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Decision No. 17,094

Appeal of ANTHONY and KERRY CERIELLO, from action of the Board of Education of the Amityville Union Free School District regarding transportation.

Decision No. 17,094

(June 7, 2017)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta and Anthony J. Fasano, Esqs., of counsel

ELIA, Commissioner.--Petitioners appeal a determination of the Board of Education of the Amityville Union Free School District (“respondent” or “board”) denying their children transportation for the 2013-2014 school year.  The appeal must be dismissed.

Petitioners allege that, in March 2013, they submitted a request for transportation of their children to a nonpublic school for the 2013-2014 school year.  On September 11, 2013, petitioner Kerry Ceriello appeared at a board meeting and requested that the board approve petitioners’ request based on respondent’s alleged failure to process their timely request.  In a letter dated September 12, 2013, respondent’s interim superintendent for finance and operations informed petitioners that the board denied their request.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 22, 2013.

Petitioners contend that petitioner Kerry Ceriello hand-delivered a request for transportation to a nonpublic school to the district sometime in early March 2013 and, thus, prior to the April 1 deadline.  Petitioners further contend that Kerry Ceriello hand-delivered the request to “a female employee” in the district’s administrative office.  Petitioners additionally state that Kerry Ceriello intended to hand-deliver the request to a district secretary in the transportation office who processes transportation requests but that the secretary was not in the office at that time.  Based on these allegations, petitioners argue that their request was timely and seek an order directing respondent to provide the requested transportation.

In an opposition to petitioners’ stay request,[1] respondent contends that it has no evidence that petitioners submitted a transportation request for the 2013-2014 school prior to September 2013 and argues that its decision to deny petitioners’ request as untimely was within its discretion.

The appeal 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 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).

Petitioners challenge respondent’s denial of their request for transportation for the 2013-2014 school year. 
Petitioners’ request for interim relief in this matter was denied.  The 2013-2014 school year has ended; therefore, the issue of transportation for that year is moot (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 Ed Dept Rep, Decision No. 16,394).

Even if the appeal were not dismissed as moot, it would also be dismissed on the merits.  Education Law §3635(2) requires that an application for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically  (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).  However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; Appeal of a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of a Student with a Disability, 48 id. 207, Decision No. 15,837).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).

Here, petitioners have not met their burden of demonstrating that they submitted a timely request for transportation to the district.  In response to petitioners’ contention that petitioner Kerry Ceriello hand-delivered a request in March 2013 to an unidentified female employee, respondent indicates that it has no record of such a request.  Respondent further alleges that its standard practice is for employees who receive a hand-delivered transportation request to provide the parents with a date-stamped copy of such request and, if that is not done, to mail a date-stamped copy to the parents within a week.  Additionally, while petitioners contend that the secretary was “not in the office” when petitioner Kerry Ceriello hand-delivered the request, the secretary submitted a sworn statement that she was not absent for any work day in March 2013.  Petitioners have provided no proof to corroborate their allegation that a written request was timely filed.  Based on this record, petitioners have not proven that they submitted a request prior to the April 1 deadline.[2]

Additionally, the record shows that granting petitioners’ late request for transportation would have imposed additional costs on the district.  Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881).  Here, respondent asserts, and petitioners do not refute, that granting the transportation request would impose additional costs on respondent. Therefore, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondent submitted a late answer in this matter.  Although a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay, I decline to do so as respondent has offered no explanation whatsoever for the delay (see, Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of Reese, et al., 49 id. 328, Decision No. 16,044; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  However, respondent submitted a timely opposition to petitioners’ request for interim relief.  Because I considered this submission when denying petitioners’ request for interim relief, I will accept the opposition and its supporting documents as part of the record (see Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526).

 

[2] Petitioners contend that they submitted a timely request and, as such, do not argue that they had a reasonable explanation for submitting a request in September 2013.  In fact, petitioners admit in their petition that they “fully understand the consequences of requests not submitted by the [April 1] deadline.”