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Decision No. 16,839

Appeal of WILDER and NIEVE MANRIQUE, on behalf of their children TYLER and KEORY, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 16,839

(October 26, 2015)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal a determination of the Board of Education of the Spackenkill Union Free School District (“respondent”) that their children, Tyler and Keory (“the students”), are not district residents and, therefore, are not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.  

Petitioners registered the students in respondent’s school district in August 2013.  At the time, petitioners indicated that the students formerly resided at an address in Poughkeepsie, New York (the “out-of-district address”) and attended school in the Poughkeepsie City School District; however, petitioners submitted a contract of sale for a house located within respondent’s school district as their proof of residency.  Although petitioners had not yet closed on the house, respondent allowed the students admission to its schools.  In September 2013, petitioners informed respondent that there was a delay in closing on their home.  In October 2013, petitioners submitted documentation including an affidavit from Marilyn Hankin (the “Hankin affidavit”), the owner of a house located in respondent’s district (the “in-district address”).  The Hankin affidavit stated that petitioners were leasing twenty percent of her home on a month-to-month basis.  In addition, petitioner Wilder Manrique submitted his own affidavit (the “Manrique affidavit”) indicating that in lieu of paying rent, his wife was “the caretaker of Mrs. Marilyn Hankin.”

Thereafter, respondent initiated a residency investigation which included surveillance of petitioners’ out-of-district address and the alleged in-district address.  According to respondent, on several occasions, petitioners’ cars were observed parked at the out-of-district address overnight and petitioners’ children were observed leaving the out-of-district address and being driven to school. In January 2014, respondent’s investigators observed that snow removal was not performed on the driveway and sidewalks of the in-district rental address nor was garbage placed outside of the house, making it appear as if the residence was unoccupied.

A residency hearing was held on February 6, 2014.  At that hearing, petitioners alleged that Wilder Manrique runs a business at the out-of-district address and that his family resides at the in-district address only fifty percent of the time and that they do not plan to reside there permanently.

By letter dated February 10, 2014, respondent’s residency officer notified petitioners that a final determination had been made that the students were not district residents and would be excluded from respondent’s schools effective February 21, 2014.  The letter was personally delivered to petitioners’ out-of-district address and a copy was mailed to the in-district address. This appeal ensued.  Petitioners’ request for interim relief was denied on March 6, 2014.

Petitioners claim that the out-of-district address is Mr. Manrique’s “place of business” and that they reside at an address within respondent’s district and therefore their children should be allowed to attend respondent’s schools.

Respondent argues that the appeal must be dismissed for improper service.  Respondent contends that petitioners and their children do not reside in its district but, instead, reside at the out-of-district address and that its residency determination was not arbitrary and capricious, but was in all respects proper. 

The appeal must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioners’ affidavit of service states that the petition was served on Thomas Kirschenheiter, who is an “employee” and a “6th 7th 8th grade teacher.” Respondent submits an affidavit from tis district clerk, who avers that Mr. Kirschenheiter is neither the district clerk, a member of the school board, or the superintendent of schools, nor has he been designated by the board to accept service of process under §275.8 of the Commissioner’s regulations.  Petitioner does not submit any evidence to the contrary. When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Because petitioner failed to serve a copy of the petition in accordance with 8 NYCRR §275.8, the appeal must be dismissed.

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, as follows:

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).

To support their claim of residency in the instant appeal, petitioners produced copies of several documents, including: the Hankin affidavit; a copy of Mr. Manrique’s New York State driver’s license; a letter from a local landscaper stating that petitioners reside at the in-district address and that he provides snow removal and landscaping services for that address as needed; and pictures of petitioners’ children sleeping in what is alleged to be the interior of the in-district address.   

Respondent submits an affidavit from Michele Moloney (the “Moloney affidavit”), its school business manager, who avers to the facts of the surveillance investigation and also states that she visited the in-district address on February 7, 2014 and the living quarters that petitioners allege to lease “appeared to be unlived in” and that “there were no personal items” in the living areas.  Furthermore, the Moloney affidavit alleges that she observed “no appliances for cooking, nor was there a table to eat at within petitioner’s alleged living quarters.”  

After reviewing the entirety of the record before me, I conclude that petitioners have not met their burden of proof and have failed to establish that their children reside in respondent’s school district.  Although petitioners submit a copy of Mr. Manrique’s driver’s license, the license lists the out-of-district address and appears to contain a hand-written address change listing the in-district address on the back of it.  In addition, petitioners’ photographs do not substantiate that they actually reside at the in-district address.

Moreover, although respondent presents a limited description of its surveillance evidence, petitioners fail to provide sufficient explanation for the surveillance evidence.  For example, although petitioner Wilder Manrique claims that he works late at his “place of business” and that, while, the children often visit in the afternoons, they do not sleep over at the out-of-district address.  However, he provides no explanation as to why the students were observed leaving the out-of-district address on multiple mornings during the course of respondent’s investigation.  Moreover, although petitioners claim that they sleep at the in-district residence “on [a] daily basis” and park their cars in the garage, they do not explain why their cars were observed overnight a the out-of-district address, other than their conclusory statement that petitioner Wilder Manrique is often forced to work late at that location.  Based on such inconsistencies and the totality of the evidence in the record, I find that petitioners have failed to carry their burden of proving their actual physical presence in respondent’s district (see Appeal of Powell, 47 Ed Dept Rep 98, Decision No. 15,639).

Accordingly, based on the record before me, I cannot conclude that respondent’s determination that the students are not district residents is arbitrary, capricious or unreasonable.

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

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