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Decision No. 17,079

Appeal of DONNA A. and FREDERICK A. MILEY, JR., on behalf of their sons NATHAN and NICHOLAS, from action of the Board of Education of the West Seneca Central School District regarding residency.

Decision No. 17,079

(April 20, 2017)

Harris Beach, PLLC, attorneys for respondent, Shannon K. Buffum, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the West Seneca Central School District (“respondent board”) that their children are not residents of the district.  The appeal must be dismissed.

The record indicates that petitioners’ children have been enrolled in respondent’s schools since September 2011.  At the time of enrollment, petitioners indicated that Nicholas and Nathan (“the students”) lived at an address in Buffalo, New York (“in-district address”).  During the 2016-2017 school year, the district conducted an investigation into the residency of the students based on a report from the school bus driver that they may not reside at the in-district address.  The investigation included surveillance of both the in-district address as well as a different address in Buffalo, New York (“out-of-district address”), which is located across the street from the in-district address, but outside of the district’s geographic boundaries.  The district conducted surveillance over three school days in October, from October 19, 2016 to October 27, 2016, as well as an additional four days several weeks later, from December 5, 2016 to December 8, 2016.  On the three days of surveillance in October, the students were observed leaving the out-of-district address in the morning and crossing the street to wait for the bus in front of the in-district address.[1]  Additionally, on the four days of surveillance in December, the students were observed leaving of the out-of-district address and crossing the street to wait for the bus in front of the in-district address.

By letter dated January 10, 2017, the director advised petitioners of his determination that the students were not residents of the district.  The letter stated that this determination was based on two separate residency investigations and that the students would be excluded from respondent’s schools effective Friday, January 27, 2017.  This letter invited petitioners to provide information to the district no later than January 24, 2017.  In a letter dated January 27, 2017, the director indicated that he had received no information from petitioners and that the students would be excluded from school effective Friday, February 3, 2017.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 15, 2017.

Petitioners contend that the students reside with their mother at the in-district address and that they spend one to two nights each week at the out-of-district address with their father.  Petitioners submit notarized statements from themselves as well as the students’ grandmother as proof of their residency at the in-district address.  In addition, petitioner Donna Miley submits her driver’s license and a W-2 form from 2016, both of which identify her address as the in-district address.  Petitioners request a determination that the students are residents of respondent’s district and entitled to attend its schools tuition-free.

Respondent contends that the petition must be dismissed due to improper service and that petitioners have otherwise failed to establish a clear legal right to the relief requested.  Respondent asserts that the surveillance and anecdotal reports from district staff support its determination that the students are not district residents and, therefore, its determination was neither arbitrary nor capricious.

I must first address the procedural issues.  Sections 275.5 and 275.6 of the Commissioner's regulations require that all pleadings in an appeal to the Commissioner be verified and that an affidavit of verification be attached thereto.  Petitioners’ reply is not verified as required by §§275.5 and 275.6 and I have therefore not considered it (see Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of a Student With a Disability, 46 id. 102, Decision No. 15,454; Appeal of Principio, 39 id. 11, Decision No. 14,157).

The appeal must be dismissed for failure to effectuate personal 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 indicates that the petition was served on “Rebecca Hacic, clerk” on February 7, 2017, at 675 Potters Street.  Respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR §275.8[a]) and submits an affidavit from the director which states that Ms. Hacic, the district’s special education clerk, has not been designated to accept service of process.  In essence, the director asserts that, on the afternoon of February 7, 2017, Ms. Hacic was given an envelope by an unknown individual who stated that he was dropping something off for the director.  The director indicates that Ms. Hacic was not made aware of the substance of the documents or that they were being presented for legal service of process.  A special education clerk is not one of the individuals authorized by §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be properly effected.  Indeed, respondent denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]) and submits an affidavit from the director stating that Ms. Hacic is not authorized to accept service.  Consequently, because service is defective, jurisdiction over respondent is lacking and the appeal must be dismissed (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

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

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission on the students’ behalf at any time and to submit any documentary evidence for respondent’s consideration.




[1] I note that petitioners allege, and respondent admits, that sometime in October 2016 the district’s director of pupil personnel services (“director”) informed petitioner Donna Miley that there was a “potential residency issue,” and that if she provided a notarized statement as to where the students “spen[t] the majority of their nights,” the district would consider the matter closed. The record indicates that petitioners complied with this request.