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Decision No. 17,256

Appeal of LORENA ESCOBAR, on behalf of her son WILLIAM, from action of the Board of Education of the Roosevelt Union Free School District regarding transportation.

Decision No. 17,256

(November 15, 2017)

Lamb & Barnosky, LLP, attorneys for respondent, Lauren Schnitzer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Roosevelt Union Free School District (“respondent” or “board”) denying her son, William, transportation to a non-public school during the 2012-2013 school year.  The appeal must be dismissed.

Petitioner was a resident of respondent’s district in April 2012.  On or about April 18, 2012, petitioner submitted an application to respondent’s district requesting bus transportation for her son, William, to Saint Dominic High School (“Saint Dominic”), a non-public school, for the 2012-2013 school year.  Sometime thereafter, on an undated form signed by a representative of respondent’s transportation office, petitioner’s request was checked “Denied.”  By letter dated April 23, petitioner wrote to the district’s transportation office, requesting an appeal of the district’s denial of her transportation request, asserting that she never received a transportation form because it was sent to an incorrect address.  By letter dated April 25, the superintendent of schools notified petitioner that, while the address listed for her and her son, William in the student management system was not their current address, the information was only provided as a courtesy and that the district was not required to provide such information to parents.  Subsequently, by letter dated April 26, respondent’s interim assistant superintendent of finance and operations issued a written determination denying petitioner’s request for transportation for her son to attend Saint Dominic, because it was made after the April 1 deadline.

By letter dated August 28, petitioner appealed the denial to the board, explaining that she has received district mail at her current address, allegedly without incident for two years, but that non-public school transportation form was sent to an “incorrect address.”  At its September 20, 2012 meeting the board denied petitioner’s appeal.  This appeal ensued.[1]  Petitioner’s request for interim relief was denied.

Petitioner contends that her son is entitled to transportation to Saint Dominic because she submitted a reasonable explanation for the delay in submitting the transportation request.  Petitioner asserts that she was not provided notice of the April 1 deadline or with a transportation request form prior to the April 1 deadline.  Petitioner claims that transporting William to Saint Dominic herself is a hardship because she is also an educator and her work schedule is very similar to William’s schedule.  Petitioner also asks that I direct the district to ensure that future letters regarding the April 1 deadline be sent to parents not just as courtesy letters.

Respondent contends that petitioner failed to demonstrate a clear legal right to the relief requested. Respondent also asserts that its action in denying petitioner’s late transportation request was in all respects appropriate because petitioner failed to provide a reasonable explanation for the delay.  Respondent further argues that petitioner’s appeal should also be dismissed for lack of proper service, and for failure to set forth a clear and concise statement of petitioner’s claim(s).

I must first address several procedural issues. Respondent argues that the petition must be dismissed because it does not contain a clear and concise statement of petitioner’s claims or a demand for relief.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  While I find that while the petition is not a model of clarity, petitioner, who is not represented by counsel, adequately set forth her claims and demand for relief in the petition. Respondent has not alleged or demonstrated that any prejudice resulted from a lack of clarity in the petition and further, respondent was able to adequately address petitioner's claims in its answer and memorandum of law.  Moreover, a liberal interpretation of these rules is appropriate where a petitioner is pro se and there is no prejudice to respondent (Appeal of a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406; Appeal of Metze, 42 id. 40, Decision No. 14,768).  Accordingly, I decline to dismiss the petition on this basis (see Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of a Student with a Disability, 50 id., Decision No. 16,106; Appeal of Hollister, 40 id. 658, Decision No. 14,577).

Nevertheless, 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).

Petitioner’s affidavits of service, sworn to on October 5, 2012, indicate that the “annexed DENIED BUS TRANSPORTATION REQUEST” (emphasis in original) was served on the “TRANSPORTATION DEPARTMENT” (emphasis in original), but no name was provided.  Additionally, I note that petitioner provided an affidavit of service by mail to an address that appears to be petitioner’s own address.  In an affidavit, respondent’s district clerk states that he was never served with the petition in this matter.  According to respondent’s submissions, it was not until October 22, 2012 that a copy of the petition was eventually received by respondent’s district clerk and respondent’s attorney via a facsimile sent by my Office of Counsel.  Petitioner submits no reply or other evidence to refute respondent’s claim of improper service.  On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed.[2]

The appeal must also be dismissed because, as respondent notes, the petition does not contain the notice required by §275.11 of the Commissioner’s regulations.  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 Pierre, 55 Ed Dept Rep, Decision No. 16,860; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  A notice of 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 Pierre, 55 Ed Dept Rep, Decision No. 16,860; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  Indeed, a review of the document called “NOTICE OF PETITION” does not in fact contain a notice of petition.  It only contains the caption of the appeal and none of the language required by §275.11(a) (see Appeal of Appeal of Barrientos, 56 Ed Dept Rep, Decision No. 16,944; see e.g. Appeal of Zayas, 53 id., Decision No. 16,546).  Accordingly, the appeal must be dismissed.

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).  The appeal involves a denial of transportation for the school year, which has concluded.  Accordingly, the matter is moot and the appeal must be dismissed.

However, even if I had not dismissed the instant appeal on procedural grounds, it would 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).

Petitioner admits that her request for transportation to Saint Dominic was submitted after the April 1 deadline and the record reflects that respondent received petitioner’s request for transportation on or about April 18.  However, petitioner asserts that she was unaware of the April 1 deadline because she never received the transportation form in the mail.  A board of education need not accept ignorance of the April 1 deadline as a reasonable excuse for failure to file a timely transportation request (Appeal of Mendiolaza, 48 Ed Dept Rep 346, Decision No. 15,881, Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).

Moreover, school districts have no legal obligation to publish any notice regarding the April 1 deadline (Appeal of Rivera and Figueroa, 52 Ed Dept Rep, Decision No. 16,449; Appeal of Gordon, 29 id. 175, Decision No. 12,258; Appeal of Ward, 29 id. 153, Decision No. 12,250).  Nor does a board of education have any obligation to remind parents of that deadline (Appeal of Rivera and Figueroa, 52 Ed Dept Rep, Decision No. 16,449; Appeal of Halsdorf and McClenahan, 30 id. 268, Decision No. 12,460).  Nevertheless, the record reflects that respondent did in fact publish information regarding the April 1 deadline in various district publications and respondent asserts that it attempted to mail notice to petitioner. 

Petitioner also asserts that providing transportation to her son will create hardships, since she is an educator on a similar schedule as her son.  While I am sympathetic to petitioner’s situation, personal hardship is not a basis for granting a late transportation request (Appeal of Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Goldman, 39 id. 630, Decision No. 14,334; Appeal of Korzyk, 33 id. 460, Decision No. 13,113).

Finally, 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).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

Respondent submitted an affidavit from the district clerk indicating that if the district provided the requested transportation of petitioner’s son to Saint Dominic for the 2012-2013 school year, “it would cost the [d]istrict approximately an additional $575.30 per month.”  Furthermore, the district clerk states that under existing transportation arrangements respondent cannot provide the transportation at “no additional cost to the [d]istrict.”  Petitioner has submitted no evidence to refute respondent’s contentions.  On this record, therefore, petitioner has not met her burden of establishing that the transportation sought can be provided to her son without additional expense incurred by the district (see Appeal of Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Jata, 53 id., Decision No. 16,603; Appeal of Vasilakos, 46 id. 129, Decision No. 15,463).

Under these circumstances, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] By letter dated October 1, 2012, my Office of Counsel returned petitioner’s petition for failure to include a verified petition, notice of petition and affidavit of personal service and to comply with the regulations of the Commissioner of Education.  This letter stated that respondent’s time to answer would commence with service of a subsequent corrected petition.  The record indicates that on October 12, 2012, my Office of Counsel received from petitioner a new petition, together with an affidavit of verification, sworn to on September 26, 2012, and two affidavits of service.

 

[2] Although not raised by respondent, I note petitioner’s name appears on the affidavit of service as the individual making personal service of process upon the transportation department - also in contravention of section 275.8(a) of the Regulations of the Commissioner of Education.