Appeal of CHARLES WHITE, on behalf of his son Jeffrey, from action of the Board of Education of the Honeoye Falls-Lima Central School District regarding residency.

Decision No. 16,442

(December 27, 2012)

Jeffrey Wicks, PLLC, attorney for petitioner

Wayne A. Vander Byl, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Honeoye Falls-Lima Central School District (“respondent”) that his son, Jeffrey, was not a district resident from September 2011 through January 27, 2012.  The appeal must be dismissed.

The record indicates that, in or about August 2011, Jeffrey, who was 18 years old, enrolled as a senior in respondent’s high school for the 2011-2012 school year.  In October 2011, respondent commenced an investigation into petitioner’s residency and by letter dated January 25, 2012, the superintendent informed petitioner that Jeffrey was not a district resident and would be excluded from school after January 27, 2012.  Petitioner’s appeal to the board was denied by letter dated February 1, 2012.

Petitioner seeks a determination that Jeffrey was a district resident from September 2011 through January 27, 2012 and was entitled to attend district schools without the payment of tuition.

Respondent argues that petitioner lacks standing and that the appeal is untimely and moot.  Respondent maintains that its residency determination was in all respects proper.

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Under Education Law §310, although a person over the age of 18 is legally competent to maintain an appeal (seee.g.Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713, Decision No. 13,965; Appeal of Strada, 34 id. 629, Decision No. 13,434), a parent may petition on behalf of his or her child (Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713, Decision No. 13,965; Appeal of Strada, 34 id. 629, Decision No. 13,434).  Accordingly, I find that petitioner has standing to bring this appeal.

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).  In his verified reply, petitioner claims that the appeal is timely because “the letter was delivered by mail.”  However, the record indicates that respondent mailed its February 1, 2012 determination by certified mail, return receipt requested.  The returned mail receipt indicates that petitioner signed for and received the determination on February 3, 2012; however, he did not commence this appeal until March 6, 2012, one day late.  Petitioner offers no good cause for his delay in commencing this appeal.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, petitioner’s claim seeks, in essence, an advisory opinion  in that petitioner does not request any meaningful relief such as Jeffrey’s admission to school in the district, but requests that I find that Jeffrey was a district resident from September 2011 through January 27, 2012.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

To the extent that petitioner seeks to maintain this appeal to demonstrate residency for tuition purposes, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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