Decision No. 13,670

(August 29, 1996)

Robert H. Lawler, Esq., attorney for petitioner

O'Hara and O'Connell, P.C., attorneys for respondent, Dennis G.

O'Hara, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal a determination by the Board of Education of the Liverpool Central School District ("respondent") that their daughters do not reside in the district and, therefore, are not entitled to attend the public schools there tuition free. The appeal must be dismissed.

Petitioner Ahmed Khatib resides at 105 Elliott Street, Syracuse, New York within the Syracuse City School District.

In September of 1995, petitioners registered their children, Christina and Crystal Khatib, for school in respondent's district, indicating that they resided with their mother, Colletta, at 112 Mercury Circle, Liverpool, New York. At the time of registration, petitioners did not complete the custodial and parental affidavits which respondent typically uses in making its residency determinations. Instead, petitioners provided the first page of a multi-page lease under which Ahmed Khatib allegedly leased 112 Mercury Circle.

In October 1995, respondent's coordinator of instructional support received information indicating that petitioners' children did not, in fact, reside at the Mercury Circle address. Neighbors of the 112 Mercury Circle address informed the coordinator that they had observed the children being transported in a car and dropped off at the neighborhood school bus stop in the mornings and then picked up in the afternoon at the same location by their parents. One neighbor also purportedly indicated on one occasion that petitioners' children stated that they did not live in the house on 112 Mercury Circle.

Acting on this information, the coordinator ordered an investigation by the district's truant officer. The truant officer's report indicates that, on November 8, 1995, he saw the children leave the Syracuse residence at 6:00 a.m., get into a van at that address driven by a women and drive to the bus stop for Mercury Circle where they boarded the Liverpool school bus.

By letter dated November 27, 1995, respondent's coordinator of instructional support notified petitioner that, based on this information, he had determined petitioners' children did not reside in the Liverpool School District and that, effective December 5, 1995, the children could no longer attend school in the district. The letter set forth the basis for that determination and informed petitioner that he could appeal the determination to the Commissioner of Education pursuant to Education Law '310.

Simultaneously, the coordinator contacted petitioners and invited them to meet with him at his office to discuss the residency issue and present any documentation they had which supported their residency claim. On December 7, 1995, petitioners met with the coordinator. Except for the previously submitted page of their lease for the house on Mercury Circle, which was unsigned, petitioners offered no other proof of residency.

Subsequently, respondent's attorney notified petitioners by letters dated December 18 and 20, 1995 that, pursuant to 8 NYCRR '100.2(y), respondent would afford petitioners the opportunity for a hearing to present information concerning their children's residency. Petitioners were instructed to call to schedule a hearing at a time convenient for them. Petitioners did not respond to the attorney's letters, but initiated this appeal on December 30, 1995.

Petitioners challenge respondent's determination alleging that Colletta Khatib resides in respondent's school district with her children at 112 Mercury Circle and, therefore, the children are entitled to attend school in the district without payment of tuition. Petitioners claim that, since respondent's determination, they have legally separated pursuant to a December 1995 separation agreement. They admit that Colletta and the children stayed at the Syracuse address in the past but allege that the arrangement was necessary because Colletta was, at that time, employed part-time in the evenings in Syracuse. They further assert that she is no longer employed there. In support of their claim that Colletta resides in respondent's district, petitioners submit a gas and electric bill dated March 1996 addressed to Colletta Khatib at 112 Mercury Circle.

Respondent contends that the appeal is untimely and must be dismissed on that basis. On the merits, respondent claims that its determination that petitioners' children do not reside in its district was rational based on the record before it and that petitioners have not provided a basis for me to overturn that determination in this appeal.

I will first address respondent's procedural defense. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be initiated within 30 days of the decision sought to be reviewed. Respondent contends that the 30 day time period commenced to run on November 27, 1995 - the date of the letter notifying petitioners of the coordinator of instructional support's determination that their children did not reside in the district, the basis for that determination and their right to appeal pursuant to Education Law '310. However, I note that, at that time petitioners had not been given an opportunity to present information concerning their children's residence as required by 8 NYCRR '100.2(y). Such opportunity was not afforded until at least December 7, 1995 when they met with the coordinator. Because respondent did not comply fully with the requirements of 8 NYCRR '100.2(y) until December 7, 1995, it is disingenuous for respondent to argue that the thirty day period within which to commence an appeal commenced to run prior to that date. Petitioners served their petition on December 30, 1995 - within 30 days of the December 7 meeting - and the appeal is, therefore, timely. Moreover, respondent is admonished to ensure that, where residency issues are raised, individuals are given an opportunity to present information prior to notification of a final determination, appealable pursuant to Education Law '310, in accordance with 8 NYCRR '100.2(y).

I will now address the merits of petitioners' appeal. Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of West, 36 Ed Dept Rep ___, Decision No. 13662, dated August 26, 1996; Appeal of Curtin, 27 id. 446). Where a child's parents live apart, there can be only one legal residence (Appeal of Forde, 29 Ed Dept Rep 359). However, parental assertions of residency are not enough. Regardless of parental intent, the children's actual physical presence in a particular school district is required (Appeal of Doyle-Speicher-Maldonato, 35 Ed Dept Rep 110). In dismissing Appeal of Varghere (34 Ed Dept Rep 455), former Commissioner Sobol held that petitioner had never resided with respondent's school district, despite establishing an intent to do so. Further, the mere leasing of an apartment in one school district does not confer residency status where the petitioner actually resided in another district (Appeal of Tadesse, 31 Ed Dept Rep 426).

The record before respondent and in this appeal does not establish that petitioners' children reside in respondent's school district. Except for the first page of a lease agreement, petitioners provided respondent with no documentation or other evidence to establish that Colletta or their children resided in respondent's district. There is no evidence that a valid signed lease agreement exists. Moreover, petitioners ignored two additional requests to provide respondent with more information on the issue of their children's residence.

Against this dearth of information, respondent received other information which indicated that petitioners' children were not, in fact, residents of the district. Respondent's coordinator of instructional support received reports from neighbors of the 112 Mercury Circle residence that petitioners' children were being dropped off at a neighborhood bus stop by their parents nearly every morning and picked up at the same location in the evening by their parents. The investigation by respondent's truancy officer indicated that on November 8, 1995 petitioners' children were transported from 105 Elliott Street, Syracuse, New York, to the bus stop at the Mercury Circle address. With no evidence to the contrary submitted by petitioners, respondent acted on the evidence before it and concluded that petitioners' children did not reside in its district.

In this appeal petitioner offers no information to contravene respondent's decision. In an appeal to the Commissioner of Education, petitioner has the burden of proof (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Haff, 35 id. 130). Although petitioners indicate that they could obtain neighbors' affidavits that Colletta and the children reside at 112 Mercury Circle, they have failed to submit such affidavits. Similarly, despite their allegation that they have entered into a legal separation agreement, petitioners failed to submit such document to establish that factual allegation. Finally, the gas and electric bill submitted by petitioners in Colletta's name at 112 Mercury Circle is for March 1996. Respondent submits copies of records it obtained from the gas and electric company indicating that the account was not opened until January 15, 1996 after this appeal had been filed.

In sum, petitioners have failed to establish that respondent's determination was arbitrary and capricious or unreasonable based on the record before it. Petitioners have likewise failed to provide sufficient evidence in the appeal to justify the substitution of my judgment for that of respondent. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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