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Decision No. 13,993

Application to reopen the appeal of LINDA RHEAUME-WELLENC, on behalf of GREGORY WELLENC, from action of the Board of Education of the Marcellus Central School District regarding transportation.

Decision No. 13,993

(August 18, 1998)

Bond, Schoeneck & King, LLP, attorneys for respondent, Donald E. Budmen, Esq., of counsel

CATE, Acting Commissioner.--Petitioner applies to reopen Decision No. 13811, issued August 12, 1997, concerning the transportation pick-up point for her son. The application must be denied.

Petitioner maintains that the appeal should be reopened based on "good cause" for her late filing and on "misrepresentation" of the facts. Respondent asserts that the application should be denied because it presents no new or material evidence not available at the time of the original appeal and was improperly served.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen (Appeal of Coleman, 37 Ed Dept Rep 391).

Initially, I will address the manner of service of petitioner's application. Section 276.8 of the Commissioner's Regulations provides that service of an application to reopen shall be made in the manner set forth in "275.8(b). The latter section provides in pertinent part that "all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon his attorney . . . Service of all pleadings subsequent to the petition shall be made by mail or by personal service." Accordingly, petitioner’s service of the application by mail to respondent’s attorney was proper.

Petitioner disagrees with my determination that the underlying appeal was untimely, having been filed December 5, 1996, more than thirty days from respondent’s September 13, 1996 determination letter. She argues that the thirty day time period should extend from respondent’s October 15, 1996 board meeting, that her notice of intent to appeal and request for an extension of time was received by my Office of Counsel on November 15, 1996, thirty days from that board meeting, and that a Department employee told her that her explanation would be taken into consideration. However, I find nothing new in petitioner’s arguments to alter the timeliness finding in my prior decision. It is well settled that requests for reconsideration do not extend the thirty day time period for filing appeals (Appeal of Blaske, 37 Ed Dept Rep 277). Furthermore, as I stated in the underlying decision, even if the reconsideration request had extended the time period, the appeal was still filed beyond thirty days of the October 15, 1996 meeting. In addition, petitioner’s extension request and explanation were considered as part of the original record. Finally, I dismissed the prior appeal on the merits as well as on procedural grounds.

In the underlying appeal, petitioner alleged that the existing bus stop for her son Gregory was unsafe, and sought to have the transportation pick-up point changed to her home on Sherman Road. Petitioner argues that several facts provided by respondent and relied upon in the decision are in error. She contends that although the district’s interim business manager stated that Gregory’s current bus stop is a group stop, in fact, her son is the only student there. She maintains that travelling on Amber Road to Sherman Road is not a much longer route and would only take a few minutes each way. She also states that Sherman Road: is the same width (20 feet) as every other road on her son’s route; has a 7% incline, compared to an 18% incline for some other roads on the route; has a turnaround larger than other turnarounds used on the route; and has a turnaround maintained by the town compared to others maintained by property owners. She admits that Sherman Road lacks a shoulder, but states that all the other roads on the route, with the exception of Amber Road, also lack shoulders. She also admits that Sherman Road lacks guardrails, but states that the road has no drop-off or ditches on the side. However, these assertions were already argued in the original petition and reply and were considered and rejected in the prior decision. It is well settled that an application for reopening is not intended to provide an opportunity for reargument of a prior decision (Application of Goldin, 37 Ed Dept Rep 603; Application of McCall, 35 id. 81). Accordingly, with regard to these arguments, petitioner presents no new or material evidence not available at the time of the original appeal.

Petitioner also contends that the record contained an error concerning the speed limit on Sherman Road. The underlying decision relied in part on the district’s transportation policy, which provides that "all students living on roads with a speed limit of 30 mph or less will be picked up at group stops located for safety and efficiency, established by the Transportation Office, except when a house stop is required because of a special safety hazard situation as determined by the Transportation Office." The decision continued:

While the road at the pick-up point may have a speed limit over 30 mph, the policy refers to the speed limit of the road on which the student lives; Sherman Road itself does not have a speed limit over 30 mph.

Petitioner now maintains that the speed limit on Sherman Road is 55 mph. She attaches a hand-written note from Stuart Fairchild, the Town of Otisco Highway Superintendent, who states that "all roads in the Town of Otisco are listed as being 55 mph speed limit unless otherwise posted different. Sherman Rd. is listed as 55 mph." In her reply, petitioner initially stated that it was true that Sherman Road does not have a speed limit over 30 mph. However, she added hand-written notes indicating that she later realized that there was no speed limit sign on Sherman Road. She now asserts that the speed limit is 55 mph, which would require respondent to provide door-to-door transportation under its policy.

Respondent contends that this allegation was previously made in petitioner’s reply (paragraph 22) and was available at the time of the original decision. Respondent also argues that even if the speed limit on Sherman Road was 55 mph, it is immaterial because the district’s transportation policy states that students living on roads with speed limits over 30 mph will be picked up at their house, "except when another stop is required because of a special safety hazard situation as determined by the Transportation Office." Respondent argues that the district determined that Sherman Road was unsafe for school bus travel, regardless of the speed limit and accordingly, designated a safe pick-up point.

The application must be denied. As stated in the original decision, respondent’s determination regarding the pick-up point was not arbitrary, capricious or unreasonable. I find no misapprehension of fact in the original decision. Nor do I find any new and material evidence that was not available at the time the decision was made. Finally, I find that respondent's policy gives respondent discretion in designating pick-up points even where the speed limit is over 55 mph. Accordingly, there is no basis in this application to grant the relief petitioner seeks.