Appeal of ELKIN KOENIG, on behalf of his children, and FINN ACADEMY: AN ELMIRA CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Elmira regarding transportation.

Decision No. 18,377

(February 5, 2024)

Whiteman Osterman & Hanna LLP, attorneys for petitioner, Kevin P. Quinn, Esq., of counsel

Hancock Estabrook, LLP, attorneys for respondent, Frank W. Miller, Esq., of counsel

ROSA., Commissioner.--Petitioner Elkin Koenig (“petitioner”) appeals the determination of the Board of Education of the City School District of the City of Elmira (“respondent”) to deny his children (the “students”) afternoon transportation services to petitioner Finn Academy:  An Elmira Charter School (“Finn”), a charter school, for the 2023-2024 school year.  The appeal must be dismissed.

Finn is a charter school located within respondent’s district that serves students in kindergarten through grade 6.  Petitioner alleges that he resides within respondent’s district; the students have attended Finn since 2021.  Respondent currently provides morning transportation to Finn for district residents, which is not at issue in this appeal.  However, the record reflects that the parties have reached an impasse as to whether Finn should, or is required to, adjust its dismissal time to facilitate respondent in providing afternoon transportation.

Finn’s dismissal time ranges from about 2:50 p.m. to 3:00 p.m.  According to respondent, afternoon transportation is not provided because this dismissal time conflicts with respondent’s existing afternoon transportation schedule.  Respondent’s supervisor of transportation explains in an affidavit that the district’s transportation services already operate “at capacity,” and that all “elementary transportation pickups are nearly all completed” by the time Finn’s students are dismissed.  The supervisor states that, during Finn’s dismissal times, the “entire transportation fleet is already committed to the various transportation routes” and providing afternoon transportation services would result in substantial cost to the district.

Both Finn and respondent make assertions that the other has failed to engage in good faith negotiations by which respondent might be able to provide afternoon transportation services.

Petitioner requested afternoon transportation from Finn on or about March 30, 2023.  As further described herein, respondent did not approve or deny this request.  This appeal ensued.

Petitioner and Finn contend that respondent unreasonably denied petitioner’s request for afternoon transportation.  They assert that Finn’s dismissal time is “not at variance with those of [r]espondent nor of other area nonpublic schools.”  They seek an order requiring respondent to provide afternoon transportation, directly or by contract, to the students for the 2023-2024 school year.

Respondent contends that the appeal must be dismissed, among other reasons, as untimely and for lack of standing.  Respondent additionally asserts that it would incur substantial cost if it were required to provide afternoon transportation to Finn’s students at the current dismissal time.  Respondent further argues that Finn has unreasonably refused to adjust its dismissal time, thus preventing the parties from reaching an agreement on afternoon transportation arrangements.

The appeal must be dismissed, in part, for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Kjar, 60 Ed Dept Rep, Decision No. 17,870; Appeal of Abitbol, 57 id., Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Kjar, 60 Ed Dept Rep, Decision No. 17,870; Appeal of Abitbol, 57 id., Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

The instant issue was raised and decided against Finn in Appeal of Kjar.[1]  As that decision indicated,

Although the petition describes petitioner Finn’s efforts to secure transportation on its students’ behalf, petitioners do not allege that respondent’s actions have caused Finn or its property any specific legal injury, nor do petitioners seek any relief on Finn’s behalf.  Accordingly, I find that petitioner Finn lacks standing to maintain this appeal.

(internal citations omitted).  Petitioners present no new information in this appeal to support a different outcome.  Therefore, based upon the reasoning of Appeal of Kjar, I find that Finn lacks standing to maintain the instant appeal.

Respondent also contends that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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 record reflects that petitioner repeatedly sought a determination from respondent but did not receive a definitive denial.  Respondent has the burden of proof to establish any affirmative defenses, and its unsupported statement that it was “clearly apparent” to petitioners that the matter was at a standstill for months prior to the filing of the petition does not suffice (8 NYCRR § 275.12 [a]; see generally Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  As such, I find that respondent’s actions amounted to a constructive denial of petitioner’s request (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258).  While the ordinary remedy would be to remand the appeal to respondent for decision, respondent has unequivocally indicated its intention to deny petitioner’s request.  Therefore, I will address the merits.

The Education Law does not require a board of education to transport children attending nonpublic school in all circumstances (Appeal of Kjar, 60 Ed Dept Rep, Decision No. 17,870; Appeal of a Student with a Disability, 55 id., Decision No. 16,394).[2]  Public and nonpublic schools are obligated to cooperate in good faith in the scheduling of classes and transportation (see Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  If the schedules of public and nonpublic schools nevertheless diverge, school districts are only required to provide transportation if reasonable under the circumstances (Appeal of Cohen, 60 Ed Dept Rep, Decision No. 17,863; see also Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Matter of Berger, 22 id. 443, Decision No. 11,028).  In determining reasonableness, a board may consider safety, convenience, efficiency, and cost (Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Reilly, 46 id. 184, Decision No. 15,479; Appeal of Del Prete, 40 id. 148, Decision No. 14,444).  Cost, while relevant, cannot be the sole factor upon which a board bases its transportation decision (e.g., Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Frasier, 35 id. 499, Decision No. 13,612; Appeal of Post, 33 id. 151, Decision No. 13,006; Appeal of Stickley, 27 id. 328, Decision No. 11,963).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioner has not proven that respondent acted unreasonably in declining to provide afternoon transportation to the students.  Initially, the record does not support a finding that respondent negotiated in bad faith.  Respondent proposed two alternatives, neither of which Finn accepted.  The first entailed Finn students joining the afternoon buses respondent already operates for its high school students.  However, Finn did not support this solution as it would place its kindergarten through sixth grade students with high-school students.  The second proposal necessitated adjustment of Finn’s dismissal time, which Finn also declined to do.[3]  While these proposals may not be desirable or ideal, they nevertheless dispel any notion that respondent negotiated in bad faith.

Petitioner has also failed to prove that afternoon transportation can be reasonably provided.  As discussed above, Finn’s current dismissal time occurs when the district’s buses are at capacity and/or already committed to established routes.  As such, it is not logistically possible to provide afternoon transportation services for Finn students without respondent either purchasing new buses or creating a new schedule to allow for Finn students to ride on the previously established routes.[4]  Therefore, the only avenue by which respondent may provide transportation services to Finn students at Finn’s current dismissal time would be through the purchase of new buses and the hiring of additional drivers and aides.

The record reflects that undertaking this solution would entail substantial effort and cost on behalf of respondent.  Respondent’s supervisor of transportation states that the additional services would necessitate four new buses and bus drivers, at a cost of approximately $450,000.  While this may be defrayed by State aid, respondent notes that “those buses are not currently in inventory and the District does not have sufficient resources within its approved budget to fund the purchase of” the buses or hiring of new drivers.  Even with the purchase of additional buses, the supervisor estimates that it would cost around $51,000 to hire new bus drivers and monitors.  At this time, respondent also indicates that it has struggled to maintain its current transportation staff, and it is doubtful of its ability to hire the personnel needed to operate additional buses.[5]  Given these logistical, practical, and financial challenges, I find that respondent did not abuse its discretion in determining that the provision of afternoon transportation is not reasonable under the current circumstances.

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

THE APPEAL IS DISMISSED.

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