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Decision No. 14,945

Appeal of ELIZABETH SHORT, on behalf of her son DEREK MURPHY, from action of the Board of Education of the Phelps-Clifton Springs Central School District regarding residency.



(August 29, 2003)


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel


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

By letter dated March 17, 2003, respondent's superintendent of schools advised petitioner that, based upon reports and his own research, he believed Derek did not reside in the district.  The superintendent invited petitioner to attend a conference on March 25, 2003, at which time she could present evidence to the contrary.

Petitioner and her boyfriend's mother attended the residency conference.  By letter dated March 26, 2003, the superintendent advised petitioner of his determination that Derek was not a district resident.  He further determined that petitioner's primary residence is outside the district, in Geneva, where she spends the majority of her waking hours and conducts her business. 

The superintendent's determination was based on the information received from petitioner at the conference.  In addition, his determination was based on additional evidence, including the fact that petitioner signed for a return receipt letter that was addressed to her at the Geneva address.  In addition, the superintendent"s determination noted that a web search of petitioner's name revealed the Geneva address; petitioner had not provided the district or the Board of Cooperative Educational Services a home telephone number, only a cell phone number; a telephone call to directory assistance resulted in a telephone number for petitioner at the Geneva address; and petitioner's employer confirmed her address of record to be in Geneva. 

Petitioner contends that she and Derek reside in Clifton Springs, within the district, at the home of her boyfriend's grandparents.  Respondent contends that petitioner is not a resident of the district but resides in Geneva with her boyfriend, and is using the in-district address to take advantage of its educational programs. Respondent also asks that I disregard additional evidence submitted by petitioner in this appeal because she did not provide it to the superintendent before he made his residency determination.

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 B.O. and D.O., 42 Ed Dept Rep ___, Decision No. 14,769; Appeal of Metze, 42 id. ___, Decision No. 14,768; Appeal of M.S., 42 id. ___, Decision No. 14,767). 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 B.O. and D.O., supra; Appeal of Metze, supra; Appeal of M.S., supra). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Metze, supra).

     I have carefully reviewed the record in this matter, including the transcript of the March 25, 2003 residency conference.  I find petitioner's testimony at the conference to be vague.  However, the superintendent was able to elicit the following information.  Petitioner stated that she typically picks up Derek from his babysitter at about 4:15 p.m. each day and brings him to her boyfriend's home in Geneva. Petitioner stated that her boyfriend watches Derek at his home in Geneva while she attends college in the evening.  Her boyfriend picks her up from college and they all return to her boyfriend's home in Geneva for the remainder of the evening.  Derek falls asleep during the early evening, and at about 11:30 p.m. each night, she drives to Clifton Springs to a room she rents in the home of her boyfriend's grandparents, where she and Derek sleep.  

Petitioner stated that she pays her boyfriend's grandparents $300 per month in cash for the room. Petitioner claimed that Derek has a set of clothes at her boyfriend's home in Geneva but the majority of his clothes are in storage.  Petitioner admitted that on some occasions she does not sleep at the Clifton Springs address. Petitioner also admitted that she registered her automobile under the Geneva address and that most of her mail was sent there.  She stated that she had her mail sent to the Geneva address rather than the Clifton Springs address because she was afraid that her boyfriend's grandparents would misplace her mail. 

When the superintendent asked petitioner why she slept at the Clifton Springs address, rather than the Geneva address, petitioner responded that she did not like the Geneva City School District and believed that respondent's district was academically superior.  She also stated that she expected her boyfriend to sell his home soon, and did not want to shift her son between school districts.  

The mother of petitioner's boyfriend also testified at the residency conference.  She lives at the Clifton Springs address.  She confirmed that petitioner, Derek, and her son have dinner together in Geneva at her son's home, and that she sometimes joins them for dinner.  She could not state where Derek falls asleep because she works evenings.

     In this appeal, petitioner submits a March 24, 2003 letter from the district and an envelope, postmarked March 25, 2003, from the Wayne Finger Lakes Board of Cooperative Educational Services, each addressed to her at the Clifton Springs address.  She also provides a prescription form, dated March 18, 2003, in Derek's name listing the Clifton Springs address and an April 2, 2003 note from Derek's daycare provider, who is also a friend of a member of the Clifton Springs household, stating that petitioner's address is in Clifton Springs.  In addition, petitioner submits a photocopy of the reverse side of her driver's license in which she has handwritten a P.O. Box in Clifton Springs as an address change, and a day care registration form, inexplicably dated October 14, 2003, on which petitioner listed the Clifton Springs address. 

Although this evidence was not previously considered by respondent, respondent has had an opportunity to address it in its answer, and thus, I have considered it.  In any event, I do not find petitioner's additional evidence to be dispositive.  These few documents, some of which have been prepared by petitioner, are not conclusive.  Moreover, petitioner admits that she uses the Geneva address for some purposes, including her mailing address and automobile registration, and does not deny that she uses it for employment.  

      Petitioner also submits three form rental receipts in the amount of $300 each, for January, February and March 2003, which I have also considered.  Presumably, they are for the room at the Clifton Springs address, although there is no address cited on the form receipts. 

     A residency determination will not be set aside unless it is arbitrary or capricious (Appeal of Perez, 42 Ed Dept Rep __, Decision No. 14,779; Appeal of James, 41 id. 487, Decision No. 14,752).  Although petitioner provides some evidence that she pays rent for a room in Clifton Springs, she has not met her burden of demonstrating a clear legal right to the relief requested and of establishing the facts upon which relief is sought (Appeal of Perez, supra; Appeal of James, supra).  I do not find the fact that petitioner may pay rent for the room in Clifton Springs to be by itself determinative of the question of residency (See Appeal of Perez, supra).  Petitioner states that she typically only goes to the Clifton Springs address to sleep.  This connection with Clifton Springs is insufficient to establish residency in respondent's district, particularly in light of the other evidence discussed above.  Accordingly, on the record before me, I cannot conclude that respondent's determination was irrational.