Robinson v. Smith

• Decision Date: 17 October 1996
• Docket Number: No. 95-AA-1163.,95-AA-1163.
• Parties: Jonathan P. ROBINSON, Petitioner, v. Franklin L. SMITH, et al., Respondents.
• Court: D.C. Court of Appeals

683 A.2d 481

Jonathan P. ROBINSON, Petitioner, v. Franklin L. SMITH, et al., Respondents.

No. 95-AA-1163.

District of Columbia Court of Appeals.

Argued June 11, 1996.

Decided October 17, 1996.

Jeffrey S. Gutman, Washington, DC, for petitioner.

Phillip A. Lattimore, Assistant Corporation Counsel, for respondents. Charles F.C. Ruff, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Sonia Bacchus, Assistant Corporation Counsel, were on the brief for respondents.

Before WAGNER, Chief Judge, and TERRY and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

By statute, nonresident tuition must be paid for each child who attends a public school in the District of Columbia and does not have a parent or guardian who resides in the District, unless the child is an orphan or obtains an exemption from the Board of Education. D.C.Code § 31-602 (1993 Repl.); see also 5 DCMR 2000.2 (1995). Petitioner seeks review of a decision by the Superintendent of the District of Columbia Public Schools (DCPS) affirming a hearing examiner's determination that petitioner was a resident of Maryland, rather than the District, and accordingly that nonresident tuition must be paid for petitioner's two children who attended public schools in the District.

Petitioner makes three principal arguments. First, he contends that we should reverse the DCPS decision as unsupported by reliable, probative and substantial evidence in the record. Second, petitioner contends that we should vacate the decision and remand for a new hearing because of DCPS's alleged failure to follow certain procedures. Finally, petitioner contends that the DCPS proceedings against him should have been dismissed due to administrative delay. We affirm.

I.

On May 12, 1992, the DCPS Inspector General's office alerted DCPS's Nonresident Tuition Enforcement Branch (the Branch) that a car bearing Maryland registration tags and registered to petitioner and his wife at a Maryland address had been observed delivering children to a public school in the District of Columbia. DCPS determined that petitioner and his wife were the parents of two children enrolled in DCPS, and that petitioner and his wife had executed DCPS forms certifying that they both resided at an Illinois Avenue address in the District of Columbia. However, in February 1992, postal authorities had verified that petitioner and his wife received mail at the Maryland address.

On May 19, 1992, the Branch director wrote to petitioner and his wife, noting that a preliminary investigation revealed that they were residing at the Maryland address, and that they therefore owed $3,458 in nonresident tuition for their children's attendance at DCPS during the second semester of the 1991-92 school year. The letter instructed petitioner and his wife to contact the Branch by telephone if they wished to discuss the matter. On June 8, 1992, petitioner's mother sent a notarized letter to the Branch director, stating that petitioner and his two children resided with her at her Illinois Avenue home.¹

The case was assigned to a DCPS investigator in August 1993. During that month, DCPS obtained verification from postal authorities that petitioner was receiving mail at the Maryland address, but not at Illinois Avenue. Further investigation in April 1994 and January 1995 revealed that the personnel records of petitioner's employer, Howard University Hospital's patient accounting office, listed the Maryland address for petitioner, while the hospital's payroll office records showed that petitioner had changed his address from Maryland to Illinois Avenue on October 1, 1993. Maryland state records listed petitioner and his wife as owners of the property at the Maryland address since 1986, and the 1994 Haines Directory listed the Maryland address for petitioner.

Based on this information, DCPS wrote to petitioner on April 12, 1995, stating that further investigation revealed that petitioner resided at the Maryland address, and that he therefore owed $33,785 in nonresident tuition for his children's attendance at DCPS beginning in the spring semester of the 1991-92 school year. The letter advised petitioner to telephone DCPS if he wished to discuss the matter. On April 25, 1995, petitioner telephoned DCPS and maintained that he was a resident of the District. The following day, petitioner submitted a written request for a hearing.

A hearing was scheduled for May 5, 1995. In the meantime, DCPS investigators observed petitioner picking up his son after school in a car with Maryland tags, obtained verification from postal authorities that petitioner was continuing to receive mail at the Maryland address and from Maryland state records that petitioner and his wife were the record owners of the Maryland property, and interviewed neighbors of the two addresses on May 4, 1995, the day before the hearing. Maryland neighbors stated that the children lived at the Maryland address, and that the family had lived in the house for eight years. One Maryland neighbor stated that she knew petitioner and his children and saw them on a daily basis. By contrast, neighbors of petitioner's mother on Illinois Avenue were unable to verify that petitioner lived at his mother's house. Indeed, one Illinois Avenue neighbor stated that petitioner lived in Maryland, that he dropped his children off in the District on his way to work, and that the children were picked up at his mother's house in the evenings.

At the May 5, 1995 hearing, two DCPS investigators and another representative of DCPS testified to the above information. Petitioner testified that his wife still lived at the Maryland address, but that he and his wife were "basically" separated, and that he and his children had resided with his mother at the Illinois Avenue address since about 1990. In addition, petitioner testified that he had paid D.C. taxes since 1991, 1992, or 1993. Petitioner also submitted copies of documents listing his address on Illinois Avenue in the District, including a form W-2 wage and tax statement indicating that D.C. income taxes were withheld from his wages during 1994, a credit card bill, a D.C. driver's license, a D.C. voter registration card, a Social Security card, a check and a February 1995 bank statement from his joint account with his mother and brother at a D.C. bank, notifications of deposit from his employer dated May 1994 and April 1995, and a notarized statement from his mother that petitioner had lived permanently at the Illinois Avenue address since 1990.

At the close of the hearing, the hearing examiner stated that she would leave the record open until May 9, 1995 for the purpose of receiving evidence of whether petitioner's third child was also attending DCPS.² On May 15, petitioner wrote to the hearing examiner. Among other things, petitioner's letter clarified that he had begun paying D.C. taxes in 1993, disputed the neighbors' statements to the investigators, explained that he had not yet registered his car in the District because his wife would not release the title to him, stated that he received credit card bills and bank statements addressed to the Illinois Avenue address in the mail, explained that he received mail at the Maryland address because he was still a co-owner of that property, and stated that he had never voted or registered to vote in Maryland. In addition, petitioner noted that, after first receiving correspondence from the Nonresident Tuition Enforcement Branch, he submitted proof of District residency, and had not heard anything further until 1995.³

On June 29, 1995, the hearing examiner, expressly refusing to consider the information submitted by respondent after the record closed, issued a determination that petitioner owed $33,785 in nonresident tuition. After summarizing the evidence, the hearing examiner found that (1) petitioner and his wife were the parents of the two students at issue; (2) petitioner, his wife, and their three children resided at the Maryland address, and had done so since 1986; (3) petitioner also received mail at the Illinois Avenue address; (4) the two children at issue had been enrolled in DCPS since the 1991-92 school year; (5) one child attended Jefferson Junior High School and the other attended Stevens Elementary School; and (6) "throughout their attendance in the DCPS since September 1991, petitioner's children have had neither a court appointed guardian or custodian residing in the District of Columbia nor an exemption from the payment of nonresident tuition."

To explain her findings, the hearing examiner highlighted four aspects of the evidence. First, while petitioner asserted that he and his wife had lived apart since 1990, she in Maryland and he in the District, and never claimed that his wife had lived at the Illinois Avenue address, the children's school enrollment forms for three different years listed the Illinois Avenue address for both petitioner and his wife. Second, the hearing examiner cited the testimony of the investigators that neighbors at both addresses indicated that petitioner lived in Maryland. Third, the hearing examiner noted that, while petitioner submitted some evidence of D.C. residency, he produced few pieces of mail received at the Illinois Avenue address to document his claimed five-year residency there; in addition, petitioner's submission was notarized by a Maryland notary public. Fourth and finally, the hearing examiner pointed to inconsistencies in petitioner's testimony regarding whether his paychecks were deposited into his D.C. savings bank account. It is readily apparent from the hearing examiner's statements that inconsistencies in petitioner's story led her to credit DCPS's evidence that petitioner resided at the Maryland address over petitioner's evidence that he resided on Illinois Avenue.⁴ Accordingly, the hearing examiner concluded that DCPS had proved its case by a preponderance of the evidence.

Petitioner appealed the...