Appeal of ONORINA GALIANO, on behalf of her son MATTHEW, from action of the Board of Education of the Briarcliff Manor Union Free School District regarding residency.

Decision No. 16,531

(August 28, 2013)

Harriton & Furrer, LLP, attorneys for petitioner, Keith S. Harriton, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals a decision of the Board of Education of the Briarcliff Manor Union Free School District (“respondent”) that her son, Matthew, is not a district resident. The appeal must be sustained.

Petitioner claims that, several years ago, in response to certain hardships, she moved into her brother’s and sister-in-law’s home located within respondent’s district(“in-district address”). For the 2011-2012 school year, petitioner enrolled Matthew in respondent’s schools based on her submission of a driver’s license and bills indicating the in-district address as her residence.

In or about October or November 2012, however, respondent began to question Matthew’s legal residency based on statements he made to his teacher that, when his family lost electricity during Hurricane Sandy, he went to stay with his cousins. On November 8, 2012, respondent commenced an investigation into petitioner’s residency. On multiple occasions, respondent’s private investigator observed petitioner at an out-of-district residence (“out of-district address”) in the early morning and evening hours, and witnessed her driving Matthew from the out-of district address to the bus stop located near the in-district address. It was also determined that Matthew’s father resided at the out-of-district address.

By letter dated February 7, 2013, respondent notified petitioner that it had reason to believe that Matthew was not a district resident entitled to attend its schools tuition-free and invited her to submit documentation in support of her residency by February 12, 2013. By cover letter dated February 11, 2013, petitioner submitted an Affidavit of Property Ownership, deed and utility bills demonstrating her sister-in-law owned the in-district address and submitted a copy of her driver’s license issued in January 2013, a 2012 W-2 form, and Board of Elections voter registration card dated February 1, 2013 to prove she resided in the district. By letter dated February 14, 2013, respondent’s superintendent informed petitioner of his determination that Matthew was not a district resident and would be excluded from respondent’s schools effective February 25, 2013.

Petitioner commenced this appeal by service on respondent on February 21, 2013. By letter dated February 22, 2013, respondent’s superintendent notified petitioner that Matthew would be permitted to remain in school through the end of the 2012-2013 school year or until a decision is issued in the instant appeal, whichever occurs later. As a result, petitioner’s request for interim relief was rendered moot.

Petitioner claims that she lives and intends to continue to live at the in-district address and that her son is therefore entitled to attend respondent’s schools tuition-free. Petitioner argues that respondent’s decision was arbitrary and capricious and in violation of Matthew’s civil and due process rights under the State and federal constitutions. Although she admits that she frequently visits Matthew’s father’s out-of-district address, including overnight visits, she explains that the purpose for these visits is to care for Matthew’s father, who is ill. Petitioner also avers that she is employed at a bakery, but has no set work schedule and is called in to work “at all hours of the day and night or whenever a delivery is due to occur.” In this appeal, petitioner submits an affidavit from her brother stating that she resides at the in-district address in addition to an affidavit of his sister-in-law to the same effect, and a deed and other documentation to prove that her sister-in-law owns the in-district address. As proof of her residency, petitioner also submits her voter registration card, driver’s license, and one of her W-2 forms listing the in-district address. She also submits mail, medical bills, and bank and credit card statements addressed to her at the in-district address.

Respondent claims that petitioner has failed to carry her burden of establishing that she is a district resident.

Respondent maintains that petitioner resides at Matthew’s father’s out-of-district address and does not live or intend to live at her brother and/or sister-in-law’s in-district address.

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 §3202is 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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On the other hand, petitioner submits affidavits from her brother and her sister-in-law averring that petitioner and Matthew reside with them at the in-district residence rent-free and may do so for as long as necessary. In support of her claim that she resides at the in-district residence, petitioner has submitted documentary evidence, including her driver’s license, voter registration card, aW-2 form and various bills and bank statements containing the in-district address, plus a letter from the parish secretary of St. Theresa church in respondent’s district welcoming her to the parish. She has also produced a deed and other documentation establishing that her sister-in-law is the owner of the in-district residence. She has also produced two affidavits, one from her brother and one from her sister-in-law attesting that she resides in the in-district residence. Petitioner also argues that Matthew’s alleged statements have been “misconstrued” and explains that she has frequently been present at Matthew’s father’s out-of-district residence because he is terminally ill and she assists in his care, and that her son frequently visited his father during this time period because he is terminally ill and is planning to leave for North Carolina in the near future.

Respondent relies primarily on limited surveillance evidence to rebut petitioner’s claim of residency. The surveillance evidence consists of a summary document that asserts that surveillances were conducted over 11 days. However, respondent has only submitted investigators ‘reports for 9 of the 11 days. Of those nine surveillances, at least five were inconclusive. Two were surveillances of the sites of the bakeries at which respondent believed petitioner was working and a third observed petitioner pickup children at the bus stop, go to the in-district address and then drive with her son to the bakery. Another surveillance observed a white Acura sedan, not linked by evidence to petitioner, drop off an unidentified child in the morning at the in-district address and the other observed no vehicles at the out-of-district address at 5:30

a.m. and then observed petitioner’s car arriving at the bus stop to drop off her son. One of the remaining four surveillances observed petitioner picking her son up at the bus stop, travelling to the in-district address and then travelling to the out-of-district address. In the other three surveillances, petitioner is observed leaving with her son, or a boy presumed to be her son, from the out-of district residence to the bus stop. However, in all three cases, petitioner is observed arriving at the in-district residence at approximately 6 a.m. from an unknown location, before taking her son to the school bus. Respondent offers no other evidence establishing that petitioner is regularly physically present at the out-of-district residence. In fact, two surveillances of the out-of-district residence did not observe petitioner’s vehicle present.

Petitioner in her affidavit explains her frequent presence at the out-of-district residence as attributable to her care of her son’s father, who is terminally ill. She also explains that she works irregular hours at the bakery and may be called into work at all hours of the day and night.

On this record, I find respondent’s surveillance evidence is not sufficient to overcome the evidence of residence provided by petitioner. Petitioner has provided a plausible explanation of her presence and that of her son at the out-of-district on the occasions petitioner and her son were observed leaving or travelling to the out-of district residence. Respondent has provided no evidence to rebut that explanation other than its surveillance evidence. Petitioner has provided evidence that she resides at the in-district address and respondent’s surveillance evidence is too equivocal to support a determination that petitioner and her son actually reside at the out-of-district address. Therefore, I find that respondent’s determination that petitioner is not a district resident was arbitrary and capricious and must be set aside.

To the extent petitioner requests attorney’s fees and costs these requests must be dismissed on jurisdictional grounds. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48id. 332, Decision No. 15,875).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Briarcliff Manor Union Free School District admit Matthew Galiano to its schools without the payment of tuition.

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