Appeal of JEWEL RUSSELL-OTERO, on behalf of her children JAHNEI and JANARI OTERO, from action of the Board of Education of the Nyack Union Free School District regarding residency.

Decision No. 15,975

 (August 20, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Nyack Union Free School District (“respondent”) that her children, Jahnei and Janari, are not district residents.  The appeal must be dismissed.

In April 2008, petitioner enrolled her children in school in respondent’s district, based on her representation that she resided at an address within the district (“Nyack address”).  In September 2008, petitioner completed a class directory form for Janari, indicating a mailing address in New City outside the district (“New City address”). 

By letter dated October 3, 2008, respondent’s assistant superintendent notified petitioner that her residency was in question and provided her an opportunity to submit information by October 15, 2008.  The letter was sent by certified mail twice to the Nyack address but was returned as “Not Deliverable As Addressed.”  The letter was then sent home with Janari.

After several attempts to contact petitioner and interim school vacations, the district hired an investigator in January 2009 to conduct surveillance at the two addresses.  By letter dated February 9, 2009, the assistant superintendent notified petitioner of his determination that she and her children were not district residents.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 6, 2009. 

Petitioner asserts that she resides in respondent’s district and her children are entitled to attend school without the payment of tuition.  Respondent contends that the petition is not properly verified, that petitioner has failed to set forth a clear and concise statement of her claim and that its residency determination is in all respects proper.  

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  In this case, petitioner did not verify the petition.  Instead, the affidavit of verification states that petitioner is verifying the contents of the “Letter of Exclusion from Nyack Public Schools.”  Therefore, the appeal must be dismissed for lack of a proper verification.

Even if the appeal were not dismissed on procedural grounds, it 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444). 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

On the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.  Petitioner provided a copy of a rental agreement for the Nyack address to the assistant superintendent in support of her claim of residency in the district.  However, 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 Hensley, 46 Ed Dept Rep 187, Decision No. 15,480; Appeal of Cross, 44 id. 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591). 

In contrast, the investigator’s report indicates that two vehicles are registered to petitioner at the New City address and that petitioner’s voter registration reflects that address.  Although petitioner claims that the New City address she listed on the class directory form was the children’s father’s address at the time, she offers no proof of that assertion.  I also note that the two certified letters sent to petitioner at the Nyack address were returned to the assistant superintendent as undeliverable. 

In addition, on February 5, 2009, respondent’s investigator observed Janari being driven to school from the New City address in one of the vehicles registered to petitioner.  Significantly, petitioner offered no explanation or rebuttal to this observation.  Further, on February 9, 2009, the investigator spoke with two individuals at the Nyack address who each stated that they did not know anyone by petitioner’s name.  In her papers, petitioner asserts that the failure to acknowledge her was because her sublease is illegal. 

On the record before me, petitioner has not met her burden of proving that she resides in the district.  Accordingly, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner has the right to reapply for Jahnei and Janari’s admission at any time should circumstances change.

In light of this disposition, I need not address respondent’s remaining contentions.    

THE APPEAL IS DISMISSED.

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