Appeal of NANCY ROSEN, on behalf of her sons GRIFFIN and SHEA, from action of the Board of Education of the Syosset Central School District regarding residency.

 

 

(August 15, 2003)

 

Law Offices of Vanessa M. Sheehan, attorneys for respondent, Randy Glasser, Esq., of counsel

 

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Syosset Central School District ("respondent") that her sons are not district residents.  The appeal must be dismissed. 

Petitioner"s sons, Griffin and Shea, have attended respondent"s schools for more than eleven and eight years respectively.  Petitioner owns a home in respondent"s district on Lark Drive in Woodbury ("Lark Drive"). Petitioner and her sons resided in that home until July 2002.  At that time petitioner remarried and moved with her sons to her husband"s home on Wheatley Road, Brookville ("Wheatley Road") located within the Locust Valley School District.  On November 27, 2002, petitioner leased her Lark Drive house to another family for a six-month term.  When the children of this family registered for school in the district, it was discovered that petitioner"s children were also registered at the same address.  Based upon this discovery, the district initiated a residency investigation of petitioner"s sons.

The residency investigation included surveillance of petitioner"s Wheatley Road home.  The surveillance revealed that petitioner"s sons were driven from the Wheatley Road address to their respective schools on four occasions in January, February, and March of 2003.  By letter dated March 17, 2003, petitioner was notified that a residency hearing would be conducted on March 26, 2003 to determine whether or not her sons could continue to attend respondent"s schools.  Petitioner requested an adjournment of the hearing to retain counsel.  An adjournment was granted until April 1, 2003.  On March 31, 2003 petitioner requested another adjournment, which was denied on April 1, by respondent"s hearing officer.  At the April 1 residency hearing, petitioner declined to testify or introduce any evidence to support her residency claim because her attorney was not present.  By letter dated April 2, 2003, petitioner asked respondent"s superintendent to permit her sons to finish the year at respondent"s schools.  She acknowledged her mistaken belief that her sons were entitled to attend respondent"s schools because she owned real property in the district.

A determination of non-residency was made by respondent"s hearing officer on April 3, 2003.  This appeal ensued.  Petitioner"s request for interim relief was granted on April 21, 2003.

Petitioner contends that she owns property in respondent"s district and therefore is entitled to send her children to its schools.  She claims that her due process rights were compromised by the hearing officer"s refusal to adjourn the hearing to allow her attorney to be present. She also maintains that it is in her sons" best interests, emotionally and educationally, to remain at respondent"s schools. 

Respondent claims that petitioner no longer resides in the district and that her sons are not entitled to attend its schools.  It further alleges that petitioner is not entitled to have counsel present at a residency hearing.  Respondent maintains the hearing officer properly refused to adjourn the residency hearing a second time when petitioner"s attorney was unable to attend.  Respondent also asserts that petitioner"s reply contains an admission that she does not reside in the district. 

The appeal must be dismissed.  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 Pierre, 40 Ed Dept Rep 538, Decision No. 14,551;Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

A child"s residence is presumed to be that of his parents or legal guardians (Appeal of Karmin, 41 Ed Dept Rep 72, Decision No. 14,618; Appeal of Epps, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014).  For purposes of Education Law "3202, "residence" means "domicile" (Appeal of Ifill, 38 Ed Dept Rep 97, Decision No. 13,992; Appeal of Doyle-Speicher-Maldonado, 35 id. 110, Decision No. 13,481), and is established by a demonstration of one"s physical presence as an inhabitant within the district as well as an intention to remain there permanently (Appeal of Ifill, supra; Appeal of Doyle-Speicher-Maldonado, supra).  Further, for purposes of the statute, a person can have only one legal residence (Appeal of Reynolds, 41 Ed Dept Rep 32, Decision No. 14,604; Appeal of O"Herron, 41 id. 1, Decision No. 14,591; Appeal of Monahan, 39 id. 188, Decision No. 14,209).  Ownership of property in a school district does not confer residency status (Appeal of O"Herron, supra; Appeal of Felenczak, 39 Ed Dept Rep 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

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 he seeks relief (Appeal of Reynolds, supra; Appeal of S.H., 40 Ed Dept Rep 661, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  Petitioner has failed to meet this burden.

Petitioner has not demonstrated that respondent"s refusal to adjourn the hearing a second time, and its decision to proceed without her attorney, violated her rights.  Section "100.2(y) of the Commissioner"s regulations only provides a parent an opportunity to submit information concerning the child"s right to attend school in the district prior to respondent making a final determination (Appeal of Kucherovsky, 37 Ed Dept Rep 241, Decision No.13,851).  The regulation does not require a formal hearing, or that petitioner be represented by counsel (See, Appeal of Dashe, 31 Ed Dept Rep 195, Decision No. 12,617).  The hearing officer had granted a previous adjournment to allow petitioner the opportunity to have her attorney present.  It was not arbitrary or capricious for the hearing officer to refuse petitioner"s request for a second adjournment, made only the day before the hearing was scheduled.   Petitioner was present at the hearing, but elected not to present any information. 

Petitioner concedes that she and her sons do not reside in the district.  Petitioner owns a home in the district and was under the misapprehension that home ownership, alone, qualifies her sons as residents.  This is not the case.  Therefore it was not arbitrary or capricious for respondent to conclude that petitioner"s sons are not district residents.  I also note that, if respondent allows nonresident students to attend its schools upon the payment of tuition, to the extent petitioner pays taxes on the Lark Drive property, they would be entitled to a reduction in that tuition pursuant to Education Law "3202(3).

 

THE APPEAL IS DISMISSED.

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