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Decision No. 17,744

Appeal of RICHARD and ALLISON KEATING, on behalf of their sons AEDAN and THOMAS, from action of the Board of Education of the Carmel Central School District regarding residency.

Decision No. 17,744

(August 27, 2019)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Steven M. Latino, Esq., of counsel.  

ELIA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Carmel Central School District (“respondent” or “board”) that their children, Aedan and Thomas (“the students”), are not district residents.  The appeal must be dismissed.

According to the record, the students were first enrolled in respondent’s schools in fall 2014.  Petitioners assert that the students have, since that time, resided with them at an address located within respondent’s school district (“the in-district address”).  In addition to the in-district address, the record reflects that petitioners own a property in Pawling, New York (“the out-of-district address”).

According to an affidavit provided by respondent’s assistant superintendent of business (“assistant superintendent”), on or about February 15, 2019, a board member reported to him that the students and petitioners resided at the out-of-district address.  The assistant superintendent conducted a residency investigation, which included surveillance of the in-district and out-of-district addresses on February 22, 26, 28, and March 5, 2019.  On each day of surveillance, investigators simultaneously observed both the in-district and out-of-district addresses in the early morning hours.  Each morning, petitioner R.K. was observed leaving the out-of-district address with one of the students, after which he dropped the student off at respondent’s high school.  The investigator also observed petitioner A.K., on multiple occasions, depart from the out-of-district address each morning in her vehicle, after which she proceeded to drop off the younger student at respondent’s middle school.  The investigators also learned, as part of their investigation, that the two vehicles petitioners were observed driving were registered to the out-of-district address.

In a letter dated March 8, 2019, the assistant superintendent questioned the students’ residency within the district and requested that petitioners provide documentation to demonstrate that their children resided within the district.  In response to this letter, petitioners submitted several documents bearing their names and the in-district address, including an oil bill dated February 12, 2019; an electricity bill dated through February 27, 2019; copies of the most recent school and tax bills; and a copy of the oldest student’s New York State driver’s license.

By letter dated March 19, 2019, the assistant superintendent notified petitioners of respondent’s determination that the students did not reside within the respondent’s district and were no longer entitled to attend its schools, effective April 18, 2019.  This appeal ensued.  Petitioners’ request for interim relief was granted on April 4, 2019.

Petitioners contend that the students’ primary residence is with them at the in-district address.  While they admit that the students “sleep over” at the out-of-district address, they argue that the students do so “less than 5 days per month.”  Petitioners further state that they operate a business out of the out-of-district address, and that petitioners often have the students spend time at the out-of-district address so that petitioners may supervise them.  Petitioners further assert that the respondent conducted an insufficient amount of surveillance, and that the limited surveillance does not accurately reflect the amount of time the students spend at the out-of-district address.  Petitioners seek a determination that the students are district residents entitled to attend respondent’s schools without payment of tuition.

Respondent asserts that petitioners failed to meet their burden of proof to demonstrate a clear legal right to the relief requested and that its determination was not arbitrary and capricious.

First, I must address a procedural matter.  Respondent contend that petitioner’s reply exceeds the permissible scope of a reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

For purposes of this statute, a person can only have one legal residence (Appeal of Fietta, 52 Ed Dept Rep, Decision No. 16,444; Appeal of O’Herron, 41 Ed Dept Rep 1, Decision No. 14,591).  While it is undisputed that petitioners own both the in-district and out-of-district addresses, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Based on the record before me, I cannot find that respondent’s determination was arbitrary or capricious.  On appeal, petitioners submit copies of the documentary evidence that they submitted to respondent below.  While this documentary evidence bearing petitioners’ name and the in-district address is entitled to some weight, it is not dispositive where contrary surveillance evidence exists (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636)

Respondent primarily based its determination on its surveillance evidence, which consistently depicted petitioners leaving the out-of-district address with the students in the early morning hours, after which the students were driven to school.  This surveillance occurred on four separate occasions over a three-week period.  Petitioners and the students were not observed at the in-district address on any of the days of surveillance.  In addition to its surveillance evidence, respondent also relied upon the fact that the vehicles driven by petitioners are both registered to the out-of-district address.

In response to the surveillance evidence, petitioners admit that the students occasionally “sleep over” at the out-of-district address, thus suggesting that respondent’s surveillance coincidentally occurred on four such occasions.  While petitioners’ explanation is possible, it is not probable.  Respondent picked four, non-consecutive days over a three-week period to conduct surveillance; it is statistically unlikely that each of these days happened to be one of the five days (or less) per month in which petitioners claim to stay overnight at the out-of-district address.

Petitioners also contend that the students stay with them at the out-of-district address at unspecified times  so that petitioners may supervise them while they operate a business at the out-of-district address.  However, according to the record, petitioners’ business is an insurance/brokerage company that, presumably, operates during normal business hours.  While petitioners’ explanation might explain the students’ presence during the afternoon hours, respondent’s surveillance evidence depicted petitioners driving the students from the out-of-district address in the early morning to school.  Petitioners do not assert that the nature of the insurance/brokerage business required late night, or overnight, operation.  Thus, on this record, I cannot find that petitioners have sufficiently explained the students’ presence at the out-of-district address.

While respondent’s evidence was not overwhelming, I cannot conclude on this record that its determination was arbitrary or capricious.  Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any new information or documentation for respondent’s consideration.