request for interim relief pending a determination on the merits was granted on May 24, 2001.

Petitioner contends that his son has resided with him since January 2001 at the Oceanside Motel where petitioner is employed. Petitioner contends that his wife and daughter reside with petitioner"s mother at his previous residence on Solomon Avenue in Inwood. Petitioner contends that he was forced to take up residence at the motel and live separately from his wife due to his inability to travel as a result of a medical problem and that his son must reside with him because there is no room for him to live at the Solomon address. Petitioner also contends that respondent deprived him of due process because the hearing on April 11, 2001 was conducted despite his inability to attend due to inadequate notice and inconvenient scheduling.

Petitioner seeks a determination that his son is a resident of Oceanside entitled to attend respondent"s schools or, in the alternative, an order remanding the issue of residency to respondent for a new hearing to be scheduled immediately.

Respondent denies depriving petitioner of due process and contends that petitioner"s failure to attend the April 11 hearing was due to his attorney"s failure to inform him of the time, date and place. Respondent contends that petitioner has failed to provide facts, in evidentiary form, sufficient to justify opening his default in appearing at the hearing and has not demonstrated that his claim has merit. Respondent argues that petitioner"s allegations are self-serving and were never tested by cross-examination. Respondent also contends that the hearing determination should be sustained and that petitioner has failed to show it was not based upon a preponderance of credible evidence.

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 the 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 Dimbo, 38 id. 233, Decision No. 14,023).

In view of the apparent lack of notice to petitioner and additional evidence that would have been available to respondent had petitioner been present at the hearing, an adjournment of the hearing should have been granted by the hearing officer. I am constrained to remand the matter to the school district to hold another hearing pursuant to 8 NYCRR "100.2(y), with petitioner present to determine the residency status of petitioner"s son. While respondent is not strictly obliged to accommodate parental requests for scheduling at the parent"s convenience, the fact that respondent proceeded with the hearing in this case without petitioner"s presence, and despite a request for adjournment from petitioner"s attorney, was imprudent in view of the totality of the circumstances (Appeal of Ravix, 36 Ed Dept Rep 89, Decision No. 13,667). In particular, if petitioner testifies at a hearing, respondent would have an opportunity to cross-examine him. Also, I note that Exhibit B to the petition contains a Certification of Registration from the Nassau County Board of Elections showing petitioner"s address in Oceanside. This certification is dated May 8, 2001, and was not examined by respondent or the hearing officer. It is, therefore, appropriate to remand this matter for a full determination on all the available evidence, rather than to attempt a premature review of an incomplete determination that did not reflect all facts and circumstances now available (Appeal of Agoney and Cook, 38 Ed Dept Rep 75, Decision No. 13,986; Appeal of Yattaw, 38 id. 12, Decision No. 13,973).


IT IS ORDERED that respondent hold a hearing pursuant to 8 NYCRR "100.2(y) to determine whether petitioner"s son is a resident and entitled to attend the schools of the school district.

IT IS FURTHER ORDERED that respondent permit petitioner"s son to remain in school until respondent issues its residency determination.