Appeal of L.B and T.B., on behalf of their daughter B.B., from action of the Board of Education of the City School District of the City of Troy regarding residency.

Decision No. 16,832

(October 1, 2015)

Eileen M. Stiglmeier, Esq., attorney for petitioners

Guercio and Guercio, LLP, attorneys for respondent, Kathy A. Ahearn, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Troy (“respondent”) that their daughter, B.B., is not a district resident.  The appeal must be dismissed.

At the time petitioners commenced this appeal, B.B. was a 12^th grade student at Troy High School in respondent’s district.  The record indicates that B.B. was admitted to respondent’s district in February 2014, based upon a family court order dated February 14, 2014 which ordered that petitioners and K.L. (T.B.’s niece) “shall share joint legal custody” of B.B., as well as upon a lease for an apartment in the City of Troy listing T.B. (B.B.’s mother), B.B., and K.L. as tenants for the period beginning March 1, 2014 and ending April 1, 2015.  Petitioners assert that prior to this time, B.B. resided with both her parents in Cohoes, New York, outside respondent’s district, in the home in which L.B. (B.B.’s father) still resides.[1] 

Respondent subsequently began a residency investigation based on information received in mid-September 2014 from a family member of petitioners who alleged that neither T.B. nor B.B. were actually residing in Troy with K.L.  Respondent states that the investigation was also undertaken because L.B. continues to live in Cohoes, and T.B. and B.B. were known by the district to have resided in Cohoes.  Surveillance was conducted on fifteen occasions from October 21, 2014 through November 4, 2014, at various times of day including mornings, afternoons and evenings, at the Troy and Cohoes addresses as well as at Troy High School.  The record indicates that the student was observed leaving the Troy address for school in the morning only two times, and on each occasion B.B. drove with her mother to the Cohoes address and reemerged later in different clothes before proceeding to Troy High School.  B.B. was also observed leaving for school from the Cohoes address on one other occasion and being picked up from school and driven to the Cohoes address on one occasion, according to the record.  Respondent asserts that that at no time was B.B. observed leaving from the Troy address and proceeding directly to Troy High School or leaving school and proceeding directly to the Troy address. 

A residency meeting was held on December 1, 2014 to allow petitioners the opportunity to present evidence concerning the student’s residency.  Petitioners state that, as discussed at the meeting, they have been dealing with family issues which triggered discord between B.B. and her mother and that this led petitioners to obtain a custody order providing for joint custody with K.L. and ordering that B.B. primarily reside with K.L. at her Troy residence.  Petitioners state that marital issues subsequently caused T.B. to move in with B.B. and K.L. in Troy and that the issues between mother and daughter “worked themselves out,” in part because the family was not residing together with L.B. 

By letter dated December 2, 2014, respondent issued a final determination that B.B. is not a resident of the district and would be excluded from attending school after December 5, 2014.  The basis for respondent’s decision was, among other things, that T.B. and B.B. are not actually “present” at the Troy address nor do their actions demonstrate the intent to permanently reside there, and also that B.B.’s living arrangements are not consistent with either the custody order or with a relinquishment of parental custody and control to K.L. 

This appeal ensued.  Petitioners’ request for interim relief was denied on December 31, 2014.

Petitioners seek a determination that B.B. is a district resident entitled to attend school without payment of tuition or, in the alternative, that B.B. is eligible to attend school in the district with payment of tuition. 

Respondent contends that:  petitioners have failed to state a claim upon which relief may be granted; respondent’s residency determination is rational, reasonable and consistent with law; petitioners failed to rebut the presumption that B.B. lives with them in Cohoes, New York, outside the district; the joint shared custody arrangement is a “sham” obtained only to qualify B.B. as a district resident and to take advantage of the district’s schools; B.B. is not physically present in, and has no intent to actually reside in, the district, and is thus not a district resident; and petitioners have failed to present a clear and concise statement of their claims and thus, cannot sustain their burden of proof.  Respondent requests that the petition be dismissed. 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  By letter dated August 28, 2015, my Office of Counsel directed that petitioners provide information regarding whether B.B. has received a high school diploma and, if so, the date of her graduation.  In response, petitioners’ attorney provided an affirmation, on behalf of petitioners, stating that B.B. “graduated and received her [h]igh [s]chool [d]iploma in of [sic] this year, from Cohoes High School.”  The relief requested by petitioners is a determination that B.B. is a district resident entitled to attend Troy High School without payment of tuition or, in the alternative, that she is entitled to attend as a tuition-paying student.  Petitioners’ request for interim relief was denied on December 31, 2014 and B.B. graduated in 2015.  Consequently, the appeal is moot  (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,561; Appeal of C.S., 53 id., Decision No. 16,599).  

With respect to any claims that may arise as a result of this decision involving non-resident tuition bills for the period from February 2014 to December 2014 when B.B. attended school in the district, I note that the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Further, I note that any discussion of the merits of petitioners’ residency claim for the time period at issue would be advisory in nature (see Appeal of O.S. and D.S., 50 Ed Dept Rep, Decision No. 16,201).  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE