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Decision No. 13,526

Appeal of GLENN MAILLARD from action of the Board of Education of the Longwood Central School District regarding a transportation proposition.

Decision No. 13,526

(December 21, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to set aside the voters' approval of a proposition limiting pupil transportation to nonpublic schools. The appeal must be dismissed.

Petitioner is a resident of the district and parent of two children who currently receive transportation services. On May 31, 1995, the Board of Education of the Longwood Central School District ("respondent") presented a proposition to the voters at the annual meeting:

Shall the Board of Education be authorized to provide transportation for resident pupils attending private and parochial schools at the state mandated maximum distance of fifteen (15) miles, reduced from the previously voter approved distance of twenty-eight (28) miles, effective July 1, 1996, for an estimated annual savings in transportation costs of $230,000.

The proposition was approved by a vote of 1812 to 1164. This appeal ensued.

Petitioner alleges that the wording of the proposition is misleading because the "estimated annual savings" to the district is $73,600 when State aid is factored into the transportation costs. Petitioner requests that the proposition be declared null and void, that it be revised to include the actual savings to the district that reflect State aid payments and be resubmitted to the voters. Petitioner also requests that a statement of the proposition's impact be included and that the effective date be changed to July 1, 1997. Respondent contends that the appeal is untimely and that petitioner has failed to set forth facts demonstrating that the wording of the proposition affected the outcome of the vote.

Before reaching the merits, I will address the issue of timeliness. An appeal to the Commissioner of Education must be commenced within 30 days of the making of the decision or the performance of the act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause shown (8 NYCRR 275.16). Petitioner attempted to commence this appeal on June 26, 1995 but failed to personally serve respondent as required under 8 NYCRR 275.8(a). The proposition was passed on May 31, 1995 and the petition was personally served on respondent on July 10, 1995, more than 30 days from the date the proposition passed. Petitioner maintains that his delay should be excused since he attempted to serve respondent earlier but was unaware of the rules regarding personal service of the petition. However, except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Kline, 35 Ed Dept Rep 92; Appeal of a Child with a Disability, 33 id. 672; Application of Johnson, 32 id. 458; Appeal of Pitney Bowes, Inc., 31 id. 290). Since I find no evidence of unusual circumstances in this case, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. 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; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). A school district election will not be set aside in the absence of proof that the alleged misconduct affected the outcome of the election (Appeal of Bach, 32 Ed Dept Rep 499; Appeal of Luening, 31 id. 534; Appeal of Pucci, 31 id. 3).

In this case, petitioner submits no proof that anyone who voted for the proposition would have voted differently but for the alleged misleading information, i.e., the failure of respondent to state the district's total transportation costs after the State aid allotment. Respondent notes that the district's practice is to set forth the total amount of the expenditure regardless of any State aid. Additionally, respondent notes that the State aid allotment is by no means guaranteed, especially where the proposition is not to take effect until July 1, 1996. Based on the record before me, petitioner has not met his burden of proof, and the appeal must be dismissed.

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