Appeal of ANGIE RODRIGUEZ, on behalf of her daughter MICHELLE AGUIRRE, from action of the Board of Education of the East Ramapo Central School District regarding transportation.

Decision No. 16,971

(September 20, 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” or “board”) denying her daughter, Michelle, transportation to a nonpublic school.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district.  According to the record, on or about August 27, 2015, petitioner submitted an application on behalf of her daughter to the district for bus transportation for the 2015-2016 school year, to Eastern Christian Middle School (“Eastern Christian”), a nonpublic school.  According to petitioner, Eastern Christian is located “exactly 15 miles” from petitioner’s home.  According to an affidavit from respondent’s transportation department clerk, she advised petitioner at the time of her application that such applications were no longer being accepted because the district would not be providing transportation to Eastern Christian for the 2015-2016 school year.  

By way of background, according to respondent, in early 2015, its Assistant Superintendent of Transportation (“assistant superintendent”) conducted an analysis of its non-public school transportation services to determine compliance with the applicable mileage limitations in accordance with respondent’s Policy #8410, entitled “Student Transportation,” and New York Education Law §3635.  As a result, “[e]ffective May 26, 2015, the [d]istrict ceased such transportation” to Eastern Christian because, as the assistant superintendent determined, no students attending that school resided within 15 miles of either of Eastern Christian’s campuses.  By letter dated August 13, 2015, the superintendent informed the “Concerned Parents of Nonpublic School Students” of the district’s change regarding transportation to nonpublic schools, including Eastern Christian.  The letter explained that, “[t]ransportation to Eastern Christian was discontinued completely, as there is no student living within the mileage limit.”[1]  

Respondent’s assistant superintendent subsequently reviewed petitioner’s request and determined that Michelle was not eligible for transportation to Eastern Christian because petitioner did not reside within 15 miles of that school.  

Petitioner asserts that, at respondent’s September 8, 2015 meeting, she “explained [the] situation” to the superintendent and the board, and the superintendent responded that petitioner lives over 15 miles from Eastern Christian.  Petitioner avers that she showed the superintendent and assistant superintendent “proof in my google maps app on my phone the distance where it states I live exactly 15 miles away from Eastern Christian ...” and that the assistant superintendent indicated that she would check the mileage the next day and contact petitioner.  However, petitioner claims that she was “never contacted by anyone from the district or the transportation department.”

According to an affidavit from the assistant superintendent, the matter involving petitioner’s request for transportation was not addressed or discussed by the board at its September 8, 2015 meeting.  Rather, petitioner approached the assistant superintendent and attempted to explain her request for transportation to Eastern Christian.  According to the assistant superintendent, she explained that the district was no longer providing transportation to Eastern Christian.  This appeal ensued.  

Petitioner contends that, in March 2015, she was advised by respondent’s transportation department that it “absolutely” offered transportation to Eastern Christian, and that the district’s discontinuance of transportation has caused “tremendous stress and confusion as to why we taxpayers cannot receive transportation service for our children.”  She also claims that she was not provided an explanation as to why the district will not provide transportation to Michelle to Eastern Christian.  Petitioner requests that I overturn the superintendent’s decision to deny her daughter transportation to Eastern Christian and “do right for our families.”

Respondent contends that the appeal must be dismissed as untimely, for failure to join necessary parties, for lack of proper service, and because the notice of petition is fatally defective.  It also argues that that it legally and properly discontinued transportation to Eastern Christian and that petitioner has failed to set forth a claim or to demonstrate entitlement to the relief requested.  

As a threshold matter, I must address the issue of standing.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  As noted above, petitioner requests that I overturn the decision to deny Michelle transportation and “do right for our families,” who “have no options but to transport our children ourselves.”  Although petitioner has standing to bring this appeal on her own behalf to the extent she has been aggrieved by the denial of her transportation request, she lacks standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

The appeal must be dismissed for lack of proper service.  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]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Additionally, §275.9 of the Commissioner’s regulations requires that the affidavit of service be in substantially the form set forth in that section and that it indicate the name and official character of the person upon whom service was made.  Petitioner’s affidavit of personal service indicates that the petition was served “by delivering to and leaving with said district clerk” on October 6, 2015, at “No. Madison Street,” Spring Valley, New York, and that “the person so served ... is secretary in said district and who is duly authorized to accept service.”  As respondent contends, the affidavit of service submitted by petitioner does not state the name of the individual served, nor does it contain a description of the person to whom it was delivered.  The affidavit also does not specify the time that service was made or set forth facts showing that the service was made in an authorized manner.  Petitioner submits no reply or any evidence to refute respondent’s claim of defective service.  Given the above, the affidavit of service submitted by petitioner is defective and does not establish that service was properly effected upon respondent in accordance with §275.8(a) of the Commissioner’s regulations. Consequently, because service is defective, jurisdiction has not been established and the appeal must be dismissed (Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956). 

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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  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). 

By letter dated October 16, 2015, my Office of Counsel returned petitioner’s petition for failure to contain the notice required by Commissioner’s regulations §§275.11 and 276.1 and the verification required by §§275.5 and 275.6.  The letter indicated that, if a corrected petition was served and filed within two weeks of the date of the letter, the appeal would be deemed to have been initiated on the day a copy of the petition was personally served upon the respondent.  On November 2, 2015, my Office of Counsel received from petitioner the original petition and affidavit of service, together with an affidavit of verification, sworn to on October 15, 2015, and notice of petition.  However, petitioner did not submit a new affidavit of service indicating that the verified petition was re-served on respondent, and respondent asserts that it was not served with a corrected notice of petition and petition.  Because petitioner failed to serve and file a corrected petition, no appeal has been initiated by her (see Appeal of C.S., 52 Ed Dept Rep, Decision No. 16,405).  Therefore, the appeal must be dismissed (cf. Appeal of Carabello, 52 Ed Dept Rep, Decision No. 16,477).

Even if I were to accept the original affidavit of service, which indicates that petitioner attempted to serve respondent on October 6, 2015, the appeal would still be dismissed as untimely.  The record indicates that transportation to Eastern Christian was discontinued on May 26, 2015, and on August 27, 2015, upon submission of petitioner’s application on behalf of her daughter to the district for bus transportation to Eastern Christian for the 2015-2016 school year, the district’s transportation office clerk informed her that her child would not be transported to Eastern Christian because the district had discontinued such transportation.  Indeed, petitioner asserts in her petition that once she submitted her application, she was advised that “busing to EC was no longer available.”  Petitioner also asserts that she spoke to the board and the superintendent at respondent’s regularly scheduled meeting on September 8, 2015.  However, respondent asserts that the matter involving petitioner’s request for transportation was not addressed or discussed by the board at its September 8, 2015 meeting.  Rather, the record indicates that petitioner merely made comments and no additional action was taken by respondent at these meetings on the issue of transportation to Eastern Christian.  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 August 27, 2015 determination, at the latest. Therefore, even if I were to accept petitioner’s original affidavit of service, the appeal would be dismissed as untimely.

The appeal must also 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner alleges in the petition that her request for transportation for the 2015-2016 school year was denied in August 2015.  As relief, petitioner requests that I “overrule [respondent’s] decision...” to deny Michelle bus transportation.  Since the 2015-2016 school year has ended, the issue of transportation for that year is moot (see Education Law §3635[2]).  Accordingly, the appeal must also be dismissed as moot (Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833).

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

THE APPEAL IS DISMISSED.

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