Decision No. 13,872

(February 13, 1998)

Commissioner, Mills.--Petitioner appeals respondent's permanent suspension of her son from the Burnt Hills-Ballston Lake Central School District ("respondent"). The appeal must be sustained.

During the 1996-1997 school year, Joshua Rosenkranz was a senior at respondent's high school. Late in the evening of December 31, 1996, or in the early hours of January 1, 1997, Joshua and three other students entered the high school by breaking a pane of glass in an exterior door. The facts of this entry are more fully set forth in Appeal of McNamara, 37 Ed Dept Rep _____, Decision No. 13871, February 13, 1998.

On January 2, 1997, respondent's superintendent issued a notice of hearing charging that Joshua unlawfully entered the high school with tools "and with the intent to disable and/or destroy the High School building electrical and mechanical systems." The notice further charged that such conduct was insubordinate and disorderly, was in violation of the student handbook and law, and endangered the safety, morals, health or welfare of others. (The notice contained another charge which was subsequently dropped and is not relevant to this appeal.)

On January 7, 1997, a hearing was commenced, but, upon request of Joshua's attorney, who was not present, the hearing was adjourned to January 21. On January 21, the hearing was again commenced. The school district was represented by counsel, but neither Joshua Rosenkranz nor his attorney of record was present. Petitioner and another family member were present, however.

After being advised of Joshua's rights by the hearing officer, petitioner elected to go forward without Joshua's attorney of record. Thereafter respondent's attorney offered into evidence the original notice of hearing, a letter from Joshua's attorney requesting an adjournment of the January 7 hearing, and a letter from himself to Joshua's attorney advising that the hearing had been rescheduled for January 21. Respondent's attorney also offered a letter dated January 16, 1997, signed by both petitioner and her son, indicating that Joshua withdrew as a student of respondent's high school effective immediately. The record also indicates that petitioner advised the hearing officer that Joshua was beginning classes at Schenectady County Community College on the same day as the rescheduled hearing, i.e., January 21.

Despite this information, the hearing proceeded, with testimony given by a New York State Police officer, respondent's assistant high school principal, and respondent's high school principal. At the close of the hearing, petitioner again reminded the hearing officer that her son had withdrawn from the high school: "You do understand that Joshua has withdrawn?"

The hearing officer issued her decision on January 21, 1997. In the first section of the report, the following sentence appears: "Read into the record, but not offered into evidence was a letter dated January 16, 1997, signed by Respondent and his mother, indicating that Respondent was withdrawing from the school district." The hearing officer found that Joshua entered the high school building early on the morning of January 1, 1997, after breaking a pane of glass to gain entry. She found that Joshua was carrying a flashlight, an Allen wrench set, and a tile cutter. She found that Joshua's conduct constituted insubordination and disorderly conduct within the meaning of Education Law "3214, and endangered the safety, health and welfare of others. She found that Joshua had failed to appear and failed to present any witnesses to refute the testimony of the State Police officer, and she further found that his conduct violated the student handbook. Her report concluded by recommending that Joshua be permanently suspended from school, "and that he be barred from entry upon any school district property, for any purpose."

On January 22, 1997, respondent's superintendent issued a letter adopting the findings and recommendations of the hearing officer, and containing the following sentence: "It is my determination that M. Joshua Rosenkranz be and is hereby permanently suspended from instruction at the Burnt Hills-Ballston Lake Central School District and that M. Joshua Rosenkranz be barred from entering upon school property, for any purpose and at any time." On March 11, 1997, the board of education met to review petitioner's appeal of the superintendent's determination. That same date, the board president issued a written notice that the board unanimously affirmed in all respects the superintendent's determination.

Petitioner contends that the evidence presented before the hearing officer was insufficient to sustain a finding of guilt. She also contends that the penalty of permanent suspension was excessive, and challenges the district's right to ban Joshua from its property permanently. She contends that the school was aware of a medical condition, and failed to take it into consideration. She further claims that if school officials were aware of the impending illegal entry, they had a duty to take some action to prevent it. Finally, petitioner contends that the school district lacked jurisdiction to suspend Joshua permanently, because he had permanently resigned from the school district on January 16, 1997.

Respondent generally denies petitioner's claims, and argues that the evidence before the hearing officer clearly proves guilt, and that the nature of the conduct is so extraordinary that a permanent suspension is justified.

The appeal must be sustained because of Joshua's permanent withdrawal from respondent's high school on January 16, 1997, prior to his purported permanent suspension. Education Law "3214(3), which applies to this matter, allows a board of education, in a proper case, to deal with a "pupil" and to modify the school-pupil relationship by suspending the pupil from required attendance upon instruction. Where there is no pupil-school relationship, the statute makes no provision for suspending a former pupil, and no such authority may be implied.

Petitioner cites Matter of Flynn v. State Ethics Commission (208 AD2d 91; aff'd 87 NY2d 418) for the proposition that where the governing statute makes no provision for dealing with former employees, and by analogy, former pupils, the agency seeking to impose discipline loses its power to do so when the relationship subject to the statute terminates. In Flynn, petitioner was a State employee in 1990, when he allegedly engaged in conduct in violation of Public Officers Law ""73(5) and 74(3)(f). In October 1990, a representative of the State Ethics Commission interviewed petitioner, and in November 1990 the Commission advised petitioner pursuant to Executive Law "94(12)(a) of certain alleged violations on his part. In December 1990, pursuant to the same provision, petitioner served his written response to the allegations.

In July 1992, petitioner retired, thereby terminating his status as an employee of the State. Thereafter, on December 11, 1992, the Commission sent petitioner a notice pursuant to Executive Law "94(12)(b), stating that there was reasonable cause to believe that he had violated the law.

The courts refused to allow the Commission to proceed with a hearing, finding that the employment relationship had ended, and the governing statute made no provision for continuing jurisdiction over former employees. The Court of Appeals held that the Commission, as an administrative agency created by statute, was limited to exercising express statutory authority, and did not have implied authority over former employees (87 NY2d at 202-203).

I note that a school district, like an administrative agency, is a creature of statute, and is generally without power to exercise jurisdiction beyond that conferred by statute (see, e.g., Matter of Flaminio v. Board of Education, Cleveland Hill UFSD, 97 Misc.2d 722; Matter of Leone v. Hunter, 21 Misc.2d 750; Matter of District No. 2, Town of Brookhaven, 214 AD 40; Matter of DeAngelis v. Laino, 235 AD 390, aff'd 260 NY 661). As in Flynn, I am unable to discern any intent on the part of the Legislature to extend respondent's right to suspend beyond the point where the pupil has permanently withdrawn as a student, at least where the student had achieved the age of majority prior to his permanent withdrawal. As has often been said when it is urged that a particular statute should be construed to cover a matter not expressly mentioned, if the Legislature had indeed intended the statute to cover such a matter, it would have been easy for the Legislature to have said so and to have expressly included it (McKinney's Cons Laws of NY, Book 1, Statutes "74).

Although I am constrained to sustain the appeal based on the statutory limitation, this decision should not be construed to limit respondent's authority in the event Joshua Rosenkranz should ever again attempt to register as a student in respondent's district. Respondent would, of course, be free to pursue permanent suspension should such an event occur.

In view of this disposition, I will not address the parties' other contentions and allegations.

THE APPEAL IS SUSTAINED.

END OF FILE