Appeal of MAUREEN A. POWELL from action of the Board of Education of the Roosevelt Union Free School District, Superintendent Ronald O. Ross, and Chairman Edward McCormick regarding provision of transportation and other matters.

Decision No. 15,597

(June 27, 2007)

Jaspan, Schlesinger, Hoffman, LLP, attorneys for respondents, Michael D. Raniere, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner, a resident and taxpayer, challenges certain decisions and practices of the Board of Education of the Roosevelt Union Free School District (“board”) regarding provision of transportation to certain elementary school students, and seeks removal of the superintendent and board chairman.  The appeal must be sustained in part.

The Roosevelt Union Free School District (“district”) in Nassau County is approximately one mile square, and the parties agree that the maximum distance between any two points within the district’s boundaries is not more than one and one-half miles.  The parties also agree that the district’s transportation policy in effect prior to September 2005 provided no transportation for any student attending a school located within district boundaries: “The small area of this school district precludes the need for transportation of resident students to the schools in the district except for those with disabilities” (District transportation policy 8400).

The district was the subject of special legislation in 2002 (L.2002, c. 33, c. 72) which, among other things, gave the Commissioner certain powers and duties.  With respect to contracts, the legislation provides, in pertinent part:

4. Prior to entering into any contract or other obligation having a projected cost of twenty-five thousand dollars or more, notwithstanding any other provision of law, rule or regulation to the contrary, the interim board or board of education shall submit such contract or obligation to the commissioner of education for approval, provided that the commissioner may establish a higher threshold cost for such approval.  Upon review of a proposed contract or other obligation, the commissioner of education may approve the contract as submitted or reject the contract and return it to the interim board or board of education for appropriate revisions and resubmission.

(c. 33, §4, as amended by c. 72, §1)

On June 15, 2004, district voters approved a bond issue to finance construction of new schools.  In the fall of 2004, construction of a new Centennial Elementary School was commenced, and completed in September 2005.  In September 2005, the district commenced demolition and rebuilding of the Washington-Rose Elementary School, and began providing transportation of students who had previously attended that school to the old Centennial Elementary School.  (The district planned to have the Washington-Rose students return to the newly-built school in September 2006, at which time the Ulysses Byas school would be demolished and rebuilt.)  The parties agree that all the students who previously attended Washington-Rose lived less than two miles from the old Centennial school that they were to attend during the 2005-2006 school year.  Petitioner claims to have learned of this transportation arrangement in October 2005.

Throughout the 2005-2006 school year, petitioner sought further information from the district as to the legal basis of the transportation being provided.  Among other things, she also wrote to her State senator.  On April 19, 2006, petitioner made a Freedom of Information Law (“FOIL”) request, including a request for a copy of the board resolution that authorized “in district” transportation of the Washington-Rose students to the old Centennial school.  On April 27, petitioner wrote to respondent McCormick stating her view that the transportation being provided was a violation of law.

On May 1, 2006, the district denied petitioner’s April 19 FOIL request for documents, including the board resolution providing for transportation, saying that the records requested were not maintained by it, and that the items requested “do not exist.”

By letter dated May 4, 2006, respondent McCormick responded to petitioner’s April 27 letter.  His letter stated, in pertinent part:

Currently, all students attending Washington-Rose Elementary School are being transported to and from the Centennial Avenue Elementary School.  The same courtesy will be extended to the students of the Ulysses Byas Elementary School.  The transportation cost was included in the budget and has not caused any of [sic] overhead expense.  Until all elementary schools are built, the district will continue to provide transportation for all students attending schools on the east side of Nassau Road.

The letter makes no reference to the district’s pre-existing transportation policy, nor to any board resolution.  The reference to the students of the Ulysses Byas School indicates the district’s intention to transport those students to the old Centennial School during the 2006-2007 school year, while the Ulysses Byas School was being demolished and rebuilt.

Petitioner commenced this appeal on June 6, 2006.  Petitioner sought an immediate stay of all transportation services then being provided to the Washington-Rose students for the 2005-2006 school year, and a stay of any transportation of students to schools within the district through the end of the 2006-2007 school year.  Petitioner’s stay request was denied on July 6, 2006.

Petitioner alleges, among other things, that the board had no authority to provide transportation to Washington-Rose and Ulysses Byas students, because the approval of pupil transportation beyond that required by statute is a power reserved to district voters.  Petitioner claims that the board never provided voters the opportunity to vote on a change in transportation policy, in violation of Education Law §§2023 and 3635.  Petitioner also alleges that the district entered into transportation contracts without the approval of the Commissioner in violation of the special legislation.

Respondents acknowledge that they did not seek voter approval for the transportation provided, and acknowledge that they did not seek to establish a child safety zone pursuant to Education Law §3635-b.  Respondents claim that the transportation was justified because of the temporary hazard of crossing a busy highway that was created by the district’s demolition and rebuilding of schools.  They also claim that district residents were widely informed of the district’s intentions, and that funds used for transportation in 2005-2006 were allocated in the budget approved by the voters in May 2005.

Petitioner seeks annulment of all allegedly improper transportation through the end of the 2006-2007 school year, removal of the superintendent and board chairman, and numerous forms of relief dealing with the internal governance of the district.  Petitioner also seeks a certification pursuant to Education Law §3811(1) that respondents have acted in good faith.

Respondents claim that the appeal is untimely, seeks relief that is not within the authority of the Commissioner, and fails to set forth adequate grounds for removal of either the superintendent or the board chairman.

That portion of the appeal which seeks the removal of Ronald O. Ross and Edward McCormick must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  During the pendency of this appeal, Edward McCormick resigned from the board effective December 15, 2006, and Ronald O. Ross, by letter dated April 20, 2007, tendered his resignation effective June 30, 2007, thus rendering this portion of the appeal moot.

With respect to the 2005-2006 school year, I find that petitioner’s challenge to the in-district transportation provided to Washington-Rose students is barred by the equitable doctrine of laches.  Laches may bar “the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party” (Skrodelis v. Norbergs, 272 AD2d 316).  According to the petition, petitioner learned of this transportation in October 2005, attended the October 2005 board meeting, and provided the superintendent with a copy of Education Law §3635.  Petitioner alleges that at the October 2005 board meeting she “stated that she contends providing transportation to resident students who live within the statutory two-mile limit, without voter approval, violates the current NYS Ed Law.”  Despite her contention at that early date that the transportation provided violated the law, she did not commence an appeal for more than seven months.  During that time, petitioner was aware that the district was expending funds to continue the transportation.  I find that this is an “unreasonable and inexcusable delay” as contemplated by the doctrine of laches, and is a bar to relief as to the 2005-2006 school year.

However, as to the 2006-2007 school year, I find that the appeal is timely.  Petitioner’s attempt to prevent transportation during the 2006-2007 school year was initiated by commencement of this appeal on June 6, 2006, approximately three months prior to the commencement of the transportation to be provided for 2006-2007.  Under these circumstances, I find that that portion of the appeal is timely.

Even if I were to accept respondents’ defense that petitioner’s time to appeal depended on the superintendent’s letter dated May 4, 2006, the appeal would still be timely.  The superintendent’s letter indicates a determination to transport Ulysses Byas children, effective September 2006.  Where such a decision is made, but is not effective until a future time, the time within which an appeal must be commenced does not generally begin to run until the effective date (Appeal of Quinn, et al., 31 Ed Dept Rep 244, Decision No. 12,632; Appeal of Handy, 25 id. 294, Decision No. 11,587; Appeal of Stein, 25 id. 188, Decision No. 11,544).

I find that, with respect to the 2006-2007 school year, the transportation provided was not authorized by law.  The minimum required statutory distance for the transportation of students attending grades kindergarten through eight is more than two miles (Education Law §3635[1][a]).  All parties agree that no residence in the district meets the statutory minimum distance.  In their memorandum of law, respondents state: “For the sake of clarity in reading the budget for 2006-2007, the Board of Education and District administrators decided to put the money allocated for unforeseen transportation into a budget line specifically marked for such transportation.  Again, however, transportation is being provided only to alleviate an increased risk of physical injury to District students.”

The power to provide transportation beyond that required by Education Law §3635 is a power reserved to the voters (Appeal of Wenger, 37 Ed Dept Rep 5, Decision No. 13,790; Matter of Zakrzewski, 22 id. 381, Decision No. 10,999; Matter of Silver, 1 id. 381, Decision No. 6,678).  Respondents admit that there was no special proposition regarding transportation on the ballot at the May 2004, May 2005, or May 2006 annual meetings.  In May 2006, the voters rejected the proposed 2006-2007 budget put forth by the board, and the district is operating on a contingency budget for the 2006-2007 school year.  As noted above, there is no record of any board resolution to provide in-district transportation.

Education Law §2023, governing contingency budgets, provides in pertinent part:

2. Notwithstanding the defeat of a school budget, school districts 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.

It is clear from the record before me that the mileage limitations in effect prior to September 2005, providing no in-district transportation, have not been “amended by a special proposition passed by a majority of the qualified voters of the school district.”

In a case similar to the one before me, also involving a district on a contingency budget (Appeal of Wenger, 37 Ed Dept Rep 5, Decision No. 13,790), the Commissioner wrote:

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).

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.

Based upon the clear mandate of Education Law §§2023, 3635 and case law, I must conclude that the provision of transportation to Ulysses Byas students who attended school at the old Centennial Avenue Elementary School during the 2006-2007 school year, without the approval of district voters, was not authorized by law.  I do not take the board’s concerns about student safety lightly, but they do not justify the board’s failure to obtain the required approval of the voters to provide altered transportation arrangements, or to explore other legal options for the provision of transportation.

Petitioner seeks various other forms of relief dealing with the internal governance of the district, finances and operations (e.g. requiring an accounting by the New York State Comptroller of all funds maintained by the district for operations, and public disclosure of certain financial information).  Since the filing of this appeal, the State Comptroller issued an audit for the period July 1, 2004 through November 30, 2006 and the Commissioner appointed a Fiscal Administrator for the district.  Accordingly, I find that the other forms of relief are either no longer necessary or are not appropriate in the context of this appeal.  The State Education Department will continue to work closely with the district to monitor its future compliance with law.

Finally, petitioner seeks a certification pursuant to Education Law §3811(1) that respondents have acted in good faith.  It is appropriate to issue such certification unless it is established on the record that respondents acted in bad faith (Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Application of Lilly, 43 id. 459, Decision No. 15,050).  On the record before me, I will issue the requested certification.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent board immediately cease providing transportation to any school located within the district, unless or until district voters shall approve such transportation pursuant to Education Law §§2023 and 3635.

END OF FILE