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Decision No. 16,664

Appeal of CATHERINE LANDY, on behalf of her son RICHARD, from action of the Pelham Union Free School District regarding transportation.

Decision No. 16,664

(September 2, 2014)

Keane & Beane, P.C., attorneys for respondent, William Kang, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Pelham Union Free School District (“respondent”) regarding the method of transportation for her son to the nonpublic school he attends.  The appeal must be dismissed.

On January 29, 2013, petitioner submitted a request to respondent for transportation for her son to attend kindergarten at a nonpublic school outside respondent’s district.  On August 19, 2013, respondent notified petitioner that transportation to the nonpublic school would be provided via public buses and a MetroCard.  Specifically, under respondent’s transportation plan, the student would board a public bus at an intersection in the village of Pelham.  He would take that bus to a residential area of Mount Vernon where he would exit the bus and board a different bus which he would take to the intersection in Scarsdale where the nonpublic school is located.  On the way home from school, the student would take the same route in reverse.  Under the district’s transportation plan, the time in transit from petitioner’s residence to the nonpublic school is approximately one hour.

By email dated August 29, 2013 to respondent’s assistant superintendent for business (“assistant superintendent”), petitioner indicated that she did not believe that the transportation plan was “reasonable and adequate,” and inquired as to whether respondent would provide a monitor at the transfer point where her son would be changing buses.  She also suggested alternative transportation plans, including the use of a private bus company or a contract with her to provide the transportation.  In an email dated August 30, 2013, the assistant superintendent offered to enter into an agreement with petitioner whereby petitioner would transport her son to the nonpublic school and be reimbursed a monthly amount not to exceed $112.00, the cost of the monthly MetroCard.  By email dated September 6, 2013, petitioner disagreed with respondent’s offer and indicated that her preferred method of transportation was an adult-supervised bus service, and if she entered into an agreement with the district to provide the transportation for her son, she would be seeking reimbursement in the amount of $2,870.20 based on the standard mileage rate set by the Internal Revenue Service.  By email dated September 10, 2013, respondent declined petitioner’s request for a private bus service and reiterated its offer to enter into an agreement to reimburse petitioner in the amount of the cost of a monthly MetroCard.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 27, 2013.

Petitioner argues that respondent’s proposed transportation is not “reasonable and adequate,” and is not suitable for her five-year-old son.

Respondent denies petitioner’s allegations and asserts that the transportation plan is in full compliance with Education Law §3635 and appropriately balances safety, convenience, efficiency and cost.

I will first address the procedural issues.  Respondent asserts that the appeal must be dismissed because the petition was not verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).

The petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a properly verified petition (see Appeal of Carangelo, 49 Ed Dept Rep 217, Decision No. 16,006; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  As the 2013-2014 school year has ended, petitioner’s request for transportation during that school year is academic.

Although the appeal must be dismissed on procedural grounds, for the benefit of the parties, I note the following.  A board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner complains that her son must transfer from one public bus to another as part of the transportation offered by respondent. The fact that a transfer from one public transit facility to another is required to practically effectuate student transportation does not invalidate a district’s transportation plan (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821) and previous Commissioner’s decisions have held that it is not arbitrary or capricious for a district to provide young children with transportation via public carrier (Appeal of Lavin, 32 Ed Dept Rep 249, Decision No. 12,821).  In the instant case, the record indicates that respondent does not provide general transportation to its public school students because all students reside within two miles of the district’s schools.  The record further indicates that respondent transports resident students who attend nonpublic schools using public transportation or by contracting with a transportation consortium.  Moreover, the assistant superintendent avers that the transportation plan offered to petitioner is in line with the district’s consistent practice of approving transportation for students in kindergarten through grade five to and from nonpublic schools using public transportation provided the time in transit is less than 90 minutes and the public bus stops have sidewalks for the students to board and exit the public buses.  According to the assistant superintendent, during the 2013-2014 school year, the district approved transportation for nine such students, including one other kindergarten student; however, no other resident students were transported to Richard’s nonpublic school during that school year.

Petitioner notes, relying on State Education Department guidance, that a school district must provide reasonable supervision of pupils at transfer points (see New York State Education Department, Transportation for Students Enrolled in Nonpublic Schools, Updated February 2012, available at Respondent argues that it has no statutory or regulatory obligation to do so.  While the guidance makes general recommendations which are not mandated by statute or regulation, they do have probative value when considering what may or may not be reasonable in particular circumstances (see Appeal of Gorsky and Burbank, et al., 47 Ed Dept Rep 162, Decision No. 15,658).  Here, respondent admits that the transportation plan offered to petitioner includes a transfer point between public buses and that no district staff members are assigned to the transfer point (cf. Appeal of Casciano, 52 Ed Dept Rep, Decision No. 16,459).  Respondent asserts that, in making its determination to offer a MetroCard for public transportation to the nonpublic school, it balanced safety, convenience, efficiency and cost.  I note that the guidance, which as noted above is relevant in determining the reasonableness of respondent’s determination, states that “[t]he school district is responsible for reasonable supervision of pupils at transfer points.”  However, other than describing the general safety of the location of the transfer point and the cost of various methods of transportation, respondent did not provide the basis for its conclusion that it is reasonable for a five-year-old to transfer from one public bus to another without supervision.  I therefore remind respondent to consider all relevant factors in making such determinations.

As to petitioner’s request for $450.00 per month, the cost to purchase or provide transportation for her son to the nonpublic school each day, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).