Appeal of MONTAUK BUS, LLC and MBS FLEET, LLC, from action of the Board of Education of the Riverhead Central School District, the Board of Education of the New Suffolk Common School District, the Board of Education of the Southold Union Free School District, and the Board of Education of the Mattituck-Cutchogue Union Free School District regarding transportation contracts.

Decision No. 18,126

(May 24, 2022)

Hamburger, Maxon, Yaffee & Martingale, LLP, attorneys for petitioners, Richard H. Hamburger, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondents Riverhead Central School District, Southold Union Free School District, and Mattituck-Cutchogue Union Free School District, Michael D. Raniere, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondent New Suffolk Common School District, Lauren Schnitzer, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Boards of Education of the Riverhead Central School District (“Riverhead”), New Suffolk Common School District (“New Suffolk”), Southold Union Free School District (“Southold”), and Mattituck-Cutchogue Union Free School District (“Mattituck-Cutchogue”) (collectively, “respondents”) to enter into student transportation contracts.[1]  The appeal must be dismissed.

Petitioners are affiliated companies that provide student transportation services to several school districts in Suffolk County.  The Eastern Suffolk Board of Cooperative Educational Services (“ESBOCES”) contracts with petitioner Montauk Bus to provide transportation services to component school districts who choose to use ESBOCES transportation services.

Riverhead owns and operates a fleet of school buses and contracts with neighboring school districts to provide student transportation services.  At a June 15, 2021 board meeting, Riverhead approved separate shared services[2] agreements (“the contracts”) with New Suffolk, Southold, and Mattituck-Cutchogue to provide transportation to certain students residing in those school districts, primarily students attending nonpublic schools.  This appeal ensued.

Petitioners argue that the contracts do not use true competitive costs and fail to comply with Education Law § 1709 (25) (h) and Commissioner’s regulation 156.11 (a).  They assert that the contracts are illegal and should be annulled.

Respondents argue that petitioners lack standing to bring the appeal.  On the merits, respondents argue that the contracts are not subject to the statute and regulations cited by petitioners or, alternatively, are legally compliant.  

Initially, I must address a procedural matter.  Petitioners submitted a reply affidavit from their president.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Petitioners maintain that they have standing because they compete with Riverhead for student transportation contracts; they emphasize that Montauk Bus provides transportation through ESBOCES contracts with districts for transportation services.  Montauk Bus alleges that it sustained $712,249.20 in damages “as a direct result of Riverhead’s challenged illegal conduct.…”

Petitioners, however, are not aggrieved by merely existing in the school transportation marketplace.  As respondents aver, petitioners had no right to enter transportation contracts with the school districts, even if the school districts had not entered shared services contracts with Riverhead.  As a result, petitioners’ claimed “losses” are speculative and do not confer standing to bring this appeal (see Appeal of White, 61 Ed Dept Rep, Decision No. 18,053; Appeal of Roth, 50 id., Decision No. 16,171; compare Appeal of Birnie Bus Service Inc., 39 Ed Dept Rep 48, Decision No. 14,170 [concluding that “(a)s a bidder, petitioner ha(d) standing to bring an appeal of the bid process”]).

Although the appeal must be dismissed for lack of standing, I note that the provisions cited by petitioners—Education Law § 1709 (25) (h) and 8 NYCRR 156.11—do not apply to shared services contracts, which are authorized by Education Law § 1709 (25) (g).  Every contract for shared transportation services pursuant to Education Law § 1709 (25) (g) must be submitted to the State Education Department for approval and contain a compliance certification stating that the contract “was awarded in accordance with the competitive bidding provisions of Section 103 of the General Municipal Law, Section 305 (14) of the Education Law, and Section 156.1 (b) of Commissioner of Education Regulations….”

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

THE APPEAL IS DISMISSED.

END OF FILE