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Decision No. 13,750

Appeal of JOSEPH SALVIA, on behalf of his son, RALPH SALVIA, from action of the Board of Education of the Pine Plains Central School District relating to transportation.

Decision No. 13,750

(April 1, 1997)

William E. Stanton, Esq., attorney for petitioner

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Pine Plains Central School District ("respondent") to change his son's transportation schedule. The appeal must be dismissed.

Petitioner's son, Ralph, resides in respondent's school district and attends the nonpublic Millbrook School. Respondent provides transportation for Ralph between home and school pursuant to Education Law '3635. By letter dated April 19, 1996, petitioner requested that Ralph be picked up from school at 5:30 p.m. By memorandum dated July 16, 1996, the Millbrook School's business manager, Del Shilkret, notified respondent's transportation officer that Millbrook students should be picked up between 5:30 and 5:45 p.m., since all students are required to participate in athletic programs until 5:30 p.m. Petitioner alleges that on September 3, 1996, respondent illegally convened an executive session, after which petitioner was notified that his request had been denied. This appeal ensued. Petitioner requests that respondent provide Ralph transportation at the end of his mandatory school day. Petitioner's request for interim relief was denied on October 25, 1996.

Respondent contends that the academic school day ends between 3:30 and 4:00 p.m at the Millbrook School and that it picks up those students between one and one and one-half hours later -- at 5:00 p.m. It maintains that it provides transportation for Millbrook School students in a reasonable manner and that other Dutchess County school districts pick up students from Millbrook School at 5:00 p.m. It argues that changing the pickup time would require either delaying the pickup time for all students, at an estimated cost of $2,700, or providing separate transportation for Ralph. Assistant Superintendent Richard Linden alleges that of the three parents of Millbrook School students who contacted him regarding the pickup time for the 1996-97 school year, the other two preferred 5:00 p.m. Respondent argues that the Millbrook School's decision to require its students to participate in sports until 5:30 p.m. does not require respondent to provide transportation at that time. In addition, respondent maintains that it voted on the issue in a public meeting on September 3, 1996, and that allegations of violations of the Open Meetings Law are beyond the jurisdiction of the Commissioner.

Petitioner, however, disputes respondent's facts and contends that all other public school districts pick up their students after 5:30 p.m. and that there are no other students residing in respondent's school district attending the Millbrook School.

As a preliminary matter, to the extent that petitioner's allegations concern violations of the Open Meetings Law, I lack jurisdiction to decide those claims. The appropriate forum for addressing a violation of the Open Meetings Law is the Supreme Court of the State of New York (Public Officers Law '107; Appeal of Marek, 35 Ed Dept Rep 314; Appeal of Nolan, et al., 35 id. 139).

The Education Law does not require a board of education to transport children attending nonpublic schools in all circumstances (Appeal of Frasier, 35 Ed Dept Rep 499). Authorities at public and nonpublic schools are obliged to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Frasier, supra; Appeal of Willer, 35 Ed Dept Rep 389; Appeal of Hacker, 28 id. 141; Appeal of Lavelle, 24 id. 16). Although public school authorities may not dictate the opening or closing hours for a nonpublic school, the adoption of unreasonable or erratic schedules has been held to relieve public school authorities of the responsibility for arranging transportation to meet those schedules (Matter of Berger, 22 Ed Dept Rep 443; Matter of Diekmann, 22 id. 445; Matter of Kinney, 7 id. 55). Even if students are required to remain for academic courses, public school authorities are not required to provide transportation arrangements beyond what is reasonable (Matter of Berger, supra).

I find respondent's decision to provide transportation at 5:00 p.m. to be reasonable. As in Matter of Diekmann, "no reason appears why the conventional physical education courses cannot be given during the normal school day, as they are at other secondary schools" (supra at 446). Therefore, I will not substitute my judgment for that of respondent.