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BRADDOCK v. SMITH

May 14, 1998

THERESA BRADDOCK, PETITIONER,
V.
FRANKLIN L. SMITH, ET AL., RESPONDENTS.



Before Steadman, Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge:

Petitioner Theresa Braddock seeks review of a decision by the District of Columbia Public Schools ("DCPS") that she owed $10,318 in nonresident tuition for the 1994-95 and 1995-96 school years on account of her son's attendance at Anne Beers Elementary School in the District during that period. Petitioner maintained that she and her son lived with her parents in the District during that period of time and, hence, did not owe nonresident tuition. Because of a deficiency in the hearing officer's findings of fact, which may create uncertainty with respect to the agency's ultimate legal position as well, and because the DCPS failed to follow its own rules relating to prehearing notice to petitioner which redounded to her prejudice, we must remand the case for further proceedings not inconsistent with this opinion.

I.

D.C.Code § 31-602 (1993) provides that 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 a special exemption. See also 5 DCMR § 2000.2 (1997). *fn1 The statute itself does not define "residency," but a Board of Education regulation lists several non-exclusive factors, or indicia of residency, to help guide the inquiry. 5 DCMR § 2002.11 (1997). *fn1 See also Robinson v. Smith, 683 A.2d 481, 488 (D.C. 1996) (residency factors of § 2002.11 are "administrative guide[s]"). Another regulation sets forth in detail the procedures for the "Review of Contested Residency Cases," including the right to a formal hearing on the issue. See 5 DCMR § 2009 (1997).

At petitioner's request, such a residency hearing before a hearing officer was conducted [711 A2d Page 837]

in her case on September 6, 1996. *fn2 At the hearing, Lawrence Crawford, appearing on behalf of the Office of Educational Accountability's Nonresident Tuition Enforcement Branch (of which he was the acting director), attempted to demonstrate petitioner's nonresident status based on the following evidence: (1) she and her husband have owned a home in Capitol Heights, Maryland since September 19, 1993; (2) she received mail, including credit card bills, at this Maryland address during the period she claims to have been a District resident; (3) she paid Maryland income taxes and listed her Maryland address on her tax returns; *fn2 (4) she listed the Maryland address as her residence with her Virginia employer; (5) since purchasing the Maryland property in 1993, she has not voted in the District of Columbia; and (6) her son was observed being dropped off at school in the District by a car bearing Maryland license tags registered to her husband at the Maryland address. Additionally, Mr. Crawford asserted that a DCPS investigator had interviewed a neighbor of petitioner's parents in September 1996, who reported that the only people residing at the parents' home were the parents themselves and that the children, including petitioner, had moved out "sometime [sic] ago."

In opposition, petitioner held steadfast to her testimony that she had relocated with her son from Maryland to her parents' home in the District because of marital problems. In support of this claim, she produced a utility bill jointly addressed to her and her father at that residence and a District of Columbia driver's license and voter registration card. Additionally, she testified that she maintained a checking account with the D.C. Federal Credit Union and listed her parents' District address on the checks.

Through her testimony, petitioner also attempted to explain away the DCPS evidence. First, she challenged the DCPS's information that she and her husband had purchased the Maryland property in September 1993, noting that, in fact, it had been purchased in February 1993. She stated that she and her son moved back in with her parents in the summer of 1993, but continued to make mortgage payments on the property because she and her husband had only effected an informal separation, not a divorce. *fn3 Second, when questioned by the hearing officer as to why, despite her alleged move back to the District, she continued to have Maryland taxes deducted from her salary, she explained, "I had purchased a house, I had property in Maryland. . . . I was told that you couldn't pay taxes in both places." Finally, accounting for the presence of her husband's automobile at the school, she testified that her husband usually transported their son to and from school on Tuesdays and Thursdays, his days of visitation, or on days when the child had medical appointments.

In a written order dated September 9, 1996, the hearing officer concluded that the "DCPS proved, by a preponderance of the evidence, that the parents of Kevin Braddock II owe DCPS nonresident tuition for Kevin's attendance at Anne Beers ES for school years 1994-95 and 1995-96," and, more specifically, that "the sum of $10,318.00 is owed DCPS for Kevin's attendance at Anne Beers ES for school years 1994-95 and 1995-96."

Pursuant to the regulations, petitioner appealed the adverse decision to the Superintendent of Schools. 5 DCMR § 2009.14. By letter dated October 2, 1996, the Superintendent stated that he found "no basis upon which to justify overruling the hearing officer's decision." Petitioner thereupon filed a petition for review with this court under our [711 A2d Page 838]

"contested case" jurisdiction. D.C.Code § 1-1510(a) (1992).

II.

Under the District of Columbia Administrative Procedure Act,

[e]very decision and order adverse to a party to the case, rendered by the Mayor or an agency in a contested case, shall be in writing and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise ...


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