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Decision No. 17,480

Appeal of TIM HALPERN and DANA HALPERN, on behalf of their children OAKLEY and SAVANNAH, from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding transportation.

Decision No. 17,480

(August 13, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Katonah-Lewisboro Union Free School District (“respondent”) to deny their request to change the pick-up/drop-off point (“bus stop”) for transportation of their children (the “students”).  The appeal must be dismissed.

At all times relevant to this appeal, the students attended respondent’s schools and utilized public school bus transportation.  Petitioners and the children live in a house located on a loop road (the “loop road”).  Prior to the 2017-2018 school year, the students’ bus stop was at the end of petitioners’ driveway.

For the 2017-2018 school year, respondent moved the bus stop from the end of petitioners’ driveway to the end of the loop road, where it intersects with another road. The distance between the new bus stop and petitioners’ home is approximately 0.1 miles.

Petitioners challenged respondent’s determination through respondent’s internal review process.  Petitioners first appealed the district’s initial determination to the district’s director of transportation (“director”) on September 4, 2017.  On September 5, 2017, the director explained the district’s reason for changing the route and denied petitioners’ request to restore the previous bus stop.  Petitioners then appealed this decision, which was “forwarded” to respondent’s business office.

In a letter dated September 11, 2017, respondent’s school business administrator and assistant superintendent for business indicated that they had reviewed petitioners’ request and “determined that one adjustment in the route is appropriate.”  Specifically, respondent adjusted the route so that “during both the a.m. and p.m. routes, the bus will now enter [the loop road] and make an additional stop at the split of the road.” The letter indicated that petitioners could appeal to the superintendent within 30 days if they were dissatisfied with this outcome. Petitioners appealed this decision “effective immediately” to the superintendent via email.  

On September 15, 2017, the superintendent issued a written decision concerning petitioners’ appeal.  The superintendent indicated that he personally studied the route, drove it himself, stopped at petitioners’ driveway, and observed the “distance and sightlines from that point to the newly designated bus stop.”  The superintendent stated that the distance between petitioners’ home and the bus stop was “approximately 150 yards.”  The superintendent further indicated that, while petitioners were used to having the bus stop at the end of their driveway, the route  was “well within the distances outlined in [the] district’s policy on these matters.”  The superintendent further stated that the students did not have “a dangerous or overly long walk to their bus stop.”  The superintendent indicated that petitioners could appeal his determination to the board within 30 days.  In this respect, the superintendent informed petitioners that any appeal could be sent to the district clerk and provided the district clerk’s mailing and email addresses.

On November 2, 2017, petitioner Tim Halpern (“T.H.”) attended a board meeting.  Petitioner T.H. spoke during the meeting and shared his concerns about the students’ bus stop.  Respondent’s president informed petitioner T.H. that, if he sought review of the superintendent’s decision, he needed to follow respondent’s appeal process.  Petitioner T.H. stated that his appeal was “here,” and handed the district clerk several papers, including a document addressed to her dated October 11, 2017.  The district clerk asserts that she had not seen the document prior to that date.  

On November 3, 2017, petitioner T.H. emailed the district clerk copies of petitioners’ “appeal and supporting documents.”  The district clerk confirmed receipt of petitioners’ appeal on November 9, 2017.

Respondent reviewed petitioners’ appeal on November 16, 2017.  In a letter sent via email and U.S. mail, the district clerk informed petitioners that respondent had considered their appeal and rejected it as untimely because it had been filed more than 30 days after the superintendent’s decision.  Nevertheless, respondent indicated that, even if it was timely, it would reject petitioners’ appeal on the merits.  This appeal ensued.  Petitioners’ request for interim relief was denied on January 4, 2018.

Petitioners contend that respondent’s action in moving the bus stop was arbitrary and capricious.  Petitioners argue that the new bus stop is unduly dangerous for their children, as the students must walk uphill to return home, which they allege is especially dangerous in “bad weather.”  Petitioners further argue that a yield sign located at the end of petitioners’ road is not visible from a road to which it connects.  Petitioners additionally assert that there are “as many [as] 1,000 registered sex offenders living in Westchester County,” and that respondent’s alteration of the bus route exposes petitioners’ children to greater risk of being victimized by sex offenders.  Petitioners further contend that the bus route is dangerous because there are no sidewalks on their road; is onerous for children who are “carry[ing] heavy book bags and sometimes musical instruments”; and that a local police officer opined that the new bus stop was “dangerous and really dumb” because “[d]uring winter [the road] is going to be a sheet of ice.”  Petitioners seek restoration of the previous bus stop in front of their home and money damages representing “every day we did not have safe [bus] service.”

Respondent argues that the instant appeal must be dismissed as respondent justifiably dismissed petitioners’ appeal below as untimely.  Respondent also contends that, even assuming that petitioners appealed to respondent in a timely manner, the instant appeal to the Commissioner is untimely.  Respondent further argues that the appeal must be dismissed for improper service.  Respondent additionally asserts that petitioners’ appeal is without merit and that it acted reasonably in altering, and subsequently adjusting, the bus route on petitioners’ road.

Initially, I decline to dismiss the petition 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, the record reflects that the district clerk sent respondent’s decision to petitioners via email and via “United States Postal Service” on November 17, 2017.  The record does not reflect when petitioners received this email or the written letter.  However, petitioner T.H. sent an email to the district clerk on November 22, 2017 which reflects his receipt of respondent’s decision.  Therefore, petitioners had until December 22, 2017 to appeal respondent’s determination.  Consequently, petitioners’ service of the petition on December 20, 2017 was within the 30-day time limitation, and I decline to dismiss the appeal as untimely.[1]

Nevertheless, the appeal must be dismissed for improper service.  The record reflects that, initially, a process server served a copy of the petition without exhibits on December 18, 2017.  Petitioner T.M. subsequently indicated to the district clerk, in an email dated December 19, 2017, that petitioner D.M. would come by to “pick up papers [i.e., the petition] that were incorrectly dropped off there.”  The district clerk responded on December 20, 2017, indicating that she would leave the documents in an envelope at the front desk.  Petitioner T.M. thereafter retrieved the documents.  Then, on December 20, 2017, petitioner T.M. personally served a copy of the instant petition, with exhibits, on the district clerk.[2]  This submission included the affidavit of service from the process server which accompanied the original December 18, 2017 submission.

Based on this record, I find that petitioners withdrew their December 18, 2017 submission when petitioner T.M. informed the district clerk that the documents had been “incorrectly dropped off” and subsequently retrieved them.  I further find that the December 20, 2017 submission was improperly served because it was personally served by petitioner T.M., a party to this proceeding.  Section 275.8 of the Commissioner’s regulations requires that a non-party over the age of 18 serve all pleadings.  Petitioners have not responded to or refuted respondent’s contention that petitioner T.M. personally served the petition on December 20, 2017.  Therefore, on this record, I am constrained to conclude that the petition and notice of petition were not properly served, and the appeal must be dismissed (Appeal of A.F., 56 Ed Dept Rep, Decision No. 17,030; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hughes, 48 id. 229, Decision No. 15,865).

With further respect to service of the petition, the appeal must be dismissed because petitioners’ affidavit of service is defective.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Further, section 275.9(a) requires that the affidavit of service be in substantially the form set forth in that section.  Here, with the December 20, 2017 submission, petitioner submitted the original affidavit of service which had accompanied the December 18, 2017 submission.  This affidavit indicated that a process server served unspecified documents[3] on the district clerk on December 18, 2017.[4]  As indicated above, petitioners withdrew this submission and subsequently re-served a different version of the petition on December 20, 2017.  Therefore, as the affidavit of service submitted by petitioners, itself, is defective, I cannot conclude on this record that service was properly effectuated upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Consequently, the appeal must be dismissed (see e.g. 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 record further supports a finding that petitioners did not comply with respondent’s reasonable timeline for appealing the decision of the superintendent to respondent.  Generally, a board of education has discretion to adopt rules governing appeals of district decisions and may impose timelines in connection therewith (see Education Law §1709[1]).  However, any timeline for appealing an adverse district decision must be reasonable and clearly communicated to parents (see e.g. Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543 [suspension notice containing “oblique” reference to code of conduct which prescribed a district timeline held insufficient to provide notice of a restrictive policy of administrative exhaustion]; see also Appeal of L.L., 51 id., Decision No. 16,334).

Here, the superintendent issued a written decision dated September 15, 2017 which informed petitioners that they could “appeal the decision to the Board of Education” and further provided that:

Said appeal should be commenced within thirty (30) days of the date of this letter.  All communications to the Board of Education should be sent to the District Clerk, Kimberly Monzon at P.O. Box 387, Katonah NY 10536 or kmonzon@klschools.org.  Should you ultimately disagree with the decision of the Board of Education, you will then have the ability to appeal to the Commissioner of Education.  More information regarding said appeal rights can be found at www.nysed.gov.

I find this 30-day timeline to be reasonable and further find that respondent clearly communicated the timeline to petitioners in the September 15, 2017 letter. 

Petitioners did not appeal the superintendent’s decision until November 3, 2017, when petitioner T.H. emailed the district clerk a copy of their appeal.  Although this appeal included a document addressed to the district clerk dated October 11, 2017, there is no evidence in the record that this was transmitted to the district clerk or respondent prior to November 3, 2017.  Therefore, petitioners failed to comply with respondent’s reasonable deadline for appealing the superintendent’s decision, and there is no evidence that petitioners provided respondent with an excuse for the delay in in bringing the appeal.  Under these circumstances, petitioners have failed to establish that respondent’s determination that their appeal was untimely was arbitrary and capricious or in violation of law.

Even if petitioners had made a timely appeal to respondent, this appeal would have been dismissed on the merits.  A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id.  128, Decision No. 15,814).  The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc 2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186).  Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point.  It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Lippolt, 48 id. 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).  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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have failed to meet their burden of proving that respondent’s action in moving the bus stop was arbitrary, capricious, unreasonable or an abuse of discretion.  The record indicates that respondent’s director of transportation, school business administrator and superintendent each reviewed petitioners’ request to move the bus stop and each visited the bus stop and determined it to be safe.  The record further reflects that respondent adjusted the route in response to petitioners’ concerns, so the school bus entered the loop road and made an additional stop at the intersection.  As noted above, respondent has discretion to balance considerations of pupil safety and convenience, routing efficiency and costs.  Respondent asserts that it made the change in bus stops based on efficiency and/or cost considerations and petitioners have not established that respondent abused its discretion in so doing.  

Petitioners make conclusory and speculative assertions that the pick-up/drop-off point is unsafe, but have not submitted evidence to corroborate those assertions, other than an allegation that a police officer observed to them that having a school bus stop on a hill in the winter at that intersection would be dangerous.  Indeed, respondent has submitted an affidavit from this police officer in which she denies that she made any statement to petitioners about the safety of the bus stop.  In any case, petitioners’ concerns about dangers associated with inclement weather, parked commercial vehicles near the bus stop, traffic on petitioners’ road, the lack of sidewalks, and that the bus stop is at the bottom of a hill and the children must walk a distance uphill to reach it, are characteristics common to many pick-up points in rural and suburban areas, and are not, in and of themselves, a basis for deeming the current bus stop unsafe (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186).  While petitioners also object to the distance their children must walk because of the existence of sex offenders in Westchester County, speculation about such a generalized risk is not a basis for setting aside respondent’s determination to establish the new bus stop.  Boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Girsdansky, 46 Ed Dept Rep 105, Decision No. 15,455).  While I understand that petitioners are concerned for their children’s safety, the law does not require a school district to provide transportation for students directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc2d 384, as petitioners are requesting.  As stated above, it is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

Finally, with respect to petitioners’ claim for monetary reimbursement, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] In light of this conclusion, I need not address petitioners’ contention that they established good cause for any delay in filing the petition.

 

[2] Respondent asserts, and petitioners do not refute, that all of the documents served on the district clerk “were ... screenshots of documents and not actual copies of the documents.”

 

[3] In the section of the affidavit where the process server is directed to identify what documents he or she served, the process server wrote: “KLSD/BOE.”

 

[4] The affidavit of service is also internally inconsistent, indicating in one portion that the documents were served on December 17, 2017 and in another portion that the documents were served on December 18, 2017.