Summary
In Pushay, the state board was named as a party and apparently made no objection. Pushay, however, is not controlling in this case because the issue of whether the state board is a proper party to such an appeal was not before the court.
Summary of this case from Haig v. Ohio State Board of EducationOpinion
No. 84-1568
Decided July 24, 1985.
Schools — Bus transportation for children attending non-public schools — R.C. 3327.01 — State Board of Education's order not supported, when.
APPEAL from the Court of Appeals for Franklin County.
Appellants, Robert and Joan Pushay and Richard and Alvera Billock, represent families whose children attend St. Matthias School and Cardinal Mooney High School in Mahoning County, Ohio. All of the families reside within the district of appellee Springfield Local Schools (hereinafter "local board"). However, the parochial schools mentioned above are located in an adjacent district.
In March 1982, a group of the parents formally petitioned the local board to provide bus transportation for their children attending the non-public high school. After an investigation concerning the costs and feasibility of providing the transportation, the local board passed a resolution on May 10, 1982, which denied the parents' request on the basis that it would be unreasonable and impractical to provide such transportation. The resolution was upheld by the Mahoning County Board of Education.
Subsequent to the orders of the local and county boards, appellee State Board of Education (hereinafter "state board") adopted a procedure to resolve non-public school transportation disputes in accordance with R.C. 3327.01 and this court's decision in Hartley v. Berlin-Milan Local School Dist. (1982), 69 Ohio St.2d 415 [23 O.O.3d 370]. Pursuant to this procedure, a factfinding mediation conference was held, but was unsuccessful in resolving the dispute. The matter was then submitted back to appellee state board which, in turn, referred it to a referee in accordance with R.C. 119.09.
A two-day hearing was held before the referee in which the parties presented testimony and evidence in support of their positions. On March 31, 1983, the referee issued his report and recommended that the local board's resolution not be confirmed by the state board. The referee noted that the evidence was contradictory and the cost figures relating to the additional busing were easily slanted to support the respective arguments. However, the referee specifically found that numerous figures presented by appellee local board were less than accurate in that costs were inflated, certain cost factors inappropriately included, and actual mileage totals were falsified. Therefore, the referee ruled that there was insufficient credible evidence to support the local board's resolution.
In response to this report, the parties submitted objections to the referee's recommendation. On June 13, 1983, appellee state board rejected the report and affirmed the local board's resolution.
Appellants subsequently perfected an appeal to the Court of Common Pleas of Franklin County pursuant to R.C. 119.12. The trial court reversed the state board's resolution by ruling that it was based on nothing more than an examination of the referee's report and the local board's objections thereto. The court held that the state board failed to set forth its basis for rejecting the referee's recommendation as mandated by R.C. 119.09. Thus, there was a lack of reliable, probative and substantial evidence in support of the state board's resolution.
Upon yet further review, the court of appeals reversed the decision of the trial court and remanded the cause with instructions to reinstate the state board's resolution. The appellate court held that the decision of the state board was supported by reliable, probative, and substantial evidence, and that its resolution confirming the local board's resolution complied with the requirements of R.C. 119.09.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Murphy, Young Smith Co., L.P.A., David J. Young, Steven W. Tigges, McLaughlin, McNally Carlin and Richard P. McLaughlin, for appellants.
Anthony J. Celebrezze, Jr., attorney general, and Gary E. Brown, for appellees Walter, Superintendent of Public Instruction, and State Board of Education.
Dennis M. Whalen Co., L.P.A., Dennis M. Whalen and G. Frederick Compton, Jr., for appellee Springfield Local Schools.
This court's standard of review concerning administrative decisions is limited in the same manner as the courts below. We will not substitute our judgment for that made by the state board if there is some evidence supporting the board's resolution. See Harris v. Lewis (1982), 69 Ohio St.2d 577, 578 [23 O.O.3d 485]; State, ex rel. Ogan, v. Teater (1978), 54 Ohio St.2d 235, 247 [8 O.O.3d 217]. Therefore, the issue presented is whether the state board's order, which confirmed the local board's resolution that bus transportation for the non-public school children was unreasonable and impractical, and was supported by reliable, probative, and substantial evidence. R.C. 119.12. The court of appeals reversed the trial court and upheld the state board's resolution. For the reasons which follow, we reverse.
In Hartley, supra, this court held that local school boards must strictly comply with the mandates of R.C. 3327.01 before making payments in lieu of bus transportation for non-public school children. Id. at paragraph two of the syllabus. Writing for the majority, Justice Locher noted that a local school board may not make a unilateral judgment, but that R.C. 3327.01 requires the State Board of Education to confirm the decision. Justice Locher also stated that under the statute, "transportation is the rule and payment is the exception." Id. at 416.
R.C. 3327.01 provides in relevant part:
"In all city, exempted village, and local school districts where resident school pupils in grades kindergarten through eight live more than two miles from the school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code and to which they are assigned by the board of education of the district of residence or to and from the non-public school which they attend the board of education shall provide transportation for such pupils to and from such school, except when, in the judgment of such board, confirmed by the state board of education, such transportation is unnecessary or unreasonable.
"* * *
"In determining the necessity for transportation, availability of facilities and distance to the school shall be considered.
"A board of education shall not be required to transport elementary or high school pupils to and from a non-public school where such transportation would require more than thirty minutes of direct travel time as measured by school bus from the collection point as designated by the coordinator of school transportation, appointed under section 3327.011 of the Revised Code, for the attendance area of the district of residence.
"Where it is impractical to transport a pupil by school conveyance, a board of education may, in lieu of providing such transportation, pay a parent, guardian, or other person in charge of such child, an amount per pupil which shall in no event exceed the average transportation cost per pupil, such average cost to be based on the cost of transportation of children by all boards of education in this state during the next preceding year."
In accordance with the provisions of R.C. 3327.01 and this court's decision in Hartley, the state board has adopted specific criteria in an effort to guide the determinations of local school boards when they are confronted with the feasibility question of providing bus transportation to non-public school children. These factors are similar to those set forth by Justice Sweeney in his concurring opinion in Hartley, supra.
The board of education determines whether such transportation is unnecessary, unreasonable, or impractical by considering the following criteria:
"[1.] The time and distance required to provide such transportation;
"[2.] The cost of providing transportation in terms of equipment, maintenance, personnel, and administration;
"[3.] The number of pupils to be transported to non-public schools;
"[4.] Whether the board provides similar or equivalent service to public school pupils, e.g., it may be impractical for a school district operating neighborhood schools to provide bus service for non-public pupils when it provides no such service for public school pupils;
"[5.] Whether and to what extent this additional service to non-public schools unavoidably disrupts current transportation schedules; and
"[6.] State Board of Education approved alternatives to board owned and operated school buses are not reasonably available. These alternatives include contractor owned and operated school buses, public utility, board owned vehicles other than school buses, and privately owned vehicles other than school buses. (Chapter 3301-83, Ohio Administrative Code)."
All parties herein agree that this controversy centers on the cost-related figures concerning the additional busing required to transport these children to the parochial schools in question. Appellees contend that excessive costs may be a basis for a determination that transportation by school conveyance is unreasonable. However, we find that such issue need not be reached as there is a lack of credible evidence in support of the cost figures submitted by the local board which were ultimately accepted by the state board.
Given the strict language of our decision in Hartley, a local school board certainly has the burden to establish that its resolution is lawful so that payment can be made in lieu of transportation. Here, the local board has failed to substantiate its cost figures for numerous reasons. First, concerning the total cost of transporting all pupils to and from school, the local board included the costs for field trips, athletic events and other extra-curricular activities which distorted such figure. Turning to the figures relative to the transportation of non-public children, there was evidence in the record that the actual mileage to and from the parochial schools was falsified, as one bus driver was instructed to drive around in an empty bus to gain additional mileage. In addition, the wage figure used by the local board for bus drivers transporting non-public students was, for no apparent reason, approximately twenty-five percent higher than the wages of other drivers. The cost of fringe benefits was also included within the figure when, in fact, some drivers do not receive these benefits. There was further evidence that the afternoon bus routing of non-public students was not done in the most economical fashion. Finally, the number of non-public students to be transported by bus was set at nineteen by the local board when, in all probability, at least thirty students would take advantage of such transportation.
All of these factors distorted the cost figures which the local board substantially relied upon in presenting its argument at the numerous hearings on this matter. Other than what appears to be quite questionable data as submitted by the local board, we can find no remaining evidence to support the state board's order which confirmed the local board's resolution. Therefore, the state board's order is not supported by reliable, probative, and substantial evidence as required by R.C. 119.12. The judgment of the court of appeals is hereby reversed.
Judgment reversed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.