Appeal of LEONEL O. BARRIENTOS, on behalf of his son JACOB, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 17,450

(July 16, 2018)

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

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

Petitioner’s son has been the subject of two prior residency appeals (Appeal of Barrientos, 56 Ed Dept Rep, Decision No. 17,113; Appeal of Barrientos, 56 id., Decision No. 16,944).  In both appeals, petitioner challenged determinations by respondent that the student was not a district resident.  Both appeals were dismissed for improper service.  The decision in the most recent appeal, Appeal of Barrientos (56 Ed Dept Rep, Decision No. 17,113), was issued on June 28, 2017.

According to the record, at the beginning of the 2017-2018 school year, the student attempted to obtain a copy of his class schedule from respondent’s high school guidance department.  The guidance department informed the student that he was not enrolled as a student for the 2017-2018 school year.

On or about September 8, 2017, petitioner visited the district’s Office of Student Services and Central Registration (the “office”) and inquired why his son was not registered for the 2017-2018 school year.  According to respondent, petitioner stated that he had “won” his most recent appeal pursuant to Education Law §310.  Representatives of the office provided petitioner with a copy of the decision in Appeal of Barrientos (56 Ed Dept Rep, Decision No. 17,113) which, as noted above, dismissed petitioner’s appeal for lack of personal service.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 3, 2017.

Although not entirely clear, petitioner appears to allege that the student resides with him in respondent’s district and occasionally visits his mother, who resides outside of respondent’s district, on weekends and “at times if she is not working.”  Petitioner submits various documents in his or the student’s name bearing an address located within respondent’s district.  Petitioner requests a determination that the student is a resident of respondent’s district and eligible to attend its schools without payment of tuition.

Respondent asserts that the appeal must be dismissed for improper service.  Respondent also contends that the appeal must be dismissed as premature because petitioner did not reapply for admission to respondent’s schools for the 2017-2018 school year and, consequently, respondent has not rendered a determination as to the student’s residency for the 2017-2018 school year pursuant to 8 NYCRR §100.2(y).  Respondent further contends that the appeal must be dismissed for failure to set forth a clear and concise statement of petitioner’s claims as required by 8 NYCRR §275.10.

The appeal must be dismissed for lack of personal service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). 

Petitioner initially submitted an affidavit of service dated September 8, 2017 which indicated that unspecified documents were served on the district clerk on that date.  Specifically, using the affidavit of service form on my Office of Counsel’s website, the process server wrote: “[h]igh school” in the location where the affiant is directed to indicate which papers he or she served.   The district clerk states in an affidavit that although she was asked on September 8, 2017 “to sign a document acknowledging service of legal papers on the Bay Shore Union Free School District,” she was not served with a copy of the petition.

By letter dated September 13, 2017, my Office of Counsel returned the petition to petitioner as it lacked the notice required by 8 NYCRR §§275.11 and 276.1.  My Office of Counsel indicated to petitioner that, if he served and filed a corrected petition within two weeks of the date of the September 13, 2017 letter, the appeal would be deemed served on the date upon which it was personally served for purposes of the 30-day time limitation.

Petitioner subsequently submitted another copy of the petition together with an affidavit of service, sworn to on September 20, 2017, which indicated that respondent’s district clerk was personally served on September 20, 2017.  As in the previous affidavit, the process server wrote “[h]igh school” in the location where the affiant is directed to indicate what papers he or she served.   In addition, although difficult to read, petitioner’s affidavit of service includes a hand-written notation which appears to state that the district clerk “refused to sign” for service of papers, and that an “unsuccessful attempt to serve” occurred on September 20, 2017.  According to respondent’s district clerk, she was not served with a copy of the petition, or any other legal papers, on September 20, 2017.  Petitioner submits no reply or other evidence to refute respondent’s claim of improper service.  Therefore, on this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations and the appeal must be dismissed.

Even assuming, arguendo, that petitioner had properly served this appeal, the appeal would be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Healey and Lindberg, 57 Ed Dept Rep, Decision No. 17,194; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  On February 1, 2017 I granted interim relief in Appeal of Barrientos (56 Ed Dept Rep, Decision No. 17,113) permitting the student to attend respondent’s district pending a final determination of the appeal.  On June 28, 2017, I issued a final determination which dismissed petitioner’s appeal of respondent’s determination that petitioner’s son was not a district resident.  Thus, following issuance of this decision on June 28, 2017, the student had no right to attend respondent’s district as a resident.

There is no evidence in the record that petitioner reapplied for admission to the district subsequent to the final determination in Appeal of Barrientos (56 Ed Dept Rep, Decision No. 17,113) but prior to commencing the instant appeal.  Commissioner’s regulation §100.2(y)(6) provides that an appeal of a student residency determination only lies from the final decision of respondent or its designee.  Therefore, the instant appeal is premature.  Petitioner must first seek to reapply for admission to respondent’s schools.  If denied, petitioner may then seek relief in an appeal to the Commissioner pursuant to Education Law §310.

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 to respondent’s schools on his son’s behalf at any time, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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