Appeal of KIMBERLY PETRELLA, on behalf of her children ELLIOTT and MADISON, from action of the Board of Education of the Wappingers Central School District regarding transportation.

Decision No. 15,789

(July 21, 2008)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Semira Ansari, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Wappingers Central School District (“respondent”) denying her request to change the transportation pick-up point for her children, Elliott and Madison.  The appeal must be dismissed.

Petitioner’s children attend school in respondent’s district.  During the 2005-2006 school year, the district retained a consultant to evaluate the district’s transportation routes and pick-up points.  Based on this review, Elliott’s and Madison’s bus stop was re-designated from Dose Road to Brothers Road.

Petitioner requested that her children’s transportation pick-up point remain on Dose Road.  The district’s transportation department denied petitioner’s request.  Petitioner appealed to the district’s transportation appeal committee, which denied her appeal.

According to petitioner, in September 2007, her children’s transportation pick-up point was changed from Brothers Road to the corner of Brothers Road and Dose Road.[1]  On September 12, 2007, petitioner requested that her children’s pick-up point be changed back to Dose Road, their pick-up point prior to the 2006-2007 school year.  By letter dated October 31, 2007, the supervisor of transportation notified petitioner that her request had been denied.  On or about December 27, 2007, petitioner appealed the decision to respondent which, by letter dated February 1, 2008, denied her appeal.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 16, 2008.

Petitioner alleges that the current pick-up point is unsafe because it is located near a blind curve where visibility is limited, is subject to speeding traffic, and is located in the vicinity of a convicted sex-offender.  Petitioner contends that respondent would incur no additional cost or time by returning the pick-up point to Dose Road.  Petitioner also alleges that respondent’s actions were arbitrary and capricious. Petitioner requests that her children’s pick-up point be re-designated to Dose Road.

Respondent alleges that the appeal is untimely.  Respondent further alleges that the current pick-up point is safe and was established in a manner consistent with district policy.  Respondent also objects to the content of petitioner’s reply.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

This appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent notified petitioner of its decision to deny her appeal to change the pick-up point by letter dated February 1, 2008.  Petitioner requested my intervention in this matter by letter dated February 24, 2007 [sic].  By letter dated March 6, 2008, the petitioner was advised that she could file an appeal of respondent’s determination pursuant to Education Law §310.  On April 7, 2008, petitioner commenced this appeal.  Therefore, all decisions or acts complained of in this appeal occurred more than 30 days before this appeal was commenced and petitioner offers no good cause for her delay.  Accordingly, the appeal must be dismissed as untimely.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of Smith, 44 Ed Dept Rep 201, Decision No. 15,148; Appeal of Raymond, 39 id. 774, Decision No. 14,376; Appeal of Hobbs, 38 id. 203, Decision No. 14,015). In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Raymond, 39 Ed Dept Rep 774, Decision No. 14,376; Appeal of Hobbs, 38 id. 203, Decision No. 14,015; Appeal of Marsh, 36 id. 134, Decision No. 13,680). The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc 2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Marsh, 36 Ed Dept Rep 134, Decision No. 13,680; Appeal of Mechanick, et al., 33 id. 692, Decision No. 13,200). Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point. It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Raymond, 39 Ed Dept Rep 774, Decision No. 14,376; Appeal of Warner, 37 id. 469, Decision No. 13,907; Appeal of Rheaume-Wellenc, 37 id. 83, Decision No. 13,811).

The record indicates that petitioner’s request to change her children’s pick-up point to Dose Road was considered on numerous occasions.  Initially, her request was reviewed by a number of individuals with experience in evaluating highway safety and transportation routes including trained community members, a police chief, several police officers, school administrators, independent transportation consultants and a “loss control” expert.  This committee reviewed specific, objective criteria such as the number of traffic lanes, speed limit, visibility, traffic volume and the distance between the children’s home and the pick-up point.  Subsequently, petitioner’s request was reviewed by a second committee which also determined that the first committee properly applied the safety criteria.  Finally, petitioner’s August 2007 request was reviewed by respondent.  At each stage, it was determined that the pick-up point assigned to Elliott and Madison was safe and appropriate.

The record indicates that respondent thoroughly investigated petitioner’s concerns and balanced considerations of safety, convenience and cost.  Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.    

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