Decision No. 13,778

(June 19, 1997)

Krieger & Prager, Esqs., attorneys for petitioners, Steven D. Prager, Esq., of counsel

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") to suspend their son for one day. The appeal must be dismissed.

Petitioners are the parents of Nicholas Goldberg, a high school senior in respondent's district. On April 15, 1996, Nicholas was walking with two other students in the student parking lot. An incident ensued between Nicholas and a student who was driving in the parking lot. The facts are in dispute as to the exact nature of the confrontation between the parties. By letter dated April 30, 1996, the principal informed petitioners that the district had conducted an investigation and that discipline was being considered for the students involved, including Nicholas. In his letter, the principal suggested that the matter be disposed of by either the imposition of a one day suspension or the payment of retribution for the damage Nicholas caused to the other student's vehicle.

By letter dated May 30, 1996, petitioner Michele Goldberg wrote to respondent's deputy superintendent, requesting that she review the matter. Upon review, the deputy superintendent determined that a one day suspension was appropriate. By letter dated June 4, 1996, petitioner Michelle Goldberg requested that the superintendent review the matter. The superintendent replied to petitioner by letter dated June 10, 1996, and determined that a superintendent's hearing would be scheduled to review the matter thoroughly. By letter dated June 13, 1996, petitioners were given notice of the charges against Nicholas and informed that a hearing would be conducted pursuant to Education Law '3214(3) on June 19, 1996.

The hearing was held on June 19 and 28, 1996 before a hearing officer. On August 22, 1996, the hearing officer rendered an opinion and recommendation, finding Nicholas guilty of the charges and recommending a suspension of two days for each of the two charges, with the suspensions to be served concurrently. Upon review of the hearing officer's recommendation, the superintendent found Nicholas guilty of the charges and notified petitioners of his determination in a letter dated August 27, 1996. Based upon the fact that Nicholas did not have a prior disciplinary record, the superintendent imposed a suspension of one day for each charge, to be served concurrently on Friday, September 6, 1996.

Petitioners' attorneys sought respondent's review of the superintendent's determination to suspend Nicholas for one day and requested that respondent stay the implementation of suspension. By letter dated August 30, 1996, the superintendent determined that he would stay the implementation of the suspension pending respondent's review. By letter dated September 3, 1996, respondent's board president informed petitioners' counsel that respondent had scheduled a meeting with the school attorney to discuss the procedures respondent should follow in reviewing the superintendent's determination. By memorandum dated November 6, 1996, the school attorney advised respondent of the procedures for reviewing the superintendent's determination. On November 7, 1996, respondent met in executive session to review the determination. On November 14, 1996, respondent passed a resolution affirming the determination of the superintendent. Petitioners were informed of respondent's determination by letter dated November 15, 1996 and Nicholas was directed to serve his one day suspension on November 27, 1996.

By letter dated November 20, 1996, petitioners' attorney requested that respondent stay the implementation of the November 27th suspension pending a review of respondent's determination by the Commissioner of Education. Respondent convened a special meeting on November 25, 1996 to consider petitioners' request but declined to stay the suspension. On November 27, 1996, petitioners commenced an Article 78 proceeding in Nassau County Supreme Court, seeking a preliminary injunction pending exhaustion of petitioners' administrative appeal to the Commissioner of Education. On December 11, 1997, petitioners commenced this appeal which contained a request for interim relief. Petitioners' request for interim relief was denied by the Commissioner on December 20, 1996.

The Nassau County Supreme Court denied petitioner's application for a preliminary injunction by order dated January 23, 1997. By letter dated January 24, 1997, the superintendent directed Nicholas to serve his one day suspension on January 30, 1997. On January 28, 1997, petitioners filed a notice of appeal in the Appellate Division, Second Department, for a temporary restraining order and a stay to enjoin the one day suspension. The Appellate Division granted the temporary restraining order and set a return date of February 4, 1997, on the application for a preliminary injunction.

Petitioners allege that the hearing officer erred in refusing to consider the credibility of the witnesses presented on behalf of Nicholas, that the penalty is disproportionate to the charges, that petitioners may not be forced to choose between restitution and suspension, that respondent failed to follow the proper procedures at the superintendent's hearing, that respondent failed to provide petitioners with an informal conference with the principal pursuant to Education Law '3214(3)(d) and 8 NYCRR 100.2(1)(4) and that petitioners were prejudiced because no proof was offered that Nicholas caused damage to the other student's car.

Respondent contends that petitioners have failed to meet their burden of proof and that petitioners' claims regarding the principal's suggestion of restitution is moot since petitioners rejected the principal's suggestion and placed the matter before the superintendent. Respondent also contends that petitioners' reply contains new allegations and exhibits that should not be considered. Respondent also contends, contrary to petitioners' contention, their counsel was permitted to be present at the superintendent's hearing, and did, in fact, attend. Respondent further contends that since the principal did not impose a suspension on the student, petitioners' claims that they were not afforded an informal conference are without merit. Finally, respondent contends that its decision to suspend the student was based on competent and substantial evidence and should not be overturned.

Before reaching the merits, I will address some of the procedural claims raised by the parties. First, respondent contends that petitioners' reply contains allegations and exhibits that were not set forth in the original petition and which are not responsive to the procedural defenses set forth in the answer. The purpose of a reply is to respond to procedural defenses or new material contained in an answer, not to buttress allegations contained in the petition or add assertions or exhibits that should have been included in the petition (8 NYCRR 275.3 and 275.14; Appeal of Jarosz, 34 Ed Dept Rep 600). My review of the reply indicates that petitioners have belatedly submitted a verification and have added assertions. Therefore, those portions of the reply will not be considered.

Secondly, petitioners contend that the principal's initial suggestion of restitution by Nicholas to resolve the matter between the parties was inappropriate. In a letter dated April 30, 1996, the principal suggested, pursuant to the school's student discipline code, that the petitioners and the other student's family agree on the amount of restitution and stated that he would not impose an out of school suspension for Nicholas. While petitioners contend that the principal's offer was inappropriate under Matter of Berkman, 21 Ed Dept Rep 590, I do not agree that the situation here is similar to the facts in Berkman. In Berkman, the Commissioner noted that the suspension or continued suspension of a student from classes at the high school cannot be contingent on the payment of any moneys by the parents under Education Law '3214. Since Nicholas' return to school was not contingent upon the payment of funds, I do not find Berkman persuasive in this case. Furthermore, I agree with respondent that the matter is moot since the superintendent's decision to hold a hearing pursuant to Education Law '3214 voided any action on the part of the principal.

Likewise, petitioners' claims that they were denied an informal hearing with the principal are also without merit, since the superintendent scheduled a hearing pursuant to Education Law '3214 and respondent provided Nicholas with more due process than he was entitled to given the length of the suspension in question.

Lastly, petitioners contend that their counsel was not present at the superintendent's hearing. That allegation is not supported by the record which indicates that petitioners' counsel was present on June 19 and 28, 1996. Petitioners may be referring to respondent's review of the superintendent's recommendation and object to the presence of the school attorney at the board meeting on November 7, 1996. The review of the board of education concerning a student discipline matter is not a hearing, and the presence of the school district attorney is not a conflict of interest (Appeal of Chapman, 28 Ed Dept Rep 272; Matter of Payne, 18 id. 280). Respondent has the right to seek the advice of the school attorney on legal questions relating to the disciplinary proceeding (Appeal of Thomas and Judith K., 30 Ed Dept Rep 245). Therefore, petitioners' claims of procedural violations regarding the presence of school district counsel are without merit.

I will now address the merits of petitioners' appeal. The decision to suspend a student must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Osoris, 35 Ed Dept Rep 250; Appeal of Kittell, 31 id. 419). The record in this case indicates that petitioners' son and another student had an altercation in the school parking lot on April 15, 1996. After significant correspondence and disagreement between the parties, a superintendent's hearing was held to resolve the matter, even though a hearing under Education Law '3214 was not required. The hearing officer heard the testimony of the witnesses, and rendered a decision concerning the matter. The hearing officer specifically stated:

Petitioners argue that the hearing officer failed to credit Nicholas' witnesses' account of the incident. However, I find no basis in the record to overturn the hearing officer's findings as to witness credibility. The Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by the facts in the record (Appeal of Kittell, supra; Appeal of John T., 30 Ed Dept Rep 1; Appeal of Chapman, supra). Here, the hearing officer's findings of credibility are supported by the record Accordingly, there is no basis to overturn his findings of guilt.

Finally, although I note that petitioners have commenced other proceedings in State Supreme Court and the Appellate Division, Second Department, with regard to the imposition of the suspension, I do not find that petitioners have elected a remedy which precludes me from reaching the merits of this case. The parties have failed to enter into the record any subsequent determinations made by the State Supreme Court or Appellate Division with regard to this matter. Therefore, since the record contains no evidence of a judicial determination on the merits, I have reached a determination here.

THE APPEAL IS DISMISSED.

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