Appeal of L.G., on behalf of her children, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Appeal of L.G., on behalf of her children, from action of the Board of Education of the Roosevelt Union Free School District regarding residency.

Decision No. 18,308

(July 27, 2023)

Ingerman Smith, LLP, attorneys for respondent Freeport Union Free School District, Steven A. Goodstadt, Esq., of counsel

Guercio and Guercio, LLP, attorneys for respondent Roosevelt Union Free School District, Anthony J. Fasano, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioner challenges determinations of the Boards of Education of the Freeport Union Free School District (“Freeport”) and the Roosevelt Union Free School District (“Roosevelt”) that her children (the “students”) are not district residents.  Because the appeals arise out of similar facts and circumstances and present similar issues of law, they are consolidated for decision.  The appeals must be dismissed.

Given the disposition of these appeals, a detailed recitation of the facts is unnecessary.  In or about October 2022, Freeport enrolled the students based upon documentation provided by their father.  Suspecting that the students may not reside within the district, Freeport initiated a residency investigation.  On three days in October and November 2022, the investigator conducted surveillance at both: (1) the residence at which petitioner claimed to live with the students (the “in-district address”), and (2) an address outside of the district at which petitioner had requested that mail be sent (the “out-of-district” address).[1]  As relevant to this appeal, Freeport excluded the students effective November 18, 2022.  Petitioner’s appeal against Freeport ensued.  Petitioner’s request for interim relief was denied on December 9, 2022.

Throughout January 2023, petitioner and the students’ father communicated with Roosevelt employees regarding the students’ enrollment therein.[2]  According to counsel for Roosevelt, “[a]t no time did [Roosevelt] deny any request for admission to its school ….”  Petitioner’s appeal against Roosevelt ensued.  Petitioner’s request for interim relief was granted on January 26, 2023, which allowed the students to attend Roosevelt’s schools pending a decision on the appeal.

In her appeal against Freeport, petitioner contends that she and the students reside within Freeport and are entitled to attend its schools without payment of tuition.  In her appeal against Roosevelt, petitioner contends that she and the students reside within Roosevelt.  In both appeals, petitioner asserts that the students will reside at the out-of-district address for an “unknown length of time” while petitioner takes care of the students’ father as he recovers from surgery.  She further asserts that she and the students “will be going back to [the in-district address] as soon as [the students’ father] gets well.”

Freeport and Roosevelt each assert that the petition must be dismissed for improper service.  On the merits, Freeport argues that its determination is supported by surveillance evidence and affidavits from district employees.  Roosevelt argues that petitioner has failed to demonstrate a clear legal right to the relief requested.

Both appeals 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).

Petitioner’s appeal against Freeport includes an affidavit of service which indicates that, on November 30, 2022, a process server left the petition with “Stefanny” at the address of one of Freeport’s schools.  Respondent asserts that the petition was not served on any school district employee who is authorized to accept service on behalf of the district.  Petitioner did not submit a reply or otherwise respond to this contention.  Accordingly, I am constrained to dismiss the Freeport appeal for improper service (Appeal of M.C., 61 Ed Dept Rep, Decision No. 18,087; Appeal of Litton, 47 id. 277, Decision No. 15,695).

Similarly, petitioner’s appeal against Roosevelt includes an affidavit of service which indicates that, on January 20, 2023, a process server left the petition with “Chawla” at the address of one of Roosevelt’s schools.[3]  As with the Freeport appeal, respondent asserts that the petition was not served on an employee authorized to accept service on behalf of the district, and petitioner did not submit a reply or otherwise respond to this contention.  Accordingly, the Roosevelt appeal must also be dismissed for improper service.

While the appeals must be dismissed, I remind the parties that the students have a legal residence and, thus, are entitled to attend a public school district without payment of tuition.  Therefore, the students’ enrollment in school must be the paramount consideration even if a dispute over residency arises.

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

THE APPEAL IS DISMISSED.

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