Decision No. 17,596
Appeal of TARA HANDSMAN, on behalf of her daughter JADE, from action of the Board of Education of the Clarkstown Central School District regarding transportation.
Decision No. 17,596
(March 4, 2019)
Jaspan Schlesinger, LLP, attorneys for petitioner, Lawrence J. Tenenbaum, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her daughter, Jade (“the student”), is not entitled to transportation to respondent’s North High School. The appeal must be dismissed.
This appeal concerns the interaction of three of respondent’s policies as applied to the student. The first, policy 5110 (“School Attendance Areas”) provides that students must generally attend the school which they are zoned to attend. However, the policy allows parents to request enrollment in a school outside of their attendance zone, which the policy refers to as an “out-of-boundary placement.” Additionally, parents must waive their right to transportation to and from the out-of-boundary placement unless “the student would otherwise be entitled to such transportation.” In other words, respondent’s usual transportation policies apply to those students permitted to attend out-of-boundary placements.
Respondent’s distance limitations for transportation are set forth in policy 8410. This policy provides, as relevant to the student, that bus transportation shall be provided for students in grades 9-12 who live 1.4 miles or more from school.
Finally, respondent has an unwritten policy concerning certain residents’ choice of the district’s two high schools. Respondent explains that the line establishing the attendance zones for its North and South High Schools intersects with the attendance zones for two of its elementary schools so that students residing in a portion of the Laurel Plains elementary attendance zone are technically within the North High School attendance zone. This geographic area, the precise boundaries of which are not clearly defined in this appeal, includes that portion of the Laurel Plains elementary attendance zone that is technically assigned to the North High School and is referred to by the parties as the “Triangle.” Respondent permits any district residents who reside in the Triangle to choose whether to attend respondent’s North or South High School.
Respondent asserts that residents of the Triangle are not subject to policy 5110 and, thus, are not required to submit a request for an out-of-boundary placement pursuant to such policy. In effect, respondent’s unwritten policy treats residents of the Triangle as within the attendance zones of both North and South High Schools. Respondent asserts on appeal that a request by a resident located within the Triangle remains subject to Policy 8410; thus, while residents of the Triangle may choose to attend North or South High School, their children are only entitled to transportation if they reside more than 1.4 miles from the school building.
According to the record, petitioner resides in the Triangle. On February 2, 2017, the district sent a letter to petitioner to inform her that the student was enrolled in North High School. On the following day, petitioner emailed the district and requested that the student’s assignment be changed to South High School. The district complied with this request.
On March 27, 2017, petitioner apparently changed her mind and requested that the student be assigned to North High School. The district again complied with this request.
In an email dated March 28, 2017, the superintendent informed petitioner that the district would provide transportation to the student to and from North High School.
In an email dated September 1, 2017, the superintendent informed petitioner that the district could not, in fact, provide transportation for the student to North High School for the 2017-2018 school year. The superintendent states in an affidavit that he only became aware of the mileage distance between petitioner’s home and North High School on or about September 1, 2017. Respondent asserts that this distance is 1.1 miles; petitioner claims it is 1.2 miles. In either event, this distance is less than the minimum distance of 1.4 miles required for eligibility for transportation under policy 8410. Thus, as the superintendent admits, his representation that the district could provide transportation between the student’s home and North High School was in error.
In a letter dated September 8, 2017, the superintendent informed respondent of petitioner’s request and the reasons why he denied her request. Respondent considered petitioner’s request at a board meeting on September 12, 2017.
In a letter dated September 13, 2017, respondent upheld the superintendent’s denial of transportation based upon the distance between petitioner’s home and the school, which rendered petitioner ineligible for transportation pursuant to policy 8410. However, respondent agreed to provide the student with transportation until October 13, 2017 so that petitioner would have time to make alternative arrangements.
Petitioner attended a board meeting on October 12, 2017 and asked that respondent reconsider its determination. Respondent took no action, and this appeal ensued. Petitioner’s request for interim relief was denied on November 1, 2017.
Petitioner contends that respondent should be obligated to provide transportation to the student during the 2017-2018 school year because, having agreed to do so in March 2017, it was estopped from taking a contrary position. Petitioner also argues that it was inequitable for respondent to deny her request because of her family’s circumstances including the illness of the student’s father. Petitioner further seeks to represent a class of 106 students within the “Triangle” who are “zoned for North [High School] and bused to South [High School],” alleging that these students are improperly receiving transportation pursuant to policy 5110. Petitioner also asserts that respondent’s transportation of these students is illegal and constitutes a violation of respondent’s “fiduciary duty” to taxpayers. As relief, in addition to seeking an order that her daughter is entitled to transportation “for the 2017/2018 school years,” petitioner requests that I “conduct a full review” of respondent’s policies and determine if respondent is in compliance with “the zoning rules and district Policy 5510,” if respondent is in compliance with its fiscal responsibility to taxpayers and voters and if respondent is applying its policies to all students equally or is placing certain students at a disadvantage.
Respondent asserts that the appeal must be dismissed as untimely. On the merits, respondent denies petitioner’s assertions and argues that it acted in a rational matter and in accordance with district policy. Respondent contends that petitioner’s arguments rely on policy 5110, which is not applicable to individuals, like petitioner, who reside within the Triangle. Rather, respondent argues, after residents of the Triangle elect to attend North or South High School, eligibility for transportation is determined in accordance with policy 8410. Respondent further contends that it is not bound by its earlier, mistaken determination that petitioner was entitled to transportation.
First, I must address several procedural matters. Petitioner submitted a reply in this matter. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Additionally, in the petition, petitioner purports to represent a “[c]lass of similarly situated persons.” An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858). However, the petition does not clearly identify the proposed class petitioner seeks to represent. While petitioner refers to “similarly situated walkers to North,” she also refers to residents of the Triangle as “a special class of CCSD students who are afforded benefits and opportunities not otherwise afforded to the remaining students within CCSD (hereinafter referred to as the ‘Protected Class’)” as well as to “at least 106 members of the Protected Class who are zoned for North [High School] and are bused to South [High School].” Even assuming, arguendo, that she sufficiently identified the nature of the proposed class, petitioner, who is zoned for North High School and has been denied transportation to North High School, has not established that all questions of law and fact would be common to all members of the class. Petitioner also indicates in the petition that she would also like to represent the “[t]axpayers of Clarkstown Central School District who are not part of the Protected Class.” Petitioner, however, has not set forth the number of taxpayers she seeks to represent or explained how all questions of law and fact would be common to all members of this class. Therefore, class status is denied.
Respondent contends that the appeal must be dismissed for failure to join necessary parties; namely, the 106 students from the Triangle whom petitioner asserts are being unlawfully transported to South High School when they reside in the attendance zone for North High School. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).
In this case, petitioner does not directly request any relief against the 106 students; rather, petitioner, as a district resident and taxpayer, claims that respondent’s policy unlawfully violates respondent’s fiduciary duty to its taxpayers and that respondent’s transportation policies do not treat all students equally. If a decision were rendered in petitioner’s favor determining that respondent’s transportation and attendance zone policies applicable to students residing in the Triangle are unlawful, the rights of the 106 students would, as respondent argues, be affected. However, where, as here, a petitioner challenges the legality of a school district policy that affects hundreds of students as a taxpayer, I decline to find that any student or district resident conceivably affected by the policy is a necessary party. A board of education is in the best position to defend its own policies, and a requirement that every student or district resident who could be adversely affected by an order setting aside a district policy be joined as a necessary party would be unworkable and contrary to public policy. District residents and taxpayers have a right to challenge unlawful district policies that adversely affect them, and they may not be effectively denied that right by requiring joinder of every conceivable person within a district affected by a policy. Therefore, I decline to dismiss petitioner’s taxpayer challenge for failure to join necessary parties.
Additionally, petitioner asserts in the petition that respondent has failed to comply with its obligations under the Freedom of Information Law (“FOIL”). To the extent petitioner poses a claim under this statute, Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747). Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.
To the extent petitioner requests that the Commissioner review respondent’s attendance zone and transportation policies to determine if they are lawful as applied to students other than her daughter, petitioner has not alleged any injury to her rights in this regard and, thus, is impermissibly seeking an advisory opinion and declaratory relief. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861). It is also well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Thus, petitioner may not maintain the instant appeal on this basis. However, as indicated above, petitioner’s claim, as a school district resident and taxpayer, that respondent is breaching its fiduciary duty to the district’s taxpayers by allowing students in the Triangle to be transported to South High School when they are in the attendance zone for North High School and do not meet the minimum mileage requirements to be eligible for transportation to North High School remains live.
The appeal must also be dismissed, in part, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). Here, petitioner requests a determination regarding the student’s eligibility for transportation during the 2017-2018 school year, which has ended. Therefore, any determination concerning this year has been rendered academic and the appeal must be dismissed as moot.
The appeal must also be dismissed, in part, 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). Respondent denied petitioner’s request for transportation in a letter dated September 13, 2017. In the petition, petitioner asserts that she received a phone call from the superintendent on that date and “also received” the September 13, 2017 letter that same day. Therefore, the record supports a finding that petitioner had actual notice of respondent’s determination on September 13, 2017 and was required to commence this appeal by October 13, 2017. Petitioner’s affidavit of service indicates that the appeal was served on October 23, 2017. Therefore, to the extent petitioner appeals from respondent’s denial of her request for transportation, the
appeal was not commenced in a timely manner.
Petitioner asserts that her request for reconsideration of respondent’s September 13, 2017 decision extended the 30-day time limitation. It is well-settled, however, that a request for reconsideration does not extend the time within which an appeal must be commenced (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
Petitioner further suggests that her delay in commencing the appeal should be excused because she was awaiting receipt of documents pursuant to a request under FOIL. I do not find that petitioner’s FOIL request justified her delay in commencing the instant appeal because respondent’s September 13, 2017 letter unambiguously denied petitioner’s request for transportation and explained respondent’s reasoning with respect thereto. While petitioner apparently desired to gather additional information to utilize in her appeal, she has failed to explain why the requested records were required to commence this appeal and, in fact, this appeal was commenced before she obtained the financial data she requested. The record indicates that petitioner was aware of the facts underlying this claim more than 30 days prior to the commencement of this appeal, thus rendering the appeal untimely (Appeal of Jones, et al., 55 Ed Dept Rep, Decision No. 16,823; Appeal of O’Brien, 51 id., Decision No. 16,316, pet to review dismissed sub nom. O’Brien v. King, et al.; Sup. Ct., Albany Co.; 7/3/2012; aff’d 112 AD3d 188; appeal dismissed 22 NY3d 1125; mot. for leave to
appeal den. 23 NY3d 903; cert denied 135 SCt 404.
However, to the extent petitioner, as a district taxpayer, contends that respondent’s application of its unwritten Triangle policy to modify its attendance zone policies violates its fiduciary duty to the taxpayers of the district and results in additional costs to taxpayers, the appeal involves a continuing wrong which is subject to complaint at any time. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). If petitioner were correct that respondent’s policies violate its fiduciary duty to district taxpayers, such claim does not involve a single action or decision, but rather involves an ongoing cost to taxpayers that would be intrinsically unlawful. Therefore, I decline to dismiss such claim as untimely.
Nevertheless, this claim must be dismissed on the merits. Petitioner complains that respondent is illegally providing transportation to students zoned for North High School who attend South High School, and that these actions violate respondent’s fiduciary duty to the district’s taxpayers. A board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Education Law §1709, , §§1804, 1805). In such cases, a board’s discretion is broad and a board’s decision will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, et al. v. Bd. Of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2D 333; Appeal of Khan, 58 Ed Dept Rep, Decision No. 17,437; Appeal of P.C. and K.C., 57 id., Decision No. 17,337; Appeal of Fettinger, et al., 47 id. 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006). As noted above, the students in question are students residing in the Triangle who have opted to attend South High School and reside 1.4 miles or more from that school. Respondent has applied its unwritten Triangle policy, which effectively treats students residing in the Triangle as located within the attendance zones for both high schools. Respondent’s superintendent explains that the Triangle policy was intended to address the impact of having the high school attendance zones bisect the Laurel Plains elementary attendance zone by allowing students the option of following their elementary classmates to South High School or enrolling in North High School because of its proximity to the Triangle. Respondent further submits that this decision was made in the best interest of students who attended Laurel Plains Elementary School. Respondent has broad discretion in applying its written and unwritten attendance zone policies and petitioner has failed to establish that respondent’s policies challenged herein are arbitrary, capricious, or contrary to sound educational policy. Therefore, petitioner has failed to meet her burden of proof as to this claim.
Finally, I note that even if petitioner’s remaining claims were not subject to dismissal in part as moot and untimely, they would be dismissed on the merits. A school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[a]; Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Schwab, 47 id. 73, Decision No. 15,630). Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[a]; Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305). If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[a]; Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039).
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).
Here, petitioner’s daughter is ineligible for transportation based upon the plain language of policy 8410, which respondent asserts sets forth the mileage limits for transportation that have been approved by the voters of the district pursuant to Education Law §3635(1)(a). This policy provides, as indicated above, that bus transportation shall be provided for students in grades 9-12 who live 1.4 miles or more from school. As further stated above, the parties agree that petitioner resides less than 1.4 miles from North High School. Therefore, petitioner is ineligible for transportation under policy 8410 and Education Law §3635(1)(a).
Petitioner raises several arguments in response. First, she argues that respondent previously agreed to provide transportation to North High School in March 2017 and should be estopped from taking a contrary position. It is well-settled, however, that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779). The fact that a district transported a student in prior years does not estop the district from declining to provide such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Rohde, 45 id. 255, Decision No. 15,313; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073). Moreover, a district has no authority to make an exception to the eligibility requirement of Education Law §3635 merely because it erroneously provided transportation to a student in the past (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073). If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073; Appeal of Turner, 40 id. 156, Decision No. 14,447).
Thus, while it is unfortunate that petitioner learned that respondent would not provide transportation only a few days before the start of school, respondent’s mistaken belief that petitioner was entitled to transportation did not estop it from correcting such error (see Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Matter of Lembo, et al., 18 id. 505, Decision No. 9,941). Only the voters of the school district are empowered to authorize transportation at distances below the statutory minimums of two miles for kindergarten through grade 8 and three miles for grades 9-12 set forth in Education Law §3635(1)(a). Petitioner’s recourse, if she wishes to change the mileage limits, is to submit a petition for a proposition to have the voters, at a school district meeting, authorize transportation for lesser distances.
Petitioner also argues that it was inequitable to deny her transportation request because her spouse has a terminal medical condition and that he, in or about February 2017, underwent a bone-marrow transplant. While I am sympathetic to petitioner and her spouse’s personal circumstances, there is no legal basis to order a school district to provide unauthorized transportation under these circumstances (see e.g. Appeal of O.E., 53 Ed Dept Rep, Decision No. 16,577).
Petitioner further argues that respondent’s denial of her transportation request was arbitrary or capricious. Upon review of the record, I cannot agree. As indicated above, the parties agree that petitioner and the student reside less than 1.4 miles from North High School, thus rendering her ineligible for transportation pursuant to policy 8410. Respondent has established that policy 5110, upon which petitioner places substantial reliance, is not applicable to residents of the Triangle such as petitioner and the student. Therefore, petitioner’s arguments concerning policy 5110 are inapposite.
Petitioner further alleges that respondent is not applying its policies equally to all students but has provided no proof to support such allegation. Respondent asserts that it applies its unwritten Triangle attendance zone policy uniformly and that all students who reside in the Triangle are denied transportation to the high school they have requested if they reside less than 1.4 miles from such school. Petitioner has provided no evidence to contradict respondent’s assertions and, thus, has failed to meet her burden of proof on this claim.
While the petition must be dismissed in part on procedural grounds and petitioner has not otherwise demonstrated a clear legal right to her requested relief, petitioner is correct that respondent’s unwritten Triangle policy has caused substantial confusion in this matter. I accept respondent’s explanation that parents residing within the Triangle may elect to attend North or South High School and are subject to the transportation limits set forth in policy 8410. However, in light of the issues raised in this appeal and the potential for confusion regarding respondent’s Triangle policy and its application, I admonish respondent, if it seeks to continue utilizing such policy, to formally adopt it as a written policy and modify the district’s existing policies, including policies 5110 and 8410, as needed to clearly apprise district residents as to their interplay with the Triangle policy.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner does, however, have standing as a district resident to challenge an allegedly illegal expenditure of district funds (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744).
 Even assuming, arguendo, that the record did not reflect when petitioner received this determination, affording the usual five days for mailing, excluding Sundays and holidays, the appeal would still have been commenced more than 30 days from the making of the decision complained of and would be untimely (see 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).
 Petitioner has provided no evidence to support her allegation that respondent delayed responding to her FOIL request “to thwart my efforts at filing this Petition.”
 Petitioner also asserts, in the reply, that her spouse’s medical condition constitutes good cause to excuse the delay. This contention, however, was inappropriately set forth in the reply, and not the petition (see 8 NYCRR §275.16). In any case, while I am sympathetic to petitioner and her spouse’s circumstances, even if I had accepted petitioner’s submission, I would not find that petitioner established good cause for the delay (see Appeal of Jarosz, 34 Ed Dept Rep 600, Decision No. 13,423 [holding that personal illness is an insufficient excuse for a delay in commencing an appeal]).