Appeal of SAM HEALEY and KRISTEN LINDBERG, on behalf of SAMUEL MASTERS, from action of the Board of Education of the Rye Neck Union Free School District regarding residency.

Decision No. 17,194

(September 27, 2017)

Barger & Gaines, attorneys for petitioners, Paul N. Barger, Esq., of counsel

Bond, Schoeneck & King, attorneys for respondent, Howard M. Miller, Esq., of counsel

ELIA, Commissioner.--Petitioners, for a second time, appeal the September 29, 2015 determination of the Board of Education of the Rye Neck Union Free School District (“respondent”) that Samuel Masters is not a district resident.  The appeal must be dismissed.

The record reflects that in August 2015, petitioners requested admission to respondent’s schools for a family friend, Samuel Masters.  Samuel’s cousins are his legal guardians.  Petitioners reside in respondent’s district but the guardians do not.  By letter dated September 29, 2015, petitioner’s request for admission for Samuel was denied because it was determined that there had not been a permanent and complete transfer of custody and control of Samuel from the guardians to petitioners for residency purposes.  I dismissed petitioner’s appeal from that determination in Appeal of Healey and Lindberg, 57 Ed Dept Rep, Decision No. 17,193(“the prior appeal”).   

No further determination has been made by respondent regarding Samuel’s residency within the district.  This appeal ensued.

As in the prior appeal, petitioners maintain that even though the guardians have not and do not intend to surrender guardianship over Samuel, they relinquished their parental rights and responsibilities to petitioners.  Petitioners also maintain that other than subsidising his dental copay, the guardians have not supported Samuel’s living needs since July 2015.  Petitioners maintain that they pay for Samuel’s food, shelter, education and other needs, and they will continue to do so for the duration of Samuel’s residence in their home.

Petitioners request that I determine that Samuel is a district resident and that respondent be held responsible for all costs associated with Samuel’s education during the 2016-2017 school year.

Respondent contends that the appeal is untimely, barred by the doctrine of laches and that the petitioners fail to establish a clear legal right to the relief requested.  Respondent also maintains that the Commissioner has no authority to award tuition reimbursement.

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).  Petitioners commenced this appeal on March 20, 2017 to once again challenge the September 29, 2015 residency determination of respondent.  Because the appeal was commenced outside the required 30-day period, it is untimely.  I will not excuse the delay because, in this appeal, petitioners attempt to buttress the allegations in the prior appeal based upon unchanged circumstances.  Moreover, I note that petitioners failed to submit a reply and, therefore, did not respond to respondent’s affirmative defenses of laches and untimeliness.  Accordingly, I find the appeal is untimely, warranting dismissal.

The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Because respondent made no determination regarding Samuel’s residency subsequent to its September 29, 2015 determination and there is nothing in the record reflecting a reapplication by petitioner subsequent to that determination, the appeal also must be dismissed as premature.

Finally, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).  Accordingly, petitioners’ request for reimbursement for the costs associated with Samuel’s placement in the Blind Brook-Rye Union Free School District during the 2016-2017 school year must be denied.

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

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on Samuel’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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