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Decision No. 14,775

Appeal of AVA McSWEEN, on behalf of her son AKIL OCHOA, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 14,775

(August 21, 2002)

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that her son, Akil, is not a district resident. The appeal must be dismissed.

In or about December 2001, an attendance clerk at Memorial Junior High School called the telephone number provided by Akil"s parents for a residence at Fenwood Drive, Valley Stream, within respondent"s district. According to the attendance clerk, the man who answered the phone indicated that he knew the family, but that they did not live at that address and he did not know Akil"s whereabouts. Thereafter, the district"s residency consultant, ("consultant") commenced an investigation.

On December 10, 2001, the consultant called the telephone number listed for the address of Akil"s father, Rodney Ochoa, in Rosedale, Queens, outside respondent"s district. A woman, who identified herself as a relative, answered and stated that both Mr. Ochoa and petitioner were at work and would return later. On January 17, 2002, the consultant observed the Valley Stream residence beginning at 7:25 a.m. At 7:45 a.m., he observed an adult woman leave the house alone. He then knocked at the door. When no one answered, he left his business card asking for a return call, which he never received. According to district records, Akil was present in school that day although the consultant never saw him leave the Valley Stream residence.

By letter dated February 27, 2002, respondent"s superintendent notified Mr. Ochoa at the Rosedale address that Akil was not a district resident and was, therefore, not entitled to attend the district"s schools. The letter stated that it appeared that Akil was using an address in Valley Stream for the sole purpose of attending school in the district, and would be excluded from school effective March 8, 2002.

The district scheduled a hearing for March 22, 2002 to consider Akil"s residency status. Prior to the hearing, on or about March 18, the junior high school principal stated that Mr. Ochoa admitted to him that Akil did not reside in the district. At the hearing, neither parent presented supplementary evidence to support their claim that Akil was a district resident, nor could either parent clearly or credibly articulate their living or marital arrangements, when Mr. Ochoa had moved to Rosedale, if or how often petitioner and/or Akil stayed there, or why petitioner"s car was often seen in Rosedale.

By letter dated March 25, 2002, sent to both petitioner and Mr. Ochoa at the Rosedale address, the superintendent stated that since "no new evidence was presented [at the March 22] meeting regarding Akil"s residency in Valley Stream, the residency determination in the February 27, 2002 letter remains in effect." Petitioner"s request for interim relief was granted on April 24, 2002.

Respondent asserts that the appeal must be dismissed because it is untimely, unverified and fails to establish that Akil is a district resident.

I must first address several procedural issues. On May 21, 2001, subsequent to the issuance of the interim order, respondent requested permission pursuant to "276.5 of the Commissioner"s regulations to submit an affidavit from a secretary in the junior high school guidance office. Since petitioner did not respond or object to this submission, and the affidavit refers to events that occurred after the submission of respondent"s answer, I accept respondent"s submission.

Respondent asserts that the petition is not properly verified as required by "275.5 of the Commissioner"s regulations. However, the petition submitted to my Office of Counsel contained the requisite verification. Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (Appeals of Campbell and Coleman, et al., 41 Ed Dept Rep ___, Decision No. 14,665).

Respondent also contends that the appeal is untimely. An appeal to the Commissioner pursuant to Education Law "310 must be commenced 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). While petitioner served her appeal on March 18, 2002, my Office of Counsel did not receive the petition until April 12, 2002. Thus, respondent appears to object not to a delay in service but rather to a delay in filing the petition with my Office of Counsel. Section 275.9 of the Commissioner"s regulations requires filing of the petition within five days after service. Since respondent expresses no prejudice from petitioner"s delay in filing, I find such delay harmless error in this case.

The appeal must, however, 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 to students whose parents or legal guardians reside within the district (Appeal of Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603; Appeal of Lapidus, 40 id. 21, Decision No. 14,408). A student"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177).

Petitioner states that she and Akil live at the Valley Stream address in respondent"s district. In support of her contention, she submits the following documents bearing her name at that address: a credit union statement for the period October 1 through December 31, 2001; a credit card bill from March 2002; a photocopy of her New York State driver"s license, issued January 26, 2001; a rental agreement dated April 30, 2001; and an unsworn statement from the landlord, dated March 11, 2002, that the rental agreement is still in effect. I do not find petitioner"s documentation persuasive. All but the credit card bill are dated from 2001, and the credit card bill alone is insufficient to prove residence. Additionally, since the landlord is her cousin"s husband, his unsworn statement is not persuasive. Nor do I find the conflicting testimony of petitioner or Mr. Ochoa at the March 22 hearing elucidating or convincing.

In contrast, the record contains Mr. Ochoa"s admission that Akil does not reside in the district. Furthermore, in the supplemental affidavit, the guidance office secretary states that petitioner called her on April 25, 2002, the day after the Commissioner granted the interim order, to inquire about Akil"s return to school. Upon calling petitioner"s place of employment to inform petitioner of Akil"s schedule, she was told that petitioner was not at work. An individual at petitioner"s workplace then provided the secretary with petitioner"s home number. The district"s residency consultant informed the secretary that this number is the number listed for the address of Akil"s father in Rosedale.

I find that 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 Akil is not a resident of the district. Accordingly, respondent's determination will not be set aside (Appeal of Citarella, 39 Ed Dept Rep 64, Decision No. 14,174).

Finally, I remind respondent, when making future residency determinations, to comply with the procedures required by "100.2(y) of the Commissioner"s regulations, including affording individuals the opportunity to submit information concerning residency prior to making a determination.