State ex rel. Luchette v. Pasquerilla
| Decision Date | 01 May 2009 |
| Docket Number | No. 2008 T 94.,2008 T 94. |
| Citation | 182 Ohio App.3d 418,2009 Ohio 2084,913 N.E.2d 461 |
| Parties | The STATE ex rel. LUCHETTE, Appellant, v. PASQUERILLA et al., Appellees. |
| Court | Ohio Court of Appeals |
Ronald James Rice, Hubbard, for appellant.
John Britton, Sara Moore, and David Hirt, Cleveland, for appellees.
{¶ 1} Relator-appellant, Valerie Luchette, appeals the decision of the Trumbull County Common Pleas Court, which dismissed her petition for a writ of mandamus and ruled in favor of respondent-appellee Board of Education of Brookfield Local School District. Appellant claims that the school district is required to provide transportation to her child. The school district claims that appellant has an adequate remedy at law under R.C. 3327.02(F) and (G) and alternatively states that the Ohio State Board of Education's resolution did not actually order the school district to perform any action. Essentially, this appeal involves the following question of statutory interpretation:
{¶ 2} Whether a local school district board of education can be compelled by a court to provide transportation when that school district continues to offer payment in lieu of transportation notwithstanding the State Board of Education's determination that transportation is not impractical under R.C. 3327.01 and 3327.02.
{¶ 3} For the following reasons, we conclude that a court can compel a school district to provide transportation when the school district's continued offer of payment in lieu of transportation is in violation of an order of the State Board of Education. The trial court's dismissal is thus reversed. Procedurally, this case must be remanded, as an answer has not yet been filed. In making any rulings, the trial court shall follow the law as set forth herein. Based upon our decision, we hereby issue a peremptory writ ordering the Board of Education of Brookfield Local School District to provide transportation to JFK pending the trial court's final resolution of the matter.
{¶ 4} Appellant and her child live in Brookfield Local School District, but the child attends John F. Kennedy High School ("JFK") in Warren, Ohio, a nonpublic school. On September 20, 2006, the Brookfield Board of Education ("the school district") passed a resolution under R.C. 3327.02(A) and (B)(1), finding that transportation of appellant's child and three other pupils to JFK was impractical.
{¶ 5} Pursuant to R.C. 3327.02(A)(3), the Trumbull County Educational Service Center reviewed the decision and agreed with the school district, permitting the school district to offer payment in lieu of transportation. The parents rejected the offer and requested mediation from the Ohio Department of Education as permitted by R.C. 3327.02(E)(1)(a). When mediation did not resolve the dispute, a hearing officer at the Ohio State Board of Education ("state board") conducted a Chapter 119 hearing as required by R.C. 3327.02(E)(1)(b).
{¶ 6} On November 16, 2007, the hearing officer recommended that the state board decline confirmation of the school district's "impracticality" decision. The hearing officer found that in making its resolution, the school district considered only two of the six statutory factors and that its decision on one of those factors was uninformed, as neither a new driver nor a dedicated route would be necessary.
{¶ 7} On January 8, 2008, the state board approved the recommendation of the hearing officer and declined to confirm the school district's determination that transportation to JFK would be impractical. The parties were advised that any appeal from the state board's action had to be filed within 15 days under R.C. 119.12. No appeal was taken.
{¶ 8} Notwithstanding the state board's refusal to confirm its impracticability resolution, the school district persisted in refusing to provide transportation. Thus, appellant filed a complaint for a writ of mandamus in the Trumbull County Common Pleas Court on February 21, 2008, seeking an order requiring the school district to provide transportation to JFK. She attached the decision of the hearing officer and the state board.
{¶ 9} On March 24, 2008, the school district filed a motion to dismiss. The motion claimed that the January 8, 2008 order of the state board did not actually order the school district to perform any action. The motion also alleged that appellant had an adequate remedy at law under R.C. 3327.02(F) and (G), which discuss payment when the school district fails to provide transportation. The school district urged that R.C. 3327.02 contains no remedy of actual transportation.
{¶ 10} Appellant responded that R.C. 3327.02(F) and (G) are mere temporary remedies for use pending the state board's decision. She attached a letter from the Department of Education's attorney suggesting that these divisions apply only until the final state board action and opining that the code does not contemplate a situation in which the school district fails to comply with the state board's determination. Appellant urged that mandamus was the only remedy by which she could force the school district to perform its duty to provide transportation. She also pointed out that the school district failed to appeal the state board's decision refusing to confirm the school district's resolution.
{¶ 11} The case was transferred to a visiting judge, who held a status conference on June 25, 2008. In an entry the next day, the court stated that the case was marked as heard and submitted, noting that it would rule before school started again. The court ordered the parties to research the intent behind the statute and to submit proposed findings of fact and conclusions of law. The school district's proposal cited a piece of legislative history that labeled R.C. 3327.02(F) and (G) as "sanctions for failure to transport."
{¶ 12} On August 22, 2008, the trial court granted the school district's motion to dismiss. The court stated that the legislative history demonstrated that the remedy for failure to transport is payment in lieu of transportation. The court found that appellant had thus failed to exhaust her administrative remedies and that she had an adequate remedy at law, that of payment in lieu of transportation. The court concluded that the state board's authority was limited to that of enforcing payment in lieu of transportation.
{¶ 13} On September 16, 2008, appellant filed timely notice of appeal in the Eleventh District Court of Appeals. The case was transferred to a visiting panel from the Seventh District Court of Appeals. Briefing was completed in February 2009, and oral arguments were heard on April 8, 2009.
{¶ 14} When it comes to providing transportation, there is no distinction in the treatment of a school district's resident school pupils who attend public school and those who attend nonpublic school, as long as the direct travel time does not exceed 30 minutes. R.C. 3327.01. Regarding any student, R.C. 3327.01 also provides: "Where it is impractical to transport a pupil by school conveyance, a board of education may offer payment, in lieu of providing such transportation in accordance with section 3327.02 of the Revised Code."
{¶ 15} Pursuant to this latter statute, the school district may pass a resolution determining that it is impractical to transport a pupil after considering each of the factors listed in the statute. R.C. 3327.02(A)(1) through (6) and (B)(1). The school district shall submit its determination to the state board and to the county's educational service center. R.C. 3327.02(B)(2) and (3). If the county's educational service center considers transportation practicable, it shall inform the school district that it shall provide transportation. R.C. 3327.02(B)(3). If the county's educational service center agrees with the view of the school district, then the school district can offer payment in lieu of transportation as further provided in the statute. Id.
{¶ 16} In order to offer payment in lieu of transportation, the school district must provide notice to the parent of the affected pupil that he or she has the right to accept payment in lieu of transportation or the right to reject the offer and to proceed to mediation, and the school district must provide a contract or form on which the parent can accept the offer or reject the offer and request mediation. R.C 3327.02(C)(1) and (2). If the parent accepts the offer, the school can pay the parent a minimum amount as published by the department of education up to a maximum amount, which represents the average cost of pupil transportation for the prior year. R.C. 3327.02(D).
{¶ 17} If the parent rejects the payment and requests mediation, the Department of Education shall conduct mediation. R.C. 3327.02(E)(1)(a). If mediation does not resolve the dispute, the state board shall conduct a Chapter 119 administrative hearing. R.C. 3327.02(E)(1)(b). Thereafter:
{¶ 18} "The state board may approve the payment in lieu of transportation or may order the board of education to provide transportation." (Emphasis added.) R.C. 3327.02(E)(1)(b).
{¶ 19} This decision is binding in subsequent years and on future parties if the facts of the determination remain comparable. Id. From the time mediation is requested until the matter is resolved under division (E)(1)(a) (mediation) or (E)(1)(b) (state board decision), the school district shall provide transportation for the pupil. R.C. 3327.02(E)(2). The statute continues:
{¶ 20} "If the department determines that a school district board has failed or is failing to provide transportation as required by division (E)(2) of this section or as ordered by the state board under division (E)(1)(b) of this section, the department shall order the school district board to pay to the pupil's parent, [the maximum amount] on a schedule ordered by the department." (Emphasis added.) R.C....
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