Appeal of TIMOTHY SMYTHE, on behalf of his son BRODIE, from action of the Board of Education of the Malone Central School District regarding residency.

Decision No. 16,303

(September 9, 2011)

Poissant, Nichols, Grue & Vanier, P.C., attorneys for petitioner, Stephen A. Vanier, Esq., of counsel.

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel.

GREY, Acting Commissioner.--Petitioner appeals a determination of the Board of Education of the Malone Central School District (“respondent”) that his son, Brodie, is not a district resident.  The appeal must be dismissed.

Petitioner and Brodie’s mother are divorced and shared joint custody pursuant to court-approved agreements.  Petitioner and Brodie’s mother further agreed that Brodie would be enrolled in respondent’s schools, where his mother resided.  Petitioner resided in Moira, New York (“out-of-district address”).  Brodie was enrolled in respondent’s schools for the 2010-2011 school year.

Subsequent to enrollment, Brodie’s mother submitted a change of address form, dated October 13, 2010, to the district registrar indicating that she was in the process of relocating outside the district.  Thereafter, on or about October 13, 2010, she withdrew Brodie from school.

In response to this action, petitioner sought judicial intervention, seeking sole custody, by and through the Franklin County Family Court and, by Order to Show Cause dated October 20, 2010, the Court directed the immediate enrollment of Brodie into respondent’s schools until further order of the Court or by mutual agreement of the parties.  The record does not include any further order from the Court relating to this matter.  On October 20, 2010, petitioner provided the Order to Show Cause to respondent and further indicated that he now lived within the district in North Bangor (“North Bangor address”).  Respondent re-enrolled Brodie into school.

On January 18, 2011, based on information that petitioner and his son did not reside in the district but, rather, resided at the out-of-district address, respondent initiated an investigation into petitioner’s residency. 

Surveillance commenced on January 20, 2011 and concluded on January 31, 2011.  On six occasions petitioner was observed either leaving the out-of-district address early in the morning with his son to drop him at school and/or returning there in the evening with his son after picking him up from the North Bangor address after school where petitioner’s mother lives.  On several other occasions, the investigator observed a gray SUV, which petitioner previously had been observed driving, parked at various hours of the day in the driveway of the out-of-district address.

Based on this investigation, the assistant superintendent notified petitioner, by letter dated February 9, 2011, that his son was not a district resident entitled to attend its schools.  The letter further advised petitioner of his right to appeal the decision pursuant to Education Law §310.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 15, 2011.

Petitioner asserts that respondent incorrectly determined that he and his son are not district residents. In support of his claim of residency, petitioner submits copies of mail addressed to the North Bangor address and mail forwarded by the post office to such address, mortgage bills for the out-of-district address and tax return forms addressed to the North Bangor address, a driver’s license issued on January 18, 2011 listing the North Bangor address, checks listing the North Bangor address, and a listing agreement with a real-estate agent to sell his out-of-district house, dated October 26, 2010.

Respondent contends its determination is not arbitrary or capricious, but is reasonable based on the record.

Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430). 

The record in this case contains a copy of the assistant superintendent’s February 9, 2011 letter advising petitioner of the board’s final determination that his son was not a district resident.  However, this letter appears to have been the only communication provided to petitioner regarding the district’s residency determination and the record contains no indication that respondent followed the procedures required in §100.2(y) prior to making its final determination.  I therefore remind respondent of its obligation to afford parents “the opportunity to submit information concerning the child’s right to attend school in the district” prior to making a final determination of residency (8 NYCRR §100.2[y]).  In any event, I find that petitioner has had a full and fair opportunity in this appeal to present evidence in support of his residency claim and to respond to claims raised by the district (seeAppeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468).

Turning to 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner has not met his burden of proof.[1]  Petitioner’s submission of mail and other documentation addressed to the purported in-district residence is not dispositive evidence of residency, particularly in light of respondent’s investigation (Appeal of Powell, 47 Ed Dept Rep 98, Decision No. 15,639).  Although petitioner has produced a listing agreement for the sale of his out-of-district residence, he has submitted no proof that such residence has been sold.  Moreover, the surveillance conducted by respondent of both addresses demonstrates petitioner’s physical presence at the out-of-district address.  For example, petitioner was only observed at the North Bangor address for brief periods on three occasions to pick up his son after school and transport him to the out-of-district address.  In contrast, on five occasions, petitioner was observed leaving the out-of-district address early in the morning and driving Brodie to school.  His SUV was also observed on several other occasions at the out-of-district address.  Based on this record, petitioner has not carried his burden of establishing physical presence and intent to reside in the district.  Accordingly, I cannot conclude that respondent’s determination that petitioner is not a district resident was arbitrary, capricious or unreasonable.   

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on his son’s behalf and to submit any information or documentation for respondent’s consideration. 

THE APPEAL IS DISMISSED.

END OF FILE.