Appeal of D.L., on behalf of his son D.L., from action of the Board of Education of the North Shore Central School District regarding transportation.

Decision No. 16,591

(February 13, 2014)

Sandra J. LePorin, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Neil M.Block, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Shore Central School District ("respondent") denying his son, D.L., transportation to a nonpublic school. The appeal must be dismissed.

Petitioner and his son, D.L., an eighth-grade student, reside within respondent’s school district. From third grade through sixth grade, respondent provided transportation for D.L. to attend The Waldorf School, a nonpublic school located outside respondent’s district. For seventh grade, petitioner chose to send D.L. to Long Island Lutheran Middle School, a nonpublic school located outside respondent’s district, and respondent provided transportation.

In March 2013, petitioner made a timely request for transportation for D.L. to continue attending Long Island Lutheran Middle School for the 2013-2014 school year. After the statutory deadline for filing such transportation requests lapsed (Education Law §3635[2]), petitioner chose to switch schools, electing to send D.L. back to The Waldorf School.

Petitioner alleges that on May 15, 2013, when he telephoned respondent’s transportation center in order to change D.L.’s transportation to The Waldorf School, he was informed that no changes were permitted after respondent’s April 21 deadline and that no excuses were permitted.

1Respondent denies this conversation occurred, asserting that the transportation office would not have advised petitioner that the deadline was April 2, because the deadline was actually April 3, due to respondent’s schools being closed on April 1 and 2.

On May 17, 2013, petitioner’s wife, an attorney, sent a letter to respondent requesting that it provide transportation to D.L. despite the fact that the request was untimely. In this letter, she argued that a bus was already scheduled to stop at their home to transport their other son to The Waldorf School. She also contended that an employee at respondent’s transportation center improperly informed petitioner that no excuses would be permitted, citing Education Law §3635(2) which states that no late requests should be denied where a reasonable explanation is provided for the delay.

Petitioner alleges that on May 19, 2013, he spoke with respondent’s superintendent who informed petitioner that he thought respondent would have to vote on the matter. Petitioner attended respondent’s May 30, 2013 meeting. The agenda did not reference his request nor was it discussed at the meeting. Petitioner states that, although he attended the meeting, he did not raise the transportation issue or question respondent about it because he did not want to violate D.L.’s privacy rights by discussing it in public. In a letter dated June 17, 2013, the superintendent notified petitioner that respondent denied his request because of budgetary implications.

Thereafter, petitioner’s wife attempted to obtain the minutes of respondent’s May 30, 2013 meeting and apparently was informed that the minutes would not be available until after respondent’s next meeting on July 1, 2013. Petitioner’s wife then wrote to respondent alleging violations of the Open Meetings Law (Public Officers Law§100 et seq.) and made a written request pursuant to the Freedom of Information Law (“FOIL”) (Public Officers Law§84 et seq.) seeking to obtain the minutes of all meetings at which the issue was discussed, as well as all relevant documents.

It appears from the record that respondent met again on June 26, 2013. At that meeting, respondent apparently voted to deny petitioner’s late transportation request. The board resolution states that the denial was based on petitioner’s failure to provide a reasonable explanation for the late request, as well as the additional cost the district would incur. On June 28, 2013, respondent’s superintendent telephoned petitioner and informed him that he and his wife should amend their FOIL request to include respondent’s June 26, 2013 meeting. By letter dated July1, 2013, respondent informed petitioner that his transportation request was denied at respondent’s June 26,

2013 meeting. This appeal ensued. On July 30, 2013,petitioner’s request for interim relief was denied.

Petitioner challenges respondent’s actions and procedures relating to his late transportation request on several grounds. He claims respondent’s transportation policy regarding late requests violates Education Law §3635. Petitioner claims that respondent initially failed to consider his explanation for the delay in requesting transportation to The Waldorf School, in violation of that statute. He also asserts respondent failed to comply with the Open Meetings Law (Public Officers Law §100 et seq.).Petitioner acknowledges that such Open Meetings Law claims should be considered in an Article 78 petition brought in New York State Supreme Court and that a portion of the instant appeal cannot be “fully presented” in the absence of the documents and information that are the subject of his FOIL request to respondent. As relief, petitioner seeks an order, inter alia, directing respondent to provide

D.L. transportation to The Waldorf School for the 2013 –2014 school year.

Respondent asserts that it properly considered petitioner’s explanation for his late transportation request, as well as the cost implications. Respondent maintains that its determination to deny the late request was, in all respects, proper. Respondent alleges that I lack jurisdiction to consider any claims brought under FOIL or the Open Meetings Law.

On October 17, 2013, while this appeal was pending, petitioner also commenced an Article 78 proceeding against respondent in Nassau County Supreme Court (“Article 78proceeding”).2 I have reviewed the petition in the Article78 proceeding and determined that it asserts the same facts and raises essentially the same issues raised in this appeal. In that proceeding petitioner also seeks, interalia, an order directing respondent to provide D.L. with transportation for the remainder of the 2013 – 2014 school year.

I will first address several procedural matters. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress

2 The New York State Attorney General’s Office forwarded a copy of the petition in LePorin v. Board of Education, North Shore Central School District, et al. (Supreme Court; Nassau County; Index No. 13-012605),which was served upon it on October 18, 2013. I, therefore, take administrative notice of the pending Article 78 proceeding.

allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell,48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson,48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In addition, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234,Decision No. 15,679).

Similarly, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928;Applications and Appeals of Del Río, et al., 48 id. 360,Decision No. 15,886). Therefore, I have no jurisdiction to address any Open Meetings Law or FOIL allegations raised in this appeal.

Finally, it is contrary to the orderly administration of justice to have multiple tribunals issuing decisions regarding the same controversy (Appeal of Phillips, 38 EdDept Rep 165, Decision No. 14,008; Appeal of Campbell, 33id. 132, Decision No. 13,000). The allegations and facts raised in this appeal are also included in petitioner’s Article 78 proceeding.

Notwithstanding petitioner’s additional claim for monetary damages in his Article 78 proceeding, petitioner is seeking to vacate respondent’s determination and obtain an order directing respondent to provide D.L. transportation to The Waldorf School for the 2013 – 2014school year in two separate forums. It has repeatedly been held that the Commissioner will not entertain an appeal pursuant to Education Law §310 while there is an action pending in another forum seeking similar relief (see Appeal of Campbell, 33 Ed Dept Rep 132, Decision No. 13,000;Appeal of Regent, et al., 27 id. 398, Decision No. 11,988;

Appeal of Bd. of Ed. of North Bellmore Union Free School District, 25 id. 333, Decision No. 11,604).

In the interest of judicial economy and to avoid decisions in multiple forums on the same claim, I decline to entertain petitioner’s appeal at this time in view of his pending Article 78 proceeding. Consequently, the appeal is dismissed without prejudice to the commencement of a new appeal within thirty days of the final disposition of the pending Article 78 proceeding if any additional relief is necessary in light of such disposition (see e.g. Appeal of R.A., 50 Ed Dept Rep, Decision 16,131).

THE APPEAL IS DISMISSED WITHOUT PREJUDICE. END OF FILE