Appeal of WALTER WENGER from action of the Board of Education of the Canastota Central School District regarding transportation.

Decision No. 13,790

(July 18, 1997)

Hogan & Sarzynski, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's decision to provide transportation to all children in grades one through three who live within a half mile of the school they legally attend, without first seeking voter approval. The appeal must be sustained in part.

On July 9, 1996, respondent adopted a contingency budget after the original budget was defeated in May 1996. On September 10, 1996, respondent voted to expand its transportation policy to provide transportation for all students in grades one through three who live within a half mile of their school. Prior to September 1996, the district's transportation policy required all students in those grades to walk if they lived within a half mile of school. Under that same policy, all kindergarten children received transportation regardless of the distance between home and school.

Petitioner contends that respondent's transportation policy violates Education Law '3635 because it provides for the transportation of additional students in excess of the statutory minimum without voter approval while the district operates under a contingency budget. Petitioner contends that the contingency budget and a budget proposition voted upon subsequently did not contain provisions for transportation costs for students in grades one through three who live within a half mile of school. Petitioner also alleges that respondent improperly transports students based on the distance between child-care locations and school, and that such transportation should only be based on the distance between a student's home and school. Petitioner requests that I order respondent to repeal its bus policy and transport students only at the level authorized by the voters in accordance with Education Law '3635.

In addition, petitioner requests that I remove the superintendent from office and dismiss the entire board of education. Petitioner also requests that the State Education Department investigate the alleged violations, levy fines, and require that a new election be held on the condition that current board members be prohibited from being candidates. In the alternative, petitioner requests that the State Education Department take control of the management of the district.

Respondent denies that it is providing transportation in violation of Education Law '3635. Respondent also contends that petitioner failed to use a proper notice of petition, that petitioner is not aggrieved and therefore lacks standing, and that petitioner failed to name the superintendent and the members of the board as necessary parties. Respondent also contends that petitioner's request for removal should be dismissed because the petition lacks the proper notice and pleading, was not served upon the officers in question, and does not set forth sufficient facts to show that the officers have been guilty of any wilful violation or neglect of duty (8 NYCRR 277.1[a], [b]). Finally, respondent requests that I certify that the superintendent and the board members acted in good faith pursuant to Education Law '3811(1).

Initially, I will address the procedural issues raised by respondent. With regard to petitioner's request for removal of the superintendent and the individual members of the board of education, petitioner has not named any of these individuals as parties to the appeal. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner must be joined as a party (Appeal of Williams, et al., 36 Ed Dept Rep 270; Appeal of a Student with a Disability, 36 id. 181). Because a ruling in petitioner's favor on the request to remove the superintendent and the board members would adversely affect them, petitioner's failure to join them requires the dismissal of his claim for relief against them. In light of this holding, I need not address respondent's other procedural arguments concerning removal.

Respondent also contends that petitioner does not have standing to bring this appeal because petitioner has not been injured by respondent's actions. Respondent contends that it will incur no additional cost by the expansion of its transportation policy to include all students in grades one through three because it already provides transportation for all kindergarten students regardless of distance between home and school. Respondent's contention appears to be that because petitioner will incur no additional cost because of the change, there can be no injury. To maintain an appeal pursuant to Education Law '310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his or her civil, personal or property rights (Appeal of Szymkowiak, 36 Ed Dept Rep 204; Appeal of Goloski, 34 id. 565). Approval of transportation beyond that required by statute, and of the payment of the costs thereof, is one of the significant powers of the voters of a central school district, and the school authorities have an obligation to fully advise them of any proposal of this nature which is included in the proposed budget (Appeal of Villareale, 16 Ed Dept Rep 393). Although a district may continue under a contingency budget to transport students pursuant to an existing policy, the mileage limitations must have been previously adopted by the qualified voters of the school district (Education Law '2023). In this case, the district's existing policy did not provide for transportation to all students in grades one through three. Accordingly, petitioner was denied the right to vote on the expanded transportation policy. The alleged denial of this right gives the petitioner standing to maintain this appeal.

Turning to the merits, a central school district must provide, at minimum, transportation to all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend and for all children attending grades nine through twelve who live more than three miles from the school they legally attend (Education Law '3635[1][a]). The minimum distance may be shortened and/or the maximum distance may be extended by a local district policy after approval by the voters of the district (Education Law '3635[1][a]; Appeal of Defeis, 34 Ed Dept Rep 408). A district may, at its discretion, provide transportation to any child attending grades kindergarten through eight between the school such child legally attends and before-and/or-after-school child care locations with the eligibility distance to be measured between the school and the child care location (Education Law '3635[1][e]).

The record indicates that respondent decided to extend eligibility for transportation to all children in grades one through three without seeking voter approval. Prior to this decision, respondent's transportation policy, which was adopted in 1976 and amended in 1976 and 1982, provided for transportation to children in kindergarten through grade three who live more than one-half mile from the school they attend. The policy also stated that for kindergarten students only, pick-up within the one-half mile limit shall be at the discretion of the transportation director. Assuming that the district voters approved of transportation for all kindergarten students, regardless of distance, respondent cannot simply apply that approval to children in other grades. If transportation for a lesser distance than the statutory minimum is provided, it must be offered equally to all children in like circumstances residing in the district (Education Law '3635[1][a]). Students in different grades are not in "like circumstances" (Appeal of Cassin, et al., 32 Ed Dept Rep 373; Appeal of Jansen, 29 id. 402; Appeal of Dandreano, 28 id. 109). Therefore, a policy which provides transportation to all children in kindergarten does not apply to children in grades one through three and cannot be extended without voter approval.

As noted above, a district operating under a contingency budget shall continue to transport students to and from the regular school program in accordance with the mileage limitations previously adopted by the qualified voters of the school district. Such mileage limits shall change only when amended by a special proposition passed by a majority of the qualified voters of the school district (Education Law '2023[2]). Prior to September 1996, respondent's transportation policy did not provide for transportation for students in grades one through three who reside within a half mile of school. Moreover, there is no indication that the district voters ever approved this transportation. Accordingly, respondent had no authority to provide this transportation under '2023[2] since it was not the district's policy before the contingency budget and was not separately authorized by the voters.

Respondent argues that there is no additional cost involved in implementing the new policy. However, that consideration applies only to students who make late requests for transportation to nonpublic schools which they are otherwise eligible to attend (Appeal of Hiller, 28 Ed Dept Rep 439). Eligibility for transportation is determined on the basis of the distance between a child's home and the school he or she attends (Education Law '3635[1]; Matter of Studley v. Allen, 24 AD2d 678, 261 NYS2d 138; Appeal of Neubauer, 32 Ed Dept Rep 320). Although there may be a bus available, boards of education lack the authority to transport students who are ineligible for transportation, notwithstanding the fact that there may be room on the bus for them (Appeal of Neubauer, supra; Appeal of Kluge, 31 Ed Dept Rep 107).

Similarly, petitioner is correct in stating that "hazard" is too subjective a factor to serve as a basis for entitlement to transportation. The legislative yardstick is distance, which is objectively, readily ascertainable, and not hazard, the analysis of which requires consideration of a myriad of factors (Matter of Studley, supra; Appeal of Duff, et al., 27 Ed Dept Rep 84). The only exception to this rule is the district's ability to establish a child safety zone pursuant to Education Law '3635-b. Under this provision a district may, with voter approval, transport students who live within the statutory minimums established in Education Law '3635 to alleviate hazardous conditions. There is no indication that respondent has established a child safety zone and, even so, transportation provided under this provision is not an ordinary contingent expense (Education Law '3635-b[10]). Therefore, respondent may only determine transportation eligibility based on the distance limits approved by voters of the district.

The dismissal of the complaint as it relates to the superintendent and the individual board members for failure to join them as necessary parties makes it unnecessary to address respondent's request that I certify that these individuals acted in good faith pursuant to Education Law '3811[1]. Because of the holding in this appeal it is not necessary to address the parties' remaining contentions.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that in accordance with the terms of this decision, respondent must provide transportation only to those students residing within the distance limits authorized by the voters in accordance with Education Law ''2023[2] and 3635.

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