Appeal of STUDENTS WITH DISABILITIES, by their parent, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 17,687

(July 9, 2019)

Thivierge & Rothberg, PC, attorneys for petitioner, Christina D. Thivierge and Katharine Giudice, Esqs., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her two children (“the students”) are not district residents.  The appeal must be dismissed.

The students have attended Lakeville Elementary School in respondent’s district since 2016, when they were in pre-kindergarten, based on the representation that they live in the district with petitioner in a house owned by their paternal great-grandmother (the “in-district address”).

According to respondent, concerns about petitioner’s residency arose in March 2018 when the district received an “unsolicited report of nonresidency” from its director of food and nutrition (“director”).  The director, in an affidavit submitted with this appeal, states that during a job interview on February 16, 2018, the interviewee stated that her sister provided transportation for her every day.  The director further states that, in March 2018, an employee of Lakeville Elementary School contacted her and reported that one of petitioner’s children stated that he or she was related to the interviewee mentioned above and that one of petitioner’s children had complained about having a long ride to school.  The director further states that, at the time of the interview, she did not know that the candidate was petitioner’s sister, but that she “found this information concerning because [she] knew that [the interviewee/employee] resided outside the [d]istrict in West Babylon,” and that it “appeared that [petitioner] and petitioner’s children all resided together outside the district in West Babylon, and that they commuted together to the [d]istrict’s Lakeville Elementary School every day.” The director states that she relayed the aforementioned information to respondent’s district registrar (“registrar”).  Thereafter, respondent commenced a residency investigation and retained an investigator to conduct surveillance.[1]

An investigation report (“report”) submitted by respondent indicates that surveillance was conducted on five weekday mornings - March 9, 14, 19, 23 and 27, 2018 – commencing at 5:00 a.m. at the West Babylon address (the “out-of-district address”).  The report indicates that, on four of the five mornings, two female children and one male child left the out-of-district address with two adult females in a car registered to the out-of-district address.[2]  On the fifth occasion, two female children, one male child and two female adults left the out-of-district address; however, the report indicates that the investigator could not determine “which combination of adults and children left in which vehicles ....”  On all five mornings, the car(s) left the out-of-district address between 7:15 and 7:30 a.m.  Surveillance was also conducted simultaneously at the in-district address on the mornings of March 9 and 14, 2018 and the report indicates that “no children exited the home.”[3]  In an affidavit submitted with this appeal, the registrar states that the students were present at school on all five days of the surveillance.

By letter dated April 9, 2018, the registrar notified petitioner that it “ha[d] come to [the district’s] attention” that petitioner and the students are not legal residents of the district and, therefore, “based on the information we have obtained” the students were not entitled to attend the schools of the district.  The letter stated that if petitioner disputed this finding, she could schedule an appointment to meet with the registrar to present evidence that she and the students were “bona-fide residents” of the district. The letter also indicated that if the registrar did not hear from petitioner by April 20, 2018, the students would be disenrolled “effective April 23, 2018.”

Petitioner requested a residency meeting.  On April 12, 2018, petitioner met with the registrar.  The parties present differing accounts of the meeting.  In her affidavit, the registrar states that she confronted petitioner with “an overview and clear description of the [d]istrict’s evidence of nonresidency.”  Petitioner admits that the registrar “indicated that an investigator ha[d] been following” her, but asserts that the registrar “did not provide any further information including dates or documentation.”  The registrar also states that petitioner stated “in words or substance that she had childcare issues in light of her work schedule, and that was why she ha[d] been staying with her children at the [out-of-district address]” and that, referring to her presence at the in-district address, she stated that she would “fix it.”  However, in an affidavit submitted with the petition, petitioner contends that she “explained that [her] family members live at [the out-of-district address], and that [she and the students] were present there because [petitioner] provided care to [her] sick relatives.”  Furthermore, petitioner and her aunt, the owner of the out-of-district address, both attest in affidavits that petitioner’s children do not have their own beds at the out-of-district address.  Petitioner also submits an affidavit from the student’s great-grandmother, the owner of the in-district address, in which the great-grandmother attests that the students have beds, toys, clothing and other belongings at the in-district address.  According to petitioner, the registrar refused to accept any documentation offered by petitioner to support her and the students’ continued residency.[4]

By email dated April 12, 2018, the registrar wrote to petitioner and requested documentation from her employer with “the days and hours [she] worked during the period of February 5 through March 28.”  By email dated April 12, 2018, petitioner responded to the registrar’s email asking why the registrar wanted that documentation, why she had asked questions about petitioner’s sister, and confirmed that the registrar would not accept documentary evidence as proof of residency.[5]

On April 27, 2018, at the direction of the registrar, the district’s investigators conducted one additional day of surveillance.  In her affidavit, the registrar indicates that, on the morning of April 27, 2018, she “received information” from the investigators that petitioner, petitioner’s sister and the students were observed leaving the out-of-district address.

By letter dated April 27, 2018, the registrar notified petitioner that “the determination of non-residency still stands.”  The letter further advised that the students “are not entitled to attend district schools.”  Petitioner appealed the determination to respondent.[6]  By letter dated June 15, 2018, respondent notified petitioner that it upheld the district’s determination that she and the students were not district residents and notified petitioner that the students would be “dis-enrolled as of June 22, 2018.”  This appeal ensued.  Petitioner’s request for interim relief was granted on July 20, 2018.

Petitioner argues that respondent violated 8 NYCRR §100.2(y)(6) by failing to provide her with timely notice of its decision that the students were not residents of the district and failing to include a specific basis for its determination in its determination letters.  Petitioner states that she and the students reside at the in-district address and that she intends to continue to reside there “indefinitely,” but that she and the students spend an average of three nights per week at the out-of-district address “providing care” to her aunt and uncle, who have been in “poor health.”

Respondent argues that the appeal must be dismissed for failure to state a claim and because petitioner has failed to meet her burden of proof.  Respondent also argues that even if its written notice did not comply with the specific notice requirements set forth in Commissioner’s regulations:

such procedural errors were not only inadvertent, but also harmless because petitioner actually received more due process than is required by law, and because petitioner’s children have remained continuously enrolled in the [d]istrict’s public schools without a single day of interruption.

Finally, respondent argues that its decision is rational, supported by the record, and in compliance with applicable laws and regulations and, therefore, not arbitrary, capricious or unreasonable.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

First, petitioner alleges that respondent violated 8 NYCRR §100.2(y)(6) and petitioner’s right to due process by failing to provide written notice of respondent’s June 4, 2018 determination within two business days and by failing to include the specific basis for its determination in the letters from the registrar dated April 9, 2018 and April 27, and in the June 15, 2018 written notice of the board’s determination. Section 100.2(y)(6) provides, in relevant part, as follows:

Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district. Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is not a resident of such district, such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate. Such written notice shall state:

(i) that the child is not entitled to attend the public schools of the district;

(ii) the specific basis for the determination that the child is not a resident of the school district, including but not limited to a description of the documentary or other evidence upon which such determination is based ....

As respondent contends, a decision by a school official other than the board or the board’s designee is not required to include the specific basis and a description of the documentary or other evidence on which the determination is based.  Respondent argues that such requirements only apply after a board of education or its designee renders a final determination of non-residency. 

Respondent is technically correct that the requirement that the written notice include the specific basis for the determination and a description of the underlying evidence only applies to a final determination of residency, whether this final decision is made by the board or the board’s designee (see Appeal of a Student With a Disability, 56 Ed Dept Rep, Decision No. 16,939; Appeal of Zayas, 53 id., Decision No. 16,546).  Respondent’s procedures on residency determinations set forth in district policy 5150 provide for an appeal to the superintendent and then to the board, though it is clear from the record that respondent did not follow the procedures set forth in that district policy with regard to an appeal to the superintendent.  In her April 9 and April 27, 2018 letters, the registrar apprised petitioner of her right to appeal her decision, albeit to respondent rather than the superintendent, which complies with the requirements of 8 NYCRR §100.2(y)(6) for a non-final determination by a school official other than a board’s designee.  On this record, the final residency determination was made by the board, and it is the board, not the registrar, that was required to provide written notice within two days that sets forth the basis for the residency determination, and a description of the evidence.  Therefore, I find that the letters from the registrar technically complied with 8 NYCRR §100.2(y)(6).

However, the board’s written notice dated June 15, 2018 was not provided within two business days of its June 4, 2018 determination, included only a general conclusory statement that petitioner and the students are not district residents, and did not include any reference to the evidence upon which the determination was based. Such a general statement does not comply with the requirement of 8 NYCRR §100.2(y)(6) that the written notice state the specific basis for the determination (see e.g. Appeal of Diaz, 54 Ed Dept Rep, Decision No. 16,734; Appeal of Zayas, 53 id., Decision No. 16,546). Furthermore, the notice clearly does not comply with the requirement that the written notice describe the underlying evidence.  In addition, to the extent the registrar declined to accept documentary evidence proffered by petitioner as discussed above, respondent violated the provision of  §100.2(y)(6) that affords the parent the opportunity to submit information concerning the students’ right to attend school in the district.

The entitlement under Education Law §3202(1) to attend school without the payment of tuition is based solely on residency within the school district, however, so respondent’s noncompliance with the written notice requirements of 8 NYCRR §100.2(y)(6) does not confer upon petitioner or the students a continuing right to attend respondent’s schools tuition-free if they are not, in fact, district residents (Appeal of Banarsee, 42 Ed Dept Rep 34, Decision No. 14,766).  Moreover, I find that petitioner has had a full and fair opportunity in this appeal to present evidence of residency and respond to the district’s claims, and under such circumstances I decline to set aside the residency determination based upon respondent’s procedural noncompliance with 8 NYCRR §100.2(y)(6) (see e.g. Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,145; Appeal of Smythe, 51 id., Decision No. 16,303; Appeal of Butler and Dunham, 50 id., Decision No. 16,103; Appeal of Clark, 46 id. 143, Decision No. 15,468).  However, I admonish respondent that it must assure that it fully complies with 8 NYCRR §100.2(y)(6) in the future (Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,145; Appeal of Hentschel, 56 id., Decision No. 16,969; Appeal of L.B.-S., 52 id., Decision No. 16,403).

In support of its position that the student is not a district resident, respondent relies primarily on its surveillance evidence.  As noted above, the district conducted surveillance at the out-of-district address on five non-consecutive weekday mornings in March.  On each of these mornings, petitioner and the students were observed leaving the out-of-district address.  While the parties dispute what occurred at the April 12, 2018 residency meeting and the record suggests that petitioner may not have been presented with the specific dates and times of the surveillance, petitioner was nevertheless advised that she had been seen at the out-of-district address.  Petitioner admitted at the meeting that she and the students were present at the out-of-district address.

On appeal, petitioner provides a reasonable explanation for her and the students’ temporary absences from the in-district address that is not inconsistent with the surveillance evidence (see Appeal of K.S. 57 Ed Dept Rep., Decision No. 17,229; Appeal of Mirza, 57 id., Decision No. 17,128).  Specifically, petitioner states that she and the students slept over at the out-of-district address so that petitioner could provide care to her aunt and uncle, who are in poor health.  Petitioner further states that the students accompanied her to the out-of-district address because she believed their presence was beneficial to her aunt.

Respondent argues that petitioner’s explanation is not credible and contends that petitioner impermissibly raises this explanation for the first time on appeal.[7]  I agree with respondent that the evidence presented by petitioner at the local level did not refute the surveillance conducted by the district.  However, on appeal, petitioner has asserted a reasonable explanation for her and the students’ presence at the out-of-district address, claiming that the family was regularly seen at that address to care for sick relatives.  On appeal, petitioner presents evidence to support this claim, including affidavits from the students’ great-grandmother and petitioner’s aunt.  While petitioner did not submit this evidence to respondent prior to its residency determination, the Commissioner may consider evidence properly submitted in an appeal, such as in a reply, even though it had not been previously submitted to the district (see Appeal of Moore, 57 Ed Dept Rep, Decision No. 17,353; Appeal of a Student Suspected of Having a Disability, 56 id., Decision No. 17,061).  In this case, petitioner, for the first time, presented her explanation of the surveillance in her petition, with the two affidavits.  Respondent, in its answer, has had an opportunity to respond to petitioner’s explanation and to submit evidence to rebut it (see Appeal of Mirza, 57 Ed Dept Rep, Decision No. 17,128).

On appeal, petitioner also submits several forms of documentary evidence listing the in-district address, such as a copy of her New York State driver’s license issued December 18, 2017, a print out from the New York State Board of Elections, a notice regarding Home Energy Assistance Program Benefits dated February 13, 2018, a paycheck dated May 12, 2018, and a prepared 2017 Income Tax Return dated February 8, 2018.   Generally, in an appeal to the Commissioner, documentary evidence associating an individual with a particular address is entitled to some probative weight (see e.g. Appeal of Lutar, 57 Ed Dept Rep, Decision No. 17,187; Appeal of Strickland, 56 id., Decision No. 17,023).  However, such documentary evidence indicating the use of an in-district mailing address is not dispositive where contrary surveillance evidence exists that is not otherwise refuted or explained or where the address is that of a relative (see e.g. Appeal of Leach, 58 Ed Dept Rep, Decision No. 17,653; Appeal of Mauro, 58 id. Decision No. 17,494; Appeal of Brown, 54 id. Decision No. 16,644).  As described above, in addition to her documentary evidence, petitioner has provided explanations, supported by sworn affidavits, that are not inconsistent with respondent’s limited initial surveillance evidence.

Nevertheless, while petitioner has presented evidence suggesting that she resides at the in-district address, respondent submits substantial rebuttal evidence.  First, in its opposition papers and answer, respondent indicates that it commissioned additional surveillance after this appeal was commenced and submits a report documenting four additional non-consecutive days of surveillance conducted on July 27 and 30, and August 2 and 7, 2018.[8]  This evidence shows that two adult females, two female children and one male child were seen leaving the out-of-district address between 7:15 a.m. and 7:35 a.m., except on August 7, 2018 when the male child was not present.  In its answer, respondent alleges that the two adult females were petitioner and petitioner’s sister, and the three children were the two students at issue in this appeal and petitioner’s youngest child.  Petitioner has not submitted a reply or otherwise responded to this evidence.

Respondent also conducted additional surveillance at the in-district address on July 30 and August 2, 2018.  The investigator observed no activity on July 30, 2018. On August 2, 2018, the investigator indicated that although no vehicles were initially observed in the driveway, a vehicle arrived which had been previously observed at the out-of-district address.  When the vehicle was observed at the out-of-district address, an investigator observed petitioner’s children entering the vehicle.

Respondent’s additional surveillance evidence is far from overwhelming and, in and of itself, not dispositive.  Nevertheless, I find such evidence sufficient to raise a serious question about the physical presence of petitioner and her children at the in-district address.  Respondent alleges that, on a total of 10 days of surveillance selected at random, petitioner and the students were observed leaving the out-of-district address in the morning to attend school or a summer camp operated by the district.  While it is theoretically possible that each of the 10 days were days on which petitioner stayed overnight to care for her aunt and uncle – which she asserts can be up to three days a week – such theoretical possibility is not dispositive.

In addition to its surveillance evidence, respondent provided evidence of statements made to district staff by petitioner’s sister, petitioner’s children and another child who resides at the in-district address which suggest that the students reside at the out-of-district address.  Respondent’s director of food service attests in an affidavit that petitioner’s sister, whom the record indicates resides at the out-of-district address, reported that she and petitioner commute to work every day.  She further attests that a cook-manager reported to her that one of petitioner’s children had complained about how long their ride was to school every day and petitioner’s other child had “shut down the conversation.”  Another staff member in the main office of the Lakeville Elementary School attests in an affidavit that a paraprofessional reported to her that she overheard one of the students “say in words or in substance” that it takes so long to get to school, and the other student told her, in response, to “be quiet.”  This staff member further attests that the paraprofessional reported to her that she overheard another student, whom the record indicates resides at the in-district address yelling at petitioner’s children “stop saying that you live with me because you don’t.”

These statements are hearsay, but hearsay is admissible in an administrative proceeding such as an appeal pursuant to Education Law §310 (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of Watson, Wyche and Brazley, 56 Ed Dept Rep, Decision No. 17,082; Appeal of Galperin, 51 id., Decision No. 16,297, judgment granted dismissing petition, Sup Ct., Albany Co., August 10, 2012).  Any objection to hearsay evidence goes to its relative unreliability and, thus, its weight (Appeal of Tashoff, 50 Ed Dept Rep, Decision No. 16,140).

Although many of the statements offered by the district are double hearsay, which I have afforded little evidentiary weight, I find two statements – namely, the statement by petitioner’s sister that she commutes with petitioner, and the statement by another student who resides at the in-district address – to be probative of petitioner’s residency.  To be sure, these statements are hearsay and entitled to less evidentiary weight than direct evidence.  However, petitioner did not submit a reply or otherwise respond to such statements; thus, there is no evidence in the record which contradicts such statements.

Respondent also contends that at the residency meeting, petitioner admitted that she had not been living at the in-district address. Specifically, the registrar attests in her affidavit that, in response to a question about the last approximate date on which she had stayed at the in-district address, petitioner responded that she “had not been staying there,” but that she “would fix it.”  Again, petitioner has not submitted a reply or otherwise responded to the registrar’s sworn statement.  Additionally, in her May 10, 2018 letter seeking to appeal to respondent, petitioner stated the following:

Recently, due to certain circumstances in the past, we will be residing at [the in-district address].  So that my children can continue to go to Great Neck Public Schools ....

In the petition and in petitioner’s “Renter/Non-owner” affidavit, petitioner asserts that she and her children have been residing at the in-district address since 2010. Accordingly, the May 10, 2018 letter appears to corroborate the registrar’s assertion that petitioner admitted that she had not been staying at the in-district address.

Based on the totality of the record, I find that petitioner has not met her burden of proving that respondent’s determination that she is not a district resident was arbitrary or capricious.  Petitioner has not denied or rebutted the hearsay statements which indicate that she commutes from the out-of-district address with her sister, and that another student who resides at the in-district address indicated that the two students who are the subjects of this appeal do not live there.  Similarly, petitioner has not denied or rebutted the registrar’s allegation that she admitted at the residency meeting that she has not been staying at the in-district address.

Moreover, petitioner has not explained why her assertion that she stays at the out-of-district address approximately three days a week to care for her ill aunt and uncle was raised for the first time on appeal and was not raised below at the residency meeting or on appeal to respondent.  Instead, at the residency meeting and on appeal to the board, petitioner explained that the reason she was absent from the in-district address was childcare issues arising from her work schedule.  Even though, as discussed previously, the Commissioner may consider evidence raised for the first time on appeal, that does not preclude an inference that the petitioner lacks credibility if no satisfactory explanation is offered for the failure to submit the evidence below.  Respondent determined that petitioner was not credible, and, in matters of credibility, I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095).  For the reasons explained above, the record lacks clear and convincing evidence warranting reversal of respondent’s credibility determination.

Finally, I admonish respondent to review its procedures for making residency determinations and ensure that such procedures fully comply with 8 NYCRR §100.2(y)(6) and its own district policies. The record indicates that while district policy 5150 was last amended in 2008, 8 NYCRR §100.2(y) was extensively amended in 2014 and 2015.  I note that in Appeal of Butler and Dunham (50 Ed Dept Rep, Decision No. 16,103), respondent was admonished for failure to comply with §100.2(y), including the failure to state the basis for its residency determination.  Respondent must now take steps to come into compliance and must also ensure that its staff complies with whatever procedures it adopts through district policy, consistent with §100.2(y).  Respondent is bound by its own policies, and it was impermissible for the registrar to bypass the superintendent and provide for an appeal directly to respondent, when district policy 5150 provides for an appeal to the superintendent or his or her designee prior to an appeal to respondent.

While the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

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

THE APPEAL IS DISMISSED.

END OF FILE