Decision No. 13,695

(October 24, 1996)

J. Peter Doherty, Esq., attorney for petitioner, Davis M. Etkin, Esq., of counsel

Buchyn & Buchyn, Esqs., attorneys for respondent

MILLS, Commissioner.--Petitioner appeals respondent's suspension of her daughter for the 1995-96 school year. The appeal must be dismissed.

Petitioner's daughter is a student attending respondent's middle school. On June 14, 1995, petitioner's daughter and two other students were suspended for five days for their involvement in an incident that occurred on June 12, 1995 and which concerned the bringing of a handgun onto school premises. Petitioner was subsequently notified that a hearing would be held to consider additional discipline against her daughter. The hearing was held on June 16 and 30, 1995. In a letter to petitioner dated August 9, 1995, respondent's superintendent indicated that she had accepted the hearing officer's finding that petitioner's daughter possessed a .32 caliber handgun in school and his recommendation that she be suspended from all school academic and extracurricular activities for one year commencing with the beginning of the 1995-96 school year. Petitioner then appealed to respondent, which affirmed its superintendent's action by letter dated November 13, 1995.

Prior to respondent's affirmance, petitioner commenced an action against respondent's superintendent in U.S. District Court and sought a temporary restraining order to prohibit the enforcement of her determination. On September 1, 1995, the District Court denied the request for a restraining order and on October 4, 1995, the court denied petitioner's motion for reconsideration.

Petitioner commenced this appeal pursuant to Education Law '310 on January 16, 1996. On January 31, 1996, I denied petitioner's request for a stay.

Petitioner contends that respondent violated her and her daughter's right to a fair hearing under Education Law '3214(3)(c) and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Specifically, petitioner alleges that the father-son relationship of respondent's attorney and the hearing officer, their professional relationship as members of the same law firm, and their relationship to the school district as providers of legal services to the school district, precluded a fair hearing for petitioner and her daughter. Petitioner also contests the nature of and the findings made with regard to the charges against her daughter, including the appropriateness of a charge alleging a violation of the Gun-Free Schools Act of 1994. In addition, petitioner contends respondent failed to disclose all anticipated witnesses and provide a summary of their expected testimony. Lastly, petitioner challenges the hearing officer's action in conducting, prior to her daughter's hearing, a separate proceeding to hear evidence against the other two students involved in the incident.

Respondent denies that petitioner and her daughter were not provided a fair hearing. Respondent also contends that the appeal must be dismissed for untimeliness and because of petitioner's election of remedies in choosing to appeal her daughter's suspension to a U.S. District Court.

There is nothing in the record to indicate whether the federal judicial proceeding has reached a final resolution and I must therefore assume that such proceeding continues. My comparison of the petition filed in this appeal and the verified petition filed in the District Court indicates that this appeal and the federal proceeding concern the same set of facts, raise essentially the same issues and principally seek the same relief. Both appeals concern, or raise issues that are inextricably intertwined with, an alleged denial of the due process rights of petitioner and her daughter to a fair hearing, and both appeals seek to annul respondent's determination to suspend petitioner's daughter. This includes petitioner's allegations concerning the Gun-Free Schools Act of 1994, which raise due process/fair hearing issues involving proper and adequate notice of the charges.

The Commissioner of Education will not entertain an appeal pursuant to Education Law '310 while there is pending in another forum an action involving the same issues and seeking similar relief (Appeal of Campbell, 33 Ed Dept Rep 132, 134; Appeal of Young, 22 id. 256, 257-258). By first choosing to have these issues determined in U.S. District Court, petitioner has elected her remedy, and it would be contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Id.).

The appeal must therefore be dismissed. Since I am dismissing the appeal on the foregoing procedural ground, it is not necessary for me to determine the remaining issues raised by the parties.

THE APPEAL IS DISMISSED.

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