Appeal of ROBERT ZELLER, on behalf of his son ROBERT JOHN, from action of the Board of Education of the City School District of the City of Port Jervis regarding transportation.

Decision No. 15,340

(January 19, 2006)

Cuddeback & Onofry, attorneys for respondent, Robert A. Onofry, Esq., of counsel

MILLS. Commissioner.--Petitioner appeals an action of the Board of Education of the City School District of the City of Port Jervis ("respondent") denying his son transportation between home and the nonpublic school he attends. The appeal must be dismissed.

On June 1, 2004, respondent voted to authorize a proposition to reduce its transportation mileage limit for nonpublic school students from 35 miles to the statutory limit of 15 miles as part of its revised budget proposal. On June 16, 2004, the voters approved the revised budget, including the mileage reduction.

By letter dated June 18, 2004, district residents were provided with a list of nonpublic schools to which the district would no longer provide transportation. Petitioner's son attended one of these schools. At a board meeting held on August 10, 2004, and by letter of that date, petitioner objected to the new policy, requested that respondent reconsider its decision to discontinue transportation to certain nonpublic schools, and asked for a written response to his request. As of the commencement of this appeal, petitioner had not received a written response from respondent. This appeal ensued.

Petitioner alleges that the proposition was arbitrary and capricious because it did not apply to both public and nonpublic school students. Petitioner also alleges that respondent violated Education Law ��3635, 2022 and 2023 by using a single proposition to authorize the revised budget and modify the transportation mileage policy.

Petitioner requests that I order respondent to reinstate its prior policy and provide his son with transportation between home and school. Petitioner also requests that I find the June 16, 2004 proposition improper, and that I direct that future modifications to respondent's transportation mileage policy be authorized by separate proposition.

Respondent contends that the appeal is untimely. Respondent also contends that its actions were proper and in accordance with Education Law ��3635, 2022 and 2023. Finally, respondent alleges that its transportation policy is not arbitrary or capricious, and that it is uniformly applied to all students in like circumstances.

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 O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent notified petitioner that transportation would not be provided to his son, by letter dated June 18, 2004. Yet, the petition was not served until November 4, 2004, more than four months later. Petitioner asks that his late appeal be excused because he was waiting for a response to his August 10, 2004 letter to establish a record on appeal. Petitioner contends that the period for filing his appeal has not commenced since respondent has failed to respond to this letter. Petitioner offers no explanation, however, as to why he waited almost three months following the notification to write the August 10 letter. In the absence of any specific facts to establish that the appeal could not have been commenced within the prescribed time period, I find no good cause for the delay. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, 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 Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). On the record presented, I cannot conclude whether respondent's transportation policies relating to public and nonpublic school students differ since petitioner has failed to provide respondent's policy relating to public school students. In general, a city school district is not required to provide transportation, but if it does so, such transportation must be provided in an equal manner to all children in like circumstances residing in the district (Education Law �3635[1][c]). While respondent's change in mileage limit only refers to nonpublic school students, there is no evidence that any public school student is being transported in excess of 15 miles.

A board of education has broad discretion in determining the form of its propositions and the power rests with the voters to reject propositions not satisfactory to the majority (Corbett v. Union Free School Dist. No. 21, Town of Hempstead, 199 Misc. 930, 103, affd 278 AD 960; Appeal of Friedman, et al., 36 Ed Dept Rep 431, Decision No. 13,769). Whether to join one or more items in a proposition or present separate propositions to the voters is within the discretion of the board of education (Appeal of Hebel, 34 Ed Dept Rep 319, Decision No. 13,326; Matter of Gang, et al., 23 id. 118, Decision No. 11,158). Moreover, petitioner has failed to establish by affidavits or other evidence that voters were confused by respondent's proposition. Accordingly, petitioner's contention on this issue is rejected.

Finally, although petitioner submitted his appeal on behalf of "all others similarly situated," petitioner has failed to establish that he qualifies to maintain a class appeal pursuant to �275.2 of the Commissioner's regulations. The regulation states, in part: "[class appeals] may be maintained by one or more individuals on their own behalf and as representatives of a class of named or unnamed individuals only where the class is so numerous that joinder of members is impractical and where all questions of fact and law are common to all members of the class." The record does not indicate how many individuals fall into the group described by petitioner. Furthermore, petitioner has not established, or even alleged, sufficient facts for me to determine whether this appeal presents question of fact and law common to all members of the proposed class.

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

THE APPEAL IS DISMISSED.

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