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Decision No. 14,141

Appeal of DONNA HOUGHTON from action of the Board of Education of the South Kortright Central School District regarding school bus safety.

Decision No. 14,141

(June 4, 1999)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross and Frank W. Miller, Esqs., of counsel

MILLS, Commissioner.--Petitioner seeks the dismissal of a school bus driver employed by the Board of Education of the South Kortright Central School District ("respondent"). The appeal must be dismissed.

Respondent provides school bus transportation for petitioner's children. Petitioner complains about the route her children's school bus travels and the competence of the school bus driver, Marsha Lawrence, to handle the road conditions along the route. Petitioner and several other parents of children who ride the same bus have brought their concerns to respondent's attention on several occasions. On February 11, 1998, petitioner sent a letter to the State Education Department's Office of Management Services expressing their concerns, with a copy to respondent. By letter dated March 2, 1998, respondent denied any wrongdoing by Ms. Lawrence. Petitioner presented her concerns to respondent at a board meeting held on March 16, 1998. By letter dated April 14, 1998, respondent's superintendent advised petitioner that he had investigated her concerns and found no basis to act. Petitioner commenced this appeal on May 28, 1998.

Petitioner contends that Ms. Lawrence has acted improperly on numerous occasions by backing down icy hills, getting the bus stuck so that it had to be towed, enlisting students to help her put chains on the tires, letting students off at improper locations and allowing students to stand on the bus in violation of safety rules. She alleges that Ms. Lawrence has displayed poor judgement and is not capable of safely driving the school bus route to which she is assigned. Petitioner asks that Ms. Lawrence be dismissed. Petitioner also requests the reinstatement of Decker Road, where she apparently resides, to the bus route.

Respondent generally denies petitioner's allegations and asserts that Ms. Lawrence is an 18-year veteran bus driver with a spotless driving record. While respondent acknowledges that Ms. Lawrence has encountered weather-related difficulties along her route, it contends that in each instance Ms. Lawrence was in contact with her supervisor and acted upon his advice. Respondent also states that automatic chains have now been installed on the school bus. Respondent further contends that the appeal should be dismissed as untimely, for failure to join Ms. Lawrence as a necessary party, for lack of jurisdiction and for failure to state a claim.

Initially, I must address several procedural issues. The record indicates that petitioner's reply was filed well beyond the time limit allowed by regulation (8 NYCRR "275.14). Even if it were timely, the purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Shaver, 38 Ed Dept Rep 570; Appeal of Lippmann, 38 id. 310). Petitioner's reply merely reiterates the same points made in the petition and presents accounts of additional incidents that should have been presented in the petition. Therefore, I will not consider the information contained in the reply.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be instituted within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). A request for reconsideration does not extend the time in which to commence an appeal (Appeal of Ytuarte, 36 Ed Dept Rep 238; Appeal of Goodman, 35 id. 93). Respondent contends that its March 2, 1998 letter constitutes its final determination and petitioner's subsequent appeals were merely requests for reconsideration. However, even if I consider the superintendent's April 14, 1998 letter as respondent's final determination, the petition is untimely. Petitioner claims that she was unaware of the appeal process, however, except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Jacobson, 37 Ed Dept Rep 75; Appeal of A.B., 36 id. 155). Since I do not find evidence of unusual circumstances in this case, the appeal is dismissed as untimely.

The appeal must also be dismissed for failure to join Ms. Lawrence as a party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Karliner, 36 Ed Dept Rep 30; Appeal of Garard, 36 id. 15). Petitioner requests the dismissal of Ms. Lawrence. Therefore, she is a necessary party and petitioner's failure to join her requires dismissal of this appeal insofar as it seeks disciplinary action against Ms. Lawrence.

The petition must also be dismissed on the merits. Petitioner is essentially seeking disciplinary action against Ms. Lawrence. However, it is the board of education which has authority to take disciplinary action against a school district employee. Moreover, a board of education has broad discretion to determine whether disciplinary action against an employee is warranted (Appeal of Rivenburg, 35 Ed Dept Rep 27; Appeal of Cardinal, 34 id. 76; Appeal of Karl, 34 id. 261; Appeal of Allert, 32 id. 538), so long as it has a reasonable basis to support its conclusion. There is no evidence in the record that respondent acted unreasonably or arbitrarily, or abused its discretion in refusing to discipline or reassign Ms. Lawrence.

Finally, petitioner has not provided any details or evidence as to why Decker Road should be included in the bus route. A board of education has broad discretion to determine how student transportation will be provided (Appeal of Broad, 35 Ed Dept Rep 248; Appeal of Palyo, 33 id. 169; Appeal of Lavin, 32 id. 249). Such decisions will not be overturned unless they are arbitrary, capricious and without a rational basis (Appeal of Byrne, et al., 34 Ed Dept Rep 389; Appeal of Polifka, 31 id. 61). In this case, respondent removed Decker Road from the transportation route after problems arose and three members of the board of education visited the site. An affidavit by respondent's transportation supervisor states that the decision was made because the road is unpaved and becomes virtually impassible in bad weather. Consequently, I find no basis to determine that respondent acted unreasonably or arbitrarily in refusing to change the route.

In light of this disposition, I will not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE