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Decision No. 16,236

Appeal of AISHA THOMAS, on behalf of her son CAMRYN, from action of the Board of Education of the Locust Valley Central School District regarding residency.

Decision No. 16,236

(June 3, 2011)

Guercio & Guercio, LLP, attorneys for respondent, Bonnie L. Gorham, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Locust Valley Central School District (“respondent”) that her son, Camryn, is not a district resident.  The appeal must be dismissed.

In September 2008, petitioner enrolled Camryn in respondent’s schools from an address within the district apparently owned by her mother (“Locust Valley address”).  In or about October 2010, Camryn told his teacher that he lived in Glen Cove, outside of respondent’s district (“Glen Cove address”).  As a result of Camryn’s disclosure, respondent commenced a residency investigation.  Surveillance was conducted by a private investigator on seven occasions from November 16, 2010 to December 17, 2010.  On November 16, 2010, the investigator observed petitioner arrive at the Locust Valley address in the afternoon, where the school bus subsequently dropped Camryn.  Later that evening, the investigator observed petitioner and her son leave the Locust Valley address and drive to the Glen Cove address.  At 7:00 a.m. the next morning, the investigator observed petitioner’s vehicle still parked in front of the Glen Cove address.  Petitioner was observed leaving there with Camryn and driving him to Ann MacArthur Elementary School in respondent’s district.  Following those initial observations, the investigator surveilled the Glen Cove address at 7:00 a.m. on November 18, 23, 29 and 30 and December 17, 2010.  On each date he observed petitioner leave the Glen Cove address and drive Camryn to respondent’s elementary school.

By letter dated December 8, 2010, respondent’s assistant superintendent for human resources and management services (“assistant superintendent”) notified petitioner that he had determined that Camryn was not a district resident.  He informed petitioner of the opportunity to submit information regarding her residency at a review by respondent’s designee, if she so requested.  By letter dated December 11, 2010, petitioner requested such review.

A residency hearing was held on December 20, 2010, before respondent’s designee (“designee”).  At the hearing, the assistant superintendent presented the surveillance information.  Petitioner submitted her driver’s license, nursing license and correspondence listing the Locust Valley address.  Petitioner stated that the Glen Cove address was the home of her youngest child’s father and that she stayed there on occasion.  In addition, petitioner was offered the opportunity to permit a home visit which she declined.

By letter dated December 22, 2010, the designee notified petitioner of her determination that Camryn was not a district resident and, after January 7, 2011, could no longer attend school in respondent’s district.  The letter also notified petitioner of her right to appeal the residency determination within 30 days and directed her to my Office of Counsel to obtain appeal procedures.  On January 10, 2011, petitioner informed the assistant superintendent in a telephone conversation that she would appeal the December 22, 2010 residency decision.  The assistant superintendent stated that petitioner had the opportunity to submit additional documentation of residency.

By letter dated January 13, 2011, petitioner advised respondent that she was in the process of appealing its residency determination to the Commissioner of Education and included further explanation of her presence at the Glen Cove address.  Thereafter, she commenced this appeal.  Petitioner’s request for interim relief was denied on February 14, 2011.

Petitioner alleges that she resides within respondent’s district, but that she periodically visits the Glen Cove address, which is the home of her youngest child’s father.  Petitioner maintains that, at the December 20, 2010 hearing, she was told that a final residency determination would not be made until she provided additional documentation.  She asserts that, due to a family emergency, she was unable to return on December 21 or December 22 to provide this documentation.  Petitioner requests a determination that Camryn is a district resident.

Respondent contends that the appeal is untimely, that petitioner failed to meet her burden of proving residency in the district and that its residency determination is in all respects proper.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The record indicates that the district’s designee issued her residency determination on December 22, 2010.  Petitioner admits that she received the determination on that same date.  Therefore, petitioner was required to commence her appeal no later than January 21, 2011.  Petitioner attempted to commence an appeal on January 18, 2011.  However, her petition was rejected by my Office of Counsel for procedural defects, including lack of personal service (see 8 NYCRR §275.8).  The appeal was not properly commenced by personal service on respondent until February 3, 2011, beyond the required 30 day period.

Petitioner asks that I excuse the delay because she was precluded from effecting proper service due to the district holiday from December 19, 2010 to January 3, 2011 and also due to school closure on two snow days.  However, petitioner fails to identify which days during the 30-day period the district’s schools were closed due to inclement weather, nor does she explain how such closures impacted her ability to commence this appeal on or before January 21, 2011.  Moreover, in its memorandum of law, respondent notes that its holiday recess occurred between December 23, 2010 and January 3, 2011 and that the district was closed due to a snow emergency on January 27, 2011, which was beyond the 30-day period.  Petitioner has submitted no evidence to the contrary.  Accordingly, I cannot conclude that petitioner has established good cause and I will not excuse the untimely commencement of this appeal.

Even if the appeal was not untimely, it would 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In her December 22, 2010 residency determination, respondent’s designee stated that the determination was based on the surveillance evidence, Camryn’s statement that he lives in Glen Cove, and petitioner’s failure to consent to a home visit.  She also found petitioner’s documentary evidence unpersuasive.

In support of her challenge to respondent’s determination, petitioner submits a driver’s license, earnings statement, an unsigned page of her 2009 tax return, voter registration and one envelope from correspondence, each listing the Locust Valley address.  However, the record indicates petitioner’s mother resides at that address and petitioner apparently grew up there.  Petitioner’s continued use of that address on the documents presented is not dispositive and does not establish petitioner’s physical presence at the Locust Valley address, particularly in view of the surveillance evidence.  I also note that petitioner has not submitted any statement by her mother in support of her residency claim.

Petitioner offers several explanations of the surveillance evidence.  Initially, in a December 11, 2010 letter, she explained by stating that the Glen Cove address was that “of a friend of mine which I visit often.”  Subsequently, in a January 13, 2011 letter, she stated that he is her youngest child’s father and provides childcare when she works nights.  She also stated that she is providing assistance to him for approximately six months due to an unexplained “calamity.”  In her petition, she only reiterates that he is providing supervision for her children on the nights she works and does not mention his purported need for assistance.  The surveillance establishes petitioner’s physical presence at the Glen Cove address.  I find her various explanations are inconsistent and lack credibility. 

Moreover, petitioner offers no explanation of her alleged living arrangements with her mother at the Locust Valley address.  Finally, petitioner submits one page of a lease agreement for the Glen Cove premises, noting that her youngest child’s father is listed as the only tenant.  However, that does not preclude a finding that petitioner was, in fact, residing there, and the surveillance evidence clearly establishes her presence at that address.

On this record, petitioner has failed to establish residency in respondent’s district.  Accordingly, I do not find respondent’s determination arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her son’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.