Appeal of J.W. and K.W., on behalf of A.W., from action of the Board of Education of the City School District of the City of Plattsburgh regarding residency.

Decision No. 17,815

(February 11, 2020)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioners challenge the determination of the Board of Education of the City School District of the City of Plattsburgh (“respondent”) that A.W. (“the student”) is not a district resident and, therefore, not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Petitioners are district residents and the student is their brother/brother-in-law.  According to petitioners, the student’s parents “work with the military” overseas but are not deployed military personnel.

On or about August 8, 2019, petitioner J.W. attempted to register the student to attend respondent’s schools as a district resident using a durable power of attorney form (“power of attorney”) naming him as attorney-in-fact for the student’s father.  The power of attorney is revocable at any time, for any reason.  Moreover, the power of attorney expires on December 1, 2021.  The student’s father retains full parental rights under the power of attorney.

Respondent’s assistant superintendent of business (“assistant superintendent”) determined that the power of attorney was insufficient to transfer custody and control of the student from his father to petitioner J.W.  The assistant superintendent indicates in an affidavit submitted with this appeal that he verbally informed petitioner J.W. of his determination sometime in August 2019.

Subsequently, on August 22, 2019, during a telephone call with district employees and the school attorney, petitioner J.W. stated that the reason the student was coming to live with petitioners was to take advantage of a specific program offered by a Board of Cooperative Educational Services.  Following this telephone call, the assistant superintendent again determined that the student would not be enrolled in respondent’s schools and verbally conveyed this determination to petitioner J.W.

On or about August 28, 2019, petitioners again attempted to register the student to attend respondent’s schools, and again were told that they would not be permitted to do so.  In an email from petitioners to respondent’s superintendent dated August 29, 2019, petitioners requested a review of the assistant superintendent’s determination.

In an email dated August 30, 2019, the superintendent acknowledged petitioner J.W.’s request.  The superintendent indicated that “[t]ransferring custody may not be done via interpersonal agreement, even through affidavit, as this does not meet our district’s standard.”  The superintendent further stated that a transfer of custody could only occur through a family court order, and that the district typically “verif[ies] the custody transfer” thereafter “requesting items such as proof that the new guardians are supporting the student ..., claiming the student as a dependent on their tax returns, etc.”  The superintendent requested clarification as to whether the student’s parents were “actively deployed members of the US Military” and indicated that he would “gladly explore” whether an exception to residency requirements existed for active duty military personnel.

By letter dated September 4, 2019, the superintendent informed petitioners that the student was not entitled to attend respondent’s schools tuition-free.  The letter stated that the basis for the determination was that the student’s parental residence was overseas, and that the student’s parents had not proven a total and permanent transfer of custody to petitioners.

Subsequently, petitioners submitted a New York State Non-Driver Identification for the student and a handwritten, notarized statement by the student’s parents in which they indicated that they had transferred custody and control of the student from his parents to petitioners.  By email dated September 5, 2019, the assistant superintendent indicated that the non-driver identification and notarized statement did not establish the student’s residency within the district.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 18, 2019.

Petitioners contend that they have total and permanent custody and control of the student.  Petitioners maintain that the student should be enrolled in respondent’s schools because his parents work for the U.S. military overseas.  Petitioners request a determination that the student is a resident of respondent’s district and is entitled to attend respondent’s schools without the payment of tuition.

Respondent asserts that the appeal must be dismissed because petitioners failed to effectuate proper service on respondent and because petitioners have failed to state a claim upon which relief may be granted.

The appeal must be dismissed for improper 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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioners’ affidavit of service indicates that petitioners delivered the notice of petition and petition to Katie Palkovic, a payroll clerk.  Ms. Palkovic avers in an affidavit that only the superintendent and district clerk may accept service and she is neither.  The record reflects that petitioner attempted to serve the assistant superintendent and when he was absent, the process server served Mrs. Palkovic.  Respondent denies that Ms. Palkovic is authorized to accept service.  Petitioners have not submitted a reply or otherwise refuted respondent’s allegations.  When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Terry, 50 Ed Dept Rep, Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).  Accordingly, on this record, I cannot conclude that petitioners properly effectuated service upon respondent in accordance with §275.8(a) of the Commissioner’s regulations, and the appeal must be dismissed.[1]

I agree with respondent that questions remain on this record as to the permanency of the purported transfer of custody and control.  However, I am concerned that the superintendent informed petitioners in his August 30, 2019 email that “[t]ransferring custody may not be done via interpersonal agreement, even through affidavit” and may only be effectuated through a formal guardianship proceeding.  The Commissioner has long held that it is not necessary to establish parental custody and control through a formal guardianship proceeding (see e.g. Appeal of D.D., 48 Ed Dept Rep 320, Decision No. 15,871 [finding a complete transfer of custody and control, effectuated via affidavit]).  Instead, a petitioner is obligated to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

In light of this determination I need not address the parties remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE