Appeal of Mark Pyskadlo, on behalf of his daughter LEXAH, from action of the Board of Education of the Guilderland Central School District regarding transportation.

Decision No. 15,624

(August 13, 2007)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Guilderland Central School District (“respondent”) denying his request for transportation to a nonpublic school.  The appeal must be dismissed.

Petitioner and his former wife share joint legal and physical custody of their daughter, Lexah.  Pursuant to her parents’ marital settlement agreement, Lexah divides her time between her mother’s home in the Brunswick Central School District (“Brunswick”) and her father’s home in respondent’s district.  For several years, Lexah has attended Saint Ambrose private school in Latham, NY and received transportation from both Brunswick and respondent’s district.  During the 2005-2006 school year it came to the districts’ attention that they both were providing transportation to Lexah.  Because it was late in the school year, a decision was made to maintain the status quo.

On March 27, 2006, petitioner filed a timely transportation request asking that Guilderland transport Lexah on Mondays, Tuesdays and Wednesday mornings.  Following this request, respondent’s superintendent (“superintendent”) contacted petitioner to discuss his concern that Lexah was receiving transportation from two school districts.

By letter dated June 14, 2006, the superintendent notified petitioner that he was required to select a district of residence for transportation purposes.  Subsequently, petitioner asked the superintendent to provide a legal basis for his position.  By letter dated July 7, 2006, the superintendent provided an explanation and reiterated that petitioner was required to select one legal residence for transportation purposes.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 9, 2006.

Petitioner alleges that he timely applied for transportation for the 2006-2007 school year and that the same transportation was provided in the 2004-2005 and 2005-2006 school years.  Petitioner requests a determination that Lexah is a resident of Guilderland and is entitled to transportation to and from Saint Ambrose School.

Respondent alleges that petitioner has failed to state a cause of action, join a necessary party and exhaust his administrative remedies.  It also argues that service of the petition was defective, that the appeal is not ripe for a decision and that the Commissioner should not issue an advisory opinion.  Respondent contends that Lexah cannot legally reside in two school districts and that petitioner and his ex-wife have failed to select a school district of residence for the purpose of transportation.

I must first address several procedural issues.  By letters dated September 26 and October 4, 2006, petitioner submitted additional papers pursuant to §276.5 of the Commissioner’s regulations.  Respondent objects to the submission.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312).  Petitioner’s additional submission adds new arguments and exhibits that should have been included in his petition.  Accordingly, I have not considered petitioner’s submission.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).  Here, the petition was served on the secretary to the district administrator for human resources, who is not authorized to accept service on behalf of respondent.  Therefore, the appeal must be dismissed for improper service.

The appeal must also be dismissed for failure to join a necessary 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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621).  Furthermore, a board of education is only obligated to provide transportation services to children who are district residents (Education Law §3635[1][a]).  Therefore, if petitioner were to prevail on his claim that Lexah is a resident of respondent’s district, his former wife’s right to obtain transportation services from Brunswick would be impacted.  Thus, petitioner’s failure to join his former wife as a necessary party requires dismissal of this appeal (Appeal of Dickenson, 39 Ed Dept Rep 41, Decision No. 14,168).

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

THE APPEAL IS DISMISSED.

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