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Decision No. 12,884

Application of JOHN R. JOHNSON, as parent and natural guardian of JON JOHNSON, to review a determination of Section 5 of the New York State Public High School Athletic Association, Inc. relating to eligibility to participate in interscholastic sports.

Decision No. 12,884

February 11, 1992

Finucane & Hartzell, Esqs., attorneys for petitioner, Leo G. Finucane, Esq., of counsel

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for respondent, Daniel R. Mooney, Esq., of counsel

SOBOL, Commissioner.--Petitioner is the father of Jon Johnson, a student at Benjamin Franklin High School (Franklin) in the City School District of the City of Rochester. Petitioner appeals from a determination made by Section 5 of the New York State Public High School Athletic Association (Section 5) that his son was not eligible to participate in interscholastic football and indoor track. The appeal must be dismissed.

During April 1992, petitioner's son applied to Section 5 for a waiver of its transfer rule so that he could participate in interscholastic sports at Franklin High School. That rule provides:

A student who transfers without a corresponding change in residence of his/her parents (or other persons with whom the student has resided for at least six months) is ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one year if the student participated in that sport during the one year period immediately preceding his/her transfer.

The New York State Public High School Athletic Association (NYSPHSAA) has adopted several exceptions to that general rule. One of those exceptions, relied upon by petitioner, provides that a transferring student is eligible to participate uninterrupted in interscholastic sports if his transfer involved a situation where a student from divorced or separated parents moves to a new school district with one of the parents. Information presented at that time to Section 5 was that in May 1991, petitioner's son moved from Montana to Rochester, lived with his mother and attended John Marshall High School (Marshall) in September 1991, participating in interscholastic football and indoor winter track. That information further indicated that in March 1992, the student moved to petitioner's residence and transferred to Franklin High School as a second semester junior. Based on that information, on April 8, 1992, the Eligibility and Transfer Committee of Section 5 approved a waiver of eligibility standards to allow petitioner's son to participate in interscholastic sports at Franklin High School.

Respondent subsequently learned that upon moving from Montana, petitioner's son did not reside with his mother, but instead resided with petitioner while attending Marshall High School. Therefore, when he transferred from Marshall to Franklin High School in the spring of 1992, the student transferred from one Rochester city school to another without a corresponding change in residence. Based on that new information, the Eligibility and Transfer Committee reviewed its decision of April 8, 1992, and on June 10, 1992 denied the request for a transfer waiver of eligibility.

Petitioner was informed that the decision of the Eligibility and Transfer Committee could be appealed to the Executive Committee for Section 5. Petitioner submitted an appeal to that committee which rendered a decision on August 21, 1992, denying petitioner's request that his son be eligible to participate in interscholastic sports for the one year period subsequent to his transfer to Franklin High School. At that time, petitioner was informed that this second decision could be appealed to the Executive Committee of NYSPHSAA.

Petitioner did not institute an appeal to the Executive Committee of NYSPHSAA, but instead commenced this appeal before the Commissioner of Education on October 14, 1992.

Respondent maintains that this appeal must be dismissed as untimely. Section 275.16 of the Regulations of the Commissioner of Education provides that an appeal to the Commissioner must be commenced within 30 days of the act complained of, although I may excuse the failure to commence a timely appeal for good cause shown in the petition. In this instance, petitioner did not commence his appeal until 54 days after the Executive Committee for Section 5 issued its decision. In his petition, petitioner contends that the lateness of his appeal should be excused because he was unaware of his right to bring an appeal to the Commissioner of Education. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Pitney Bowes, 31 Ed Dept Rep 290; Appeal of Casid, 30 id. 332; Appeal of Reynolds, 29 id. 288). I find no unusual circumstances to excuse the delay in this case. Accordingly, this appeal must be dismissed as untimely.

Finally, the record reveals that although petitioner's son was not allowed to participate in football or winter indoor track, he will be eligible to participate in spring outdoor track since a year would have expired from the date of his transfer to Franklin High School.

THE APPEAL IS DISMISSED.

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