Appeal of ROBERT MERINGOLO, on behalf of his children JOSEPH and JENNIFER, from action of the Board of Education of the Greenville Central School District regarding residency.

Decision No. 15,281

(August 12, 2005)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greenville Central School District ("respondent") that his children, Joseph and Jennifer, are not district residents entitled to attend district schools tuition-free. The appeal must be dismissed.

Petitioner's children have attended respondent's schools since kindergarten and were in the sixth grade in the 2003-2004 school year. In the fall of 2003, respondent's president received information that petitioner and his family might not be district residents. By letter dated December 1, 2003, the superintendent requested that petitioner present evidence of his residency.

In response, petitioner provided a copy of a ten-year lease for residential property located on Cole Road in Medusa, within the district, whereby Mildred Meringolo, later identified as petitioner's mother, agreed to share the property with petitioner for a single payment of $3,000. According to the superintendent, petitioner stated that this was his family's primary residence, although they owned several residences and lived in all of them.

In December 2003, the superintendent received additional information that petitioner's primary residence was actually on Country Route 402 in Westerlo, outside the district. By letter dated February 12, 2004, the superintendent requested that petitioner remit tuition for his children for the month of February. In her letter, the superintendent referenced at least two earlier conversations with petitioner in which petitioner conceded that he resided in Westerlo, would be offering his home there for sale, would be moving to the house in Medusa, and had agreed to pay tuition for his children to remain in the district.

By letter dated March 26, 2004, petitioner's attorney replied to the superintendent's February 12 letter, stating that petitioner was a district resident and therefore did not need to pay tuition for his children. The attorney stated that although petitioner owns real estate in Westerlo, his primary residence is on Cole Road in Medusa, as evidenced by the ten-year lease. She stated that petitioner is registered to vote in Medusa and Medusa is the address on his driver 's license and vehicle registration, although copies of those were not submitted. She also asserted that petitioner's mother had recently died and left the property on Cole Road to petitioner, and that petitioner and his wife intended to break ground to build a home on the property before the commencement of the 2004-2005 school year.

Respondent hired a private firm to investigate petitioner's residency. At about the same time, in spring 2004, petitioner provided the school attendance clerk with a new telephone contact number, that of Sally Parker. Ms. Parker is a district employee who is petitioner's sister and also lives on Cole Road. Ms. Parker informed the superintendent that her niece and nephew periodically spent the night at her home but did not live with her permanently.

Based in part on this information and the investigation report, the superintendent notified petitioner by letter dated May 19, 2004 of her determination that he and his children were not district residents and requested tuition for the 2003-2004 school year. Petitioner and his new attorney met with respondent, respondent's attorney and the superintendent at respondent's regularly scheduled meeting on June 14, 2004. By letter dated July 13, 2004, respondent notified petitioner that it had upheld the superintendent's determination at its meeting on July 12, 2004. This appeal ensued. Petitioner's request for interim relief was denied on September 2, 2004.

Petitioner asserts that he is a district resident. He alleges that issues surrounding his residency arose because he is active in town government and his opponents negatively influenced respondent's president. He claims that respondent and the superintendent ignored his evidence, intimidated his sister, and denied his requests for information under the Freedom of Information Law ("FOIL"). He also claims that respondent and the superintendent broke an agreement to allow his children to attend school as district residents tuition-free for the spring 2004 semester.

Respondent contends that petitioner is not a district resident and that the appeal must be dismissed as untimely, for failure to name and join necessary parties and for lack of verification.

I must first address several procedural issues. Respondent asserts that the petition is not properly verified as required by �275.5 of the Commissioner's regulations.  However, the petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (Appeal of M.M., 42 Ed Dept Rep 323, Decision No. 14,870; Appeal of McSween, 42 id. 59, Decision No. 14,775).

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953). To the extent that petitioner complains of misconduct by the superintendent and respondent' s attorney, they should have been joined as necessary parties and petitioner's failure to do so requires dismissal of the appeal as it relates to them.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent's July 13, 2004 letter notified petitioner that his children would be excluded from respondent's schools. According to respondent, petitioner served a petition on respondent's president on August 11, 2004. However, that petition is not before me because petitioner never filed a copy of the petition with the Commissioner, as required by �275.9 of the Commissioner's regulations. On August 25, 2004, six weeks after respondent's determination, petitioner served a petition upon the superintendent, without offering any reason for the delay. Accordingly, the appeal must be dismissed as untimely (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of Eveillard, 42 id. 78, Decision No. 14,782; Appeal of Perez, 42 id. 71, Decision No. 14,779).

Even if it were not dismissed as untimely, the appeal would 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

A person can only have one legal residence (Catlin v. Sobol, 155 AD2d 24, revd on other grnds, 77 NY2d 552 (1991); Appeal of O'Herron, 41 Ed Dept Rep 1, Decision No. 14,591; Appeal of LaQuerre, 40 id. 565, Decision No. 14,558). If a person owns or rents property both within and outside the school district, only one property can be considered one's legal residence (Appeal of Reynolds, 41 Ed Dept Rep 32, Decision No. 14,604; Appeal of Scaffa, 40 id. 177, Decision No. 14,453 ). The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

As proof of his residency in the district, petitioner submitted to respondent the ten-year lease, automobile insurance cards, his wife 's license and nine letters from neighbors. He also invited respondent to his home for dinner during a two-week period in May. However, the insurance cards are dated December 8, 2003, one week after respondent's initial request for residency information, and petitioner's wife's license is a temporary one issued on May 26, 2004, well after the residency inquiry was initiated. The dates of these documents cast significant doubt on petitioner's assertions of residency. Notably, petitioner failed to submit his driver's license, although he stated he drove the children to school and they did not take the bus. Noticeably absent from petitioner's submissions were other types of meaningful evidence to support his residency claim, such as utility bills, or tax or homeowner's insurance documents. Also, the neighbors' letters were not notarized, and although they mention visiting or observing petitioner at the Cole Road house, they are not evidence of his full time residency there, especially where petitioner admitted owning several residences and living in all of them.

In addition, although petitioner had a lease for the Cole Road property, the district's surveillance report conducted in spring 2004 indicates that petitioner and his children were not living there on a regular basis. The report revealed that petitioner and his wife owned two vehicles, both of which were registered at the Westerlo address. On four of the five days of surveillance, one or both vehicles were at the Westerlo address, and one or both of the children were observed entering petitioner's wife's van on three occasions in the early morning. Petitioner's wife was observed departing that address and dropping the children at school, and dropping Joseph at Ms. Parker's one morning before school. Respondent also learned that petitioner's wife had obtained a School Tax Relief ("STAR") exemption for the Westerlo home in 1999. A STAR exemption application requires that an individual own the property and that the owner certify that it is the primary residence.

I note that petitioner submitted a signed agreement with a real estate agent dated June 13, 2004 to sell his home in Westerlo, and his attorney stated in the March 26, 2004 letter that he intended to build a home on the Cole Road property. Pending home construction does not, in and of itself, establish residency (Appeal of Geithner, 43 Ed Dept Rep 450, Decision No. 15,047; Appeal of Sobel, 43 id. 93, Decision No. 14,931).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101). After considering all the evidence in this case, I cannot find that respondent acted arbitrarily or capriciously in determining that petitioner's children are not district residents. If, at some future date, petitioner and his family do relocate to an address within respondent's district, petitioner may reapply for his children's admission without the payment of tuition at that time.

Finally, I must also dismiss petitioner's allegations that respondent violated FOIL (Public Officers Law, Article 6).  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660). Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

In light of the above disposition, I need not address petitioner's remaining arguments.

THE APPEAL IS DISMISSED.

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