Appeal of STRACY JONES, on behalf of his daughter, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 17, 981

(April 14, 2021)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Sewanhaka Central High School District (“respondent”) that his daughter (the “student”) is not a district resident.  The appeal must be dismissed.

In 2018, respondent enrolled the student in its schools based upon petitioner’s representation that he and the student resided at an address within respondent’s district (the “in-district address”).  At all times relevant to this appeal, the student’s mother resided at a location in Queens, New York (the “out-of-district address”). 

In fall 2019, the district conducted a residency investigation after it received information suggesting that the student might be residing at the out-of-district address.  An investigator conducted surveillance of both the in-district and the out-of-district addresses between November and December 2019.  Specifically, the investigator observed the out-of-district address on six days[1] beginning at 6:00 a.m.  On each of these six days, the investigator observed the student exit the out-of-district address, enter an automobile, and depart from the address.  The investigator also observed the in-district address between 6:00 and 9:00 a.m. on three different days,[2] during which time he did not observe the student; instead, the investigator observed an adult man and adolescent boy exit the address, enter an automobile, and drive away.  Notably, on each of the three mornings that the investigator observed the in-district address and did not see the student, the investigator confirmed that the student was present in school for her first-period class.

In a letter dated January 6, 2020, respondent’s administrative assistant to the superintendent (“administrative assistant”) notified petitioner that the student was not entitled to attend respondent’s schools on the basis of “actual residence elsewhere” and “temporary residence established for purposes of attending district schools.”  In a letter dated January 15, 2020, petitioner appealed this decision.

On January 28, 2020, respondent conducted a formal residency hearing, presided over by an administrative review officer, to determine the student’s residency.  At the administrative review, petitioner testified that he rents “a room” at the in-district address.  Petitioner described his living space as encompassing one bedroom and one bathroom and indicated that the student “had been staying there since March 2016.”  While petitioner and the student’s mother – who also testified at the hearing – generally denied that the student stayed at the out-of-district address during the week, the student’s mother conceded that, “recently,” the student had stayed at the out-of-district address while petitioner traveled for work.

In a written decision dated June 17, 2020, the administrative review officer concluded that the student was not entitled to attend the district’s schools due to “actual residence elsewhere.”  The administrative review officer determined that, based on the evidence and testimony adduced at the hearing, the student lived at the out-of-district address with her mother.  Petitioner was advised that the student would be excluded from respondent’s schools effective June 30, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 14, 2020.

Petitioner asserts that the student has resided with him at the in-district address “since 2017.”  Petitioner further asserts that the student only resided at the out-of-district address “for a couple of months” while he “was contracted to do work out of town ....”  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the appeal must be dismissed as untimely and for lack of verification.  On the merits, respondent argues that its determination to exclude the student from its schools was rational and supported by the record.

The appeal must be dismissed for lack of 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).  Petitioner originally submitted a version of the petition that was received by my Office of Counsel on July 17, 2020.  That same day, my Office of Counsel returned the submission to petitioner because it lacked an affidavit of personal service and an affidavit of verification, as required (see 8 NYCRR 275.5 [a], 275.6, 275.9 [a]).  Petitioner then submitted the instant petition, which includes a properly completed affidavit of service.  However, the affidavit of verification is signed by the individual who served the petition upon respondent.  Section 275.5 (a) of the Commissioner’s regulations requires that “[t]he petition shall be verified by the oath of at least one of the petitioners ....”  Because petitioner has not verified the petition by submitting a properly executed affidavit of verification, I am constrained to dismiss the appeal for lack of verification.

Even if the appeal were properly verified, it would be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, the record does not reflect when petitioner received the administrative review officer’s June 17, 2020 determination.  Thus, affording five days for mailing, excluding Sundays and holidays, petitioner was required to commence an appeal on or before July 23, 2020.  Petitioner’s affidavit of service reflects that the appeal was served on July 28, 2020.[3]  Petitioner has not provided good cause, or any cause, for the delay in the petition, as required (8 NYCRR 275.16).  Therefore, the appeal must also be dismissed as untimely (see Appeal of Manfredo, 56 Ed Dept Rep, Decision No. 16,943).

Finally, I note that, even if the appeal were not subject to dismissal for lack of verification and as untimely, it would be dismissed on the merits.  Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

Where a child’s parents live apart, the child can have only one legal residence (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Helms, 36 id. 95, Decision No. 13,668).  In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence for purposes of Education Law § 3202 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Cortes, 37 id. 114, Decision No. 13,818).  However, in the absence of proof that the child’s time is indeed divided between both households, the child’s residency must be determined by the traditional test requiring physical presence in the district and intent to remain (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has not met his burden of proving that the student resides within respondent’s district.  As evidence, petitioner submits only a copy of his New York State driver’s license and registration, both of which bear his name and the in-district address.  While this evidence generally suggests that petitioner resides at the in-district address, it is insufficient to establish that the student resides with him at the in-district address rather than with her mother at the out-of-district address, particularly where contrary surveillance evidence exists (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  As indicated above, an investigator observed the student exiting the out-of-district address on each of the six days of surveillance at the out-of-district address, which occurred over a period of approximately three weeks.  Conversely, the investigator did not observe the student at the in-district address on any of the three weekday mornings on which he conducted surveillance, yet the student was present for her first period class on each such morning.

While petitioner presents a plausible explanation for the surveillance evidence – i.e., that the student resided at the out-of-district address with her mother temporarily while petitioner was away for “a couple of months” for work – he has produced no evidence to support this explanation.  As indicated above, the only proof petitioner has submitted are copies of his driver’s license and vehicle registration.  Respondent’s determination, by contrast, was based upon nine days of surveillance conducted over several weeks.  Accordingly, on this record, I would not find respondent’s determination to be arbitrary or capricious, even if the appeal were not dismissed on procedural grounds as discussed above (see Appeal of T.M., 58 Ed Dept Rep, Decision No. 17,496).

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for the student’s admission to respondent’s schools in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration. 

THE APPEAL IS DISMISSED. 

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