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Decision No. 12,573

Appeal of CANDYCE LOVASCIO from action of the Board of Education of the Deer Park Union Free School District relating to transportation.

Decision No. 12,573

(August 26, 1991)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination denying her request to transport her daughter between their home and a nonpublic school during the 1991-92 school year. The appeal must be dismissed.

On May 2, 1991 respondent received a written request from petitioner for transportation services for her daughter to a nonpublic school for the 1991-92 school year. By letter dated the same day, respondent denied that request because it had not been submitted prior to the April 1 deadline. In addition, respondent was not transporting any other students to the school requested by petitioner and the provision of the requested transportation would result in additional cost to the district.

Petitioner then contacted an administrative assistant of the district who informed her that the district was transporting students to other nonpublic schools and if she enrolled her child in one of those schools, she would likely be provided transportation because it would not cost the district additional funds. On May 8, 1991, petitioner submitted another request for transportation to a second nonpublic school which was not one of the nonpublic schools to which the administrative assistant had informed petitioner that the district was already transporting students. By letter dated May 10, 1991, petitioner's second request for transportation was denied and she was informed that she could appeal the denial to the board of education, explaining why her request for transportation was late.

Subsequently, petitioner delivered to the administrative assistant a letter stating that her transportation request was late because she was unaware of the April 1 deadline. At that time, petitioner informed the administrative assistant that she was requesting transportation to a school near one of the nonpublic schools to which the district was already transporting students. The administrative assistant informed petitioner that if her request did not entail additional cost to the district, it was probable that the board would grant her request. Petitioner then asked for advice as to what to do since she was facing a deadline to pay the first installment of tuition at the nonpublic school. The administrative assistant informed petitioner that he could not give her advice on the matter and that the board made the final decision. He did express an opinion that "it looked good".

Petitioner's request was subsequently reviewed by respondent's assistant superintendent for business affairs. His review indicated that granting petitioner's request would result in the district incurring additional expense. By letter dated May 29, 1991, he informed petitioner that he would not approve her late request but would forward it for review by the board. The board denied petitioner's request on June 5, 1991. At petitioner's request, the board met with her to reconsider her request. It was denied and this appeal ensued.

Education Law '3635(2) requires that requests for transportation be submitted to the district in writing on or before April 1 preceding the commencement of the school year for which transportation is requested, provided that no late request for transportation may be denied where there is a reasonable explanation submitted for the delay (Matter of Rugar, 28 Ed Dept Rep 159). In the first instance, it is the responsibility of the board of education to determine the reasonableness of a particular explanation for delay in submitting a transportation request (id. at 160). The board's determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Skinner, 29 Ed Dept Rep 200; Appeal of Ward, 29 id. 153).

Petitioner's contention that she was unaware of the April 1 deadline for filing a transportation request does not excuse her late filing. It is well settled that a board of education need not accept ignorance of the statutory filing requirement as a reasonable excuse for the failure to file a timely request (Appeal of Halsdorf and McClenahan, 30 Ed Dept Rep 268; Appeal of McCormack, 27 id. 152; Matter of Poniros, 21 id. 159).

Petitioner also contends that her late request must be excused because she did not decide to enroll her daughter in a nonpublic school until April since she was previously concerned with an unspecified medical problem with a younger daughter, financial problems and illness. However, a board of education may reasonably conclude that a belated decision by a parent to enroll a child in a nonpublic school does not constitute a reasonable excuse for the failure to submit a timely transportation request (Appeal of Perez, 30 Ed Dept Rep 213; Appeal of McCormack, supra, Matter of Mayr, 22 id. 477.

While it appears that petitioner's contentions concerning ill health and financial problems were never brought to the attention of respondent until it was served with the petition in the appeal, I do not find it necessary to remand the matter to the board to consider them. Neither the nature of the problems nor their connection with her failure to submit a timely request are contained in the record. I am, therefore, unable to grant the requested relief on that basis (Appeal of Ward, supra; Appeal of Alletto, 25 id. 14).

Although not entirely clear, petitioner seems to argue that respondent is estopped from denying her late request for transportation because she was assured by the district's administrative assistant that her request would be granted and that she paid tuition to the nonpublic school based on that assurance. The record, however, does not support her contention. In an affidavit, the administrative assistant states that he informed petitioner that he felt her request would be granted, but that the board had the final decision and he could not advise her on whether to pay the first tuition installment to the nonpublic school. Petitioner has not contravened these statements. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Singh, 30 Ed Dept Rep 284; Matter of Keiling, 25 id. 122). Petitioner has not met her burden of proof on this issue.

Even in the absence of a reasonable explanation for the delay, a late request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional expense to the school district (Appeal of Ward, supra; Matter of Cronkrite, 24 id. 331). Respondent contends, and petitioner does not deny, that the provision of transportation to petitioner's daughter would result in an additional 2,500 miles of transportation costs. Since petitioner has not met her burden to show that the district would not incur additional expense in transporting her daughter, the appeal must be dismissed.