Appeal of ETHAN HANNAH-ALBON, on behalf of his children ETHAN, CLARA, JACOB, KYLE, ANDREW, and CHRISTIAN, from action of the Board of Education of the City School District of the City of North Tonawanda regarding residency.

Decision No. 17,699

(July 17, 2019)

Harris Beach, PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of North Tonawanda (“respondent”) that his children, Ethan, Clara, Jacob, Kyle, Andrew, and Christian (“the students”)[1] are not district residents.  The appeal must be dismissed.

According to the record, petitioner owns and resides at an address within respondent's district (“the in-district address”).  The record reflects that the students’ mother lives in a separate residence with an address outside of respondent’s district (“the out-of-district address”).

According to respondent, during the fall of 2018, it became aware that the students may no longer reside at the in-district address.  By letter dated October 24, 2018, respondent’s residency officer (“officer”) informed petitioner that the district had learned that the students were no longer district residents.  As such, the officer requested that petitioner (or the students’ mother) provide a current lease or mortgage statement and a current utility bill to demonstrate that the students were still district residents.  Nothing was submitted in response.  The officer sent similar letters on March 1, 2019, and March 19, 2019, but received no response.  In the letter dated March 19, 2019, the officer noted that “we have been informed that you are now residing [outside of the district] and based upon your failure to submit any documentation or information which demonstrates that [the students] are residents of the District, a final determination will be delivered ... if no effort is made ... to validate that you are a [district] resident.”

Respondent conducted surveillance of the out-of-district address on April 5, 9, 11, and 12, 2019, and May 3, 6, 8, 14, and 16, 2019.  As a result of the surveillance, respondent’s investigator obtained video of some of the students leaving the out-of-district address in the morning with their mother, who would drive the students to their school building or to the in-district address, at which they would catch their bus.

By letter dated May 9, 2019, the officer advised petitioner that, because no documentation was submitted to show that the students were legal residents of the district, respondent had made “a final determination ... that [the students] are not entitled to attend the public or placement schools of the District due to the fact that they are not residents of the District.”  The officer stated that the “Specific basis” for the determination was that respondent’s investigation revealed that the students reside at the out-of-district address, as they “are being driven to ... school or ... to [the in-district address] where they then catch the bus,” and because respondent received a release of educational records from the Department of Social Services that was filled out by the students’ mother and listed the out-of-district address.  The letter further indicated that the students were to be excluded from the district effective May 24, 2019.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 29, 2019.

Petitioner contends that he and the students reside at the in-district address.  In support of his claim, petitioner submits a water bill bearing the in-district address.

Respondent contends that the petition must be dismissed because it was not properly served and because the petition does not include a demand for relief.  Respondent further contends that petitioner’s claims must be dismissed as moot because the sole relief requested by petitioner is a request for a stay, which has been granted.  Respondent also contends that its determination was supported by the evidence and was neither arbitrary nor capricious.  Respondent contends that its investigation and the surveillance evidence demonstrate that the students do not reside at the in-district address.  Respondent further asserts that statements it received from petitioner, the students, and caseworkers familiar with petitioner’s family all indicate that the students reside outside of the district — either at the out-of-district address or at one of two other residences which are owned by relatives of the students, both of which are also outside of the district - for the majority of each week.

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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  Petitioner’s affidavit of service, sworn to on May 20, 2019, is defective in that it does not indicate the person to whom the petition was delivered.  According to an affidavit from a secretary of respondent’s executive director of educational services, on May 20, 2019, an unidentified male handed her a set of documents that included the petition in this matter.  Respondent asserts in its answer, and the secretary avers in her affidavit, that she is not authorized by the board of education to accept service.  Indeed, a secretary is not one of the individuals set forth in §275.8(a) of the Commissioner’s regulations upon whom service on a board of education may properly be effected.  Petitioner submits no reply or other evidence to refute respondent’s claim that the secretary was not authorized to accept service.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper, and the appeal must be dismissed (Appeal of N.A., 57 Ed Dept Rep, Decision No. 17,162; Appeal of C.C., 53 id., Decision No 16,526; Appeal of Willis, 50 id., Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117).  Thus, on this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.  Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on the students’ behalf at any time, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE