Decision No. 14,607

(July 20, 2001)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that her daughter, Patricia, is not a district resident and therefore may not attend the public schools of the district without the payment of tuition. The appeal must be sustained.

Petitioner asserts that she resided with her husband and daughter in respondent's district at 68 Mount Avenue, Freeport, until February 18, 2001, when she and Mr. Arias separated. She contends that she and Patricia then moved to 40 East Seaman Avenue, Freeport, in respondent's district, and Mr. Arias moved to 137 Warner Avenue, Hempstead, outside the district. Petitioner states that Mr. Arias, who happens to work at the district school his daughter attends, owns both Freeport properties and the house on Warner Avenue.

In February 2001, district residency officials became aware that Patricia had moved from Mount Avenue. A district community worker visited that address and was advised by someone there that the Arias family no longer lived there. The district then employed an investigator, Steve Trusnovec, who conducted surveillance at the Mount Avenue address on February 28, 2001 and at the Warner Avenue address in Hempstead on March 1 and 9, 2001. On February 28, Mr. Trusnovec did not observe the child leave the house at Warner Avenue although she was in school that day. On the two days in March, Mr. Trusnovec observed the child leave the Warner Avenue house. On March 9, he observed an adult male drive Patricia to school. The surveillance report indicates that Mr. Trusnovec also observed a vehicle in the driveway at Warner Avenue, which he states is registered to petitioner at that address.

Based on this information, respondent's attendance officer notified petitioner and her husband on March 12, 2001, that Patricia was no longer entitled to attend school in the district. After Mr. Arias requested a hearing, a hearing was held on March 28, 2001. On April 2, 2001, the hearing officer determined that Patricia was residing with her parents at Warner Avenue and should be excluded from the Freeport schools. Superintendent David Nydick accepted the hearing officer's recommendation and so notified petitioner and Mr. Arias on April 2. This appeal ensued. Petitioner's request for interim relief was granted on April 23, 2001.

Petitioner asserts that she and her daughter reside at 40 East Seaman Avenue in respondent's district and therefore Patricia is entitled to attend the schools of the district without the payment of tuition. She contends that she was not permitted to present documentary evidence of her residence at the March 28 hearing. Respondent asserts that Patricia resides at 137 Warner Avenue with both parents, and is thus ineligible to attend district schools.

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 to students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Smith, 39 Ed Dept Rep 67, Decision No. 14,175; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

After carefully reviewing the evidence presented by the parties, I find that the record does not support respondent's determination. In support of her position, petitioner submits a driver's license, issued March 20, 2001; electric bills with billing dates of February 22 and April 19, 2001; and an ADP earnings statement from Tracy Hamilton, Inc., for the pay period ending April 17, 2001. All of these list her address as 40 Seaman Avenue, Freeport. Respondent has not refuted the documentary evidence submitted by petitioner to support her claim. Nor has respondent submitted any documentary evidence indicating that petitioner's address is other than 40 East Seaman Avenue. Although Mr. Trusnovec asserts that the vehicle he observed at Warner Avenue is registered to petitioner at that address, respondent provides no documentary support for that assertion. Moreover, since petitioner and Mr. Arias are still legally married, and since Mr. Arias owns the Warner Avenue property, it is not unreasonable that petitioner's car could be registered at that address.

Nor is it unreasonable that petitioner and Patricia would be seen visiting there. Respondent places great weight on the surveillance report of the Mount Avenue and Warner Avenue addresses on three occasions between February 28 and March 1, 2001. Petitioner admits that she no longer resides at 40 Mount Avenue. Yet, Mr. Trusnovec never investigated whether petitioner had established a residence at East Seaman Avenue. Although respondent states in its answer that Mr. Trusnovec investigated both Freeport addresses as well as the Hempstead address, the surveillance report itself does not support the assertion that Mr. Trusnovec investigated petitioner"s claim to reside at 40 East Seaman Avenue.

At the hearing, Mrs. Arias testified that Patricia had been living "half and half" between her residence at East Seaman Avenue and Mr. Arias' at 137 Warner Avenue, Hempstead. Mr. Arias testified that he and petitioner had not told Patricia that they are separated because they did not want to upset her, and that they spend a lot of time together at the Hempstead address to give Patricia the appearance that they are still together. Although respondent correctly asserts that the hearing officer was in the best position to observe the credibility and demeanor of the witnesses, she did not make a specific finding regarding credibility. While it is possible that petitioner and Mr. Arias may not have been forthright with their daughter, their statements are not inconsistent with petitioner's claim of residency in respondent's district.

In sum, I find respondent's evidence insufficient to support its determination. Respondent's determination is largely based upon the results of the surveillance it conducted, which at most shows Patricia at the Hempstead address on two occasions and contains no information about the East Seaman Avenue address. Petitioner provides documentary evidence of residence at the East Seaman address and a reasonable explanation for Patricia's presence in Hempstead. Therefore, I find that the record does not support respondent's decision to deny Patricia admission to its schools. Accordingly, it must be set aside.

In light of this disposition, I need not address petitioner's claim that she was denied an opportunity to present documentary evidence at the hearing.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Freeport Union Free School District admit petitioner's daughter to the schools of the district without payment of tuition.

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