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Decision No. 16,860

Appeal of EMMANUELLA PIERRE, on behalf of her children SEBASTIAN and SABRINA, from action of the Board of Education of the East Ramapo Central School District regarding transportation.

Decision No. 16,860

(January 4, 2016)

Harris Beach PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Ramapo Central School District (“respondent”) denying her children, Sebastian and Sabrina, transportation to a non-public school.  The appeal must be dismissed.

Prior to May 2015, petitioner’s children received transportation to the Eastern Christian High School (“Eastern Christian School”), a non-public school.  By letter dated April 15, 2015, respondent’s superintendent of schools notified petitioner that, because her children lived more than 15 miles from the Eastern Christian School and there were no other district students attending the school who lived within 15 miles of it, petitioner’s children were not entitled to transportation.  The letter informed petitioner that transportation would be discontinued, effective May 26, 2015.

On April 27, 2015, respondent’s superintendent and assistant superintendent for transportation met with petitioner and reiterated the reasons underlying the determination that petitioner’s children were not entitled to transportation.  Thereafter, petitioner, along with parents of other affected children, apparently met with their legislative representatives in an attempt to secure transportation services.

On or about May 22, 2015, petitioner and allegedly other Eastern Christian School parents, received a telephone call from respondent’s transportation office reminding them that their children would no longer receive bus transportation as of May 26, 2015.

On July 9, 2015, petitioner and other affected parents met with the superintendent to again discuss the transportation issue.  At this meeting, the superintendent apparently reiterated that respondent adheres to the relevant law, regulations and district policies relating to transportation. 

According to the record, on August 18, 2015, the parents, including petitioner, spoke at respondent’s regularly scheduled board meeting.  The record contains no specific information as to the content of their comments. Petitioner states that they “communicated to the board the hardships and challenges they are facing and how their rights to freely educate their children at a Christian School were being violated....”[1]  There is no indication that the board responded to the parents at that meeting or thereafter. 

Petitioner contends that the decision to discontinue her children’s transportation was in retaliation for monitoring of the superintendent’s provision of transportation to children attending another non-public school.  Petitioner requests that I intervene and direct respondent to continue to provide transportation for her children to the Eastern Christian School.

Respondent contends that the decision to discontinue transportation for petitioner’s children was in all respects proper.  Respondent also asserts that the appeal must be dismissed as untimely, for lack of verification and notice, and for failure to join necessary parties.

Initially, I must address the procedural issues.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Respondent asserts that the petition served upon it was not verified.  However, the petition submitted to my Office of Counsel contains the requisite verification.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904).  Accordingly, I decline to dismiss the petition for lack of proper verification.

However, the appeal must be dismissed for petitioner’s failure to serve a notice of petition on respondent.  The petition, without the notice of petition required by 8 NYCRR §275.11, was served on respondent on October 2, 2015.  The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  A petition that does not contain the language required by §275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  Although the petition filed with my Office of Counsel did contain a notice of petition, respondent maintains that its copy did not.  Petitioner submits no reply or other evidence to refute respondent’s assertion.  The failure to serve a notice of petition upon respondent, therefore, warrants dismissal of the appeal.

The appeal must also be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821). 

Petitioner here challenges the decision to discontinue her children’s transportation to the Eastern Christian School.  Petitioner was notified of the decision by letter from the superintendent dated April 15, 2015, and transportation was discontinued on May 26, 2015.  Petitioner did not commence this appeal until October 2, 2015, more than five and a half months later.  Although petitioner met with the superintendent several times after receipt of the April 15, 2015 letter to attempt to persuade him to alter the decision, it is well settled that a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  Petitioner also asserts that she spoke at respondent’s regularly scheduled meetings on August 18 and September 8, 2015.  However, respondent asserts that the parents, including petitioner, were merely commenting during the “oral communications portion” of the meeting and that no additional action was taken by respondent at these meetings on the issue of transportation to the Eastern Christian School.  Petitioner submits no reply to refute respondent’s assertions.  Accordingly, on this record, I find petitioner’s time to commence an appeal runs from the April 15, 2015 determination.  Therefore, the appeal must be dismissed as untimely.

While the appeal must be dismissed on procedural grounds, I note that respondent discontinued transportation for petitioner’s children just weeks before the end of the school year. I remind respondent to consider the timing and impact on educational programming when making such decisions in the future.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

 

[1] Petitioner states that she similarly attended a September 8, 2015 board meeting, but respondent references only the August 18, 2015 meeting and provides the minutes therefor.