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Decision No. 16,877

Appeal of SANDRA GIORNO-TOCCO, on behalf of her daughter DANIELLA, from action of the Board of Education of the Tuckahoe Union Free School District regarding transportation.

Decision No. 16,877

(February 16, 2016)

Girvin & Ferlazzo, P.C., attorneys for respondents, Erin R. Morris, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Tuckahoe Union Free School District (“respondent”) to deny her daughter transportation to a nonpublic school for the 2015-2016 school year.  The appeal must be dismissed.

Petitioner alleges that on March 9, 2015 she requested that respondent provide her daughter with transportation to a nonpublic school in Connecticut[1] in the 2015-2016 school year by mailing the district’s “Application for School Bus Transportation to a Non-Public School Outside the Tuckahoe School District for School Year 2015-2016” form in accordance with the instructions contained therein.  Thereafter, a bus failed to pick up her daughter on the first day of school, September 8, 2015.

The record indicates that petitioner’s husband contacted respondent’s secretary to the business official (“secretary”) on September 8 and that he spoke with respondent’s interim superintendent on several occasions thereafter.  The parties present differing accounts of the these conversations, but the record indicates that, during their September 8 conversation, the secretary informed petitioner’s husband that the district had not received an application for Daniella’s transportation for the 2015-2016 school year.  According to the secretary, petitioner’s husband requested that she make an exception to the April 1 deadline based on his family’s history of applying for transportation and she informed him that she was unable to do so.  Petitioner’s husband avers that the secretary suggested that he contact the interim superintendent or appeal to the board and that she stated that such appeals were never successful because the board was reluctant to set a precedent. 

The interim superintendent avers that he spoke with petitioner’s husband on September 9 regarding this issue.  The interim superintendent states that he explained the district’s position, “including the concern that all transportation requests be treated consistently,” and that he told petitioner’s husband he would investigate his claim.  The record indicates that on September 10, the interim superintendent informed petitioner’s husband via telephone that he could not grant his transportation request and suggested that he submit a written appeal to the board.  Petitioner’s husband avers that, during this call, the interim superintendent also informed him that, while he found petitioner’s husband’s arguments “compelling,” the district feared “setting a precedent that would open the door for others thereby creating a ‘slippery slope.’”

Petitioner appealed the denial of transportation by letter to respondent dated September 21, 2015.  The record indicates that the following day, the interim superintendent telephoned petitioner’s husband to inform him that, following a review of petitioner’s appeal letter, respondent denied his request.  According to the interim superintendent’s affidavit, the reason for the board’s denial was the additional cost of transporting Daniella.  However, petitioner’s husband avers that the interim superintendent stated that the reason for the denial was that respondent did not want to set a precedent by granting such request.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 27, 2015.

Petitioner contends that the written request for transportation was submitted timely by regular mail.  Petitioner also argues that, even if her request were late, respondent improperly failed to consider it, and that it is an abuse of discretion to “institute a blanket denial of all late request[s] regardless of circumstances.”  Petitioner also argues that transportation for her daughter would not result in additional cost as the district has been providing transportation to the out-of-district nonpublic school for seven years and, therefore, continued transportation services to petitioner’s daughter should have been provided for in the district’s annual budget.  Petitioner claims that respondent’s denial of her transportation request based on additional expense is arbitrary and capricious.

Respondent contends that petitioner’s transportation request was untimely and that she failed to provide a reasonable explanation for the delay.  Therefore, respondent maintains that its decision to deny petitioner’s request was reasonable.  Respondent further alleges that it would incur additional costs to transport petitioner’s daughter to the nonpublic school.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).  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 a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837).  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of a Student with a Disability, 48 id. 207, Decision No. 15,837).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).  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).

The main issue raised by the parties is whether or not a written request for transportation was submitted on or before April 1, 2015 as required by Education Law §3635(2).  Petitioner alleges that she submitted a written request for transportation for the 2015-2016 school year by regular mail on March 9, 2015.  Respondent alleges that it did not receive any such written request from petitioner.  Petitioner submits a copy of the transportation request form with the handwritten date “3/9/15” near the top of the form and petitioner’s husband avers in an affidavit, upon information and belief, that petitioner completed and mailed the form to respondent.  Petitioner indicates the form was sent by regular mail, “as permitted by and in accordance with the Tuckahoe School Districts [sic] Standard Operating procedures” and in conformity with petitioner’s usual custom and practice of previous years, but she is unable to provide any proof of mailing.

Education Law §3635(2) requires that written notice be given but does not specify the manner in which this should be done.  In the absence of a specific statutory provision, I will apply the well-settled rule with respect to service of legal process by mail, to the effect that mailing is effective service even though the papers are never actually received (Matter of Kahane, 9 Ed Dept Rep 68, Decision No. 8,062).  However, in order for this rule to apply, there must be clear and detailed proof that the papers were properly addressed, stamped and mailed.  Petitioner has provided no such evidence (cf. Appeal of Hendrick, 37 Ed Dept Rep 188, Decision No. 13,838).  Accordingly, on this record, I cannot conclude that petitioner timely submitted her transportation request or provided a reasonable explanation for the delay.

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 Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524).  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 (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881).

Petitioner argues that, even if there is an additional cost that would be incurred if petitioner’s request were granted, which petitioner argues has not been shown by respondent, the additional cost was likely budgeted and therefore would not be unforeseen.  Respondent states that out-of-district transportation is provided by a private contractor and is paid on a per-student basis and that the additional cost of transporting petitioner’s daughter would be $3,165.90 for the 2015-2016 school year.  Petitioner has not refuted this contention but, rather, argues that such cost was, or should have been, foreseeable.  While the parties dispute the contents of their various conversations on this issue as well as the reasons for the denial of petitioner’s appeal, the record in this case indicates that the transportation requested would impose additional costs upon the school district.  As noted above, the Commissioner has consistently sustained denials of untimely applications for transportation under these circumstances (see e.g. Appeal of Soler, 51 Ed Dept Rep, Decision No. 16,284).  Accordingly, I am unable to find that the transportation petitioner seeks can be provided to her daughter without additional expenses being incurred by the district.  Therefore, upon the record before me, I cannot find that respondent abused its discretion in denying petitioner’s transportation request.

In light of this disposition, I need not address the parties’ remaining contentions.




[1] The record indicates that the school is within 15 miles of petitioner’s residence.