Appeal of ALESSANDRO RUGGIERO, on behalf of his son, MATTHEW, from action of the Board of Education of the Eastchester Union Free School District regarding transportation.

Decision No. 17,837

(April 29, 2020)

                 Keane & Beane P.C. attorneys for respondent, Susan E. Fine, Esq., of counsel.

Tahoe., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District (“respondent”) denying his child (“the student”) transportation for the 2019-2020 school year.  The appeal must be dismissed.

Petitioner and the student reside together within respondent’s district.  On January 22, 2019, the student was accepted to Regis High School (“Regis”), a nonpublic school.  On February 20, 2019, petitioner submitted a request to respondent for transportation to and from Regis for the upcoming 2019-2020 school year.  By letter dated February 27, 2019, the district’s transportation coordinator denied petitioner’s request on the ground that the distance between petitioner’s residence and Regis was more than 15 miles.  This appeal ensued.

Petitioner contends that the student is eligible for transportation because Regis is located less than 15 miles from his residence.  Petitioner requests that respondent provide the student with transportation or, alternatively, that he be provided the “maximum cost” of transportation allowed to other students in the district who attend nonpublic schools.

Respondent argues that the appeal must be dismissed as untimely and that its determination was reasonable.

The appeal must 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 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, respondent denied petitioner’s request for transportation by letter dated February 27, 2019.  Therefore, petitioner had until April 3, 2019 to appeal this determination.  Based on an affidavit from the district clerk, a copy of the petition was served on April 24, 2019.  The district clerk stated in her affidavit that the only papers she has ever been served with are these papers and she was unaware of any other attempts at service.  Therefore, the appeal is untimely.

While petitioner requests in the petition that I “excuse the lateness of the appeal” due to “improper practice in commencing an appeal pursuant to Education Law 310,” except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  In this respect, I note that petitioner originally submitted a one-page letter, dated March 23, 2019, to my Office of Counsel.  In a letter dated April 1, 2019, my Office of Counsel returned this submission to petitioner, indicating that the “[r]egulations of the Commissioner of Education ... govern the practice to be followed in commence in appeal pursuant to Education Law §310.”[1]  Petitioner did not serve respondent with a copy of the petition until more than three weeks after my Office of Counsel returned the March 23, 2019 submission.  Under these circumstances, I decline to excuse petitioner’s delay in commencing an appeal.[2]  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §3635(1) establishes a system of entitlement to transportation services to nonpublic schools.  Transportation between a pupil’s home and the nonpublic school that the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation (Education Law §3635[1][a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  Although the statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law §3635[1][a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137).

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7,499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6,607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6,607).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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).

Based on the record before me I cannot conclude that respondent’s decision was arbitrary, capricious, unreasonable, or an abuse of discretion.  In an affidavit, respondent’s transportation assistant indicates that the district “provides transportation to nonpublic schools up to the fifteen mile statutory limit prescribed by Education Law §3635.”  The transportation assistant further explains that, while the district ordinarily uses routing software to determine distances for transportation purposes, it was unable to do so with respect to petitioner’s request because the software “does not include” the area where Regis is located.  Under such circumstances, the transportation assistant indicates that the district’s “standard procedure” is to utilize Google Maps to determine distance.  Based on the analysis, the district determined that the shortest driving distance was 18.6 miles.  The transportation assistant also “checked walking distance to see if there might be a shorter route,” but the shortest such walking distance was 15.5 miles.  The transportation assistant also consulted two additional internet-based mapping applications (Mapquest and Yahoo Maps); neither calculated an available route of fifteen miles or less.

Petitioner presents information from a website called “Google Map Developers” (https://www.mapdevelopers.com/) in support of his argument that the distance between his home and Regis is less than 15 miles.  While petitioner refers to this website as “Google Maps,” the printouts included with his petition indicate that they were, in fact, obtained from Google Map Developers, which states on its website that it is “not associated with google maps.”  Therefore, these documents and their attendant calculations were not performed using Google Maps, which is the “standard procedure” utilized by respondent.  Petitioner has not explained why the information from “Google Map Developers” is more reliable, or should be substituted for, the information obtained from the district via Google Maps (see Appeal of Xiang, 56 Ed Dept Rep, Decision No. 16,925; Appeal of Yavno, 55 id., Decision No. 16,884; Appeal of Zheng, 54 id., Decision No. 16,776).

In any event, petitioner’s evidence does not demonstrate that the distance between his home and Regis is less than 15 miles.  First, the fact that petitioner’s home may be located within a 15 mile “radius” of Regis does not, ipso facto, mean that his home is less than “a distance of fifteen miles” from Regis (Education Law §3635[1][a]).  As indicated above, a board of education has broad discretion in determining how to measure distances for purposes of transportation, and the record shows that respondent uses actual driving distance to calculate its transportation routes.  Additionally, while petitioner’s map portrays a straight-line distance of 14.84 miles between his residence and Regis, the “Google Map Developers” website calculated the driving distance of such route as 19.93 miles.  Because there is no evidence that the straight-line distance involves travel on actual roads, I cannot accept this calculation as an accurate measure of how long it would take a vehicle, such as a school bus, to travel this distance.

To the extent petitioner requests that the distance between his home and Regis be calculated based upon public train station stops, I defer to respondent’s method of calculating distances using publicly available roads.  It is entirely reasonable for a board of education to use the shortest distance along public roads between a residence and the school to measure distance for purposes of transportation eligibility (see e.g. Appeal of Kluge, 31 Ed Dept Rep 107, Decision No. 12,586; Appeal of David, 30 id. 399, Decision No. 12,511).

To the extent petitioner seeks transportation beyond the 15-mile limitation via a centralized pick-up point, there is no evidence that respondent has provided transportation to Regis in at least one of the immediately preceding three school years (Education Law §3635[1][b][ii]).  In this respect, respondent affirmatively asserts that it “does not presently provide transportation [to Regis] via school bus to any Eastchester student who ... reside(s) within the fifteen-mile limit.”

Finally, although not entirely clear, it appears that petitioner seeks reimbursement from respondent for “the maximum cost of transportation allowed to other students in the district” attending nonpublic schools.  To the extent petitioner seeks reimbursement for costs incurred in transporting the student to the nonpublic school, 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; see also Appeal of R.H., 56 id., Decision No. 17,117).

THE APPEAL IS DISMISSED.

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