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Decision No. 13,117

Appeal of JACQUELINE SHUCHAT from action of the Board of Education of the Hendrick Hudson Central School District relating to transportation.

Decision No. 13,117

(February 28, 1994)

Raymond G. Kuntz, P.C., attorney for respondent

SOBOL, Commissioner.--Petitioner, a parent of a student at the Furnace Woods Elementary School, challenges respondent's change in the bus schedule for the school district. The appeal must be dismissed.

On March 24, 1993, the Board of Education of the Hendrick Hudson Central School District ("respondent") adopted a new bus schedule for the school district. The new schedule resulted in a change of the pick-up and drop-off times for students attending the Furnace Woods Elementary School, one of respondent's three elementary schools. The pick-up points for students attending the Furnace Woods school remain the same. Previously, buses would arrive at the elementary schools at 8:50 a.m., with classes commencing at 9:00 a.m. Pursuant to the new schedule, buses arrive at the Furnace Woods School at 8:15 a.m. and classes commence at 8:20 a.m.

Petitioner seeks to annul respondent's new bus schedule asserting that it is unsafe because of increased traffic at the new pick-up time. She also contends that the schedule was implemented in an arbitrary and capricious manner because it was adopted without adequate consideration of the effects of the change on student safety. Respondent contends the appeal is untimely pursuant to Commissioner's Regulations '275.16. Respondent further asserts that petitioner's allegations regarding safety are conclusory and that its decision to adopt the new schedule was neither arbitrary nor capricious.

Before reviewing the merits, it is necessary to address the procedural issues. Respondent contends that the appeal is untimely, because it was commenced more than 30 days after respondent implemented its new schedule. Petitioner counters that her appeal is timely because it was commenced within 30 days of respondent's rejection of her request for reconsideration of the new schedule. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). Respondent's initial decision in this case was made on March 24, 1993. On June 23, 1993, petitioner submitted a letter to respondent which sought reconsideration of its March 24th decision on this matter. However, an application to reconsider a previous decision does not extend the time in which an appeal may be taken from an initial determination (Appeal of Guido, 33 Ed Dept Rep 244; Appeal of Zeff, 29 id. 5). This appeal was commenced on July 27, 1993, more than 4 months from the initial decision. Because it was not commenced within 30 days of respondent's original decision, it is dismissed as untimely.

Respondent also objects to petitioner's allegations concerning late bus arrivals because they were raised for the first time in petitioner's memorandum of law. The Commissioner has repeatedly refused to consider matters that are first raised in a memoranda of law when they should have been raised in the pleadings (Application of the Board of Education of Nyack UFSD, 33 Ed Dept Rep 237; Appeal of Johnson, 26 id. 42). Petitioner could have sought to amend her petition to include these allegations (Appeal of Cook, 33 Ed Dept Rep___, Decision No. 13059, dated December 3, 1993) but failed to do so. Because these unsworn allegations were first raised in petitioner's memorandum of law, respondent had no opportunity to investigate or rebut them. I, therefore, decline to consider them as part of this case.

In any event, the appeal must be dismissed on the merits. It is well settled that a board of education may exercise its discretion in designating pick-up points (Appeal of Guido, supra; Appeal of Klein, 27 Ed Dept Rep 76), provided that the board uses care in exercising such discretion (Appeal of Klein, supra; Appeal of Bohonyi, 26 id. 363). In establishing a pick-up point, a board of education must consider and balance considerations of public safety and convenience, routing efficiency and costs (Appeal of Donk, et al., 27 Ed Dept Rep 254).

The record in this case reflects that the new schedule was developed by the director of transportation and the assistant superintendent of buildings and grounds under the direction of the assistant superintendent for business and the assistant superintendent for personnel and curriculum. When the issue was first considered, community members expressed concern that the pick-up points would be unsafe due to increased traffic flow at the new pick-up times. After investigation, however, the director of transportation found the traffic flow was not increased during the new pick-up times and, therefore, did not create a dangerous situation. Petitioner offers no countervailing proof that the pick-up points are unsafe. Accordingly, she has failed to meet the burden of establishing the facts upon which she seeks relief (8 NYCRR '275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

The record also reflects that respondent carefully considered all pertinent factors in reaching its decision, including community concerns and financial benefits to the district. The new schedule enables the district to use four fewer buses and two fewer drivers to transport students to its high school, middle school and three elementary schools. The changes in transportation were discussed with building principals, including the principal of Furnace Woods school from January through the development of the school district's budget. The transportation plan containing the new schedule was presented to the community on January 30, 1993 and was addressed at board meetings on March 10, 24, 31 and April 14, 1993. Based on the above, I conclude that respondent has not acted in an arbitrary or capricious manner in implementing its new transportation schedule.