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Decision No. 14,790

Appeal of SHAWNETTE NEWBY, on behalf of her daughter BRITTANY, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 14,790

(August 22, 2002)

McGuire, Kehl & Nealon, LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the City School District of the City of New Rochelle ("respondent") that she is not a district resident and that her daughter Brittany is not eligible to attend public school in the district. The appeal must be dismissed.

In September 2000, petitioner enrolled Brittany in Albert Leonard Middle School ("Albert Leonard") in respondent"s district. At that time petitioner submitted a residency affidavit noting a previous address and telephone number in Mount Vernon, and listing a new address in New Rochelle with hosts/landlords named Hegwood. Petitioner stated that she would be sharing the Hegwoods" New Rochelle residence until "further notice" to help her aunt who had had surgery, and that she would be contributing to food and telephone bills at the shared residence. Petitioner listed her New Rochelle hosts" telephone number as her current telephone number.

In October 2001, the district received an anonymous letter stating that the "three Newby girls at Albert Leonard" actually lived in Mount Vernon, although they were using a relative"s address in New Rochelle. On January 9, 2002, Carol Feldman, the district"s director of pupil services, received a second anonymous letter stating that Brittany lived in Mount Vernon and was using a family member"s address in New Rochelle for school purposes. As of January 9, 2002, Brittany was the only "Newby girl" enrolled at Albert Leonard. Ms. Feldman asked Richard Boddie, a district attendance officer, to investigate.

Mr. Boddie went to petitioner"s listed New Rochelle address and spoke to Mr. Hegwood, petitioner"s host/landlord. Mr. Hegwood told the investigator that petitioner lived in Mount Vernon. He also said that Brittany spent time in Mount Vernon, but that she came to the New Rochelle house most nights after 10:00 p.m. Petitioner has not denied that Mr. Hegwood made this express statement to the investigator.

Ms. Feldman then called the Verizon telephone company, requesting a listing for petitioner at the Mount Vernon address that petitioner had listed as her previous address. Verizon informed Ms. Feldman that petitioner had a current unpublished number listed for that address. On January 14, 2002, Ms. Feldman sent petitioner a letter advising that the district had information that petitioner was not a resident. The letter invited petitioner to submit information about her residency by January 25, 2002. The letter was sent to both the New Rochelle and the Mount Vernon addresses. The return receipt for the letter sent to New Rochelle was signed by Mrs. Hegwood and the receipt for the letter sent to Mount Vernon was signed by petitioner, both on January 16, 2002.

On January 25, 2002, Ms. Feldman met with petitioner. Petitioner presented a letter from her aunt, Mrs. Hegwood, stating that her niece had rented a room in her New Rochelle residence. Petitioner also presented receipts signed by Mrs. Hegwood for rent for each month of 2001; a receipt from a doctor"s office showing the New Rochelle address; and copies of petitioner"s W-2 and tax return for 2000 that used the New Rochelle address. Ms. Feldman noted that the tax return listed both Brittany and a son as dependents, although the son had not been listed on petitioner"s September 2000 residency affidavit. Petitioner stated that her son was four years old and attended a program at a particular YM-YMHA that Ms. Feldman recognized as being in Mount Vernon.

During the meeting, petitioner told Ms. Feldman that she had moved out of Mount Vernon in September 2000 and was living "temporarily" with her aunt. Ms. Feldman states that petitioner had no explanation for continuing to maintain a telephone number listed in her name in Mount Vernon, and petitioner similarly does not provide any explanation in this appeal. Ms. Feldman further states that, when she asked petitioner for her driver"s license, petitioner said she did not have a New York license. When asked for any license she had, petitioner stated that she did not have one with her. Despite a request to send a copy of the license, Ms. Feldman states that she never received a copy of petitioner"s license.

By letter dated January 28, 2002, Ms. Feldman informed petitioner of the district"s determination that petitioner was not a district resident and that Brittany would be excluded from respondent"s schools after February 8, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on March 26, 2002.

Petitioner contends that she and Brittany are residents of New Rochelle, renting a room from her aunt and paying for telephone usage. She states that Brittany attends school until 2:40 p.m., and then takes a bus to petitioner"s mother"s house in Mount Vernon. Her mother"s address is the same address that petitioner had listed as her previous address on the residency affidavit in September 2000. Petitioner has a full-time job in the Bronx, attends college in the evenings and has a part-time job at night. She picks Brittany up at her mother"s house between 10:00 and 11:00 p.m., and they go home to New Rochelle together. Petitioner states that she intends to reside in New Rochelle for an indefinite time, and requests that I determine that she is a resident of respondent"s district and that Brittany is entitled to attend respondent"s schools.

Respondent contends that the evidence submitted by petitioner does not satisfactorily establish that she resides in New Rochelle, especially in view of Mr. Hegwood"s statement to the investigator that petitioner lived in Mount Vernon. Respondent notes that there is also no indication in the record that petitioner has transferred custody or decision-making authority over Brittany to the Hegwoods. Respondent also asserts that the petition is untimely.

I will address this procedural objection first. Respondent mailed the residency determination letter on January 28, and petitioner signed for the copy sent to Mount Vernon on January 29, 2002. Mrs. Hegwood signed for the copy sent to the New Rochelle address on January 30, 2002. I therefore determine that the time for filing an appeal began to run on January 29, 2002. An appeal to the Commissioner pursuant to Education Law "310 must be instituted within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16).

Petitioner attempted to file an appeal in late February 2002, but the petition was returned by my Office of Counsel because the petition did not contain a notice of petition or verification and there was no affidavit of personal service on respondent. The petition was ultimately served on respondent on March 15, 45 days after petitioner"s receipt of respondent"s determination. Petitioner offers no explanation for the delay, and her ineffective initial attempt at filing an appeal with my Office of Counsel is not a valid excuse for failure to commence the appeal in a timely fashion (Appeal of Ekpecham, 41 Ed Dept Rep ___, Decision No. 14,651; Appeal of Marbury, 41 id. ___, Decision No. 14,634; Appeal of Kelly, 39 id. 164, Decision No. 14,203). I therefore find that the appeal is untimely.

The petition must also 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 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 Lockwood, 42 Ed Dept Rep ___, Decision No. 14,763; Appeal of Bell, 41 id. ___, Decision No. 14,748). For purposes of Education Law "3202, a person can have only one residence. A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lockwood, supra; Appeal of Leontakianakos, 42 id. ___, Decision No. 14,757; Appeal of Bell, supra). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to remain in the district (Appeal of Reeves, 41 Ed Dept Rep ___, Decision No. 14,721; Appeal of Karmin, 41 id. ___, Decision No. 14,618). A student"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Reeves, supra; Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Leontakianakos, supra; Appeal of Karmin, supra). I find that petitioner has failed to prove that respondent"s determination that she is not a district resident is arbitrary or capricious. Although she had several documents listing the New Rochelle address, petitioner apparently still maintains a telephone in her name at her prior Mount Vernon address; has not explained where her son lives or why he is attending a program in Mount Vernon; did not produce a driver"s license as requested; indicated in her September 2000 residency affidavit that her stay in New Rochelle was only "until further notice" for the cited purpose of helping to care for her aunt who had had surgery; her daughter goes directly from school to her grandmother"s residence in Mount Vernon for the rest of the day and only returns to New Rochelle late in the evening to sleep; and petitioner"s purported host/landlord expressly told respondent"s investigator in January 2002 that petitioner lived in Mount Vernon, although petitioner had allegedly been living at the host"s residence for the past year and a half. Although none of these factors in isolation are dispositive of residency, on the record of this appeal, I do not find respondent"s determination arbitrary, capricious or unreasonable. Therefore, respondent"s determination will not be set aside.