Decision No. 13,855

(December 30, 1997)

MILLS, Commissioner.--Petitioner appeals the determination of the superintendent of the Red Hook Central School District ("respondent") to suspend her son, Christopher. The appeal must be dismissed.

On October 23, 1996, Christopher engaged in behavior that caused him to be suspended by the school principal for five days. He was charged with three incidents of insubordinate, disrespectful and disruptive behavior and suspended from October 24 through 30, 1996. A superintendent’s hearing pursuant to Education Law "3214 was scheduled for October 30. The hearing was adjourned at petitioner’s request to obtain counsel, conditioned upon an order by the hearing officer that Christopher would remain on suspension with home tutoring.

The hearing took place on November 7 and 15, 1996. The hearing officer issued both preliminary and final written findings of fact and recommendations because of the extended hearing. Prior to the final recommendation, petitioner’s husband submitted a rebuttal to the hearing officer by letter dated November 16, explaining many of the incidents in Christopher’s anecdotal record. The hearing officer found Christopher guilty of specifications 1 and 3 of the charges and recommended that he be suspended for the remainder of the fall semester until January 30, 1997. Respondent’s superintendent, Dr. Willard Rock, adopted the hearing officer’s final recommendation on November 27, 1996. By letter dated November 29, 1996, to the superintendent, Mr. Snetzko objected to the decision to suspend Christopher. Since that letter did not specifically request an appeal of the superintendent’s decision to respondent, Dr. Rock requested that Mr. Snetzko clarify his intent. By letter dated December 5, 1996, Mr. Snetzko requested respondent’s review of Dr. Rock’s November 27, 1996 determination.

On December 17, 1996, the district clerk informed Mr. Snetzko that respondent would hear his appeal on January 9, 1997. Prior to that hearing, on December 23, 1996, the district treasurer was served with a petition pursuant to Education Law "310. By letter dated December 24, 1996, that petition was rejected by my Office of Counsel for failure to comply with 8 NYCRR ""275.8 and 275.11 regarding the requirements for personal service and notice. The petition was reserved on Dr. Rock on January 3, 1997. Respondent heard the appeal on January 9. By letter dated January 17, respondent’s president sustained Dr. Rock’s determination and denied the appeal.

Petitioner contends she wasn’t given enough time to obtain an attorney for the November 7 hearing and that the hearing proceeded over her objections. She alleges that the hearing commenced on the sixth day of Christopher’s suspension and that she did not receive any of the teachers’ reports until the hearing. She asserts that the teachers lied under oath regarding Christopher’s actions and their responses. Finally, she alleges that the district failed to provide Christopher with home tutoring for four weeks from the time of the suspension through the hearing. Petitioner requests that Christopher’s record be expunged regarding the incident, that he be allowed back in school without being harassed by teachers and administrators, that disciplinary actions be brought against those individuals involved who violated Christopher’s civil rights, and any other appropriate relief.

Respondent argues that the petition should be dismissed for failure to state a claim, failure to join necessary parties and failure to exhaust administrative remedies. Respondent also contends that the Commissioner lacks jurisdiction over claims concerning civil rights, and that the Commissioner does not have jurisdiction in a matter decided in another forum.

I will first address several procedural issues. It is well settled that under Education Law "3214(3)(c), review of the superintendent’s decision by the board of education is a prerequisite to bringing an appeal to the Commissioner under Education Law "310 (Appeal of Doty, 35 Ed Dept Rep 134; Appeal of Khan, 35 id. 129; Matter of Ahern, 22 id. 123). Education Law "3214(3)(c) provides in pertinent part:

In this case, the record reveals that although petitioner names the board of education as a respondent in this appeal, the appeal was commenced prior to the board’s review of the superintendent’s determination, scheduled for January 9, 1997. (As noted above, the petition was improperly served on December 23, 1996, and not reserved until January 3.) Therefore, the appeal is premature and I am compelled to dismiss for failure to exhaust administrative remedies (Appeal of Doty, supra; Appeal of Khan, supra).

Respondent also argues that the petition must be dismissed because petitioner failed to join necessary parties. Petitioner requests that disciplinary action be taken against unnamed teachers and administrators. Presumably, those individuals are teachers Griffin and Roberts, whose referrals led to the suspension, and Principal Paisley, Assistant Principal Waters and Superintendent Rock. Their rights would be adversely affected by a determination in petitioner's favor regarding any disciplinary action brought against them. Therefore, they are necessary parties and should have been joined to the petition as such. Thus, to the extent the petitioner requests that I take action against any individuals other than respondent board of education, those claims must be dismissed in accordance with 8 NYCRR "275.8 for failure to properly join such individuals as parties to this appeal (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeal of Duffy, 36 id. 257; Appeal of Cardinal, 35 id. 76; Appeals of Skates and Poole, 35 id. 40; Appeals of Lindauer and McKee, 34 id. 596; Appeal of Smith, 34 id. 346). Moreover, to the extent petitioner seeks disciplinary action against district employees and not school officers, it is the board of education that has the authority to take such disciplinary action, not the Commissioner.

With regard to respondent’s claim concerning matters decided in another forum, petitioner had previously filed a civil suit against the district and certain district employees. That civil suit was instituted more than two years before the incident giving rise to the suspension in this case and concerned actions taken by different teachers at another school within the district. However, Superintendent Rock was named in that lawsuit and petitioner also seeks disciplinary action against him in the instant appeal. On February 10, 1997, a jury in that case returned a verdict of "no cause" on each claim against the district and the complaint was dismissed in its entirety. To the extent there are any overlapping issues between the civil complaint and the instant appeal, petitioner is barred by the doctrine of res judicata from relitigating in this forum any issues disposed of in that complaint. Moreover, any new claims against the superintendent must also be dismissed for failure to join him as a party pursuant to 8 NYCRR 275.8.

THE APPEAL IS DISMISSED.

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