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Decision No. 16,946

Appeal of IMELDA BURGESS, on behalf of her children LAUREN and JOSHUA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,946

(August 11, 2016)

Ingerman Smith L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Uniondale Union Free School District (“respondent”) that her children, Lauren and Joshua, are not district residents.  The appeal must be dismissed.

The record indicates that petitioner owns a residence within respondent’s district (“in-district residence”) and that her husband, from whom she is separated, resides outside respondent’s district (“out-of-district residence”).  Petitioner’s children attended respondent’s schools during the 2015-2016 school year, during which the district received information that petitioner and her children were actually residing at the out-of-district residence.

Thereafter, respondent performed surveillance at the in-district residence on the mornings of November 10, 13 and 17, 2015 and January 8, 2016.  Petitioner and her children were never observed exiting the in-district residence on any of the surveillance mornings.  On January 21, 2016, petitioner’s children were observed being picked up from school and driven to the out-of-district residence.  Respondent also conducted surveillance at the out-of-district residence on the mornings of February 2, 3, 22, 23, 25, 27 and 29, 2016.  On each such morning, petitioner’s children were observed exiting the out-of-district residence.  Additionally, on the afternoon of February 24, 2016, petitioner’s children were observed returning to the out-of-district residence after being picked up from school.

By letter dated March 8, 2016, respondent’s administrative assistant for central registration (“assistant”) and superintendent informed petitioner that her children were not residents of the district and would be excluded from respondent’s schools after March 8, 2016.  The letter included information regarding petitioner’s right to appeal the determination to the assistant and to the Commissioner of Education pursuant to Education Law §310.

Petitioner appealed the determination to the assistant and a residency review hearing was held on March 10, 2016.  According to respondent, petitioner presented her driver’s license at the hearing, which listed the out-of-district address, and explained that she and her husband are separated and that the children sleep at both the in-district and out-of-district residences depending on petitioner’s and her husband’s work schedules.

It is unclear whether petitioner received a final determination from respondent regarding her residency prior to initiating this appeal.  Nevertheless, by service of a notice of petition and petition on July 17, 2016 this appeal ensued.  By letter dated April 1, 2016, respondent’s attorney submitted a statement from the assistant that he had informed petitioner that:

the District is withdrawing its previous residency exclusion determination dated March 8, 2016.  As such, the District is not opposing Petitioner’s request for interim relief herein in the form of a stay order and has already advised Petitioner that both Lauren and Joshua Burgess may continue their education within [the district] for the remainder of the ... 2015-2016 school year.

Accordingly, petitioner’s request for interim relief was deemed moot.

By letter dated July 14, 2016 from my Office of Counsel, respondent was directed to submit information clarifying the intent of the withdrawal of the March 8, 2016 residency determination.  By letter dated July 21, 2016, respondent submitted an affidavit from the assistant confirming that the previous residency determination had been withdrawn, that the students had been permitted to attend respondent’s schools for the remainder of the 2015-2016 school year, and that, based on his conversations with petitioner, she:

is expected to come to the District in early August to provide new, additional and/or updated registration information in support of the students’ continued attendance in the District for the 2016-2017 school year.  Accordingly, the District will evaluate the newly submitted information and make a new residency determination.

The assistant also avers that:

[i]n the event the Petitioner does not submit new, additional and/or updated information, the District will make a new residency determination for the students’ continued attendance in the District for the 2016-2017 school year based upon the previously submitted information.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  In this case, since the record indicates that respondent has withdrawn its March 8, 2016 residency determination, the appeal is academic and must be dismissed (see Appeal of Elkoulily, 44 Ed Dept Rep 459, Decision No. 15,231).

In light of the fact that the record indicates that respondent will make a new residency determination regarding petitioner’s children for the 2016-2017 school year, I note that, if petitioner wishes to challenge such determination, she may appeal such determination in accordance with Education Law §310.