Appeal of ROSEMARY NGO and MICHAEL VAGNETTI, on behalf of their daughter FLORENCE VAGNETTI, from action of the New York City Department of Education regarding transportation.

Decision No. 17,369

(April 4, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Neil Giovanatti, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the New York City Department of Education (“respondent”) to deny their request for transportation on behalf of their daughter (“the student”).  The appeal must be sustained in part and remanded.

Petitioners are legally separated and reside at two separate addresses.  The student is in fourth grade and attends a charter school located within respondent’s district.  Petitioners assert that they share joint legal custody of the student.  Petitioners further assert that while petitioner Ngo has “residential custody” (i.e., physical custody) of the student, the student splits her time between petitioner Ngo’s and petitioner Vagnetti’s residences.  According to the record, yellow bus service is available at petitioner Ngo’s residence, but not petitioner Vagnetti’s residence.

For the 2017-2018 school year, respondent provided petitioners with a full-fare MetroCard[1] which the student could use to access public transportation from either of petitioners’ residences.  In September 2017, petitioner Ngo submitted an “Emergency Evaluation Request” to respondent’s Office of Pupil Transportation (“OPT”) seeking yellow bus transportation from her residence.  As her reason for such request, petitioner Ngo checked the box on the form which stated “[p]arents have joint custody and the pupil lives part-time with both parents.”

On October 17, 2017, OPT denied petitioner Ngo’s request because “[a]greement attached stipulates that mother has residential custody” of the student.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 12, 2017.

Petitioners contend that respondent erred by denying their transportation request because, although petitioner Ngo has residential custody of the student, petitioners share joint legal custody of the student and the student divides her time between petitioners’ residences.  Petitioners further assert that such transportation was provided for four years prior to the 2017-2018 school year.  For relief, petitioners seek a determination that the student is entitled to both a “MetroCard allowance” and yellow bus transportation to and from petitioner Ngo’s residence.

Respondent contends that its determination was reasonable; that the student was provided a full-fare MetroCard for the 2017-2018 school year which allows her to utilize public transportation to and from both of petitioners’ residences; and that petitioners are not entitled to yellow bus transportation pursuant to Chancellor’s regulation A-801.

A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Cassin, et al., 32 id. 373, Decision No. 12,859).

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).

On this record, petitioners have met their burden of proving that respondent’s determination was arbitrary and capricious.  The sole basis upon which respondent rejected petitioners’ transportation request was that petitioner Ngo “has residential custody” of the student pursuant to a separation agreement.  This determination, however, fails to explain why petitioners were not entitled to the requested transportation.  Article V of the separation agreement, entitled “Custody and Parenting Time,” begins by stating that “[t]he parties shall have joint legal custody of the [student].”  Although this paragraph states that “[t]he Mother shall have residential custody” of the student, the paragraph also incorporates by reference a visitation schedule which reflects a joint custody arrangement.  Thus, the agreement gives petitioners joint legal custody of the student and provides petitioner Ngo with residential custody while providing for de facto joint physical custody of the student.

Given the terms of the agreement, it is unclear from the record whether respondent was justified in denying petitioners’ request for transportation.  As indicated above, it appears that respondent’s “Emergency Evaluation Request” allows parents to request yellow bus transportation when, as here, “[p]arents have joint custody and the pupil lives part-time with both parents.”  Thus, on this record petitioners have met their burden of proving that respondent’s determination, which does not appear to be consistent with the terms of the custody arrangement and the exception listed on its form, was arbitrary and capricious.

Accordingly, this matter must be remanded to respondent for a determination of petitioners’ transportation request in light of their custody arrangement and this decision.  In so doing, respondent must reconcile the OPT director’s statement on appeal that emergency evaluation requests are only granted “in instances such as when a student has been the victim of a crime ... or when a court has issued an order of protection” with the fact that the Emergency Evaluation Request form specifically indicates that parents may request such an exception where “[p]arents have joint custody and the pupil lives part-time with both parents.”  To be clear, based on such review and analysis, petitioners may not be entitled to the requested transportation.  However, respondent’s determination is unsupported by the record, which otherwise contains no information regarding the standards by which petitioners’ request should be, or actually was, evaluated.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 30 days of this decision and order, respondent issue a written decision granting or denying petitioners’ request for transportation which explains its reasoning therefor.

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