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Zollicoffer v. District of Columbia Public Schools

August 05, 1999

SIDNEY ZOLLICOFFER, JR., PETITIONER,
v.
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, RESPONDENT.



Before Steadman, Schwelb and Reid, Associate Judges.

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

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

On Petition for Review of Decision of the District of Columbia Public Schools

Submitted April 27, 1999

Decided August 5, 1999

A hearing officer of the District of Columbia Public Schools (DCPS) determined that petitioner Sidney Zollicoffer Jr. owed nonresident tuition in the amount of $6,048 for his son's attendance at a DCPS elementary school during the 1995-96 school year. Zollicoffer appealed to the Superintendent of Schools, who dismissed the appeal as untimely filed. The record before us is insufficient for us to determine the correctness of the Superintendent's ruling of untimeliness. We therefore remand the case to the Superintendent for further consideration of that issue and, if the appeal is determined to have been timely, for a review of the hearing officer's decision on the merits.

I.

District of Columbia law provides that nonresident tuition must be paid for each child who attends a DCPS school and does not have a parent or guardian who "resides" in the District of Columbia, with certain exceptions not applicable here. D.C. Code § 31-602(a) (1998); 5 DCMR 2000.2 (1997). See, e.g., Braddock v. Smith, 711 A.2d 835 (D.C. 1998). The regulations further set forth procedures for "Review of Contested Residency Cases." 5 DCMR § 2009 (1997).

On April 15, 1996, DCPS's Nonresident Tuition Enforcement Branch (the Branch) sent Zollicoffer a letter requesting proof of his District residency to assist in a determination of whether his son, Joshua, was eligible for tuition-free education at Randle Highlands Elementary School, where he was enrolled for the 1995-96 school year. Zollicoffer did not respond. DCPS sent Zollicoffer another letter requesting proof of residency on August 15, 1996, and on September 6, 1996, DCPS sent a letter to Zollicoffer stating that he had not established District residency and advising him that $6,048 was due for nonresident tuition for Joshua's attendance at Randle Elementary during 1995-96.

Zollicoffer requested a hearing to contest the nonresident tuition determination. The hearing was held before a hearing officer on October 17, 1996. It is unnecessary for purposes of this appeal to set forth the conflicting evidence. *fn1 Suffice it to say that the hearing officer issued a decision, dated October 21, 1996, concluding that Zollicoffer was not a District resident and that he was liable for payment of nonresident tuition in the amount of $6,048.

Zollicoffer appealed the decision of the hearing officer in a letter dated December 2, 1996. In a letter dated March 5, 1997, the Superintendent dismissed Zollicoffer's appeal as untimely. The letter stated that the hearing officer's October 21, 1996 decision was mailed on October 28, 1996 and, allowing five days for receipt, the appeal was required to be filed on or before November 18, 1996. Appellant's letter of appeal, received on December 5, 1996, was thus determined to be untimely. Accordingly, the Superintendent did not reach the merits of the appeal.

Zollicoffer petitioned this court for review, arguing that his appeal to the Superintendent was timely because the dates relied on by the Superintendent were incorrect and that the hearing officer's decision was mailed to the wrong address.

II.

Properly before us for review is a timely appeal to us taken by Zollicoffer from an order of the Superintendent dismissing on grounds of untimeliness an administrative appeal by Zollicoffer to the Superintendent. *fn2 "The time limits for filing appeals with administrative adjudicative agencies, as with courts, are mandatory and jurisdictional matters." District of Columbia Pub. Employee Relations Bd. v. District of Columbia Metro. Police Dep't, 593 A.2d 641, 643 (D.C. 1991). A failure to file a notice of appeal within the required time period divests the agency of jurisdiction to consider the appeal. Thomas v. District of Columbia Dep't of Employment Servs., 490 A.2d 1162, 1164 (D.C. 1985). "We have recognized, however, that a prerequisite to invoking this jurisdictional bar is the agency's 'obligation of giving notice which was reasonably calculated to apprise petitioner ...


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