Opinion
80184/10.
December 6, 2010.
Petitioners were represented by Ronald Castornina, Esq.
Intervenor-Petitioner was represented by Thomas Ognibene, Esq.
Respondents were represented by Michael Cardozo, Corporation Counsel of the City of New York, by Janice Birnbaum, Esq. and Abigail Goldenberg, Esq.
I.FINDINGS OF FACT
A.BACKGROUND
1.Procedural History
On June 24, 2010, petitioner Vincent M. Ignizio, as NYC Councilmember of the 51st District, James S. Oddo, as NYC Councilmember of the 50th District, Deborah Rose, as NYC Councilmember of the 49th District, Theresa Barba, as Parent/Guardian of Kaitlyn Nicole Barba, Scott H. Fullman, as Parent/Guardian of Daniel Scott Fullman, Edward P. Marone, as Parent/Guardian of Amber Lee Marone, Tracy Rosenberg, as Parent/Guardian of Samantha Rose Rosenberg, Stacey Sciarrino, as Parent/Guardian of Danielle Sciarrino, Stacey Sciarrino, as Parent/Guardian of Matthew Sciarrino III, ("Petitioner Ignizio") brought this Article 78 proceeding to challenge the determination by the Department of Education for the City of New York which eliminated funding for several variances that provided yellow-bus pupil transportation for certain 7th and 8th grade students.
On August 3, 2010, respondents answered and sought to remove the action to the United States District Court for the Eastern District of New York, based upon certain allegations of Petitioner Ignizio, which sounded in equal protection. Upon the withdrawal of these claims by Petitioner Ignizio on August 12, 2010, the matter was remanded to this court on August 16, 2010.
Upon remand, Petitioner Ignizio brought a motion to restore the matter to this Court's calendar, and for a temporary restraining order to halt the elimination of the funding and allow continuation of the yellow-bus pupil transportation system for certain 7th and 8th grade students, until the conclusion of the Article 78 proceeding. This court granted petitioners' request on August 16, 2010. This order was appealed to the Appellate Division, Second Department, and the temporary restraining order was stayed.
On September 7, 2010, Petitioner Eric Ulrich, as NYC Councilmember from the 32nd District, and Maureen McVeigh, parent/guardian of Kyla Tacopina brought a petition to intervene in this Article 78 since Petitioner McVeigh had a child who resided in Breezy Point and was affected by the decision to terminate the funding for certain yellow-bus pupil transportation. Respondents interposed an answer to this petition on October 8, 2010.
The parties engaged in discovery practice, and respondents asserted executive privilege over several documents, refusing to disclose the documents' contents. On September 15, 2010, the court appointed Special Referee to hold an in camera review of such documents.
On September 14, 2010, this court granted Petitioner Ulrich's petition to intervene and in the interest of judicial economy, consolidated the two petitions under the Ignizio petition and scheduled a hearing. On September 20, 2010, this court commenced a hearing on the issues within the now-consolidated Article 78 proceeding. Such hearing concluded on September 29, 2010 and the decision was reserved. The parties submitted findings of fact and conclusions of law and such submissions were complete on October 29, 2010.
2.Factual Findings
Petitioners Vincent M. Ignizio, James S. Oddo, and Deborah Rose are New York City Council Members in the Borough of Richmond. Petitioner Eric Ulrich is a New York City Council Member in the Borough of Queens. Petitioners Kaitlyn Nicole Barba, Daniel Scott Fullman, Amber Lee Marone, Samantha Rose Rosenberg, Danielle Sciarrino and Matthew Sciarrino III, are 7th and 8th grade students who reside in the Borough of Richmond affected by the discontinuance of the yellow-bus pupil transportation service for certain 7th and 8th grade students, and represented by their parents/guardians Theresa Barba, Scott H. Fullman, Edward P. Marone, Tracy Rosenberg, Stacey Sciarrino, in this proceeding. Petitioner Kyla Tacopina is a junior high school student who resides in Breezy Point, in the Borough of Queens, affected by the discontinuance of the yellow-bus pupil transportation service for certain 7th and 8th grade students and represented by her parent/guardian Maureen McVeigh in this proceeding.
Although the basis for the Article 78 proceeding is not specified, a careful reading finds that it requests certiorari of, or a writ of mandamus regarding, the decision of the Department of Education which eliminated the funding for the variance which provided yellow-bus pupil transportation for certain 7th and 8th grade students, including those in Staten Island and the Rockaway Peninsula. As the petition appears to request a determination that such decision was made in an arbitrary and capricious manner, this Court determines that a writ of certiorari to review is appropriate.
The New York Constitution, article XI, § 1 reads: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." Pursuant to NY Education Law § 3635(1)(c), a city school district is not required to provide pupil transportation to and from schools, but if it does so, it must offer it equally to all pupils in similar circumstances. Pursuant to this regulation, the Chancellor of the Department of Education ("DOE") set forth the pupil transportation policy for the DOE in Chancellor's Regulation A-801, dated September 5, 2000, superseding A-801 dated September 1, 1988. Under A801 § 1(2), students in grades 7-12 who reside 1.5 miles or more from school are eligible for full fare student MetroCards for use on the subway and buses run by the Metropolitan Transit Authority. Students in grades 7-12, who reside between 0.5 miles and less than 1.5 miles, are eligible for half fare student MetroCards for use on the subway and buses. Id. These students are not otherwise provided transportation services to and from school. However, the regulation also provides for exceptions from the A-801 guidelines in that:
a small number of cases where public transit facilities are inadequate or unavailable, exceptions may be granted by the Office of Pupil Transportation to allow the use of existing contract bus service provided for children in elementary grades by pupils in grades 7 and 8. All such pupils must be otherwise eligible by meeting the distance criteria.
A-801 § 1(2)
A "variance' is such an exception to the requirements established in the Chancellor's Regulation A-801 and may provide yellow bus pupil transportation where an individual student is otherwise ineligible. There are different types of variances available, including the variance for individual hazardous conditions and for certain medical conditions. Transcript p. 403, 732. These variances are not defined further in A-801 and have no other written public guidelines. Petitioner's Exh. 31. The variance for individual hazardous conditions requires that a parent fill out a form, which is then signed by the student's principal and forwarded to the Office of Pupil Transportation ("OPT") for research and analysis as to that child's perceived hazard. Transcript pp. 433-434. After OPT reviews the request, it investigates and determines if a variance is warranted. Transcript pp. 101-102. When a parent is denied for a variance, the parent may appeal such denial to the DOE.
Historically, other variances to the yellow-bus pupil transportation system have been established which were not based on individual pupil's status. For over forty years, a variance existed for the Borough of Richmond County (the "Staten Island Variance"). Since its inception, the Staten Island Variance provided yellow-bus pupil transportation for 7th and 8th grade students who traveled to school within Richmond County. Transcript p. 11. The Staten Island Variance was borough-wide and without regard to the route to school or status of the individual pupil. Transcript p. 102. The Staten Island Variance was continual and did not require renewal each year. Transcript p. 13, 33. The exact origin of the Staten Island Variance is unknown, although some theories are discussed infra. Transcript pp. 13-14, 323, 755. In Richmond County, evidence was presented which showed that the area has roads without sidewalks. Transcript p. 698. As well, evidence was introduced that the availability of public transportation varies, but evidence was produced which showed that the availability of public transportation has not changed significantly over the past forty years. Transcript p. 342. Until the discontinuance of Staten Island Variance for the 2010-2011 school year, this variance would have provided yellow-bus pupil transportation for the petitioners Kaitlyn Nicole Barba, Daniel Scott Fullman, Amber Lee Marone, Samantha Rose Rosenberg, Danielle Sciarrino and Matthew Sciarrino III.
A similar variance existed on the Rockaway Peninsula, which includes the co-operative community known as Breezy Point. (The "Rockaway Peninsula Variance") This thirty-year-old variance was a school-based variance, based only on the student's enrollment in certain schools that served 7th and 8th graders from Rockaway Peninsula and provided yellow-bus pupil transportation to those schools. Transcript pp. 11, 13. This variance required renewal each year. Id. The residents of Breezy Point on the Rockaway Peninsula, the area in which Kyla Tacopina resides, have an uncontroverted 1.5-mile distance walk from the gates of the community to the nearest public transportation. That walk is on a Dune Road, which consists of roadway with and without sidewalks. Transcript pp. 772, 860, 866. Until the discontinuance of Rockaway Peninsula Variance for the 2010-2011 school year, this variance would have provided yellow bus transportation for the petitioner Kyla Tacopina.
The decision to eliminate the funding for the Staten Island and Rockaway Peninsula Variances, as well as the other variances in the City of New York from the budget for the Department of Education for the 2010-2011 school year (the "DOE budget"), emanated from the DOE Deputy Chancellor Kathleen Grimm, upon advice from Eric Goldstein, Chief Executive Officer of School Support Services, under which the Office of Pupil Transportation ("OPT") operates. Transcript p. 737-738. The DOE budget was then included in the Mayor's 2010-2011 Executive Budget for the City of New York, and The Council for the City of New York approved such budget on June 29, 2010. Transcript p. 519. However, the decision to eliminate the funding for the variances was made at an earlier date.
Over the previous year, DOE placed pressure on its Deputy Chancellors to find potential budget cuts to eliminate the budget gap in the 2010-2011 DOE budget. Transcript p. 727. At the request of Deputy Chancellor Grimm, Mr. Goldstein began to look for proposals to eliminate the budget gap, by asking the offices under his control including OPT. (witnesses for Respondents commonly referred to this as a "PEG"). Transcript p. 738. The elimination of the yellow-bus pupil transportation for 7th and 8th grade students was determined to be one such PEG. Transcript p. 755.
Matthew Berlin, the Executive Director of OPT, tried to investigate the origin of the Staten Island variance. He was unable to find any writing that chronicled the origin of the variance. Transcript p. 13-14, 20. He then asked long-term employees from OPT to see if they knew the origin of the variance. A few reasons for the variance arose, such as the synchronization of bell-times on the island, the lack of public transportation, and apparent political will, but none of which were supported by more than hearsay statements. See Transcript p. 17, 323-4; Petitioner's Exh. 13. Unable to find anything further, Mr. Berlin informed Mr. Goldstein of the potential savings. Initial estimates of the potential budgetary savings by Matthew Berlin placed the number at approximately 6.2 million dollars, then 3.5 million dollars. Transcript p. 22-25; Petitioner's Exhs. 1, 2. Later estimates brought the savings to 1.6 million dollars, and the actual savings was closer to 2.1 million dollars. Transcript p. 396; Petitioner's Exh. 14.
In Petitioner's Exh. 13, Matthew Berlin wrote to Eric Goldstein and stated that he would "ask the old timers about when (the variances) were started and if they have anything to add to what I've been told about why 7/8 busing on SE (sic) which states as a lack of adequate public transit."
Mr. Goldstein determined that the elimination of the funding for the variances could occur because the children who utilized the service could get to school using public transportation. Transcript p. 333-334, 344. Further, he felt that the elimination of funding for the variances would result in equitable treatment of all children within 7th and 8th grade in New York City. Transcript pp. 349, 351-352. Mr. Goldstein once again did not present any empirical evidence, studies or evidence, apart from his own assumptions and information from discussions with those who worked within OPT, to support these conclusions. Transcript pp. 329-330.
Respondents attempt to argue that Mr. Goldstein did base his decision on certain studies and knowledge gleaned from maps, MTA trip planners, and spreadsheets. In the Transcript pp. 334, 337, Mr. Goldstein explains that he was shown "maps, MTA trip planners, various spreadsheets showing the analysis" that OPT undertook in June 2010, which was one month after this date of the decision to eliminate the funding, May 13, 2010.
Mr. Goldstein, and his staff at OPT including Mr. Berlin, testified that the availability of local infrastructure was not considered since it was assumed that any student lacking such services would apply through the individual hazard variance system. Transcript p. 100, 433, 442. However, the current policy appears to be that such variances will not be granted. Transcript p. 430-2. In Petitioner's Exhs. 18 and 33, Mr. Goldstein wrote about the policy of DOE regarding variances, it was clear, in that grades K-6 could apply for the hazard or access variances, but DOE does "not bus 7th and 8th graders." Transcript p. 432. This policy was reiterated in an email from Deputy Chancellor Grimm to Maura Keaney, Eric Goldstein, and Jeffrey Shear, where Deputy Chancellor Grimm while referring to the A-801 regulation exception language is cited and the recipients are told " We are not granting these exceptions any more we are not obligated to provide. Times are tough." Petitioner's Exh. 20 (emphasis added); see also Petitioner's Exh. 32, (where in an email from Jeffrey Shear to Eric Goldstein and copied to Deputy Chancellor Grimm, it was reported that of the hazard and variance applications for 2010-2011, DOE had " completed 406 reviews and granted just one variance." [emphasis added]); see also Transcript p. 432 ("We don't bus 7th and 8th graders."); Petitioner's Exh. 18. There was no clear articulated policy regarding the process for granting variances, and no new policy was established. Transcript p. 431-4, 436, 440, 441; Petitioner's Exh. 33.
Mr. Goldstein also testified that he considered the distance from Breezy Point to public transportation. Transcript p. 217-218, 441. He further testified that he felt it was possible for students in the 7th and 8th grade to walk the 1.5 miles from Breezy Point to public transportation, since children in the other boroughs were required to walk the same distance in similar conditions. Transcript pp. 217-220, 336. Upon further examination, Mr. Goldstein was unable to support his conclusion that other children did so, as he was unable to cite another area within the City of New York in which children were required to walk 1.5 miles to public transportation. Transcript p. 14-22, 219, 336. Therefore, Mr. Goldstein and OPT did consider the availability of public transportation and the pupils route to it; they came to conclusions regarding the pupils' ability to use public transportation, without any evidence. Transcript p. 338. Further, Mr. Goldstein did not disclose how he came to his conclusions concerning the children affected by the variances, nor if he or OPT had visited the single route that Breezy Point students would traverse to get to public transportation, and if any investigation was done before the decision was made on May 13, 2010.
Mr. Goldstein also did not weigh the savings of elimination of funding against the possible cost of savings. At the time of the decision, the contract with the Metropolitan Transit Authority for student MetroCards was due to expire and be renegotiated. Transcript p. 93, 382-3, 398; Plaintiff's Exh. 23. Thus, Mr. Goldstein had no knowledge as to the possible cost of the additional MetroCards, and whether that cost would outweigh the possible savings. Id.
Upon the recommendation of Mr. Goldstein, Deputy Chancellor Grimm proposed the elimination of the funding for yellow-bus pupil transportation for 7th and 8th grade students, which included those students in Staten Island and Rockaway Peninsula, be included in the DOE Budget, which was then included in the Executive Budget. Transcript p. 778. Deputy Chancellor Grimm asserted that her reasons for eliminating the variances included budgetary savings and to right inequity amongst City of New York 7th and 8th grade students. Transcript p. 735, 755. Deputy Chancellor Grimm asserted that she did not base her decision on the availability of public transportation in the affected areas, although she too made her decision based upon assumptions about the availability of the hazard variance process to cure public transportation deficiencies and the children's ability to get to school. Transcript p. 730-731, 733, 735-6. Neither did Deputy Chancellor Grimm have knowledge as to the possible cost of the additional MetroCards, and whether that cost would outweigh the possible savings. Transcript p. 759; see also Petitioner's Exh. 12 (where on May 12, 2010, Maura Keaney, in an email stated "how can we say [with] a straight face that we are going to give MetroCards to these new kids when we aren't even sure we'll get MetroCards to kids who get them now.") Finally, Deputy Chancellor Grimm did not have knowledge of other areas similar to Staten Island or Breezy Point, where student must traverse 1.5 miles to public transportation. Transcript p. 774.
Deputy Chancellor Grimm also determined that the elimination of the yellow-bus pupil transportation for 7th and 8th grade students would not create safety problems, because if there was a safety hazard, the parent could apply for a hazard or access variance. Transcript 728, 731, 736, 755, and 779. The respondents did not present any evidence that the decision as it was made, was based on anything more than the personal knowledge of the DOE decision-makers, none of which were presented as having personal knowledge of Richmond County or Rockaway Peninsula, and internal DOE discussions.
On May 13, 2010, Matthew Berlin sent a letter to all school principals, including those on Staten Island and those schools on the Rockaway Peninsula, announcing the termination of the variance, which allowed for yellow-bus pupil transportation. Petitioner's Exh. 19; Transcript p. 102-103, 353, 458. Although a completed letter was not admitted into evidence, the testimony that was elicited established that the language of the letter was embodied in Petitioner's Exh. 19, and it was sent on May 13, 2010. Transcript p. 185-6, 188. The letter, unequivocal in its prose, expected parents to make alternate plans for transportation to school for the 2010-2011 school year, and explained any available alternatives. Petitioner's Exh. 19. Despite Mr. Goldstein's assertion in his testimony that the decision to terminate was "fluid" and not complete until September 2010, when school began; it was apparent that on May 13, 2010 that the Department of Education had made its determination. Transcript p. 352, 353; Petitioner's Exh. 40. The letter sent to the principals was concrete, not "fluid," and unambiguously expressed that the decision to eliminate the funding had been made. Further, despite the decision's alleged "fluidity," the decision to eliminate the funding was not changed, and in September 2010, the decision was implemented. See e.g., Petitioner's Exh. 33, wherein the draft of the letter for Borough President Stringer was attached, announcing the removal of the funding for the variances. Further, Deputy Chancellor Grimm confirmed that the decision was final in her testimony, page 747: lines 21-22. Therein, the Deputy Chancellor stated that the decision "was final after the Mayor's Executive Budget was issued in early May." Id.
In June, 2010, however, OPT, at the behest of Deputy Chancellor Grimm and Eric Goldstein, undertook an analysis of the seventh grade students in Richmond County and their relative school commutes using mass transportation. Transcript p. 729, 731, 736, 764:9 (where the Deputy Chancellor testified that "[w]e did that after the budget was final"); Petitioner's Exh. 15. This study was requested, according to Deputy Chancellor Grimm, for the purpose of fending off controversial questions as a result of the decision. Id. Specifically, Deputy Chancellor Grimm explained that the study of children had been done "after the budget had been proposed, in anticipation of whether or not we or others in the administrations would get questions from the council" Id. at lines 9-11.
After Deputy Chancellor Grimm made her proposal for the elimination of the funding to be included in the Executive Budget, the cabinet of the Chancellor had a series of meetings, and the recommendation was included in the Executive Budget. Transcript p. 506. On June 29, 2010, the Council of the City of New York voted and adopted the Executive Budget. Transcript p. 505-506, 519, 826. The Executive Budget for the DOE as adopted was actually increased by $272,638,657 for the 2010-2011 school year. Transcript p. 803; Intervenor's Exhibit III.
II.CONCLUSIONS OF LAW
A.STANDING
Petitioners Vincent M. Ignizio, James S. Oddo, Deborah Rose, and Eric Ulrich allege that they are City Council members who brought suit on behalf of their affected constituency. In order to seek judicial relief, a party must show standing by showing "injury in fact" within the zone of interest protected by the relevant statutes. Urban Justice Center v. Pataki 38 AD3d 20, 25, 828 NYS2d 12 (1st Dep't 2006), appeal dismissed appeal denied, 8 NY3d 958, 836 NYS2d 537,868 NE2d 218 (2007); Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 570 NYS2d 778, 573 NE2d 1034 (1991). The council members cannot do so. The New York City Council Members who are also Petitioners do not have children affected by the denial of DOE private pupil transportation. Further, council members "may not raise legal grievances on behalf of others." Urban Justice Center, supra, at 27. Therefore, the claims of petitioners Vincent M. Ignizio, James S. Oddo, Deborah Rose, and Eric Ulrich are dismissed.
B.IMPROPER PARTIES
Respondent City of New York proposes that there is no allegation that it is responsible for the discontinuance of the variance for DOE private yellow-bus pupil transportation. Respondents assert that since there is no principal-agent relationship between the City of New York and the DOE, there is no liability for the DOE's actions.
"The Chancellor's decisions are subject to review by the Commissioner of Education, a constitutional officer, who in turn, is under the supervision of the State Board of Regents." Montgomery-Costa v. City of New York 26 Misc 3d 755 , 894 NYS2d 817 (Sup. Ct. NY 2009) quoting James v Board of Educ. of City of NY, 42 NY2d 357, 359, 397 N.Y.S.2D 934, 366 N.E. 2D 1291 (1977) citing NY Const., art. V, § 4; art. XI, § 2; Educ. Law §§ 301, 305. Despite the statutory changes in 2002, the DOE and the City of New York remain separate entities. Without opposition by the Petitioners, or any evidence presented to this Court to the contrary, the claims alleged against the City of New York must be dismissed.
It should be noted that the elimination of the funding for the yellow-bus pupil transportation system for certain 7th and 8th grade students was included in the 2010-2011 Budget for the City of New York, and the Mayor of the City of New York and the City of New York Councilmembers approved that Budget.
C.JUSTICIABILITY
Respondents assert that the issue of whether the decision of DOE to eliminate the funding for the Staten Island and Rockaway Peninsula variances is non-justiciable. This issue, unopposed by Petitioners, is at the heart of our government's notion of separation of powers. "[I]t is a fundamental principle of organic law that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches." Matter of New York State Inspection, Sec. Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 NY2d 233, 239, 485 NYS2d 719, 475 NE2d 90 (1984), citing People ex rel. Burby v. Howland, 155 NY 270, 282, 49 N.E. 775 (1898); see Matter of Fornario v. Clerk to Rockland County Legislature, 307 AD2d 927, 928-929, 762 NYS2d 896 (2nd Dep't 2003). "[S]eparation of powers principles generally preclude courts from intrud[ing] upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches'" Matter of Maron v. Silver , 58 AD3d 102 , 107, 871 NYS2d 404 (3rd Dep't 2008), quoting Campaign for Fiscal Equity, Inc. v. State of New York , 8 NY3d 14 , 28, 828 NYS2d 235, 861 N. E.2d 50 (2006), order affirmed as modified by, Campaign for Fiscal Equity, Inc. v. State, 29 AD3d 175, 814 NYS2d 1, 209 Ed. Law Rep. 340, 2006 NY Slip Op. 02284 (1st Dep't. 2006), order issued by Campaign for Fiscal Equity, Inc. v. State of New York, (1st Dep't. 2006), affirmed as modified by Campaign for Fiscal Equity, Inc. v. State, 8 NY3d 14, 828 NYS2d 235, 861 NE2d 50, 216 Ed. Law Rep. 200, 2006 NY Slip Op. 08630 (2006).
Justiciability is not a concept that has four distinct walls, but it holds within it the constitutional doctrine of separation of powers and identifies which issues are resolvable by the judicial branch. Jiggetts v. Grinker, 75 NY2d 411, 415, 554 NYS2d 92, 553 NE2d 570 (1990); Montano v. County Legislature of County of Suffolk , 70 AD3d 203 , 891 NYS2d 82 (2 Dep't. 2009). It ensures that the judiciary does not enter into those areas that are within the powers granted to the legislature or executive branch. See Montano. However, simply because a matter may have "political overtones, involve public policy, or implicate some seemingly internal affairs of the executive or legislative branches does not, however, render the matter nonjusticiable." Matter of Boung Jae Jang v. Brown, 161 AD2d 49, 55, 560 NYS2d 307 (2nd Dep't 1990) quoting People v. Ohrenstein, 153 AD2d 342, 411, 549 NYS2d 962 (1st dep't 1989). "Indeed, to avoid resolving questions of law merely because a case touches upon a political issue or involves acts of the executive would ultimately undermine the function of the judiciary as a coequal branch of government'" Id. quoting Matter of Anderson v. Krupsak, 40 NY2d 397, 404, 386 NYS2d 859, 353 NE2d 822 (1976). "The courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the two other branches of the government'" Korn v. Gulotta, 72 NY2d 363, 369, 534 NYS2d 108, 530 NE2d 816 (1988), quoting Saxton v. Carey, 44 NY2d 545, 551, 406 NYS2d 732, 378 NE2d 95 (1978). "[S]eparation of powers principles . . . dictate that the courts are the ultimate arbiters of constitutional text" Matter of Maron, at 107; see also Montano.
The New York Constitution, article XI, § 1 reads: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." This New York Constitutional Article requires the State to provide each child with the opportunity for a basic education free of charge. Campaign for Fiscal Equity, Inc. v. State of New York, 100 NY2d 893, 769 NYS2d 106, 801 NE2d 326 (2003). Thus, the court has the power to decide upon issues that involve this New York constitutional right.
Essentially, petitioners alleged that their access to education is denied by the elimination of the yellow-bus pupil transportation. This issue is grounded in the petitioners' constitutional right to an education. Petitioners' allegations encompass the claim that there is a lack of municipal services available that make the access to education difficult and dangerous. This issue is justiciable since it involves not merely a political issue, but the interpretation of the New York Constitutional right. See In re William, 60 Misc 2d 703, 303 NYS2d 270 (1969) (holding that it would have been proper to bring an Article 78 proceeding to question reasonableness of the discretion of a commissioner in setting a 20-mile limit for transportation of deaf children.)
D.HEARING
Routinely, petitions under the CPLR Article 78 are argued and submitted without the need for a hearing or additional discovery. The petition herein, however, could not be decided without a hearing. The process by which DOE made the decision was within the sole control of DOE, thus creating a triable issue of fact that should not be resolved upon affidavits alone. Mulligan v. Lackey , 33 AD2d 991, 307 NYS2d 371 (4th Dep't 1970), Matter of Canada Dry Bottling Co. v. O'Connell, 284 A.D. 370, 133 NYS2d 81 (1954), aff'd. 308 NY 778, 125 NE2d 164 (1955); Matter of Arcuri v. MacDuff, 286 A.D. 17, 141 NYS2d 1 (3rd Dep't 1955), vacated on other grounds, 1 AD2d 733, 147 NYS2d 115 (3rd Dep't 1955); see also 1 Benjamin, Administrative Adjudication in the State of New York, 354-356; Jaffe on Administrative Law, 502-503.
E.MOTION TO CONFORM PLEADINGS
The petitioner's pleadings are conformed to the extent that the evidence adduced at the hearing is included.
F.ARBITRARY AND CAPRICIOUS
In a proceeding pursuant to CPLR article 78 to review an administrative determination, the Court's role is limited to determining "whether respondent's determination is arbitrary and capricious, is affected by an error of law or constitutes an abuse of discretion. Matter of Solomon v. Administrative Review Bd. for Professional Medical Conduct, Dep't. of Health, 303 AD2d 788, 756 N.Y.S.2D 335 (3d Dep't 2003), appeal denied, 100 NY2d 505, 762 NYS2d 874, 793 NE2d 411 (2003); see also Matter of Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 356 N.Y.S. 2D 833, 313 N.E.2D 321 (1974). It is not for the Court to revisit the underlying factual determinations, reweigh the evidence, or substitute its judgment for that of responsible executive branch officials. See Matter of Heintz v. Brown, 80 NY2d 998, 592 NYS2d 652, 607 NE2d 799 (1992); Pell, supra, at 230; O'Buckley v. Paterson, 25 Misc 3d 1211(A), 901 NYS2d 900 (Sup. Ct. 2009).
In Pell, the Court of Appeals explained that the arbitrary and capricious standard required "[a]rbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id. at 231; see also Sacharoff v. Murphy, 182 Misc. 235, 44 NYS2d 117 (NY Sup. Ct. 1943) affd. 268 A.D. 765, 50 NYS2d 168 (1st Dep't 1944), rev'd on other grounds 294 NY 305, 62 NE2d 81 (1945), cert. denied 66 S.Ct. 59, 326 U.S. 744 (1945), cert. denied 66 S. Ct. 60, 326 U.S. 744 (1945) (holding that an administrative action without some basis which would lead a reasonable man to deem the action "arbitrary and capricious" may be reviewed by the courts). The reasonableness of the agency's determination must be judged on the grounds stated by the agency at the time of its decision. The court may not uphold the determination if the stated grounds are arbitrary and capricious. Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educational Services, 77 NY2d 753, 758, 570 NYS2d 474, 478, 573 NE2d 562, 566 (1991); see also 54 Café Restaurant v. O'Connell, 274 A.D. 428, 84 N.Y.S 2d 729 (1st Dep't. 1948), aff'd 298 NY 883, 84 NE2d 802 (1949); Barry v. O'Connell, 113 NYS2d 800 (1952) (holding that courts may not shirk their responsibility to review action claimed to be arbitrary and without foundation in law and fact). The court must only consider facts that were presented at the agency level. Fanelli v. New York City Conciliation and Appeals Bd., 90 AD2d 756, 757, 455 NYS2d 814, 816 (1st Dep't 1982) aff'd, 58 NY2d 952, 460 NYS2d 534, 447 NE2d 82 (1983).
As discussed , supra, it may be necessary for the court to take evidence or conduct a hearing, in an instance as it was here, where the basis for the agency's decision is not known as no hearing was held. See, e.g., Pasta Chef, Inc. v. State Liquor Auth., 54 AD2d 1112, 389 NYS2d 72 (4th Dep't 1976), aff'd, 44 NY2d 766, 406 NYS2d 36, 377 NE2d 480 (1978). Similarly, the basis for the agency's decision cannot be determined until the evidence relied upon it is known.
The New York State Constitution and the New York Education Law require the City School district to provide access to education for all students within their province. Pursuant to these laws, the Chancellor of the DOE set forth the pupil transportation policy for the DOE in Chancellor's Regulation. Pursuant to A-801 § 1(2):
In a small number of cases where public transit facilities are inadequate or unavailable, exceptions may be granted by the Office of Pupil Transportation to allow the use of existing contract bus service provided for children in elementary grades by pupils in grades 7 and 8. All such pupils must be otherwise eligible by meeting the distance criteria.
As of May 13, 2010, the DOE terminated compliance with this regulation. The DOE eliminated the funding for the students who fit within this regulation and internally eliminated the ability for those students to be granted an individual variance for their hazardous or limited access routes to school.
The decision to eliminate the funding for yellow-bus pupil transportation service for 7th and 8th grade students was made by Deputy Chancellor Kathleen Grimm on advice and consent of Eric Goldstein and the staff at OPT. Mr. Goldstein presented the Deputy Chancellor with the possibility of removing the funding based upon faulty assumptions. Mr. Goldstein testified that the students affected by this elimination of funding could get to school using public transportation without research of same. Mr. Goldstein did not have any empirical evidence, studies, or evidence, apart from his own assumptions, to support these conclusions. Mr. Goldstein assumed that the students affected by the elimination of funding who were subject to hazardous travel conditions or limited access to transportation could use the individual variance application to get appropriate travel accommodations, however, he forgot the email from Deputy Chancellor Grimm, Petitioner's Exh. 20, where the Deputy Chancellor wrote that DOE is not "granting these exceptions any more . Times are tough." See also Transcript p. 432 (where Mr. Goldstein testified that "[w]e do not bus 7th and 8th graders").
Mr. Goldstein testified that he understood Staten Island Students could get to school using public transportation, and that there was more public transportation in Staten Island today than when the variance began, without actual knowledge or research of same. Transcript p. 338, 343-344. This understanding was pure speculation, with no factual basis. Further, Mr. Goldstein testified that he felt it was possible for students in the 7th and 8th grade to walk the 1.5 miles from Breezy Point to public transportation, since children in the other boroughs were required to walk the same distance in similar conditions. Transcript pp. 217-220. Although upon further examination, Mr. Goldstein was unable to support his conclusion that other children did so, as he was unable to cite another area within the City of New York in which children were required to walk 1.5 miles to public transportation, let alone under similar conditions. Transcript pp. 217-219. Further, Mr. Goldstein did not disclose how he came to his conclusions concerning the children affected by the variances, if he or OPT had visited the single route that Breezy Point students would traverse to get to public transportation, and if any investigation was done before the decision was made on May 13, 2010.
Deputy Chancellor Grimm relied upon the representations of Mr. Goldstein and she was well informed of the ramifications of the decision. Deputy Chancellor Grimm knew that DOE was not planning on granting individual variances for 7th and 8th grade students despite the hazardous conditions present on their route to school or their limited access to public transportation. Petitioner's Exh. 20. Deputy Chancellor Grimm testified that she considered a lot of "what-ifs," including the availability of MetroCards. However, the cost of MetroCards for the 7th and 8th grade students, and whether that cost would inhibit availability of MetroCards was not known until after the decision was made. Transcript p. 93, 382-3, 398, 759; Plaintiff's Exh. 23. Further Deputy Chancellor Grimm had no information on students in other boroughs which had similar travel conditions as those students affected by the decision or a 1.5 mile distance walk to public transportation like those student residents of Breezy Point. Transcript p. 14-22, 219, 336, 774.
The evidence adduced at the hearing and the respondents' submissions are clear, prior to the May 13, 2010 decision date, the respondents did not utilize any clinical data, studies, or analysis of information concerning the affected areas that were to lose 7th and 8th grade yellow-bus pupil transportation. The respondents did not present any evidence that the decision, as it was made before May 13, 2010, was based on anything more than the personal knowledge of the DOE decision-makers, none of which were presented as having personal knowledge of Richmond County or Rockaway Peninsula. Neither Mr. Goldstein nor Deputy Chancellor Grimm knew the costs of MetroCards and if they would be available for students when they assumed that these affected students would use MetroCards. Neither knew the exact hazards of the routes of Staten Island or Breezy Point students and if they were similar to the routes of students in other boroughs, while assuming that these students could traverse their routes since other students around the City of New York did so. Mr. Goldstein assumed that students whose routes were hazardous or with limited access to public transportation could utilize the individual variance process, when those variances were apparently no longer available to 7th and 8th grade students. Yellow-bus pupil transportation for students in areas with limited access to public transportation, which existed for over thirty years for Breezy Point and over forty years for Staten Island, cannot be eliminated in the swipe of a pen. The decision must be based upon conclusions, not assumptions, as anything less than that is unfair to the residents in these areas.
This Court is sympathetic to the dilemma facing the DOE. The administration is faced with increasing difficulty balancing a budget that cuts costs and maintains public services. This court is aware of the painstaking work involved in reaching the decisions that affect the citizens of this city, whether those decisions are received with applause or anger. However, not all decisions are given the deliberation that the laws of the State of New York require, and that is what has occurred herein. Budgetary decisions that affect pupil education cannot be made on assumptions without a factual basis to support those assumptions. This is not what the taxpayers of the City of New York deserve. The decision makers at the DOE considered many factors, but investigated none before making the decision final. It cannot be said that the decision to eliminate the yellow-bus pupil transportation for 7th and 8th grade students had a foundation in law or fact. The decision to eliminate the funding for yellow-bus pupil transportation for 7th and 8th grade students was made without concern for the welfare and safety of the affected students with a bald belief that the matter was not justiciable. Thus, this decision must be vacated as it was made in an arbitrary and capricious manner, and the yellow-bus pupil transportation for 7th and 8th grade students in Staten Island and Rockaway Peninsula must be reinstated. Accordingly, it is hereby
ORDERED, that the claims of petitioners Vincent M. Ignizio, James S. Oddo, Deborah Rose, and Eric Ulrich are dismissed; and it is further
ORDERED, that the claims of petitioners alleged against the Respondent City of New York are dismissed; and it is further
ORDERED, that the issues within the petition are justiciable; and it is further
ORDERED, that the petitioners' pleadings are conformed to the extent of the evidence adduced at the hearing; and it is further
ORDERED, that the decision by the DOE to eliminate the funding for yellow-bus pupil transportation for 7th and 8th grade students was arbitrary and capricious and is vacated, thus, the variances remain in effect; and it is further
ORDERED, that all other requested relief is denied.