Decision No. 17,971
Appeal of VICTORIA PEZZINO, on behalf of her children, from action of the Board of Education of the Greene Central School District regarding transportation.
Decision No. 17,971
(March 22, 2021)
Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Cameron B. Daniels, Esq., of counsel
ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Greene Central School District (“respondent”) denying her two children (“the students”) door-to-door transportation. The appeal must be dismissed.
Petitioner and the students reside in respondent’s district, and the students attend respondent’s schools. In or about September 2019, petitioner requested that the students receive door-to-door transportation between their home and school. According to an affidavit from respondent’s superintendent, the district determined that the location of petitioner’s residence was “unsafe for school bus travel.” The superintendent indicates that he offered “pick-up points” to petitioner for the students’ transportation, including one located “at the end” of petitioner’s road; however, petitioner “refused any pick-up points.”
By letter to the superintendent dated September 16, 2019, petitioner requested that her road “be reassessed for a bus route.”[1] Respondent considered this request at its October 2, 2019 meeting. After considering the recommendation of the highway superintendent of the Town of Greene – in consultation with the highway superintendent of the town of Coventry – that “it would be unsafe, especially during the winter months, for a bus to travel [petitioner’s] road,” respondent voted to deny petitioner’s request for door-to-door transportation for the students. The superintendent informed petitioner of this determination by letter dated October 7, 2019. This appeal ensued.[2] Petitioner’s request for interim relied was denied on July 24, 2020.
Respondent contends that petitioner has failed to state a claim or establish her entitlement to the relief requested.
First, I must address the procedural issues. Petitioner has submitted an unverified reply. Section 275.5(a) of the Commissioner’s regulations requires that all pleadings in an appeal be verified. Here, the reply does not include an affidavit of verification in substantially the form prescribed by 8 NYCRR §275.6. Although petitioner signed the reply, a signature alone does not constitute verification (Appeal of J.L., 41 Ed Dept Rep 62, Decision No. 14,615; Appeal of J.N., 40 id. 244, Decision No. 14,472; Appeal of Shabazz, 38 id. 481, Decision No. 14,076). Therefore, I have not considered petitioner’s reply (Appeal of Livigni, 59 Ed Dept Rep, Decision No. 17,827; Appeal of Roth, 56 id., Decision No. 17,012; Appeal of J.L., 41 id. 62, Decision No. 14,615).
Petitioner has also applied for consideration of additional evidence pursuant to 8 NYCRR §276.5. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).
I have reviewed the documents submitted by petitioner, including a letter from the highway superintendent for the Town of Coventry regarding the maintenance and plowing of petitioner’s road; photographs of the road; and police reports concerning accidents on the road in 2008 and 2009. Petitioner does not explain why she did not submit these documents with the petition, nor does she assert that they were unavailable at the time she commenced this appeal. Therefore, I decline to accept these additional submissions into the record.
Turning to the merits, a board of education has broad discretion to determine how transportation is to be provided (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).
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 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).
On this record, petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested. Petitioner provides no explanation of why respondent should be required to provide door-to-door transportation for the students, and the petition presents no evidence beyond petitioner’s address and the students’ ages. Respondent, by contrast, has submitted evidence that it reasonably denied petitioner’s request for door-to-door transportation. In making its decision, respondent sought the opinions of its director of transportation as well as the highway superintendents of the Towns of Greene and Coventry. According to the minutes of respondent’s October 2, 2019 meeting, “it was recommended that it would be unsafe, especially during the winter months, for a bus to travel” on petitioner’s road. Petitioner offers no evidence or assertions to contradict respondent’s evidence, nor has she otherwise established that respondent abused its broad discretion in this matter. Therefore, on this record, I cannot find that respondent’s decision to deny door-to-door transportation to the students was arbitrary or capricious.
THE APPEAL IS DISMISSED.
END OF FILE
[1] It is unclear from the record when or how the district advised petitioner of its initial denial of her request for door-to-door transportation.
[2] Petitioner asserts that she made an additional request for transportation on June 4, 2020 and that respondent did not respond to this request. Respondent denies these allegations in its answer.