Appeal of SHAWN EASTER, on behalf of her son DONOVAN GIBBS, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 17,174

(August 31, 2017)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her son (“the student”) is not a district resident.  The appeal must be dismissed.

During the 2015-2016 school year the student attended school in respondent’s district.  Respondent asserts that in November 2015, its staff received information that the student was not a resident of respondent’s district.  As a result, respondent’s Office of Student Services and Central Registration (“OSSCR”) contacted petitioner to inquire as to the student’s residency status.  Petitioner informed OSSCR that her son was a resident of the district but requested that all district mail be sent to a post office box.

In February 2016, representatives of OSSCR met with petitioner concerning the student’s residency status.  At that time, petitioner submitted a landlord affidavit, executed by her purported landlord, which indicates that she and the student reside at an address within respondent’s district (the “in-district” address).  Based on “continual information” that petitioner and the student resided at an address in Central Islip, New York (the “out-of-district” address), Robert Torres, director of OSSCR continued the residency investigation.  As part of the investigation, Mr. Torres found that a 2002 green Mercury SUV was registered to petitioner.  Department of Motor Vehicles (“DMV”) records listed her address as Post Office Box 122, Bay Shore, New York.  

Mr. Torres conducted surveillance at the in-district address as part of his investigation.  The surveillance was conducted at the entrance to the gated community in which the in-district address is located, between 6:30 a.m. and 6:45 a.m. on four different days in May 2016 and two days in June 2016.  Mr. Torres never observed petitioner, the student or any motor vehicle registered to petitioner exit or enter the gated community.   

On four days in August 2016, Mr. Torres conducted surveillance at the out-of-district address at 7:00 a.m. and 10:30 p.m. In each instance Mr. Torres observed petitioner’s 2002 green Mercury parked in the driveway of the out-of-district address.  Mr. Torres also observed that same vehicle at the out-of-district address on September 6, 7 and 9, 2016, at 10:00 p.m.

 At the beginning of the 2016-2017 school year, Mr. Torres conducted surveillance at the in-district address on September 7, 8, and 9, 2016, between 6:30 a.m. and 6:45 a.m. and did not observe either petitioner, the student or any motor vehicle registered to petitioner exit or enter that location.  On September 10, and 11, 2016, Mr. Torres observed petitioner’s vehicle at the out-of-district address at 8:00 a.m. and there, as well, on September 12, 13 and 14, 2016, at 12:30 p.m. and 8:00 p.m.  On September 19, 2016, at approximately 12:30 p.m., Mr. Torres observed petitioner’s vehicle at the out-of-district address.   

On August 25, 2016, respondent informed petitioner that the student was no longer considered a resident of the district and that his last day of attendance would be September 14, 2016.

On September 8, 2016, a residency hearing was conducted.  Mr. Torres asserts that, at the hearing, petitioner presented an undated standard lease agreement for the in-district address,[1] which was not notarized.  In addition, petitioner submitted a bank statement dated August 2016 from the Suffolk Federal Credit Union with the in-district address listed.  Petitioner stated at the hearing that she was employed as a home health aide but refused to provide the name of her employer.

On September 13, 2016, respondent sent another exclusion letter to petitioner communicating its findings from the September 8, 2016 hearing, again indicating that the student was not a district resident.  The letter offered to allow the student to attend district schools through September 16, 2016.  This appeal ensued.  Petitioner’s request for a stay in this matter was granted November 2, 2016.

On April 10, 2017, petitioner, on behalf of the student, served and filed an Affidavit in Support of Request to Submit Supplemental Documentation (“affidavit in support”), requesting permission to submit additional documentation pursuant to 8 NYCRR §276.5.  Petitioner asserts that the additional documentation, including the affidavit in support, is necessary to respond to allegations included in the respondent’s answer which are inaccurate and incomplete and require explanation and documentation for proper review of the petition.  The petitioner asserts that the affidavit in support presents no new issues and only responds to allegations presented in the answer.  

Petitioner contends that the student is a resident of the district entitled to attend district schools on a tuition free basis.  Petitioner asserts that she and the student moved in with a friend at the in-district address in January 2016.

Respondent contends that the appeal should be dismissed as untimely and because the petition fails to comply with §275.4 of the Commissioner’s regulations, which requires that the petition be endorsed with the name, post office address and telephone number of the party submitting it.

In addition, respondent objects to petitioner’s request, under 8 NYCRR §276.5, to submit additional affidavits and other supporting documentation on the grounds that petitioner seeks to add evidence or information which was readily available when the residency appeal was commenced.  Respondent further contends that petitioner’s submission is in the nature of a reply and as such is untimely by 132 days since it was not submitted within 10 days after service of the answer as required by 8 NYCRR §275.14(a).  In addition, respondent objects that the petitioner’s “affidavit” is unsworn.

On the merits, respondent contends that petitioner has failed to meet her burden of proving that she and her son are physically present at the in-district address.  Respondent asserts that it has conducted extensive surveillance which indicates that petitioner and her son reside outside of the district.

I must first deal with the procedural issues. With respect to timeliness, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner initially served the original petition on September 23, 2016, which was within 30 days from the date of respondent’s September 13, 2016 exclusion letter that followed the residency hearing.  Petitioner then attempted to file the original petition with my Office of Counsel (“OC”).  By letter dated October 11, 2016, petitioner was advised by OC that the petition did not include the notice of petition required by §§275.11 and 276.1 of the Commissioner’s regulations and it was being returned to her.  The letter also advised petitioner that, if a corrected petition was served and filed within two weeks of the date of the letter, for purposes of determining timeliness the appeal would be deemed to have been commenced on the date the petition was initially personally served on respondent.  The revised petition, with a notice of petition, was served on respondent on October 26, 2016 and filed with OC on October 31, 2016.  Respondent is correct that the revised petition was not served on respondent within two weeks of the date of the letter from OC - that is by October 25, 2016 - but rather was served one day late.  In light of the shortness of the delay and in the absence of any showing of prejudice on the part of respondent, I will excuse the delay and I decline to dismiss the appeal as untimely.

I also decline to dismiss the appeal based on petitioner’s failure to fully comply with §275.4 of the Commissioner’s regulations.  Where, as here, a petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate where there is no evidence of prejudice to the respondent (Appeal of Fillie-Faboe, 34 Ed Dept Rep 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).  Here, the petition includes petitioner’s alleged in-district address, but not her post office address and petitioner’s telephone number, as set forth in the landlord affidavit attached to the petition.  It is clear, however, that respondent has petitioner’s post office address and was able to serve the answer and other responding papers on petitioner.  Under such circumstances, I will not dismiss the appeal for this technical violation of §275.4 (Appeal of Fillie-Faboe, 34 Ed Dept Rep 643, Decision No. 13,438; Matter of Mangan, 22 id. 82, Decision No. 10,888).

Regarding petitioner’s April 10, 2017 request to submit supplemental documentation pursuant to 8 NYCRR §276.5, respondent correctly points out that most of the affidavit in support is in the nature of a reply and was served more than two months after service of the answer.  Thus, to the extent it constitutes a reply, the affidavit in support was not served within 10 days of service of the answer as required by 8 NYCRR §275.14(a) and is untimely.  Petitioner has provided no excuse for this delay, which is substantial.  In addition, the affidavit in support is not sworn and is not verified as required of a reply by 8 NYCRR §275(a). Some of the documentation attached to the affidavit in support is duplicative of exhibits attached to the petition and some portions of the affidavit in support contain new materials and exhibits that should have been submitted with the petition. Other portions of the affidavit in support that attempt to rebut respondent’s surveillance evidence should have been included in a timely reply.  With one exception, therefore, I decline to accept petitioner’s submission of the affidavit in support pursuant to §276.5(a) and have not considered those portions of the affidavit in support in determining this appeal.

However, pursuant to §276.5(a), I will accept for consideration in this appeal the additional landlord affidavit attached as an exhibit to the affidavit in support.  Such landlord affidavit addresses the tenancy of petitioner on a month to month basis following expiration of the purported term of the standard lease on February 15, 2017.  As it relates to a period well after the time to submit a reply in this appeal, such landlord affidavit could not have been submitted with the petition or with a timely reply.

Turning to the merits, 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).

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).

On this record, I find that petitioner has not met her burden of proving that she and her son are physically present at the in-district address and, thus, that she and her son reside in respondent’s district.  The only evidence she has submitted is a landlord affidavit sworn to on February 3, 2016, stating that she and her son are living at the in-district address; a standard lease agreement dated February 15, 2016; a second landlord affidavit dated March 25, 2017, that states that petitioner and her son reside at the in-district address on a month to month basis; a letter from petitioner’s mother indicating that petitioner and her son do not live with her in Central Islip and a bank statement that shows the in-district address.  I note that the lease term cited in the February 3, 2016 landlord affidavit and standard lease agreement submitted by petitioner are inconsistent.

In determining that the student is not a district resident, respondent substantially relies upon its surveillance evidence which is weak in several respects.  It does not include any observations of petitioner and her son leaving the out-of-district address to transport him to school; surveillance of the in-district address is only conducted for 15 minutes on each day and only at the general entrance to the gated community with no explanation of why it was assumed that the student would leave for school in that 15-minute interval and no evidence that the student attended school on the days of surveillance.  Respondent did, however, make repeated observations of petitioner’s green Mercury parked at the out-of-district address.  On four consecutive days in August 2016, the vehicle was observed at the out-of-district address at 7:00 a.m. and 10:30 p.m.  On three days in early September, the vehicle was observed parked at the out-of-district address at 10:00 p.m.  On two subsequent days in September 2016, the vehicle was observed at the out-of-district address at 8:00 a.m.  On the three following days, the vehicle was observed at the out-of-district address at 12:30 p.m. and 8:00 p.m.  On the next day, the vehicle was observed at the out-of-district address at 12:30 p.m.

Petitioner has not submitted a valid reply and has not submitted evidence to explain or rebut respondent’s surveillance evidence.  On 12 different days, most of which were consecutive, petitioner’s vehicle was parked at the out-of-district address early in the morning or late in the evening or both.  On another day, the vehicle was observed at the out-of-district address in mid-day.  Petitioner has provided no explanation for this surveillance evidence, which indicates that petitioner has demonstrated a consistent pattern of being physically present at the out-of-district address both day and night.  Although respondent’s surveillance is not overwhelming, given the limited evidence of residency submitted by petitioner, and inconsistencies therein, I cannot find that respondent was arbitrary and capricious or unreasonable in determining that petitioner’s son is not a district resident.  The appeal must, therefore, be dismissed.

Although I am constrained to dismiss the appeal for the reasons stated above, I note that respondent’s September 13, 2016 letter advising petitioner of the denial of residency does not comply with the requirement of 8 NYCRR §100.2(y)(6) that the written notice of residency determination state the specific basis for the determination, including any documentary or other evidence on which the determination is based.  The letter does not reference the surveillance evidence or state any reason for the residency determination, nor does the August 25, 2016 letter which it cross-references.  I admonish respondent that it must fully comply with requirements of §100.2(y)(6).

Finally, I note that petitioner retains the right to reapply for admission to the district on the student’s behalf and to present any new information or documentation for respondent’s consideration that was not considered by respondent in making its residency determination on September 13, 2016.

THE APPEAL IS DISMISSED.

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