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Decision No. 16,309

Appeal of CHEVON ATKINSON, on behalf of her son TACOREY BUTTON, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,309

(October 10, 2011)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her son, Tacorey, is not a district resident.  The appeal must be dismissed.

In August 2010, petitioner enrolled Tacorey in respondent’s high school using an in-district address.  Following a routine residency check, by letter dated November 4, 2010, the administrative assistant to the superintendent notified petitioner that he had determined that Tacorey did not reside within the district based upon “Actual Residence Elsewhere And Temporary Residence Established For The Purpose Of Attending District Schools.”  By letter dated November 12, 2010, petitioner appealed the district’s determination.  An administrative review was held on November 19, 2010, at which petitioner and her boyfriend testified.

On January 6, 2011, respondent’s designated review officer issued a decision based upon documents presented and the testimony from the review.  In addition, the review officer considered a home visit of the in-district residence conducted by the attendance supervisor following the review.  By letter dated January 6, 2011, the review officer informed petitioner that Tacorey was not a district resident and would be excluded from respondent’s schools as of January 28, 2011.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 28, 2011.

Petitioner alleges that she and Tacorey reside within the district.  Respondent alleges the appeal is untimely and that its determination was rational, supported by the record and in compliance with applicable law and the Commissioner’s regulations.

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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

The review officer issued a final determination in this matter on January 6, 2011.  There is nothing in the record as to when petitioner actually received the determination.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date for calculating the 30 day period is January 12, 2011.  The record reflects that on January 25, 2011, respondent was served with an unverified petition which was not transmitted to my Office of Counsel in accordance with §275.9 of the Commissioner’s regulations.  After being notified of these deficiencies, petitioner personally served a verified petition on respondent on February 17, 2011.  Since the appeal was not properly commenced until February 17, 2011, more than 30 days after petitioner’s receipt of respondent’s final residency determination and petitioner offers no excuse for the delay, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, 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 support of its residency determination, respondent relies on the testimony of its attendance supervisor and the investigator.  The attendance supervisor testified that he attempted to make three home visits to the in-district residence to verify petitioner’s residency.  At the time of the first and second visits on Monday, September 3, 2010 at 7:30 a.m. and Thursday November 4, 2010 at 7:00 a.m., no one answered the door yet Tacorey was in school for his 8:32 a.m. class.  At the time of the third visit on Sunday November 7, 2010 at 9:00 a.m., a man known to be petitioner’s boyfriend answered the door and indicated that both petitioner and Tacorey had gone out.  The attendance supervisor also conducted surveillance at the in-district residence on September 24, 27, and 30, 2010 and October 1, 7, and 13, 2010 between the hours of 6:00 a.m. and 8:30-8:45 a.m.  The attendance supervisor did not observe Tacorey leaving the house on any of these dates although Tacorey was in school by 8:32 a.m.  The date of the residency review, November 19, 2010, was the only date that Tacorey was observed at the in-district residence.  Following the review, the attendance supervisor conducted a home visit of the in-district residence and found minimal evidence that Tacorey actually resided there.  The attendance supervisor observed a boys’ bedroom containing a queen size mattress on the floor, an entire wall of sophisticated recording equipment and a single computer which was part of this equipment.  The bedroom also contained a few items of summer weight clothing in a closet identified as Tacorey’s but no sneakers, sweatshirts or jackets.  Likewise, little was observed in the nature of clothing for petitioner or her daughter.

The investigator testified that he conducted surveillance during the early morning hours on eight occasions from October 4, 2010 to November 8, 2010 at an out-of-district location in Jamaica, New York listed on petitioner’s driver’s license.  The investigator testified that on five of these occasions petitioner and Tacorey were observed entering a vehicle and driving off.  On another occasion, petitioner and Tacorey were observed exiting the Jamaica residence and driving to respondent’s high school.  On two occasions, no one was observed leaving the out-of-district address.

To support her claim of residency, petitioner testified that she and Tacorey have lived at the in-district residence with her boyfriend and her other children for approximately one year.  She indicated that there is no written lease and that they are not required to pay utilities.  The telephone and cable service are in her boyfriend’s name and they pay their rent by check.  She testified that prior to living at the in-district residence, she resided in Richmond Hill, outside respondent’s district.  Petitioner testified that she could not produce any bills addressed to her at the in-district address, that she never changed her address with her employer, that she believed that her 2009 tax returns were filed with the Richmond Hill address, and that her bank statements continue to go to the Richmond Hill address.  Petitioner’s driver’s license lists a residence in Jamaica, New York, which is not petitioner’s previous address.  Petitioner provided no explanation as to why she currently lists this address on her driver’s license and there is no evidence in the record that she renewed her license in 2010 after allegedly moving to the in-district residence.  Petitioner also testified that she spends two to three nights a week in Queens to help a friend’s mother.

Petitioner and her boyfriend were offered the opportunity to provide an explanation or evidence as to why Tacorey had only been observed at the in-district address on the morning of the review but had been seen leaving Jamaica address for school on multiple occasions.  In response, petitioner testified that the Jamaica residence belongs to a friend to whom she provides assistance.

I find the minimal evidence presented by petitioner insufficient when balanced against the extensive surveillance evidence compiled by respondent.  Petitioner has not established physical presence in the district and respondent’s surveillance supports its determination.  Accordingly, based upon the record before me, I cannot find respondent’s determination to be either arbitrary or capricious.