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Decision No. 16,424

Appeal of PAUL and GWENETH WHITTAKER, on behalf of their children AYANNA and KIMANI, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,424

(October 5, 2012)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that their children are not district residents.  The appeal must be dismissed.

By letter dated June 22, 2011, petitioners were notified by respondent of a determination that their children were not district residents.  Petitioners provided information regarding their residency at a residency review meeting that was held on June 28, 2011.  By letter dated June 28, 2011, petitioners were notified of respondent’s decision that their children were not district residents.  This appeal ensued.  Petitioners’ request for interim relief was granted on September 9, 2011. 

Petitioners claim that they reside in respondent’s district with their children and that they have done so since 2003. Petitioners state that their family routinely stays outside the district in Queens with an elderly grandmother who lives alone and needs assistance.  It was indicated at the residency review meeting that, for child care purposes, the children also stay with their grandmother on days when there is no school and when there are shortened school days.  Petitioners explained at the meeting that when they were first married they lived at the Queens address with the grandmother and that they never changed certain documentation including a driver’s license, vehicle registration and voter registration. 

Petitioners state that they live in a home owned by a relative in the district and that they share household expenses.  They submitted a number of documents with their petition filed with my Office of Counsel in support of their claim of residency including a utility bill dated March 22, 2011, a library card, a juror’s proof of service dated June 13, 2007, and an affidavit from the relative who owns the home.  Petitioners seek a determination that their children are district residents entitled to attend the district’s schools without the payment of tuition.

Respondent asserts that the petition fails to state a claim upon which relief may be granted and that petitioners and their children reside outside the district. Respondent relies upon petitioners’ continued use of the Queens address on a driver’s license and other official documents and on surveillance evidence.

I am constrained to dismiss the appeal on procedural grounds.  Section 275.8[a] of the Commissioner’s regulations specifically states: “A copy of the petition, together with all of petitioner’s affidavits, exhibits and other supporting papers ... shall be personally served upon each named respondent...”  The regulations further provide that within five days after service, the original petition, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to my Office of Counsel (8 NYCRR §275.9[a]).

The verified petition that was attached to respondent’s affirmation and answer is different from that which was filed with my Office of Counsel.  By letter dated September 12, 2012, respondent’s counsel was directed to submit a copy of the notice of petition, petition and all exhibits thereto served upon respondent.  By letter dated September 12, 2012, respondent’s counsel submitted a copy of the notice of petition and petition served on respondent and indicated that no exhibits were attached to the petition served on respondent. 

Petitioners have not complied with the regulations of the Commissioner. A material discrepancy exists between the petition and exhibits filed with my Office of Counsel and those which were served upon respondent.  Not only does the petition filed with my Office of Counsel include allegations that do not appear in the petition served upon respondent, but also the petition that was actually served upon respondent does not include the exhibits upon which petitioners rely in this appeal.   The failure to serve the complete petition along with the exhibits denied respondent a meaningful opportunity to respond to the contents therein and present a defense in this appeal (seeAppeal of D.S. and D.S., 45 Ed Dept Rep 289, Decision No. 15,327).  Accordingly, the appeal must be dismissed.

While I am constrained to dismiss the appeal, I note that the evidence upon which respondent relied in determining that petitioners are not district residents is not overwhelming.  Petitioners provided an explanation for both the documentary evidence relating to the Queens address and for the limited surveillance conducted by respondent.  Petitioners retain the right to reapply for admission to the district on their children’s behalf and to present any information or documentation bearing on their residency for respondent’s consideration.

Moreover, I remind respondent of its obligation to comply with §100.2(y) of the Commissioner’s regulations, which sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430). The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

I note that respondent’s determination letters fail to state any basis for the determination that petitioners and their children are not district residents.  The letters merely assert that respondent has determined that they are not district residents, without referencing the basis for that conclusion, whether it be surveillance evidence or documentation submitted, a combination thereof or some other ground.  Petitioners must be afforded sufficient information regarding the basis for the decision to initiate a meaningful challenge to respondent’s residency determination.  Respondent’s failure to provide petitioners with any basis for its determination violates their right to procedural due process as well as the requirements of 8 NYCRR §100.2(y).  I admonish respondent to comply with such requirements in the future (Appeal of Daniels, 37 Ed Dept Rep 557, Decision No. 13,926; Appeal of Ogden, 37 id. 141, Decision No. 13,826).