Appeal of HEATHER GARRISON, on behalf of her children LOGAN and ISAIAH, from action of the Board of Education of the Hermon-DeKalb Central School District regarding residency.

Decision No. 17,716

(July 31, 2019)

Ferrara Fiorenza, PC, attorneys for respondent, Susan T. Johns, Esq., of counsel

EILA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Hermon-DeKalb Central School District (“respondent”) that her children, Logan S. and Isaiah C. (“the students”), are not eligible to attend the district’s schools tuition-free as residents.  The appeal must be dismissed.

By letter dated June 2, 2017, respondent’s superintendent (“superintendent”) determined that the students were not district residents.  The superintendent explained to petitioner that the students needed to register in the Gouverneur Central School District because her residence was located in that district.  The superintendent acknowledged that petitioner’s residence was located in the Township of DeKalb, but explained that the boundaries of that township were not the same as the boundaries of respondent’s district.  It appears from the record that an appeal of the superintendent’s determination was taken to respondent, and by letter dated August 15, 2017, the superintendent advised petitioner that on August 14, 2017 respondent had decided to deny her request to have her children attend its schools as district residents.

My Office of Counsel received petitioner’s purported appeal of respondent’s residency decision on March 21, 2018.  By letter dated March 21, 2018, my Office of Counsel returned petitioner’s submission because the petition was not verified in accordance with Commissioner’s regulations §§275.5 and 275.6 and the submission did not include an affidavit of personal service in accordance with Commissioner’s regulations §§275.8 and 275.9.  The letter advised petitioner that, should she “wish to proceed with this matter, within five days after service, the original petition, notice and verification, together with an affidavit of personal service and $20.00 filing fee, must be transmitted to this office.”  Petitioner resubmitted the petition and related documents, which my Office of Counsel received on December 14, 2018.

Meanwhile, by letter dated August 20, 2018, the superintendent wrote to inform petitioner that the students would be removed from enrollment in respondent’s district.  Petitioner responded, by email, that she would be appealing the residency determination.  The superintendent followed up with petitioner by letter dated September 6, 2018, giving petitioner the opportunity to submit additional information regarding residency or any other claim of entitlement to attendance, and enclosed a residency questionnaire for petitioner to complete.

By letter dated September 26, 2018, the superintendent advised petitioner that he had determined that the students were not district residents, and the students would be excluded from respondent’s school as of October 4, 2018.  On October 4, 2018, petitioner provided the superintendent with the completed residency questionnaire, which reflected that the students’ residence had not changed since the superintendent’s initial residency determination in June 2017.  As petitioner continued to drop the students off for school in respondent’s district, the superintendent wrote her another letter, dated November 20, 2018, advising that he had determined that the students were not district residents and that the students would be excluded from attendance as of December 3, 2018.  The November 20, 2018 letter advised petitioner that the determination could be appealed to the Commissioner pursuant to Education Law §310.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 20, 2018.

Petitioner argues that the petition should not be dismissed as untimely because events outside of her control forced her to file late.  She argues that the students are entitled to attend school in respondent’s district because they reside with her at an address in the Township of DeKalb.

Respondent contends that the petition is untimely and not properly endorsed or verified.  Respondent also contends that the students are not district residents.

The appeal must be dismissed for lack of proper verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, the affidavit of verification submitted by petitioner is improper because it asserts that the superintendent, who is not a party to this appeal, has read the petition, knows the contents thereof, and swears under oath to the truth of the allegations in the petition to his knowledge.  The affidavit of verification is purportedly signed by both petitioner and the superintendent, but it does not include an oath by petitioner as to the truth of the allegations contained in the petition.  Section 275.5(a) of the Commissioner’s regulations requires that a petition be verified by the oath by at least one petitioner.  Because petitioner has not sworn under oath to the truth of the allegations in the petition, the appeal must be dismissed for lack of proper verification.

Even if the appeal was 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).

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).

Petitioner’s argument that she is a district resident appears to be based on her mistaken belief that her residence is necessarily located within the district’s geographical boundaries because it is located in the Township of DeKalb.  There is no dispute regarding the address where petitioner and the students reside, and petitioner does not assert that she plans to relocate.  Respondent asserts that the boundary line between its school district and the Gouverneur Central School District bisects the Township of DeKalb, which means that a portion of the Township lies in each school district.  Respondent has submitted maps and county data showing that petitioner’s residence is within the Gouverneur Central School District.  Accordingly, on this record I cannot find that respondent’s determination that the students are not district residents was arbitrary and capricious.

I note that the superintendent’s November 20, 2018 letter does not advise petitioner of her right to appeal the superintendent’s determination to respondent, even though such a local appeal was taken in 2017.  If the superintendent is not the board’s designee empowered to make a final residency decision, under §100.2(y)(6) of the Commissioner’s regulations, the superintendent’s letter was required to advise petitioner of the procedures to obtain review of the decision within the district.  I admonish respondent to review its procedures for making residency determinations, clarify whether there is a local appeals process, and, if so, fully comply with the written notice requirements of 8 NYCRR §100.2(y)(6).

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

THE APPEAL IS DISMISSED.

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