Appeal of HECTOR SOTO on behalf of his children, ASHLEY, CATHERINE, and JAYLAH SOTO, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Decision No. 17,156

(August 22, 2017)

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District ("respondent board") that his children are not residents of the district.  The appeal must be dismissed.

The record indicates that petitioner’s oldest child has been enrolled in the respondent’s schools since the 2008-2009 school year.  The two younger children were enrolled in the 2012-2013 and 2016-2017 school years, respectively.  At the time of the enrollment of each child, petitioner indicated that Ashley, Catherine, and Jaylah (“the students”) lived at an address in Mamaroneck, New York (“in-district address”).  During the 2016-2017 school year, the district conducted an investigation into the residency of the students based on an anonymous tip that the students no longer resided in the district.  On five weekday mornings, from March 7, 2017 to March 13, 2017, the district conducted surveillance on an address in Port Chester, New York (“out-of-district address”).  On four of the five mornings, all three of the students were seen exiting the out-of-district address with their mother; on the fifth morning, only the younger two students were seen exiting the out-of-district address with their mother (the oldest student was not observed that morning).  On two of the five mornings, the oldest student was observed exiting the out-of-district address with petitioner.

By letter dated March 13, 2017, the district’s assistant superintendent for business operations notified petitioner and the students’ mother that the students’ residency was in question and provided them with an opportunity to meet to discuss their residency on March 16, 2017.  According to respondent, at that meeting, petitioner and the students’ mother appeared and admitted that they owned the home at the in-district address but that they resided at the out-of-district address.  Respondent further indicates that, at that meeting, petitioner requested that, if the district were to determine that the students were not residents, they be given time to move back into the district.

Based on the information received at that meeting, by letter dated March 17, 2017, the assistant superintendent notified petitioner that the students were not district residents and would be excluded from the district’s schools, effective March 24, 2017.  Thereafter, the students’ mother met with a district social worker and indicated that she and petitioner would be moving back into the home at the in-district address, at which time she was advised that she would need to re-enroll the students and that they would need to physically reside at the in-district address in order to be considered residents.

On March 24, 2017, petitioner and the student’s mother submitted documentation to the district to re-enroll the students in the district’s schools.  At that time, petitioner indicated that he and the students, as well as the students’ mother, were now residing at the in-district address.  Based on the information provided in the enrollment documents, respondent allowed the students to remain enrolled in the district and their residency was continually monitored.  Thereafter, the district conducted further surveillance at both the in-district and out-of-district addresses between April 27, 2017 and May 18, 2017.  On three weekday mornings, the investigator observed the students’ mother exiting the out-of-district address with at least two of the students; on the fourth morning, a car registered to petitioner was observed in front of the out-of-district address but neither petitioner, the students, nor the students’ mother were observed that morning.  In addition to the above-mentioned surveillance at the out-of-district address on four weekday mornings, the district also conducted surveillance at both the in-district and out-of-district address on one weekday evening and one weekend afternoon.  During surveillance on the evening of Friday, May 12, neither of petitioner’s vehicles was observed at the in-district address and there was no answer at the residence; immediately thereafter, the investigator observed both of petitioner’s vehicles parked in the vicinity of the out-of-district address.  Again, during surveillance on the afternoon of Saturday, May 13, neither of petitioner’s vehicles were observed at the in-district address and there was no answer at the residence; immediately thereafter, the investigator observed one of petitioner’s vehicles parked in the vicinity of the out-of-district address.

By letter dated May 18, 2017, the assistant superintendent notified petitioner and the student’s mother of her determination that the students were not district residents and would be excluded from respondent’s schools effective May 19, 2017.  The letter further indicated that petitioner and the student’s mother were responsible for tuition for the students for the 2016-2017 school year.  This appeal ensued.  Petitioner’s request for interim relief was granted on June 2, 2017.

Petitioner contends that the students reside at the in-district address and that they sometimes sleep with their mother temporarily at the out-of-district address while the house at the in-district address is being repaired.

Respondent contends that petitioner has failed to meet his burden of establishing the facts upon which he seeks relief, and has failed to demonstrate a clear legal right to the relief requested.  Respondent asserts that its residency determination is supported by the record and is neither arbitrary nor capricious. Respondent maintains that the students physically reside outside the district and that mere ownership of the in-district property does not confer residency upon petitioner and the students, but that they must physically reside in the district.

Education Law §3202(1) provides, in pertinent part, as follows:

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).

In an appeal to the Commissioner, a 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; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In support of his claim that his children reside within the district, petitioner submits both school and county tax bills for the in-district address.  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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

On this record, I find that petitioner has not met his burden of proving that he and his children reside at the in-district address.  Petitioner’s documentary evidence establishes that his wife pays taxes as owner of the in-district address, but not that he and his children actually reside at such address.  The record contains extensive surveillance evidence indicating that the students are present at the out-of-district address and not at the in-district address.  As noted above, the surveillance reports reveal that the students were observed exiting the out-of-district address on each morning that surveillance was conducted at that address.  In addition, on the dates that surveillance was performed on both addresses consecutively, petitioner’s vehicles were observed in the vicinity of the out-of-district address and no activity was observed at the in-district address.  Petitioner states that the students “sleep sometimes with their mother temporarily at [the out-of-district address] while our house in Mamaroneck is being repaired".  However, this assertion is directly contradicted by the surveillance evidence, which observed the students being transported to their respective schools from the out-of-district address every day on which surveillance was performed, including five consecutive school days in March and four consecutive school days in May.  Under these circumstances, I find petitioner's conclusory statements in the petition insufficient to overcome the district's surveillance evidence.  The surveillance reports establish the students’ physical presence at the out-of-district address rather than at the in-district address.

Petitioner has not proven that his family has temporarily moved out of the in-district address while it is being repaired and has offered no other explanation for respondent’s surveillance evidence.  Petitioner did submit several photographs labeled “Tonys House repairs” (sic) and “Tonys house” (sic), presumably in support of his claim that the students sometimes stay at the out-of-district address temporarily while repairs are being performed at the in-district address.  However, the photographs are blurry and mostly indecipherable.  There is no indication when or where in the house the photographs were taken, what allegedly is being repaired, or even what each photograph is intended to evidence.  Such photographs are not sufficient to explain respondent’s surveillance evidence.

Based on the record before me, I cannot conclude that respondent's determination that petitioner’s children are not district residents is arbitrary, capricious or unreasonable.

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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