Appeal of CATHY BELL, on behalf of ROBERT, IAN, CHRISTOPHER, and MEGAN, from action of the Board of Education of the Smithtown Central School District regarding residency.

Decision No. 14,748

(June 26, 2002)

 

Peter G. Albert, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Smithtown Central School District ("respondent") that petitioner’s children are not district residents and may not attend its schools tuition-free. The appeal must be dismissed.

On or about August 31, 2001, petitioner attempted to enroll her four children in respondent’s schools. Petitioner claimed to reside at an address on Lake Avenue, within respondent’s district. Petitioner was advised by respondent’s attendance supervisor that she needed to supply proof of residency to register her children. Petitioner returned to the district office on three occasions between September 1 and October 19, 2001 and supplied an electric bill, a telephone bill and a lease agreement between petitioner and one "Mary Henao," all reflecting the Lake Avenue address. However, neither the electric nor telephone bill was in petitioner’s name, but rather reflected a customer surname of "Henao." On October 19, respondent’s attendance supervisor visited the alleged residence. Although neither petitioner nor her children were present, the supervisor spoke to Mrs. Henao’s daughter, who stated that she believed that petitioner and her children had moved into an apartment at the address in late September or early October. By letter dated October 23, 2001, respondent’s attendance supervisor informed petitioner that her children would be allowed to enroll in the district. Petitioner registered her children for school on October 23, 2001.

On or about December 4, 2001, respondent’s attendance supervisor again visited the Lake Avenue address and spoke with Mrs. Henao, who confirmed that petitioner and her children lived in an upstairs apartment. However, the attendance supervisor also spoke to a tenant in a first floor apartment who indicated that he had been living at that location for almost five years and did not know petitioner.

On January 3, 2002, after learning that petitioner’s son, Ian, was absent from school, respondent’s attendance supervisor again visited the Lake Avenue address and spoke to Mr. Henao, who indicated that he did not know where petitioner and her children were. After receiving additional information on February 7, 2002 that petitioner and her children did not live at the Lake Avenue address, respondent’s attendance supervisor notified petitioner by letter dated February 13, 2002, that she and her children were not district residents and requested that petitioner provide proof of residency. The letter was sent to petitioner at both the Lake Avenue address and petitioner’s last known address outside of respondent’s district. The letter sent to the Lake Avenue address was subsequently returned to the district as undeliverable.

Respondent’s attendance supervisor visited the Lake Avenue address again on February 13, 2002 and was advised by Ms. Henao’s daughter that the Bell family was "not there." On February 22, 2002, she visited the address and spoke to Mr. Henao, who advised her that the Bell family did not live at that address.

By letter dated February 28, 2002, respondent’s attendance supervisor informed petitioner that her children would not be permitted to attend school in the district as of March 11, 2002 because petitioner did not live in the district. This appeal ensued. Petitioner’s request for interim relief was granted on March 19, 2002.

Petitioner alleges that she and her children reside at the Lake Avenue address but does not submit any documentation to substantiate her claim. Although petitioner’s claim for relief is somewhat unclear, she apparently seeks a determination that her children are district residents and therefore entitled to attend school in respondent’s district tuition-free. Respondent asserts that the petition should be dismissed because petitioner has failed to establish residency in the district. Respondent submits proof in support of its position, including a signed statement from Mr. Henao stating that petitioner and her children never lived at the Lake Avenue address. Respondent also alleges that petitioner failed to exhaust her administrative remedies because she did not provide respondent with any proof in response to its request for documentation of her residency status.

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 Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Residency, 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 Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Smith, 39 id. 28, Decision No. 14,163; Appeal of Dimbo, supra).

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of S.H., 40 Ed Dept Rep ___, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164). The only proof submitted by petitioner to support her claim that she resides at the Lake Avenue address is a month-to-month lease agreement dated September 1, 2001 which does not specify the lease’s commencement date. Because neither of the utility bills submitted by petitioner reflect petitioner’s name, they do not constitute proof that she resides at the Lake Avenue address. In contrast, respondent has submitted considerable evidence suggesting that petitioner does not, in fact, reside at the Lake Avenue address. That evidence includes: proof that letters sent to petitioner at that address have been returned to the district as undeliverable; a written statement from Mr. Henao stating that although petitioner asked his wife to sign a lease agreement, petitioner and her children did not, in fact, move into the Lake Avenue address. In addition, respondent’s attendance supervisor details numerous visits to the Lake Avenue address between October 19, 2001 and April 8, 2002, where she found neither petitioner nor her children present.

Further, despite respondent's invitation to submit further proof, in compliance with 8 NYCRR §100.2(y), petitioner failed to submit any evidence to support her claim that she lives within the district. I disagree with respondent's assertion that failure to submit such documentary proof amounts to a failure to exhaust administrative remedies. Rather, failure to submit proof constitutes a failure to establish residency in accordance with the administrative procedures in §100.2(y)(Appeal of Bell, 41 Ed Dept Rep , Decision No. 14,625).

Based on the record before me, I find that petitioner has failed to establish that she and her children are district residents. Accordingly, I find respondent's determination that petitioner and her children are not district residents to be neither arbitrary, capricious nor unreasonable. Respondent's determination will not be set aside (Appeal of Smith, supra).

THE APPEAL IS DISMISSED.

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