Appeal of J.M., on behalf of her son S.M., from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding residency.

 

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel

 

 

(August 26, 2003)

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") that her son, S.M., is not a district resident. The appeal must be dismissed.

Petitioner asserts that she and S.M. reside within the district, apart from S.M."s father, who lives in a neighboring town outside the district. Petitioner"s evidence in support of her residency claim includes a copy of a lease agreement, dated August 1, 2001, purporting to show that petitioner entered a two-year lease for a single-family residence located within the district.  Petitioner"s evidence also includes a summons with notice, dated November 20, 2001, purporting to show that petitioner is seeking a divorce from S.M."s father.

Respondent admitted S.M. as a seventh grade student at the start of the 2001-2002 school year.  During that school year, respondent determined that petitioner and S.M. resided with S.M."s father outside of the district, and notified petitioner that S.M. would be excluded from its schools. Petitioner successfully appealed that determination (Appeal of J.M., 42 Ed Dept Rep __, Decision No. 14,783).  In that appeal, respondent relied primarily on the results of surveillance conducted by respondent"s residency consultant. Respondent also claimed that petitioner lacked credibility. I determined that the surveillance evidence was weak and inconclusive, and that respondent had not provided sufficient evidence concerning petitioner"s credibility.  Accordingly, I concluded that, on the record before me, respondent"s determination that petitioner"s son was not a district resident was based upon insufficient evidence and was therefore arbitrary and capricious.

In September 2002, respondent again retained a residency consultant to investigate S.M."s residency.  Respondent provided the residency consultant with a copy of the lease agreement purporting to show that petitioner entered a two-year lease for a single-family residence located within the district.  The introductory paragraph of the lease includes in bold capital letters petitioner"s name, the lessor"s name, and the lessor"s address, which is listed as a location other than the leased premises.  The consultant"s investigation revealed that since 1988, the lessor has not resided at the premises listed as his address on the lease but rather resides at the leased premises. The investigation further revealed that the summons with notice, dated November 20, 2001, purporting to show that petitioner is seeking a divorce from S.M."s father, has never been filed in court.

The consultant also conducted surveillance of petitioner"s purported residence within the district and S.M."s father"s residence outside the district.  The consultant alleges that on 13 occasions in October and November of 2002, he observed S.M."s father drive S.M. to school from the father"s residence.  He further alleges that on two of those occasions, petitioner was in the car with S.M. and S.M."s father, and that on four occasions petitioner exited the father"s residence in the morning in a separate car after S.M."s father had left the premises.

By letter dated December 10, 2002, respondent"s deputy superintendent notified petitioner and S.M."s father that the district had reason to believe they were not district residents.  The deputy superintendent invited petitioner and S.M."s father to a conference to review the residency issue and provide the district with any additional information. By letter dated January 15, 2003, S.M."s father notified the deputy superintendent that neither he nor petitioner would attend the conference.  By letter dated January 21, 2003, the deputy superintendent notified S.M."s father that respondent had determined that S.M. was not a resident of the district and would be excluded from the district"s schools effective January 31, 2003.  This appeal ensued.  Respondent subsequently agreed to permit S.M. to attend the district"s schools for the remainder of the 2002-2003 school year pending the determination of this appeal.

     Petitioner alleges that she and S.M. live within the district.  Respondent contends that they reside with S.M."s father outside the district and have attempted to mislead respondent regarding their residence.  Each party points to alleged weaknesses in the evidence presented by the other.

     Pursuant to "276.5 of the Commissioner"s regulations, I have accepted and considered all of the additional pleadings, affidavits and exhibits submitted by the parties.  Pursuant to "276.4 of the Commissioner"s regulations, I have also accepted and considered petitioner"s memorandum of law which was submitted belatedly. 

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 Marshall, 43 Ed Dept Rep __, Decision No. 14,911; Appeal of B.O. and D.O., 42 id. ___, Decision No. 14,769; Appeal of Metze, 42 id. ___, Decision No. 14,768). 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 Marshall, supra; Appeal of B.O. and D.O., supra; Appeal of Metze, supra). For purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Marshall, supra; Appeal of Metze, supra). A child's residence is presumed to be that of his or her parents (Appeal of Y.R., 42 Ed Dept Rep __, Decision No. 14,886; Appeal of Hutchinson, 42 id. ___, Decision No. 14,865; Appeal of Vazquez, 42 id. ___, Decision No. 14,841). Where a child"s parents live apart, the child can have only one legal residence ( Appeal of Burnett , 42 Ed Dept Rep __, Decision No. 14,825; Appeal of Jones and Frank-Jones, 42 id. __, Decision No. 14,797). A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Vazquez, supra; Appeal of Newby, 42 Ed Dept Rep  __, Decision No. 14,790; Appeal of Leontakianakos, 42 id. ___, Decision No. 14,757).

The lease submitted by petitioner reflects the lessor"s address as a residence other than the leased premises when, in fact, the lessor actually lives at the leased premises.  This raises an issue as to whether petitioner and the lessor attempted to create the misleading impression that petitioner rents the entire house from the lessor. 

Petitioner does not dispute that the lessor, in fact, lives at the purported leased premises, but asserts that she and S.M. reside in the basement apartment of the leased premises.  She alleges that the lease was "...an old lease lying around in a file cabinet, [n]o one thought to update the address at the time; we did not think it would matter at that time."  This explanation is not persuasive.  The introductory paragraph of the lease includes in bold capital letters petitioner"s name, the lessor"s name, and the lessor"s address.  Thus, the lease was updated from any prior version to reflect petitioner"s name and the relevant date.  Petitioner does not adequately explain why portions of the introductory clause were updated, but the lessor"s address was not. Moreover, the lease, by its terms, covers a single-family dwelling.  There is no indication that the lease was intended to only cover a basement apartment. 

The fact that petitioner did not submit an affidavit from the lessor in support of this appeal also weighs against petitioner.  The record in the prior appeal included a sworn statement from the lessor stating that he has leased the premises to petitioner since August 1, 2001.  In this appeal, petitioner submitted airline tickets from the lessor purporting to refute the residency consultant"s allegation that he talked to the lessor on a particular date.  Presumably, petitioner could have only obtained these documents with the lessor"s cooperation.  Despite the fact that the lessor has previously offered a sworn statement supporting petitioner, and apparently provided her with documents supporting this appeal, petitioner has not submitted an affidavit from the lessor to explain the apparent misleading nature of the lease.

Respondent"s conclusion -- that petitioner and S.M. do not reside at the leased premises but rather reside with S.M."s father -- is further supported by the fact that the November 20, 2001 summons and notice in the divorce action has not been filed in court.  In her prior appeal, as well as in the petition in this appeal, petitioner asserted that she resides in the district because she and S.M."s father are separated and seeking a divorce.  The fact that the divorce action has not been filed indicates that petitioner and S.M."s father are not seeking a divorce. In fact, petitioner and S.M."s father now concede that the divorce is "currently on hold," and that they are trying to reconcile their differences. Because the divorce was the proffered underlying reason for the separation, and the divorce is not proceeding, it is reasonable for the district to infer that petitioner and S.M."s father are not separated. 

With respect to respondent"s surveillance evidence, the residency consultant reported that S.M."s father often drove S.M. to school from his out-of-district residence.   Petitioner asserts that sometimes she needs to be at work before the school bus arrives in the morning, and that she drove S.M. to his father"s house in the morning on those occasions.  She asserts that respondent has not provided any evidence contradicting this explanation.  The residency consultant also reported that on four occasions petitioner exited S.M."s father"s residence in the morning in a separate car after S.M."s father had exited the premises. Petitioner denies that the consultant ever observed her in S.M."s father"s house after he exited the premises and points out that no observation of S.M."s return home after school was reported.  I agree that respondent"s surveillance raises questions as to petitioner"s and S.M."s residency.  This evidence, together with the evidence that petitioner proffered a misleading lease to support her residency claim, and the evidence that petitioner has not continued to seek a divorce, leads me to conclude that respondent did not act arbitrarily and capriciously in determining that neither petitioner nor S.M. reside in the district.

THE APPEAL IS DISMISSED.

END OF FILE

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