Appeal of YONA EDELKOPF, on behalf of his children, from action of the Board of Education of the Massapequa Union Free School District regarding transportation.

Decision No. 17,570

(January 17, 2019)

Paul L. Dashefsky, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Gregory A. Gillen, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) denying his three children (“the students”) transportation for the 2018-2019 school year.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and his family resided within respondent’s school district.  On April 10, 2018, petitioner’s spouse submitted transportation requests for the 2018-2019 school year on behalf of the students for transportation to Cheder at the Ohel (“Cheder”), a nonpublic school.  Later that same day, petitioner’s spouse emailed respondent’s transportation office and explained that she “missed the April 1st deadline and [was] hoping [she could] still apply for it ....”  Petitioner’s spouse further asserted that
April 1st was on the holiday of Passover and, thus, she “regrettably forgot to take care of it before the holiday.”

The district’s supervisor of transportation (“transportation supervisor”) contacted petitioner’s spouse by email on April 12, 2018 to inform her that the district would not accept her late transportation request.  The transportation supervisor explained that the application process began on or around the first or second week of January 2018, that a reminder phone call was placed to petitioner’s residence on March 27, 2018 and that a mailing was sent explaining the transportation process to all families with students attending nonpublic schools.  On April 15, 2018, petitioner’s spouse acknowledged that she “did receive [the] mailing” and “missed the deadline,” but denied receiving the reminder call, stating that her phone lines were damaged.

In a letter to the transportation supervisor dated April 16, 2018, petitioner explained that the delay in submitting the transportation request was the result of uncertainty as to the physical location of Cheder for the 2018-2019 school year as well as his family’s preparation for the Passover holiday.  Petitioner further asserted that storm-related damage to his home disabled phone service such that he was prevented from receiving the reminder phone call.

By email dated April 17, 2018, the transportation supervisor requested additional information from petitioner regarding the status of Cheder’s location.  On April 18, 2018 petitioner responded by forwarding a letter from Cheder’s principal describing uncertainties with the physical location of the school building for the 2018-2019 school year.

On May 3, 2018 respondent reviewed and discussed petitioner’s late transportation request.  By letter dated May 4, 2018, respondent denied petitioner’s request because it was received after the April 1 deadline and would impose additional costs on the district.

In a letter to respondent’s records access officer dated May 1, 2018, petitioner’s counsel submitted a request pursuant to the Freedom of Information Law (“FOIL”) requesting documents pertaining to nonpublic school transportation requests for the past five years.

By letter dated May 10, 2018 petitioner’s counsel requested that respondent reconsider its denial of petitioner’s April 10, 2018 transportation request.  Respondent denied petitioner’s request for reconsideration and this appeal ensued.

Petitioner admits that he submitted his requests for transportation for the 2018-2019 school year after the April 1 deadline; however, he asserts various grounds which, he contends, support an exception to the application of the April 1 deadline.  Petitioner alleges that the delay was unavoidable given the uncertainty of the building location of Cheder for the 2018-2019 school year.  Petitioner further contends that April 1, 2018 fell on the first day of Passover, which occupied his time due to its “extensive and time-consuming requirements.”  Petitioner also maintains that storm-related damage prevented him from receiving timely notification from respondent. Petitioner further alleges that respondent improperly considered cost in determining whether his explanations were reasonable.  Finally, petitioner contends that his FOIL request was not processed in a timely manner and asserts that, when he receives documents responsive to this request, they will demonstrate that he was treated in an unequal manner.

Respondent contends that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent argues that its decision to deny petitioner’s transportation request was reasonable because petitioner submitted his transportation request after the April 1 deadline; petitioner did not provide a reasonable excuse for his late request; and respondent would incur additional costs to provide transportation to the students given his late request.  Respondent argues that its determination was rational and, thus, not arbitrary or capricious.

Initially, I must address two preliminary matters.  By letter dated August 21, 2018, respondent objected to petitioner’s reply and requested permission to submit a sur-reply and affidavit pursuant to §275.3 of the Commissioner’s regulations in order to address petitioner’s arguments in his reply.  The reply submitted was not verified.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Therefore, I have not considered petitioner’s reply (see Appeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No. 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14,472; Appeal of Principio, 39 id. 11, Decision No. 14,157).  Accordingly, I need not consider respondent’s sur-reply and accompanying affidavit.

Additionally, to the extent petitioner raises claims under FOIL, Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Turning to the merits, 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

With respect to the reasonabless of a request, a belated decision to enroll a student in a nonpublic school ordinarily need not be accepted as a reasonable explanation (Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Amoroso, 37 id. 359, Decision No. 13,879; Appeal of Matero, 36 id. 242, Decision No. 13,713).   Additionally, a school board need not accept as a reasonable explanation the fact that a nonpublic school failed to receive a certificate of occupancy for a permanent facility until after the transportation request deadline (Appeal of New Covenant Charter School, 41 Ed Dept Rep 358, Decision No. 14,713).  Further, a school board need not accept as a reasonable explanation the fact that a nonpublic school did not exist as of the transportation request deadline (Matter of Pask, 24 Ed Dept Rep 320, Decision No. 11,408; Matter of Knapp, 21 id. 377, Decision No. 10,721).

Here, petitioner admits that his requests for transportation to Cheder were submitted after the April 1 deadline but requests that I excuse such delay because his explanations for the delay are reasonable.  Petitioner has offered three explanations for his failure to timely file transportation requests.  Upon a review of the record, I do not find respondent’s decision that these explanations were not reasonable to be arbitrary or capricious. 

First, petitioner claims that there was uncertainty as to the location of Cheder for 2018-2019 school year.  While it appears that the precise location of Cheder had not been established by April 1, 2018, the record nevertheless supports a finding that petitioner intended to enroll his children at Cheder for the 2018-2019 school year.  Petitioner’s intention to send his children to Cheder for the 2018-2019 school year is evidenced by his statement in the petition that his children attend “a Jewish non-public school” because it is “important to me on the basis of my religious beliefs and the educational goals that my wife and I have for my children.”  The record also reveals that petitioner has enrolled one or more of his children at Cheder for the past five years.  Thus, the record indicates that petitioner intended to have at least one of his children attend Cheder for the 2018-2019 school year.  Because petitioner had filed timely transportation requests for one or more of his children in prior school years, he clearly knew and understood the process for requesting transportation from the district.

In support of his contention that uncertainty as to the location of the Cheder school building is a reasonable explanation for his failure to timely file transportation requests, petitioner relies on the decision in Appeal of Cornerstone Christian School, et al. (30 Ed Dept Rep 452, Decision No. 12,532).  In that appeal, parents made timely requests for transportation to a new school building but untimely requests for transportation to a temporary site following delays in the construction of the new school building.  The Commissioner, in that case, determined that late transportation requests were reasonable because of unforeseen delays in the construction of the new school building and the required relocation to a temporary location.

In contrast to Appeal of Cornerstone Christian School, et al. (30 Ed Dept Rep 452, Decision No. 12,532) where the parents made timely requests for transportation to a new school building, petitioner did not submit a timely transportation request in 2018 despite his knowledge that his children would be attending Cheder as well as his knowledge and understanding of the transportation deadline.  Therefore, notwithstanding the alleged uncertainty as to the location of Cheder for the 2018-2019 school year, petitioner was not precluded from submitting a transportation request prior to the April 1 deadline.

With respect to petitioner’s second and third explanations – namely, that he and his family were preparing for the Passover holiday in the two weeks leading up to the April 1 deadline and that storm-related damage in March 2018 prevented him from receiving the March 2018 reminder from respondent – a board of education need not accept ignorance or forgetfulness of the filing requirement as a reasonable excuse for failure to file a timely transportation request (Appeal of N.H., 34 Ed Dept Rep 496, Decision No. 13,393; Appeal of DeWitt, 31 id. 60, Decision No. 12,568).  Accordingly, petitioner’s explanations – including his spouse’s statement that she “forgot to take care of [the transportation request] before the holiday” is not a reasonable excuse for the delay (see Appeal of Ligowski, 47 Ed Dept Rep 251, Decision No. 15,685; Appeal of Lawless, 37 id. 324, Decision No. 13,870).  

While school districts have no legal obligation to publish any notice regarding the April 1 deadline, the record demonstrates that respondent undertook specific actions to notify families of the deadline for transportation requests (Appeal of Rivera and Figueroa, 52 Ed Dept Rep, Decision No. 16,449; Appeal of Gordon, 29 id. 175, Decision No. 12,258; Appeal of Ward, 29 id. 153, Decision No. 12,250).  The record reflects that around the first or second week of January 2018, respondent sent a mailing explaining the process, including the April 1 deadline, to all families with students attending nonpublic students.  Petitioner’s spouse acknowledged receipt of this mailing.  Accordingly, I find that petitioner acknowledged that he was aware of the April 1 deadline and he has proffered no 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).  Here, respondent asserts, and petitioner does not refute, that granting the transportation request would cost the district approximately $42,368.40 per month. Therefore, I find that petitioner’s requested transportation would impose additional costs upon the school district and, consequently, respondent did not act arbitrarily by denying such request.[1]

Therefore, on this record, I find no basis upon which to set aside respondent’s determination to deny petitioner’s late request for transportation to Cheder as petitioner has not shown that such denial was arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE