Appeal of JEFFREY RICHARDSON, SR., on behalf of his children JEFFREY and TIA RICHARDSON and SHANA MOSES, from action of the Board of Education of the Williamsville Central School District regarding residency.

 

Decision No. 14,728

(May 20, 2002)

 

Norton, Radin, Hoover, Freedman, attorneys for respondent, Bernard B. Freedman, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District ("respondent") that his children, Jeffrey, Tia and Shana, are not district residents. The appeal must be dismissed.

Petitioner alleges that he, his wife and their three school-age children reside within respondent"s district. The children were admitted into respondent"s schools in September 1999 and attended such schools during the 1999-2000 and 2000-2001 school years.

In the spring of 2001, the district arranged for an investigation after respondent"s Coordinator of Student Services ("Coordinator") suspected that petitioner"s children resided outside the district. By letter dated July 3, 2001, the Coordinator notified petitioner that, based on the investigation, the district had determined that petitioner"s children were not district residents. The letter invited petitioner to contact the Coordinator by July 14, 2001 to review the district"s evidence and submit any information or documentation that might refute the district"s findings. The Coordinator"s letter further informed petitioner that absent such evidence, his children would be excluded from attending respondent"s schools effective July 15, 2001.

Petitioner failed to submit any evidence and by letter dated August 29, 2001, the Coordinator notified petitioner that his children would be excluded from respondent"s schools effective September 5, 2001. This appeal ensued. Petitioner"s request for interim relief was denied on October 2, 2001.

As proof of his alleged residence within the district, petitioner provides copies of the following documents: a New York State marriage certificate (this certificate indicates that, at the time of their marriage, petitioner"s address was outside of respondent"s district and his wife"s address was within it); a New York State vehicle registration card and a temporary automobile insurance card issued to petitioner"s wife; an envelope from a bank addressed to petitioner and his wife; a letter from a district employee to petitioner; a personal check from the bank account of petitioner and his wife; and petitioner"s driver"s license. All of these documents contain the address within respondent"s district at which petitioner alleges he and his family reside. Additionally, petitioner includes a copy of a family day care registration certificate issued to his wife by the New York State Office of Children and Family Services (OCFS). This registration authorizes petitioner"s wife to operate a "family day care home" at an address located outside the district. Petitioner offers this document as evidence that his wife"s business, but not the family"s residence, is located outside respondent"s district.

Respondent asserts that petitioner has failed to exhaust his administrative remedies; that the petition is untimely; and that respondent has provided factual evidence sufficient to meet its burden of proving that petitioner"s children do not reside within the district.

Initially, I reject respondent"s assertion that petitioner"s failure to submit the requested documentary proof amounts to a failure to exhaust administrative remedies (Appeal of Bell, 41 Ed Dept Rep ____, Decision No. 14,625). I also reject respondent"s contention that the appeal is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of a decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent asserts that the Coordinator"s July 3 letter, which informed petitioner that his children would be excluded from the district"s schools effective July 15, 2001, absent contrary proof of residence presented by petitioner, serves as respondent"s final determination. However, the Coordinator sent a second letter, dated August 29, 2001, to petitioner as follows: "This letter is to inform you that since you have not responded to our requests regarding required residency information, your children will be excluded from attendance...effective September 5, 2001... A decision to exclude [your children from district schools] may be appealed to the Commissioner of Education within 30 days of such exclusion." Thus I find that this letter, and not the letter of July 3, serves as respondent"s final determination. Accordingly, I find that the appeal was timely commenced on September 24, 2001.

The appeal must, however, be dismissed on 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 Malek, 41 Ed Dept Rep ___, Decision No. 14,697; Appeal of Hardick, 41 id. ___, Decision No. 14,693; Appeal of Teixeira-Nissensohn, 41 id. ___, Decision No. 14,692). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Malek, supra; Appeal of Boyd, 41 Ed Dept Rep ___, Decision No. 14,682). A student"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Malek, supra; Appeal of Boyd, supra).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Boyd, supra; Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618). After reviewing the record presented herein, I do not find respondent"s determination that petitioner and his children are not district residents to be arbitrary, capricious or unreasonable.

In an attempt to determine the actual residency of petitioner and his children, respondent"s Coordinator engaged the services of a private investigative company. The investigator"s report is appended to an affidavit submitted by the Coordinator. In addition to the eyewitness surveillance conducted by the investigators, their investigation also revealed that people other than petitioner or his wife own the residence located within respondent"s district. Further, petitioner (together with another person) is the listed property owner of the out-of-district residence.

In its summary of findings, the investigative company reported as follows: "Random surveillances were conducted on the above-referenced Subjects [i.e., petitioner"s children] from April 27, 2001 through May 24, 2001 (eight days over the course of five weeks) in order to determine the students" residency within the Williamsville Central School District. An investigation and observations of the Subjects revealed that the Subjects were never observed at their alleged residence...[within the district]. Investigative research revealed that the Subjects" parents actually reside...in Buffalo, New York. The address is located outside...[respondent"s] School District. It is, therefore, the opinion of this agency that the reason for the Subjects citing their address...[i.e., within the district] as their residence is to attend a school within...[respondent"s] School District."

It was also discovered that petitioner had filed a business certificate with the Erie County Clerk"s Office on February 9, 2001, indicating that his address is outside respondent"s district. On this notarized document, petitioner certified that he resides at a Buffalo address, outside respondent"s district.

While not a part of the evidence considered by respondent in rendering its determination that petitioner"s children are not district residents, I find persuasive two additional factors. First, respondent submits an affidavit from a law clerk employed by the law firm that represents respondent. The law clerk attests that on October 3, 2001, he conducted a search of area telephone books to find a listing for petitioner. His search revealed that from 1999-2002 there were no listings for petitioner at the address within respondent"s district at which he allegedly resides. However, in the 1999-2000, 2000-2001 and 2001-2002 telephone books, the clerk discovered listings for petitioner at a Buffalo address, outside of the district.

Second, petitioner included with his petition a copy of a family day care registration certificate issued to his wife by OCFS. This registration authorizes petitioner"s wife to operate a "family day care home" at a Buffalo address. Petitioner offers this document as evidence that his wife"s business, but not the family"s residence, is located outside respondent"s district. I note, however, that Social Services Law "390(1)(e) defines "family day care home" to mean "a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children..." (emphasis added). By definition, therefore, the child care provided by petitioner"s wife at the location outside the district, is being rendered "in a family home" " presumably, this is the family home in which she and her family reside.

Pursuant to "100.2(y) of the regulations of the Commissioner of Education, respondent offered petitioner an opportunity to submit information concerning his children"s right to attend school in the district. The record indicates that petitioner never responded to that invitation. Faced with the investigator"s report and the lack of any evidence to the contrary from petitioner, respondent made a determination that petitioner"s children were not district residents. I find that determination to be neither arbitrary nor capricious.

 

THE APPEAL IS DISMISSED.

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