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Decision No. 17,253

Appeal of BERNADETTE R. HADDEN, on behalf of her son JOHRAL, from action of the Board of Education of the Rhinebeck Central School District regarding transportation.

Decision No. 17,253

(November 13, 2017)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--In two related proceedings using the same caption, petitioner challenges a determination of the Board of Education of the Rhinebeck Central School District (“respondent”) denying her son, Johral (“the student”), transportation to a nonpublic school and seeks the removal of Joseph P. Phelan as Superintendent of the Rhinebeck Central School District (“Superintendent Phelan”) for alleged misconduct with respect to his role in the denial of petitioner’s transportation request.  Because these proceedings present similar issues of fact and law, they are consolidated for decision.  The appeal must be dismissed and the application must be denied.

On September 1, 2016, petitioner requested transportation on behalf of her son to Hudson Valley Sudbury School (“Sudbury”), a nonpublic school, for the 2016-2017 school year.  By letter dated September 14, 2016, Superintendent Phelan notified petitioner that respondent had denied her request because the distance between petitioner’s home and Sudbury exceeded the 15-mile limitation imposed by State law as well as respondent’s transportation policy.  

This appeal and application ensued. Petitioner’s request for interim relief was denied on November 10, 2016.

Petitioner argues that the student is entitled to transportation to Sudbury because respondent’s distance calculation and measurement points are erroneous, and requests that I overturn respondent’s determination on this basis. Petitioner also requests the removal of Superintendent Phelan from his position pursuant to Education Law §306 based upon alleged “willful misconduct” in denying petitioner’s transportation request.

Respondent contends that the application for removal lacks the required notice and must be denied.  Respondent maintains that its determination was not arbitrary, capricious or an abuse of discretion.  Respondent asserts that its measurement of distance between the student’s school and home is correct and that it and the superintendent acted in accordance with Education Law §3635 and respondent’s transportation policies, based on the district’s standard measurement points.  Respondent maintains that petitioner has not established a clear legal right to the relief sought, and that Superintendent Phelan has not committed any acts warranting his removal from office.

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). Petitioner’s transportation request concerned transportation for the 2016-2017 school year.  Since that school year has ended, the appeal of the denial of such request is moot.

Next, respondent argues that petitioner’s application must be dismissed for failure to include the notice prescribed by 8 NYCRR 277.1(b).  Section 277.1(b) of the Commissioner’s regulations requires that a notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  This regulation further indicates that such notice must be “in substantially the following form” as the recommended language set forth in the regulation.  Here, the language contained in the notice of petition is identical to the language recommended in 8 NYCRR 277.1(b).  Therefore, I decline to dismiss the application on this basis.

However, the application must be denied for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, although petitioner arranged for personal service of the petition, petitioner failed to name Superintendent Phelan in the captions of the notice of petition and the petition.  Under these circumstances, petitioner has failed to join Superintendent Phelan, a necessary party, and the application must be dismissed (Appeal of Affronti, 54 Ed Dept, Decision No. 16,756; Application of McCart, et al., 39 id. 534, Decision No. 14,302).

Even if the appeal and application were not dismissed on procedural grounds, they would be dismissed on the merits.  A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607). 

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

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).

Respondent’s Transportation Policy 8410 states, in pertinent part:

All non-public school students, who reside within 15 miles of their designated non-public school[,] are eligible for [d]istrict transportation....

In an attempt to establish that she falls within this 15-mile limitation, petitioner contends that respondent’s policy does not require “door to door” pick up and submits MapQuest distance measurements from the entrance of the condominium complex in which petitioner and the student reside.  

Respondent, however, contends that it was not obligated to rely on the route selected by petitioner since respondent calculates distance for purposes of transportation to a nonpublic school by analyzing the actual distance that the bus must travel between a pick-up location and the school of attendance.  Based on this standard, respondent generated two separate routes from the property line of petitioner’s residence to the non-public school, each of which exceeded the 15-mile limitation.[1] 

Petitioner has not offered any evidence that the measurement of these routes is inaccurate (Appeal of Mills, 49 Ed Dept Rep 171, Decision No. 15,988).  Petitioner merely argues that the district should have measured the distance from the entrance to the condominium complex where she and the student live.  However, as noted above, a district has broad discretion to determine measurement points, and I do not find respondent’s determination unreasonable under the circumstances.[2]  Therefore, on this record, petitioner has failed to meet her burden of proving that respondent’s denial of her transportation request was arbitrary, capricious or unreasonable.

Finally, to the extent that petitioner seeks removal of Superintendent Phelan for his role in the denial of her transportation request, other than her conclusory assertions, the petition is completely devoid of any evidence that Superintendent Phelan violated the Education Law or any other act pertaining to common schools, let alone engaged in a wilful violation of such laws.  Therefore, petitioner’s removal application must be denied.

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




[1] The distances were 16 miles and 16.2 miles.


[2] Petitioner also objects to the superintendent’s use of the phrase “door to door” in his September 14, 2016 letter as inaccurate.  The superintendent explains in an affidavit that “what [he] actually meant was transportation from [p]etitioner’s residence ... to the [n]onpulic [s]chool.”  In any event, regardless of the phrase the superintendent used in his denial letter, the record reflects that respondent employs a reasonable method for measuring distances for purposes of determining eligibility for transportation to a nonpublic school.