Appeal of SANDRA KERN, on behalf of her daughter, ADRIANA, from action of the Board of Education of the City School District of the City of Rochester regarding transportation.

Decision No. 17,961

(January 25, 2021)

Rochester City School District Department of Law, attorneys for respondent, Alison K.L. Moyer, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rochester (“respondent”) that her daughter, Adriana (“the student”), is not entitled to afternoon transportation to a child care location.  The appeal must be dismissed.

Petitioner and the student reside within respondent’s district, where the student attends a nonpublic school (the “nonpublic school”).  According to petitioner, the student receives afternoon child care from petitioner’s grandmother, who resides at a location outside of respondent’s district (the “out-of-district address”).  The out-of-district address is located in the neighboring Greece Central School District (“Greece”). 

By email dated August 21, 2019, petitioner contacted respondent’s district to inquire about transportation for the 2019-2020 school year.  Specifically, petitioner requested afternoon bus transportation for the student from the nonpublic school to the out-of-district address.  Petitioner indicated that she had previously requested such transportation from Greece, which had an existing bus route serving the nonpublic school; however, Greece advised petitioner that it could not provide transportation to nonresident children.

By email dated August 22, 2019, a clerk in respondent’s transportation department (“clerk”) informed petitioner that the district could not provide transportation to the out-of-district address.  The clerk invited petitioner to apply for transportation for the student if she sought to have the student picked up from or dropped off at a location within respondent’s district.

By email dated August 29, 2019, petitioner advised the clerk that she was not, in fact, requesting that respondent’s district provide transportation for the student but instead seeking respondent’s “approval” for the student to be transported by Greece via its existing bus route.  Petitioner further indicated that she would present her request at respondent’s next meeting.  Thereafter, petitioner spoke by telephone with respondent’s director of transportation, who advised petitioner that the district did not have a way to authorize Greece to transport the student to the out-of-district address or to reimburse Greece for such transportation.

The record reflects that petitioner spoke at respondent’s December 5, 2019 meeting.[1]  According to petitioner, she subsequently received a telephone call from a district employee – identified by respondent as the district’s executive assistant – who informed her that respondent did “not transport children out of the district.”  This appeal ensued.

Petitioner argues that the student is entitled to transportation because Greece currently provides a bus route that the student could use to get from the nonpublic school to the out-of-district address.  For relief, petitioner seeks a determination that the student “is entitled to receive end-of-school-day transportation from [the nonpublic school] to [the out-of-district address] ... via payment reimbursements to ... Greece ... by [respondent].”

Respondent contends that petitioner has not obtained jurisdiction over it, insofar as she did not properly name respondent’s district in the caption of the appeal.  Respondent additionally asserts, among other things, that petitioner failed to join Greece and the nonpublic school as necessary parties, that the appeal is untimely, and that petitioner has failed to establish her entitlement to the relief requested.

First, I must address the procedural issues.  Respondent asserts that petitioner has not obtained personal jurisdiction over it because she “named a different entity” in the caption of the appeal.  The caption identifies respondent as the “Board of Education of the ROCHESTER, NEW YORK School District,” rather than the Board of Education of the City School District of the City of Rochester; however, I do not find that this error amounts to a failure to secure jurisdiction over respondent.  Petitioner is appearing pro se, and this error did not prejudice respondent, as respondent timely answered the petition and responded to the allegations therein (Appeal of D.B., 56 Ed Dept Rep, Decision No. 17,041).  Therefore, I decline to dismiss the petition on this basis.

Nevertheless, the appeal must be dismissed 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Petitioner seeks a determination directing respondent to reimburse Greece for the student’s transportation from the nonpublic school to the out-of-district address.  Any such determination would affect Greece, insofar as it would require Greece to provide transportation to the student.  Greece is thus a necessary party to this appeal; however, petitioner has not named Greece as a respondent in this matter or served it with a copy of the petition.  Accordingly, the appeal must be dismissed for failure to join Greece as a necessary party to this appeal (see e.g. Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,857).[2]

For the benefit of the parties, I note that, even if the appeal were not dismissed on this basis, it would be dismissed on the merits.  Education Law §3635(1)(e) authorizes a board of education, in its discretion, to offer transportation to and from “before-and/or-after-school child care locations” under certain circumstances.  For purposes of Education Law §3635(1)(e), a “before-and/or-after-school child care location” is defined as “a place, other than the child’s home, where care for less than twenty-four hours a day is provided on a regular basis for a child who attends school within the school district provided that such place is situated within the school district” (emphasis added).  Thus, Education Law §3635(1)(e) authorizes a school district to transport a child to a child care provider only if both the school that the child attends and the child care provider are located within the district (Appeal of Milliman-Estus, 52 Ed Dept Rep, Decision No. 16,394; Appeal of Wells, 49 id. 443, Decision No. 16,076).

Here, petitioner seeks to have the student transported from the nonpublic school, which is located within respondent’s district, to the out-of-district address in Greece, where the student receives child care from petitioner’s grandmother.  Because the student’s school and child care provider are not located within the same district, Education Law §3635(1)(e) does not authorize either respondent or Greece to provide transportation for the student between the nonpublic school and the out-of-district address – regardless of whether respondent reimbursed Greece for such transportation.  Accordingly, while I am sympathetic to petitioner’s circumstances, I would be constrained to dismiss the appeal on the merits if it were not dismissed on procedural grounds, as discussed above.

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

THE APPEAL IS DISMISSED.

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