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Decision No. 15,463

Appeal of PETER W. VASILAKOS, on behalf of his daughter ALEXA, from action of the Board of Education of the Herricks Union Free School District regarding transportation.


Decision No. 15,463


August 29, 2006


Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Herricks Union Free School District (“respondent”) denying his daughter, Alexa, transportation for the 2006-2007 school year.  The appeal must be dismissed.

On March 27, 2006, petitioner’s wife allegedly faxed a nonpublic school transportation request form on behalf of Alexa, to the district’s transportation office.  On April 7 or 11, 2006, when petitioner’s wife contacted the district’s transportation director (“director”) to inquire about scheduling and to ascertain why she had not received a confirmation, he requested documentation to substantiate that the form had been timely sent.  On April 18, 2006, petitioner’s wife provided the director with a fax transmission confirmation and a daily log of transmissions which indicated that two pages had been sent from her employer’s fax machine to the district’s transportation office at 12:15 p.m. on March 27, 2006.  By letter dated May 22, 2006, the director notified petitioner and his wife that respondent had denied their transportation request because it was filed after the April 1 deadline.

On or before June 8, 2006, petitioner’s wife discussed the matter with respondent’s superintendent who advised her to appeal to respondent.  By letter dated June 16, 2006, the director advised petitioner and his wife that their appeal to respondent was denied.  This appeal ensued.

Petitioner alleges that the transportation office’s fax machine malfunctioned and that this malfunction constitutes good cause for the late filing of his transportation request.  Petitioner also alleges that respondent and its staff did not consider Education Law �3635, ignored his evidence and acted unethically.  Petitioner requests that I determine that his transportation request was timely and direct that Alexa be provided transportation on an existing bus at no additional cost.  He also requests that respondent and its transportation office improve their communication and working relationship with parents.

Respondent alleges that it did not receive petitioner’s transportation request by the April 1 deadline and that its facsimile machine did not malfunction.  Respondent contends that petitioner did not contact its transportation office by April 1 to confirm receipt of the application, as he was directed.  Respondent contends that petitioner’s explanation for the late filing of his transportation request is not legally sufficient and that transporting Alexa would result in additional expense to the district.  Finally, respondent contends that its decision was not arbitrary or capricious.

Education Law �3635(2) requires that an application 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 or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically  (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373; Decision No. 14,884; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Davila, 41 id. 419, Decision No. 14,732).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744.)

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Here, petitioner submits a fax transmission confirmation and a daily transmission log which purportedly show that a fax was sent from petitioner’s wife to respondent’s transportation office on March 27, 2006 at 12:15 p.m.  However, respondent’s superintendent avers the district maintains electronic records of all faxes received, including the date, time and originating phone number and that no fax was received on that date or prior to April 2, 2006 from petitioner’s wife.  Respondent submits a copy of the fax record for the district’s transportation office from March 27, 2006 through April 2, 2006 to support the superintendent’s statement.  Based upon the submissions by both parties, I find that petitioner has not met his burden of establishing filing by the April 1, 2006 deadline.

Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Cusumano, 42 id. 309, Decision No. 14,864; Appeal of Gal, 42 id. 170, Decision No. 14,809).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (seeAppeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).  Here, respondent contends that providing transportation to petitioner’s daughter would result in the district incurring additional expense.  Petitioner has not refuted this contention.  Accordingly, I am unable to find that the transportation petitioner seeks can be provided to his daughter without additional expenses being incurred by the district.  Accordingly, I cannot find that respondent abused its discretion in not providing petitioner’s daughter with transportation.