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Decision No. 12,569

Appeal of ROBERT POLIFKA from action of the Board of Education of the City School District of the City of New York and Joseph A. Fernandez regarding transportation.

Decision No. 12,569

(August 21, 1991)

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondents, Steven J. Rappaport, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a determination of respondent New York City School District (the district) refusing to modify his son's transportation schedule. The appeal must be dismissed.

Petitioner's son is seven years old. During the 1989-1990 school year, at the age of five, he attended kindergarten at the United Nations International School ("UNIS"), a private school located within the city of New York. The district contracted with a private bus service to transport students from lower Manhattan to a number of private schools, including UNIS. According to petitioner, the bus picked up his son each day at 7:25 AM, proceeded uptown to drop students at another private school, traveled downtown to pick up more UNIS students, then proceeded back uptown to UNIS, arriving there between 8:30 AM and 8:40 AM. Petitioner alleges that morning transit time for his son averaged between one hour, five minutes and one hour, fifteen minutes.

In the afternoon, petitioner asserts that his son's bus usually arrived at UNIS at approximately 3:15 PM, 30 minutes after the school's dismissal. The bus allegedly remained in transit for one hour before dropping petitioner's son at his stop. Petitioner contends that his son consequently spent a total of one hour, thirty minutes "awaiting and in transit" in the afternoon.

By letter dated October 30, 1989, petitioner protested these transportation arrangements to the district's Office of Pupil Transportation (OPT), asking that his son's travel time be limited to no more than 45 minutes in the morning, and no more than 45 to 60 minutes awaiting and in transit in the afternoon. Receiving no response, petitioner wrote again on November 14, 1989. On November 28, 1989, he apparently spoke with an OPT representative, who disputed petitioner's time assessments. The OPT representative indicated that he would arrange to have someone ride the morning and afternoon buses to verify the length of each trip.

By letter dated March 9, 1990, OPT informed petitioner that it would not adjust his son's transportation schedule. OPT reported that, according to its investigation, the morning trip lasted no more than 60 minutes and that the afternoon trip, including the 30 minutes between dismissal and arrival of the bus, took one hour and thirty minutes. OPT noted that, "[t]he current contract allows for a bus to arrive at a school up to one half hour after the dismissal time, which can account for [your son's] afterschool waiting time." OPT concluded that the morning and afternoon riding times were not unreasonable, considering the traffic congestion in Manhattan.

Petitioner appealed OPT's decision to the Chancellor's Committee on Pupil Transportation (the Chancellor's Committee). The Chancellor's Committee denied petitioner's appeal on March 14, 1990, finding that "the condition is not one that significantly exceeds the level of hardship that is present on similar routes throughout the city." Thereafter, on April 18, 1990, petitioner commenced a proceeding pursuant to CPLR Article 78, challenging the Committee's determination. By order entered October 1, 1990, the Article 78 proceeding was dismissed on the ground that petitioner had not exhausted the administrative remedy of appealing to the Commissioner of Education. Petitioner commenced this appeal on October 24, 1990.

Respondents contend that this appeal is untimely. Although respondents advance two different theories in support of their position, I find neither persuasive. The Regulations of the Commissioner of Education state that an appeal to the Commissioner must be commenced within 30 days after "the making of the decision or the performance of the act complained of" (8 NYCRR 275.16). Respondents' first argument is that the issues in this matter arise from the district's transportation policy for the 1989-1990 school year, and that the appeal should be dismissed because it was not commenced within 30 days after the policy's adoption. I find this argument to be disingenuous, at best. In their responsive pleadings, respondents supplied no evidence regarding the policy in question or the date of its adoption. Indeed, to properly address the merits of this appeal, I was forced to exercise the authority vested in me pursuant to '276.5 of the regulations of the Commissioner of Education (8 NYCRR 276.5), and require respondents to submit the policy. In compliance with my directive, respondents provided a number of documents constituting the district's transportation policy, the most recent of which was issued in September 1988. They supplied no information specifically relating to the adoption of routing policies for the 1989-90 school year. Taking their argument to its logical conclusion, therefore, respondents would have required petitioner to commence this appeal approximately one year before his son ever entered school. Such a position is clearly unreasonable, and does not merit further discussion.

Respondents argue in the alternative that the act complained of is the determination of the Chancellor's Committee, dated March 14, 1990, and that the appeal should be dismissed because it was not commenced within 30 days after that date. For purposes of '275.16, I find that the Committee's determination is "the act complained of." However, the Commissioner of Education, in his or her sole discretion, may excuse the failure to commence an appeal within the time specified, for good cause shown (8 NYCRR 275.16). An unsuccessful attempt to litigate an issue in court, which does not result in a final determination on the merits, may be accepted as an excuse for failing to file a timely appeal, provided that an appeal is commenced within a reasonable time after dismissal or abandonment of the court proceeding (Appeal of Martin, 29 Ed Dept Rep 148, 150; Appeal of Sontag, 26 Ed Dept Rep 47, 48). Because petitioner commenced the instant appeal within 30 days after entry of the October 1, 1990 order dismissing his Article 78 proceeding, I find that the delay in commencing this appeal should be excused.

Respondents further assert that this appeal is academic because the 1989-1990 school year is over. Respondents admit, however, that the 1990-1991 transportation schedule was substantially similar to the 1989-1990 schedule. I recognize that the 1990-1991 school year is also over. Nonetheless, to the extent the 1991-1992 schedule is also similar to the 1989-1990 schedule, I find that the appeal is not academic.

With respect to the merits, neither the Education Law nor the regulations of the Commissioner of Education establish maximum time limits for the transportation of students. Indeed, "[b]oards of education have both the responsibility and the authority to decide difficult questions involved in balancing the overall efficiency and economy of a transportation system against the convenience of individual pupils" (Matter of McBennett, 17 Ed Dept Rep 404; see, Appeal of a Handicapped Child, 25 Ed Dept Rep 280, 281-282). The Commissioner of Education will uphold a district's transportation determination, unless it "has been shown to be tainted by bad faith or is so clearly wrong that it amounts to an abuse of discretion" (Matter of McBennett, supra, at 404).

The district's transportation policy provides, in pertinent part, that

1. school buses must arrive at school no more than 30 minutes nor less than five minutes before the start of the school session;

2. school buses must depart from school no less than five minutes nor more than thirty minutes after the end of the school session;

3. transportation services must be provided no earlier than 7:00 AM and no later than 4:30 PM;

4. students of any age, attending any school, may ride together in the same vehicle; and

5. there is no limitation on the amount of travel time which may be required for students receiving district transportation services.

The schedule which the district has provided for petitioner's son is consistent with these standards. Consequently, I am unable to find that the district's determination is tainted by bad faith. Nor, under prevailing authority, is the determination clearly wrong or an abuse of discretion. The Commissioner of Education has upheld one-way trips (including time spent awaiting and in transit) exceeding one and one-half hours (Appeal of Capozza, 25 Ed Dept Rep 15; Matter of Rouis, 20 Ed Dept Rep 493). The Commissioner has also refused to distinguish among pupils on the basis of age for purposes of determining the reasonableness of transportation arrangements (Matter of McBennett, supra, at 405).

Finally, petitioner indicates that he has attempted unsuccessfully to obtain certain documents from the district. In seeking such information, petitioner should proceed under the Freedom of Information Law (Public Officers Law article 6), recognizing that the Commissioner of Education has no jurisdiction to decide disputes arising under that law.