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Decision No. 13,908

Appeal of RALPH MILANO, on behalf of DENNIS MILANO, from action of the Board of Education of the Sachem Central School District regarding student discipline.

Decision No. 13,908

(April 1, 1998)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Sachem Central School District ("respondent") to affirm his son's suspension and requests that the suspension be expunged from his record. The appeal must be sustained in part.

On February 6, 1997, Thomas Toscano, the principal of Sagamore Junior High School, suspended petitioner's son, Dennis, for admitting to possessing caffeine pills and to attempting to give or sell them to other students. At the time of the incident, petitioner's son was thirteen years old and in the eighth grade. The principal telephoned petitioner's residence that day and informed petitioner's wife that her son was being suspended for five days based on allegations by other students and an admission by Dennis that he attempted to sell "caffeine" pills brought from home. The principal told Mrs. Milano that he searched Dennis' pants pockets, school backpack and locker, but found no pills. In that conversation, Mr. Toscano also informed Mrs. Milano that the suspension would begin on Friday, February 7, 1997, and that a superintendent's hearing would be scheduled on the charges.

In a February 7, 1997, telephone conversation, Mr. Toscano told petitioner that no teacher saw Dennis attempt to sell pills but that a student in the cafeteria told a teacher on duty that Dennis was attempting to sell pills, describing them as caffeine pills, and that several other children who were questioned said they saw Dennis attempting to sell pills. Petitioner telephoned the district clerk on February 7, 1997 to inquire about respondent's policy and to request the board president to contact him. Although the board president did not respond, the superintendent telephoned petitioner on February 7, 1997. The parties' recollections of the ensuing conversation are in dispute. Petitioner recalls telling the principal that Dennis denied attempting to sell or give away any pill or pills. Mr. Toscano, however, claims that "Mr. Milano told me that Dennis had admitted the infraction to both himself and his wife."

On Saturday, February 8, 1997, petitioner received a letter from deputy superintendent Mary Bartley notifying him that she would be the hearing officer at a hearing scheduled for February 12, 1997 at 9:30 a.m. to consider charges that her son "admitted possessing, attempting to sell and giving away an unknown substance." On Tuesday, February 11, 1997, petitioner telephoned Dr. Bartley's office and was told that the hearing would take place as scheduled. Petitioner informed a secretary that neither he nor his wife could be present at the 9:30 a.m. hearing and requested a telephone call from either the superintendent or deputy superintendent. The superintendent telephoned petitioner at 9:45 a.m. on February 11, 1997 and, later that day, petitioner sent a letter by mail and facsimile to the board president, superintendent and deputy superintendent, complaining of the district's failure to provide him with written notice of the right to an informal conference with the school principal and containing a "formal appeal to the Board of Education to allow my son to return to school by tomorrow, February 12, 1997, and to have the charges against him expunged from his record." Petitioner also sent a letter by facsimile on February 11, 1997 at approximately 9:55 a.m. to Dr. Bartley, confirming that:

As I explained to your secretary, due to business reasons, neither my wife nor myself will be able to attend the superintendents hearing scheduled for tomorrow. Please use my appeal to the Board of Education at the hearing. It states my findings about what my son Dennis has allegedly been charged with.

The hearing took place at 9:30 a.m. on Wednesday, February 12, 1997 without petitioner, petitioner's wife or Dennis present. Petitioner's February 11, 1997 letter to Dr. Bartley was introduced into evidence and made part of the record. Seven witnesses appeared, including the principal, Thomas Toscano, the secretary to the deputy superintendent, Patricia Cartegna, and five students. Ms. Cartegna testified that petitioner "said he did not want to reschedule [the hearing], that he was faxing over a statement and we could use the statement." As the hearing proceeded, the first student witness testified that in their February 6, 1997 music class, Dennis "offered me two pills for a dollar. I said no. Then he said, all right then he turned around and asked two other kids." Another student testified that Dennis "asked me if I wanted to buy caffeine pills" in the same music class. A third student in the same music class testified that he believed Dennis "was trying to sell the girls behind me caffeine pills, some sort of pill" but that he did not actually hear what he said to them. A fourth student testified that Dennis "asked me and my friend if we wanted to buy some pills" in the cafeteria during lunch period on February 6, 1997. The fifth student witness testified that, during lunch period, Dennis offered him a white pill, "He said buy one, get one free, so I said no and I just walked away."

Dr. Bartley questioned the principal about petitioner's February 11, 1997 "appeal" letter to the board president, superintendent and deputy superintendent. Mr. Toscano testified that Dennis admitted having obtained pills from his older brother and "really didn't have an explanation for his attempt to get rid of them in this manner, to give or sell them," and that Dennis "was apologetic when I explained to him just how serious an offense this could be, what the consequences were." Mr. Toscano also testified regarding his telephone conversations with petitioner and his wife which led him to believe they would have "great difficulty" meeting at the school, that is, "…leaving his business at any time either to come to see me or in fact come to this hearing this morning, that it posed a great hardship for him and his family."

The hearing officer found petitioner's son "guilty as charged for possessing, attempting to sell and attempting to give away unidentified pills suspected to be caffeine pills", and recommended suspension for a period of ten more school days until March 6, 1997. Petitioner learned of the hearing officer's decision when he telephoned Dr. Bartley's office on February 12, 1997 and spoke to her secretary but did not receive written confirmation until February 20, 1997.

On February 12, 1997, the day of the hearing, petitioner received a letter dated February 7, 1997, postmarked February 10, 1997, informing him of the five-day suspension commenced February 7, 1997, and the scheduled hearing, as follows:

Dennis is being suspended for five days. The reason for this suspension is Dennis admitted possessing, attempting to sell and giving away an unknown substance. A superintendent's hearing will be held on February 12, 1997 at 9:30 a.m. at District Office to determine if an additional period of suspension or other discipline will be imposed.

During the period of suspension, it is necessary for the parents or guardians to provide full-time supervision of the suspended child. No student on suspension may be on school grounds for extra-curricular activities or for any other reason.

Also on February 12, 1997, petitioner sent a second appeal to the board of education requesting an emergency meeting. By letter dated February 14, 1997, petitioner's attorney requested a new hearing. Respondent denied the request in a letter dated February 20, 1997 but acknowledged petitioner's pending appeal to the board. Petitioner sent a letter to respondent's attorney on February 24, 1997, complaining that he received the five-day suspension notice late, that no opportunity for an informal conference was offered, and that the hearing should have been rescheduled. Petitioner also sent a letter dated February 24, 1997, to Dr. Bartley requesting her to "contact me to go over any information given at the hearing which states that Dennis has had any previous behavior problems" and requesting a copy of the hearing transcripts. Petitioner telephoned the district clerk on February 25, 1997 requesting a decision on his appeal but was informed that the respondent board could not consider the appeal until it received a copy of the hearing transcripts. Petitioner received the hearing transcripts on March 12, 1997 and requested, by letter dated March 14, 1997, that the board decide his appeal, including his request to have the charges against his son expunged from his record. By letter dated March 18, 1997, the district clerk informed petitioner that the board would hear his appeal on April 2, 1997. Petitioner submitted a letter to the board on April 1, 1997 detailing his concerns and disputing specific testimony reported in the hearing transcripts. Petitioner presented his appeal to the board on April 2, 1997. By letter dated April 15, 1997, petitioner was informed that the board affirmed the superintendent's decision. Petitioner commenced this appeal on May 8, 1997.

Petitioner seeks an order expunging from his son's record reference to the suspension, which he contends was imposed without proper notice and opportunity for an informal conference and hearing, as required by Education Law "3214. Respondent admits that written notice of the five-day suspension was received five days after the alleged incident occurred and did not inform petitioner of his right to an informal conference, but contends that the principal verbally offered petitioner an opportunity to meet that was declined. Respondent contends that any technical violation due to the delay in providing written notice is deminimus because petitioner and his wife were fully apprised of the particulars of the suspension and it was clear at the time that the parents were not contesting the specific allegations and were not otherwise available for a face to face conference during the day. Respondent denies that petitioner requested postponement of the hearing, referring to testimony of the secretary to the deputy superintendent, and contends that the suspension decision and penalty are supported by competent evidence.

Education Law "3214(3)(b) provides that, in the case of suspension by a principal for a period not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR 100.2(l)(4).

(4) Parental notice of student suspensions. Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension at the last known address or addresses of the parents or persons in parental relation. Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation. Such notice shall provide a description of the incident(s) which resulted in the suspension and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(d). Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the suspended pupil. (emphasis added)

The purpose of "100.2(1)(4) is to require that the parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension. This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witness without the principal present (Appeal of Pinckney, 37 Ed Dept Rep ___, Decision No. 13860 (February 10, 1998); Appeal of Jones, 35 id. 1).

In this case, respondent failed to comply with the statute and regulations in more than one respect. First, respondent did not immediately notify petitioner in writing that his son had been suspended from school. The letter dated February 7, 1997 from the principal was the only written notice petitioner received of the five-day suspension and it was received on the fourth day of the suspension. Respondent admittedly did not utilize the methods of delivery required by "100.2(l)(4), i.e., personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension imposed on Thursday, February 6, 1997. Rather, the letter was not postmarked until Monday, February 10, 1997 and was received through the regular mail on Wednesday, February 12, 1997. Respondent's argument that information provided by telephone was sufficient is not convincing because the regulation explicitly requires telephone notification in addition to written notice, where possible, and not as a substitute.

Secondly, the written notice neglected to inform petitioner of the right to request an immediate informal conference with the principal. Respondent's belief that such notice was unnecessary because it understood petitioner and his wife to express difficulty in scheduling such a meeting cannot excuse its noncompliance with the clear language of the regulation. In this case, petitioner contends that he was never offered an opportunity to meet with the principal and the only written notice he received clearly omitted any reference to that right.

Finally, even if the principal's letter had not been defective by this omission, its late delivery would in itself have precluded notice of the right to an immediate informal conference. Accordingly, the five-day suspension must be annulled and expunged from Dennis' record (Appeal of Pinckney, supra; Appeal of Jones, supra).

Although the initial five-day suspension must be overturned, that does not entirely resolve the matter, because a subsequent superintendent's hearing was held and an additional suspension was imposed. By letter dated February 7 and received February 8, the deputy superintendent provided notice of a hearing scheduled for February 12. That hearing notice listed the charge as:

1. admitted possessing, attempting to sell and giving away an unknown substance.

Petitioner contends that the hearing should not have gone forward as scheduled because he requested and was denied a postponement in a telephone conversation with the superintendent on February 11, 1997. In its answer, respondent claims that the superintendent has no recollection of the alleged telephone conversation and affirmatively states that, contrary to petitioner's assertions, at no time did he request a postponement. At the hearing, the secretary to the deputy superintendent testified that she asked petitioner "if he wanted to reschedule and he said he did not want to reschedule, that he was faxing over a statement and we could use the statement." Based on the record before me, including petitioner's February 11, 1997 letter placed in evidence at the hearing that stated his position but did not object to the hearing or request a postponement, I find the evidence does not support petitioner's claim that he was denied a postponement.

Education Law "3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." However, the decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeal of A.B., 36 id. 155; Appeal of Derosa, 36 id. 336; Appeal of Homick, 34 id. 150). In this case, petitioner admits that his son told the principal that he had one pill, which was given to him the day before by his brother, who described it as a "caffeine pill or a 'No Doz' to be used for studying for large exams" but claims that his son did not admit to the principal that he attempted to sell or give away the pill or pills to other students. Petitioner denies the allegations made by the principal and five student witnesses who provided the testimonial evidence upon which the deputy superintendent based her decision that Dennis was guilty. The principal testified that Dennis admitted bringing "some unknown substance into the building that day in a pill form" and "attempted to either give away or sell these items." Four students testified that Dennis offered them a pill or pills and the fifth student testified that he observed Dennis offer a pill or pills to others. To the extent the testimony constituted hearsay evidence, it is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Appeal of Hamet, 36 Ed Dept Rep 174). In addition, I find no basis in the record to overturn the hearing officer's findings as to the credibility of these witnesses. The Commissioner will not substitute his judgement on witness credibility unless the findings are not supported by the facts in the record (Appeal of Kittell, 31 id. 419; Appeal of John T., 30 id. 1; Appeal of Chopman, 28 id. 272). Accordingly, there is no basis to overturn the determination.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's suspension of Dennis Milano from February 7-13, 1997, be annulled and expunged from his record.

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