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Decision No. 14,493

Appeal of DAVID VIGLIOTTA, on behalf of CONNOR VIGLIOTTA, from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding transportation.

Decision No. 14,493

(November 30, 2000)

Cooper, Sapir and Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Blue Point Union Free School District ("respondent") denying his request to transport his son Connor to a nonpublic school. The appeal must be dismissed.

Petitioner, a resident of respondent's district, shares joint custody of Connor with his former wife, who lives outside of the district. Connor lives with petitioner on alternating weeks. In the 1998-99 school year, respondent provided Connor with transportation to a private school, Holy Angels Regional School, in Patchogue, New York. On April 14, 1999, petitioner hand-delivered a letter, dated April 13, 1999, to respondent's Superintendent of Schools, Richard Curtis, requesting transportation for his son to the same private school in the 1999-2000 school year. By letter dated April 29, 1999, Superintendent Curtis denied petitioner's request based on petitioner's failure to meet the April 1 deadline for such requests. Superintendent Curtis also advised petitioner of his right to appeal this decision to the Commissioner.

Subsequently, Sister Mary Elise Bier, the Principal of Holy Angels Regional School, advised Superintendent Curtis that, because of a clerical error, the private school had not notified petitioner of the need to file a transportation request form with respondent by April 1, 1999.

Instead of filing an appeal with the Commissioner, petitioner sought redress by sending a letter to respondent, dated July 2, 1999, asking for an exemption from the April 1 deadline. By letter dated July 8, 1999, the President of respondent board, Nancy Letsch, notified petitioner of respondent's decision to deny petitioner's request for an exemption. This appeal ensued.

Petitioner claims that his request for transportation should be granted because he has a reasonable explanation for missing the deadline. Respondent claims that it denied petitioner's transportation request because it was not made by April 1, 1999 and that transporting petitioner's son to the private school would require additional district expenditures. Respondent also claims that the appeal is untimely, that petitioner has failed to set forth a clear and concise statement of his claim and entitlement to relief, and that he has failed to join his son's mother, Diane Vigliotta, as a necessary party. Respondent also claims that it is under no legal obligation to transport petitioner's son, because he is receiving transportation from another district when he is living with his mother on alternate weeks.

Before reaching the merits, I will address several procedural issues. Respondent claims that petitioner has failed to state a clear and concise statement of his claim and basis for relief. Section 275.10 of the Regulations of the Commissioner of Education states, in pertinent part:

The petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled.

Upon review, I find that the petitioner sufficiently states a claim and that respondent was adequately apprised of the claims raised by petitioner (See, Appeal of Brown, 38 Ed Dept Rep 816, Decision No. 14,151). In addition, petitioner clearly states the relief requested, transportation of his son to Holy Angels Regional School. I therefore decline to dismiss the petition on this ground.

Respondent also requests that I dismiss this appeal as untimely. An appeal to the Commissioner of Education under Education Law "310 must be commenced within 30 days of the act or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Nicotri, 38 Ed Dept Rep 80, Decision No. 13,987). Superintendent Curtis' determination letter dated April 29, 1999 advised petitioner of his right of appeal to the Commissioner. In response to petitioner's request for another determination, respondent notified petitioner of its final decision, dated July 8, 2000. Instead of filing an appeal, petitioner wrote to the Commissioner on August 13, 2000. On August 31, 2000, staff of the State Education Department advised petitioner of his right to file an appeal pursuant to Education Law "310 and the 30-day statute of limitations for such an appeal. Petitioner did not commence this appeal until October 19, 2000, more than three months after respondent's final determination, July 8, 2000. It is, likewise, apparent that petitioner waited more than 30 days after being notified by the State Education Department of the statute of limitations before commencing the instant appeal.

Petitioner states that he commenced the appeal late because he was not aware of a formal appeal process. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Nicotri, supra; Appeal of Kline, 35 Ed Dept Rep 91, Decision No. 13,476). I do not find evidence of unusual circumstances in this case which would warrant the excuse of petitioner’s delay. Accordingly, the appeal is dismissed as untimely.

Even if the appeal were timely, I would still dismiss it on the merits. Pursuant to Education Law "3635(2), a request for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested (Appeal of Tarricone, 38 Ed Dept Rep 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056). This deadline enables school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Shevlin, supra; Appeal of Mogilski, 37 Ed Dept Rep 446, Decision No. 13,901). However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law "3635[2]; Appeal of Tarricone, supra; Appeal of Shevlin, supra).

In this instance, petitioner states that he missed the April 1 deadline because he never received a transportation request form from respondent. In a sworn affidavit, Superintendent Curtis states that respondent does not routinely mail transportation request forms to residents and that it is the responsibility of each resident to obtain the form from the district and submit it by the April 1 deadline. He also states that the deadline was published in the school district newsletter and local newspapers. Respondent maintains that petitioner was on notice of the deadline because of information it provided to him when he requested transportation for the previous year. In a sworn affidavit, respondent's Transportation Manager, Fran Malyk, states that petitioner completed and signed a transportation form for his son for the previous school year which indicated the April 1 deadline. I have reviewed the form, which was signed by petitioner, and I find that it does state the deadline for the previous school year, April 1, 1998.

I do not find that petitioner has offered a reasonable excuse for his failure to make a timely transportation request. It was petitioner's responsibility to file the transportation request with the school district by April 1, 1999; it was not respondent's or the private school's responsibility to ensure a timely submission. Petitioner's oversight in missing the deadline is not a basis for excusing his failure to make a timely transportation request (Appeal of Tarricone, supra).

Finally, even absent a reasonable delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional costs to the district (Appeal of Tarricone, supra; Appeal of Shevlin, supra). While petitioner alleges that there was money in the budget for his son's bus, he nowhere alleges that transporting his son to the private school would be without additional cost to the district. In a sworn affidavit, Transportation Manager Malyk, states that the cost of transporting petitioner's son was not in the budget for the 1999-2000 school year because the budget was not finalized until after the April 1 deadline. She also states that transporting petitioner's son to the private school would be an additional cost because respondent was not transporting any other student to Holy Angels Regional School. Under these facts, I find that respondent did not abuse its discretion by refusing petitioner's transportation request.

I have reviewed petitioner's remaining contentions and find them without merit. In light of the foregoing disposition, I will not address respondent's remaining contentions.