Appeal of LaDEEN MASTERS, on behalf of her daughter M.D.*, from action of the Board of Education of the Niagara-Wheatfield Central School District regarding residency.

Decision No. 17,536

(November 20, 2018)

Harris Beach, PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Niagara-Wheatfield Central School District (“respondent”) that her daughter, M.D. (“the student”), is not a district resident.  The appeal must be dismissed.

The record indicates that the student attended respondent’s schools since at least the 2014-2015 school year.  By letter dated January 14, 2015, respondent questioned petitioner’s residence within the district.  By letters dated January 28, 2015 and March 10, 2015, respondent’s residency officer notified petitioner that, based upon her failure to submit requested information, her daughter would be excluded from the schools of the district.  Petitioner then filed an appeal to the Commissioner in March 2015.  Petitioner also submitted a “Home Owner affidavit” to the district on March 18, 2015, signed by petitioner’s purported friend and landlord, averring that petitioner and the student resided at a residence he owned within respondent’s district (the “in-district” address).  Based on the affidavit, respondent determined the student would be permitted to continue attending its schools, and so informed petitioner by letter dated March 18, 2015.  Thereafter, petitioner withdrew her appeal to the Commissioner.

The record indicates that in February 2018, respondent received an anonymous telephone call alleging that petitioner and her daughter resided outside respondent’s district at a location in Niagara Falls (the “out-of-district address”).

As a result, respondent initiated a residency investigation.  As part of this investigation, respondent engaged the services of a private investigator who conducted surveillance on seven different weekday mornings, from February 15, 2018 through May 8, 2018.

In an affidavit, the private investigator avers that on six of the seven mornings on which he conducted surveillance, he witnessed petitioner and the student exit the out-of-district address at approximately 8:45 a.m.; enter a black vehicle; and drive to Colonial Village Elementary School in respondent’s district, at which point the student exited the car and entered the school at approximately 9:00 a.m. each morning.  On one occasion, the private investigator witnessed the same vehicle parked at the out-of-district address at approximately 8:06 a.m.

In his affidavit, the private investigator states, “Based on my observation and the evidence I compiled, it was obvious to me that [petitioner and the student] were consistently staying overnight – and by all appearances, maintaining their residence – at the [out-of-district address], as they would exit that address early in the morning and proceed to Colonial Village Elementary School.”  The affidavit includes a DVD containing the video surveillance conducted on the seven occasions.

By letter dated May 2, 2018, respondent’s superintendent of schools (“the superintendent”) notified petitioner that he had received information indicating that the student may not be a legal resident of respondent’s district for purposes of attending its schools.  The superintendent’s letter afforded petitioner an opportunity to attend a residency hearing at which petitioner could submit information in support of the student’s right to attend respondent’s schools.

A residency hearing was held on May 10, 2018; the hearing was attended by the district registrar, the superintendent and his secretary, and petitioner.

In an affidavit, the district registrar avers that at the hearing petitioner represented that she and the student stay at the in-district address each night; that she does not have a lease at the in-district address because the landlord is her friend; and that she drives the student to school each day because she no longer works.  Petitioner denies residing at the out-of-district address.

By letter dated June 4, 2018, respondent advised petitioner that, based on its residency investigation, it determined that petitioner does not reside within the district and that the student would be excluded from school after June 30, 2018.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 17, 2018.

Petitioner asserts that she and the student reside within the district.  She requests a determination that the student is a resident of the district and, thus, entitled to attend its schools without the payment of tuition.

Respondent contends that petitioner failed to meet her burden of proof, and that despite the documentary evidence submitted by petitioner bearing the in-district address, such documents are insufficient to overcome the surveillance evidence, which establishes the student’s physical presence outside the district.  Accordingly, respondent contends that its determination that the student is not a district resident is rational and supported by the record and, therefore, is not arbitrary, capricious or an abuse of its discretion.  Respondent further asserts that the appeal must be dismissed for improper service.

Before turning to the merits of this appeal, I will address several procedural matters.  First, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed for failure to effectuate personal service upon respondent.  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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner’s affidavit of personal service indicates that the petition was served on a “representative” of respondent on June 28, 2018.[1]  Respondent, however, denies that service was made on any person authorized to accept service (see 8 NYCRR §275.8[a]).

In an affidavit, the district registrar asserts that on June 28, 2018 a man entered respondent’s district offices and told the registrar that he was delivering an envelope to the superintendent.  The registrar avers that the man:

did not ask for my name, nor did he ask me what position I held at the District.  He simply handed me the envelope ....  This was the extent of our interactions; I did not make any representations as to my title or position with the District, nor did I ever indicate that I was authorized to accept service of legal papers on behalf of the Superintendent or the District ....  I did not open the envelope or read its contents ....

A registrar is not one of the individuals explicitly authorized by §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be properly effected.  Respondent submits an affidavit from the registrar stating that she is not authorized to accept service.  Consequently, because service was defective, jurisdiction over respondent is lacking and the appeal must be dismissed (Appeal of Miley, 56 Ed Dept Rep, Decision No. 17,079; Appeal of Khan, 51 id., Decision No. 16,287).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part:

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

In support of her claim that she and the student reside within the district, petitioner submits documentary evidence bearing the in-district address.  Specifically, petitioner submits a notarized letter from an individual purporting to be petitioner’s landlord at the in-district address; an expired New York State driver’s license containing the out-of-district address on the front and the in-district address handwritten on the back; a New York State automobile insurance card issued to petitioner bearing the in-district address; a cable television bill bearing petitioner’s name and the in-district address; and a pay stub bearing petitioner’s name and the in-district address.

Nevertheless, on this record, I find that petitioner has not met her burden of proving the she and the student reside at the in-district address.  Although petitioner submits some documentary evidence bearing the in-district address, I find such evidence unpersuasive when weighed against the district’s surveillance evidence.  Petitioner has provided no formal lease agreement for the in-district address and the notarized letter from her purported landlord acknowledges that her lease ended in 2016, although the landlord asserts that petitioner still resides there.  Moreover, the driver’s license petitioner submitted in support of the petition lists the out-of-district address on the front of the license and the in-district address is handwritten on the back of the document as her new address.  In addition, as noted above, the surveillance reports reveal that the student was observed exiting the out-of-district address on six of the seven days on which surveillance was conducted.  On the seventh day of surveillance, petitioner’s vehicle was observed parked at the out-of-district address approximately one hour before the start of the school day.

Therefore, based on the record before me, I cannot conclude that respondent's determination that petitioner and her daughter are not district residents was arbitrary, capricious or unreasonable.

In light of this disposition, I need not consider the parties’ remaining contentions.  However, I note that the record indicates that respondent failed to comply fully with the procedures required by 8 NYCRR §100.2(y).  I remind respondent of its obligation to comply with all such procedures.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s 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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