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Decision No. 17,083

Appeal of G.S., on behalf of her daughter L.S., from action of the Board of Education of the Madison Central School District regarding transportation services and residency.

Decision No. 17,083

(May 2, 2017)

Office of Inter Municipal Legal Services, attorney for respondent, George E. Mead, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Madison Central School District (“respondent”) to deny petitioner’s daughter (“the student”) transportation services to respondent’s schools as a non-resident student.  The appeal must be dismissed.

The record shows that the student resided and attended school in respondent’s district at the beginning of the 2015-2016 school year.  Petitioner and the student moved out of respondent’s district near the end of the fall 2015 semester.  Respondent’s superintendent allowed the student to complete the 2015-2016 school year as a non-resident student on a tuition-free basis.  At the same time, the superintendent informed petitioner that transportation services would no longer be provided for the student pursuant to the district’s policy regarding transportation for non-resident students.

Shortly after moving from the district, petitioner requested that respondent’s superintendent have the district’s bus routes redrawn to accommodate the student in her new out-of-district residence.  It appears from the record that the superintendent denied such request sometime near the end of the fall semester of the 2015-2016 school year.    

By letter dated January 5, 2016, petitioner requested that respondent board reconsider the superintendent’s decision and direct that the bus routes be changed to transport her daughter. In a series of emails dated January 14 and January 15, 2016, respondent’s board president responded and informed petitioner that respondent refused to alter the superintendent’s decision, citing school district policy on admission of non-resident students, which provides that transportation of non-resident students is the responsibility of the parents or guardians.  This appeal ensued.  Petitioner’s request for a stay was denied on June 22, 2016.

Petitioner admits that the student is a non-resident and requests I order the student be allowed to attend respondent’s schools on a tuition-free basis and be provided with transportation services as a non-resident.  

In what appears to be an addendum to her petition, petitioner makes vague assertions in support of her position, claiming that the student should be afforded such treatment due to the fact that petitioner’s fiancé, with whom she and the student reside, pays taxes to respondent’s district on certain parcels of land he owns in the district.  Petitioner does not specify on which parcels of land taxes are paid.  She also alleges that the district boundary runs through a parcel of land her fiancé owns, but she does not allege that her residence is situated on the parcel that intersects the district boundary.

Respondent raises several procedural objections regarding the petition and service thereof.  Respondent notes that petitioner first attempted to serve her petition on a principal and an aide April 14, 2016, and then attempted to file it with my Office of Counsel (“OC”).  Respondent asserts that such petition was not served on a person authorized to accept service on behalf of respondent.  By letter dated April 20, 2016, OC rejected the petition as defective because it did not contain a notice of petition as required by 8 NYCRR §§275.11 and 276.1.  OC also advised petitioner that if a petition with a notice of petition was re-served within two weeks, the appeal would be deemed to have been initiated on the date the original petition was personally served on respondent.  Petitioner re-served a petition, with a notice of petition, on May 24, 2016.  Respondent also contends that the petition served on May 24, 2016, unlike the original petition, consists of only three pages and is not identical to the petition filed with OC.  If only three pages were served, the addendum referenced above was omitted.  Respondent further contends that the petition served on May 24, 2016, included a verification dated May 23, 2016, which is different from the date of verification filed with OC. The file copy in the record before me includes the original verification dated April 14, 2016. 

Respondent further contends that whether measured from the original attempt at service on April 14, 2016, or from service of the second petition on May 24, 2016, the appeal was not commenced within 30 days of the action complained of and must be dismissed as untimely.  Respondent also argues that the appeal must be dismissed because the petitioner has not alleged that the board of education has taken any action which may be appealed. 

With regard to the merits, respondent asserts that as a non-resident, the student is not entitled to transportation.  Respondent contends that school district policy 5500 delegates to the superintendent authority over district transportation policy and that district policy 7004(III)(E) states that transportation of non-residents to district schools is the responsibility of the parent or guardian.

I will first address the procedural issues.  I reject respondent’s claim that the petition must be dismissed because no action was taken by the board of education itself.  Respondent is the governing board of the school district and under district policy 5500, respondent has delegated authority over transportation determinations to its superintendent.  There is no evidence in this record of an appeals process, though in this case respondent’s board president, on behalf of the board, advised petitioner that respondent would not overrule the superintendent’s determination.  Under these circumstances, I decline to dismiss the appeal because, as respondent argues, petitioner has named the board as a respondent rather than its superintendent.

While respondent complains about the discrepancies between the first and second petitions and the verifications, it does not seek to dismiss the petition on that basis.  In a similar context, it is well-settled that where, as here, the petitioner is not represented by counsel, a liberal interpretation of §275.10 of the Commissioner’s regulations, which requires a clear and concise statement of petitioner’s claim, is appropriate (Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Carrion, 50 id., Decision No. 16,228; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  However, while in the absence of any claim of prejudice I would not dismiss the petition for failure to make a clear and concise statement of petitioner’s claim, I find that petitioner’s omission of the addendum from the petition was prejudicial in that it deprived respondent of the opportunity to respond to the new factual claims asserted therein.  The addendum, therefore, is not properly before me in this appeal.

Respondent’s primary procedural claim is that the 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The affidavit of service filed with the original petition indicates that service was made on a principal and an aide.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

There is no evidence that either the principal or the aide was authorized to accept service, so personal service was not properly made on April 14, 2016.  A petition was, however, properly served on the district clerk on May 24, 2016.

As noted above, the record indicates that petitioner unsuccessfully attempted to serve the original petition on respondent on April 14, 2016; however, on April 20, 2016, OC returned the petition due to petitioner’s failure to include the requisite notice required by Commissioner’s regulation NYCRR §§275.11 and 276.1, and provided petitioner instructions on how to cure the infirmity.  OC indicated that, if petitioner refiled the same petition with proper notice within two weeks, the date of service would be considered as the date the original petition was personally served on respondent.  However, as described above, proper personal service was not made on April 14, 2016.  Moreover, petitioner did not file its petition with OC until May 16, 2016, and did not serve the petition and notice of petition on the district until May 24, 2016 - well past the prescribed two-week period.   

Even if personal service had properly been made on April 14, 2016, and OC’s instructions had been followed, the appeal would have been untimely.  While the record does not indicate the date on which the superintendent denied petitioner’s transportation request, it is clear that petitioner was advised on January 14, 2016 that respondent would not overrule the superintendent’s decision, under any interpretation.  This appeal was not commenced until several months after petitioner’s receipt of the decision complained of, well beyond the 30 day period prescribed by 8 NYCRR §275.16.  Petitioner has offered no excuse for the delay and the appeal must therefore be dismissed as untimely.        

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.

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 admits that the student is a not a resident of the district.  Thus, for purposes of this appeal, no legal dispute exists as to the student’s school district of residence.  A student has a legal right to attend school only in the district in which the student resides (Education Law §3202[1]).

Non-residents of a district may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board (Education Law §3202[2]).  Thus, the decision to permit the attendance of a non-resident student is discretionary with the board of education (Appeal of S.G.K. and N.G.K., 56 Ed Dept Rep, Decision No. 17,043; Appeal of W.S., 53 id., Decision No. 16,601; Appeal of L.V., 45 id. 561, Decision No. 15,416).

Respondent’s Policy 7004 prescribes the terms and conditions under which non-resident students are admitted to the school district, including payment of tuition as prescribed annually by respondent and states that transportation is the responsibility of the parents or guardians.  School districts are not required by law to provide transportation to non-resident students (Appeal of Markarian, 47 Ed Dept Rep 114, Decision No. 15,644; Appeal of Jeudy, 46 id. 512, Decision No. 15,579; Appeal of Fuller, 41 id. 86, Decision No. 14,623; Matter of Empson, 19 id. 139, Decision No. 10,067).  In declining to provide transportation to petitioner’s daughter and requiring that petitioner in the future pay tuition, respondent has acted within its discretion under Education Law §3202(2) and its policy adopted thereunder.  As a non-resident, petitioner is not entitled to the relief she seeks in this appeal and therefore has failed to state a claim upon which relief may be granted.

Lastly, while the appeal must be dismissed, for the benefit of the parties I note that the allegations in the addendum to the petition suggest the possibility that petitioner’s fiancé may have a right to designate petitioner’s daughter’s school district of attendance.  Education Law §3203(1) which provides as follows:

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation ... and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

The issue is not properly before me in this appeal, but petitioner alleges that the district boundary line intersects property owned by the petitioner’s fiancé.  If that property is part of the same parcel on which the dwelling in which petitioner and the student reside is located, the owner would have the right to designate either the Waterville Central School District or respondent’s school district as the district of attendance for the student.  Upon any such designation, the student would have the right to attend the designated school district without payment of tuition and to receive transportation as a resident student.