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Decision No. 14,462

Appeal of JON and DENISE SCHLICK, on behalf of JOHN SCHLICK, from action of the Board of Education of the Westfield Central School District regarding transportation.

Decision No. 14,462

(September 12, 2000)

Hodgson Russ Andrews Woods & Goodyear, LLP, attorneys for respondent, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Westfield Central School Distict ("respondent") to deny their son, John, transportation. The appeal must be dismissed.

By letter dated January 26, 2000, petitioners and three other parents requested bus transportation for their children, including petitioners' son John, to Creekside Christian School in North East, Pennsylvania, for the 2000-01 school year. By letter dated February 4, 2000, respondent's business manager, Alan L. Holbrook, informed petitioners that he was recommending that the request be denied because the distance from their home to the school exceeded 15 miles. The letter also informed petitioners of their right to appeal the recommendation at the next board meeting. At the February 14, 2000 board meeting, petitioners produced a letter from Darrell Dehaven, owner/manager of Westfield Dodge City, a local car dealership. It stated that the primary factors affecting the accuracy of an odometer reading are adherence to original equipment tire size, tire mileage and type of odometer. The letter also stated that Mr. Dehaven found the distance from the Schlick home to the Creekside Christian School to be 14.9 miles.

By letter dated February 29, 2000, Superintendent Margaret Sauer notified petitioners that respondent denied their request. She indicated that the district measured the distance using two vehicles, whose odometers were calibrated based on New York State Thruway mileage posts, and that the distances found were 15.29 and 15.11 miles.

In response, petitioners submitted a letter dated March 20, 2000 from Ernest J. Scarozza, P.E., Division Highway Engineer, New York State Thruway Authority, to respondent for review. The letter stated that the purpose of Thruway mileposts is as a point of reference, that they are not set with surveyor's instrumentation and that they are not intended to be 100 percent accurate. On April 10, 2000, respondent reviewed this information and upheld its original decision to deny petitioners' request for transportation. This appeal ensued. Petitioners ask for transportation for their son and other children from respondent's school district attending Creekside Christian School.

Petitioners contend that their son is entitled to transportation because the school is 14.9 miles from their home, within the 15 mile limit. They argue that the district's measurements are inaccurate because they were calibrated using New York State Thruway signposts.

Respondent argues that the appeal is untimely. Respondent also contends that petitioners lack standing to request transportation for other unidentified children. As to the merits, respondent argues that its determination was reasonable and that the district’s procedures for measuring the distance were based on prior decisions of the Commissioner of Education.

Specifically, respondent argues that its policy is to transport resident children who live within 15 miles of the schools they legally attend. The district's practice is to measure the distance from the intersection of the home driveway and the street to the intersection of the school driveway and the street via the most direct route using a school vehicle. Following these procedures, the district found the distance between petitioners' home and the Creekside Christian School to be 15.4 miles. Upon this basis, respondent's business manager recommended that petitioners' request be denied. After petitioners presented their appeal at the February 14, 2000 board meeting, district officials, on the advice of counsel, calibrated the odometer of the original vehicle used to measure the distance between petitioners’ home and Creekside using distance markers on the New York State Thruway and subsequently recalculated the mileage to be 15.29 miles. They also measured the distance with a second vehicle. After the odometer on this vehicle was calibrated using Thruway distance markers, the recalculated distance was 15.11 miles.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to "310 must be instituted within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent denied petitioners' request on February 28, 2000, and its decision was communicated to petitioners by letter dated February 29, 2000. This appeal was commenced on April 27, 2000, more than 30 days later. While it is true that petitioners later submitted additional information for respondent’s consideration during March 2000, a request for reconsideration does not extend the time in which to commence an appeal (Appeal of Fullam, 38 Ed Dept Rep 227, Decision No. 14,021; Appeal of Yuarte, 36 id. 238, Decision No. 13,712).

Even if this appeal were not dismissed as untimely, it would be dismissed on its merits. A board of education is neither required to expend an unreasonable amount of time, effort and money in measuring distances for the purpose of determining eligibility for transportation, nor to make such measurements with the accuracy of a professional survey (Appeal of Jagoda, 34 Ed Dept Rep 154, Decision No. 13,266; Appeal of Shah, 31 id. 312, Decision No. 12,650). The use of an automobile odometer to measure distance to determine eligibility for transportation is legally reasonable and sufficient (Appeal of Jagoda, supra; Appeal of Taylor, 26 Ed Dept Rep 228, Decision No. 11,737). Proof of calibration is a reasonable response to a bona fide challenge to the accuracy of the odometer used as a measuring device (Appeal of Jagoda, supra; Appeal of Taylor, supra). There is no requirement in statute, regulation or prior decisions of the Commissioner of Education that a board of education employ any particular method of calibration (Appeal of Taylor, 27 Ed Dept Rep 179, Decision No. 11,912).

While petitioners challenge the accuracy of using highway markers as a method of calibrating a vehicle's odometer, they have not established that respondent's measurements are defective or that the distance does not in fact exceed 15 miles. Petitioners did provide a letter from a local auto dealer who opined as to the factors that contribute to odometer accuracy and who measured the distance in a 1999 van and found it to be 14.9 miles. However, other than stating that the vehicle was in original condition, had its original tires with 20,000 miles and two digital trip computers, there is no evidence as to the accuracy of the odometer or that it was calibrated in any way. Accordingly, petitioners have failed to establish that respondent acted in an arbitrary, capricious or unreasonable manner in determining that John is not entitled to transportation. Therefore, the appeal must be dismissed.

I would like to remind respondent that Education Law "3635(1) requires that the distance from home to school be measured by the nearest available route, not the most direct route, which may or may not be the same. However, there is no contention in this case that respondent did not use the nearest available route to measure the distance in question.