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Decision No. 14,736

Appeal of R.G., on behalf of her children M.G., D.G., M.G. and J.V., from action of the Board of Education of the Longwood Central School District regarding transportation.

 

Decision No. 14,736

(June 7, 2002)

 

Deborah Berger, Esq., Long Island Advocacy Center, Inc., attorney for petitioner

Ingerman Smith LLP, attorneys for respondent, Michael R. D'Onofrio, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Longwood Central School District ("respondent") to provide transportation to her children. The appeal must be sustained in part.

Petitioner and her children resided for approximately three years at an address within the Longwood Central School district, and her children attended school within the district. On October 1, 2001, petitioner and her children lost their residence due to a sale of the property at which they resided and were renting. Petitioner is not employed and is receiving Social Security Income, Medicaid and food stamps. On October 1, 2001, petitioner, her fiance and her children commenced living at a one-room motel accommodation at a motor lodge located in Sayville, New York, which is located outside respondent's district, and pay a weekly rental of $295.00 for their lodging. There is nothing in the record to indicate that petitioner and her children do not continue to reside at the motor lodge in Sayville, New York.

On or about October 18, 2001, petitioner submitted a designation form to respondent, pursuant to 8 NYCRR "100.2(x), designating respondent's district as her children"s district of attendance. However, respondent has refused several requests by petitioner to provide transportation to her children. On October 1, 2001, petitioner began driving her children to and from school in a vehicle borrowed from her fiance's mother. Respondent has been reimbursing petitioner for the costs associated with such transportation. Petitioner alleges that while she agreed to reimbursement for the trips she had already provided, she did not agree to continue this transportation arrangement. Petitioner alleges that she does not own a vehicle, does not have funds to pay for gas and has been borrowing gas money from friends and relatives.

After respondent refused petitioner's repeated requests that the district provide transportation to her children from the motor lodge to the schools they attend, petitioner commenced this appeal through service of a copy of her petition on the district clerk on November 19, 2001. On December 6, 2001, Acting Commissioner of Education Richard Cate granted a stay directing respondent to immediately provide transportation to petitioner's children pending a determination of this appeal.

Petitioner contends that respondent is required to provide her children with transportation pursuant to Education Law "3209 and 8 NYCRR "100.2(x)(6). Petitioner requests that I find that her children are homeless within the definition of the statute and regulation; order respondent to provide transportation for her children; order respondent to provide reimbursement to petitioner for each day she has provided transportation for her children; and order that the district provide compensatory education to her children for instructional hours that they have missed allegedly due to respondent's failure to provide them with transportation.

Respondent contends that petitioner's children are not homeless within the definition set forth in 8 NYCRR "100.2(x) and that even if petitioner's children are deemed homeless, the school district fulfilled its legal obligation by reimbursing petitioner for the cost of providing such transportation, as the most cost-effective means of transporting her children, pursuant to 8 NYCRR "100.2(6). Respondent alleges that petitioner voluntarily chose to leave the school district and pay rent at a location other than within the school district; that petitioner has not sought future living arrangements within the Longwood Central School District and has placed her name on a government subsidized housing list for the purchase of a home in another school district. Respondent contends that petitioner and her children are not homeless but rather in a "transitional stage" until petitioner rents or purchases subsidized housing in another school district. Respondent further contends that a motel is an "adequate nighttime residence" pursuant to 8 NYCRR "100.2(x)(1)(i)(a) and a "regular sleeping accommodation" pursuant to "100.2(x)(1)(i)(b)(2), and petitioner and her children have failed to establish homelessness pursuant to section 100.2(x)(1)(i).

Before addressing the merits, I note that respondent objects to petitioner's submission of the affidavit of Connie Lassandro, a Section 8 Family Unification and Homeless Program Coordinator for the Community Development Corporation of Long Island, sworn to on November 27, 2001, and an undated affirmation of petitioner's attorney. These papers were submitted after the service and filing of the petition and in response to an affirmation in opposition to petitioner's request for interim relief, sworn to on November 21, 2001 and submitted by respondent's attorney. Respondent contends that the Commissioner's Regulations do not authorize a reply by petitioner to the district's opposition papers and requests that I disregard these papers. However, the affidavit and affirmation were subsequently included as exhibits to petitioner's verified reply which was served on respondent on December 11, 2001 and subsequently accepted for filing with my Office of Counsel. Therefore, any defect that may have existed with respect to their previous submission has been cured through their submission with the reply and I must deny respondent's request to exclude the affirmation and affidavit.

Turning to the merits, 8 NYCRR "100.2(x), in applicable part, defines a "homeless child" as a child "who lacks a fixed, regular and adequate nighttime residence." On the record before me, I find that petitioner and her children are homeless. While respondent alleges that petitioner has placed her name on a government subsidized housing list for the purchase of a home in another school district and is voluntarily in a "transitional stage," choosing to live at the motor lodge until she purchases subsidized housing, there is nothing in the record to establish that this was the reason petitioner left her residence in respondent"s district. To the contrary, the record establishes that petitioner and her children were forced to vacate their residence after the premises petitioner was renting was sold, that petitioner is actively looking for new premises either within or outside respondent's district, and that her placement on the subsidized housing list was only one option petitioner availed herself of in her attempt to locate a new home. The record indicates that petitioner and her four children, together with petitioner's fiance, are living in a single room accommodation, with no kitchen, at a motor lodge for which they pay $295 per week. Under these circumstances, it is clear that the motor lodge is only a temporary accommodation and therefore petitioner and her children cannot be said to reside at a fixed, regular and adequate nighttime address.

Respondent next contends that, even if petitioner and her children are homeless, respondent has fulfilled its obligation under 8 NYCRR "100.2(x)(6)(i) to provide or arrange for the children"s transportation "in the most cost-effective manner" by offering to reimburse petitioner for her transportation of her children. I find respondent's contention without merit. Pursuant to 8 NYCRR "100.2(x)(6), the responsibility to transport petitioner's children clearly lies with respondent, as a result of petitioner"s designation of its school district as the district of attendance pursuant to "100.2(x)(2). The record establishes that petitioner is unable to adequately provide transportation for her children because she does not own a vehicle, must borrow a vehicle from her fiance's mother and does not have money for gasoline and must borrow such funds from her friends and relatives. Furthermore, petitioner alleges that she is unable to continue to provide her children with transportation under such circumstances. Since petitioner is unable to adequately provide such transportation, respondent must provide such transportation pursuant to its obligations as the designated district of attendance. Although respondent must ensure that such transportation is provided in the most cost-effective method possible, respondent cannot invoke cost-effectiveness as an excuse for evading its statutory responsibility to provide such transportation.

Petitioner requests that I order respondent to reimburse her for her mileage in transporting her children. Since pursuant to 8 NYCRR "100.2(x)(6) the responsibility to transport petitioner's children lies with respondent, as the designated school district of attendance pursuant to "100.2(x)(2), respondent must reimburse petitioner for the reasonable and direct costs she incurred in providing such transportation. It appears from the record that respondent has been providing reimbursement to petitioner for the costs associated with such transportation, although the record is unclear as to whether there are any outstanding reimbursements still due to petitioner. Respondent is obligated to reimburse petitioner for any such amounts still outstanding.

Finally, petitioner requests that I order respondent to provide compensatory education to her children for instructional hours that they have missed due to respondent's failure to provide them with transportation. The record indicates that during the time petitioner provided transportation for her children, her son M.G. was picked up 15-30 minutes before the end of each school day, and her daughters D.G. and M.G. were picked up approximately one hour before the end of each school day. It appears that petitioner withdrew her children before the end of the school day in order to pick up her fiance from his employment by 3:15 PM. However, there is nothing in the record to indicate why it was necessary for petitioner to pick up her fiance at 3:15 PM rather than having him wait until a later time after the children had completed their instruction. Therefore, on the record before me, I find that the children's missed instruction is attributable to petitioner's actions, and her request for compensatory education must be denied.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent provide transportation to petitioner's children to and from their temporary housing and the schools such children attend within respondent's district, in accordance with this decision; and it is further

 

ORDERED that respondent reimburse petitioner for such reasonable and direct costs she incurred in providing transportation for her children during the period respondent has failed to provide them with such transportation, in accordance with this decision.

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