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Decision No. 13,134

Appeal of LOURENS VAN DER JAGT from action of the Board of Education of the Warwick Valley Central School District regarding transportation.

Decision No. 13,134

(March 17, 1994)

Shaw & Silveira, Esqs., attorneys for respondent, Daniel S. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to compel the Board of Education of the Warwick Valley Central School District ("respondent") to transport his children from the schools they attend to different locations on different days of the week. The appeal must be dismissed.

Petitioner and his wife are divorced, and both reside in the Warwick Valley Central School District. Petitioner maintains that he and his wife have "joint legal and physical custody" of their children. The exact nature of the custody arrangement, however, is not clear from the record. Petitioner states that his children reside with him on Monday and Tuesday, but has failed to show whether this arrangement is a matter of agreement between the former spouses or was determined by a court order. Petitioner has not provided any documentation fixing custody.

By letter dated October 1, 1993, petitioner requested that respondent transport his children to different locations on different days of the week, depending upon with whom the children were staying on those days. Respondent denied petitioner's request on October 21, 1993, and this appeal ensued.

Before reaching the merits, I must address two procedural issues. First, respondent contends that the appeal is untimely. The Commissioner's Regulations at '275.16 require that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of. The Commissioner may excuse the failure to commence an appeal within the time specified for good cause shown in the petition. Respondent denied petitioner's request for transportation on October 21, 1993, and this appeal was not commenced until more than thirty days later, on December 3, 1993. In his petition, petitioner contends that the lateness of his appeal should be excused because he was unaware of the appeal process. Except in unusual circumstances, ignorance of the appeal process is not a basis to excuse a late appeal (Application of Johnson, 32 Ed Dept Rep 458; Appeal of Pitney Bowes, 31 id 290; Appeal of Casid, 30 id. 332). I find no unusual circumstances to excuse the delay in this case. Accordingly, the appeal is dismissed as untimely.

In addition, petitioner has failed to join a necessary party, his former spouse, as a respondent in this appeal (Matter of Fay, 21 Ed Dept Rep 239). In view of the fact that the relief sought by petitioner may affect his former wife's rights under an agreement or court order -- if one exits -- she should have been joined as a party to this appeal.

The appeal must also be dismissed on the merits. Petitioner contends that respondent's decision to deny the requested transportation is arbitrary and capricious and that such transportation can be provided without additional expense to the district. Respondent contends that a student can have only a single residence for school purposes (seePeople ex rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc 337, affd 196 NY 551; Appeal of Barron, 31 Ed Dept Rep 1; Matter of Manning, 24 id. 33). Respondent further points out and petitioner concedes that, according to district records, the children's legal residence is with their mother and not petitioner. It is, therefore, clear that respondent is not obligated to transport petitioner's children to his home which is not their legal residence.

Respondent further argues that even if it could grant petitioner's specific transportation request at no additional cost, providing such transportation would increase its transportation expenses generally because, pursuant to Education Law '3635, it is required to provide all pupils in like circumstances with the same transportation opportunities. Respondent contends that providing such transportation for petitioner's children and all pupils in like circumstances to different places on different days would interfere with the efficiency and economy of its transportation program.

In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Matter of Bartowski, 25 Ed Dept Rep 52). Petitioner has set forth conclusory allegations that respondent's failure to provide the requested transportation violates Education Law '3635. Specifically, petitioner contends that the requested transportation would be in his children's best interest. He argues that such transportation will better permit his children to maintain relationships with other children who reside in his neighborhood. Petitioner additionally seeks to avoid the inconvenience of driving his children to and from school. While I understand petitioner's concerns, personal inconvenience, while regrettable, is not a basis for granting the transportation services requested (Appeal of Kluge, 31 Ed Dept Rep 107; Matter of Nevin, 25 id. 86; Nevin v. Ambach, et al., Supreme Court, Albany County, February 28, 1986, BRADLEY, J., Matter of Eberhardt, 25 id. 263). Finally, there is no statutory or regulatory requirement that a board of education must transport a student to different places on different days of the week (Matter of Sepinski, 25 Ed Dept Rep 183; Matter of Clabeaux, 21 id. 687).

I have reviewed petitioner's other contentions and find them without merit.