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Decision No. 14,065

Application to reopen the appeal of R.S., on behalf of her daughter, C.S., from action of the Board of Education of the Rotterdam-Mohonasen Central School District regarding student suspension.

Decision No. 14,065

(December 23, 1998)

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

Buchyn & Buchyn, Esqs., attorneys for respondent

MILLS, Commissioner.--Petitioner applies to reopen Appeal of R.S, 36 Ed Dept Rep 184, regarding a student suspension. The application must be granted.

Pursuant to 8 NYCRR 276.8, applications to reopen are addressed solely to the discretion of the Commissioner. Such applications will not be granted in the absence of a showing that a decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time of the original decision.

In Appeal of R.S, which was decided on October 24, 1996, I dismissed petitioner's appeal on the grounds that there was an action pending in a U.S. District Court involving the same issues and seeking similar relief. However, it now appears from the instant application that, two days before the date of my decision, on October 22, 1996, a Stipulation and Order was filed with the District Court dismissing the federal judicial proceeding. Accordingly, my decision was based upon my misapprehension of the facts relating to the pending status of the judicial proceeding. Therefore, petitioner's application to reopen must be granted.

The facts of this appeal are stated in Appeal of R.S., supra, and will not be repeated here.

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, prevented 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. In addition, petitioner contends that 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 denied a fair hearing. Respondent also contends that the appeal must be dismissed for untimeliness.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of. Section 275.16 further provides that the Commissioner may excuse a failure to commence an appeal within the time specified for good cause shown.

This appeal was commenced on January 16, 1996, which is more than 30 days from respondent's November 13, 1995 letter which affirmed the superintendent's determination. Petitioner requests that I excuse the late filing of her appeal because Attorney Doherty was injured in an accident on December 9, 1995 and was unable to return to work full-time until January 9, 1996. Respondent contends that the late appeal should not be excused since Attorney Etkin was present at the suspension hearing and appeal, was the attorney of record for petitioner and her daughter in the District Court action and had sufficient knowledge to bring the appeal.

The hearing transcript indicates that at the suspension hearing petitioner was represented by Attorney Etkin and petitioner's daughter was represented by Attorney Doherty. The attorneys appealed the superintendent's determination in a joint submission to respondent board. In addition, I note that while petitioner is represented by Mr. Doherty in this appeal, Mr. Etkin is listed of counsel. Mr. Etkin participated on behalf of petitioner and her daughter in a December 11, 1995 conference call with respondent's superintendent in an attempt to reach a settlement. Furthermore, an attorney and friend of Mr. Doherty, in a letter dated December 12, 1995, stated that the appeal was three quarters finished, but could not be filed yet because of Mr. Doherty's injury and requested on behalf of Mr. Doherty that the petition be accepted as timely if it was filed by December 22, 1995. The affidavit of the hearing officer submitted in opposition to petitioner's request for a stay states that the hearing officer had a telephone conference on December 20, 1995, regarding petitioner's proceeding in the Federal Court of Appeals for the Second Circuit, and that Mr. Doherty made no mention that he would be unable to file the appeal by December 22, 1995. In consideration of the aforegoing, I find that petitioner has failed to establish sufficient good cause to excuse the late filing of this appeal and the appeal must therefore be dismissed as untimely.

The appeal must also be dismissed on the merits. Petitioner contends 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 prevented her daughter from receiving a fair hearing. There is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Matter of Dwaileebe, 17 Ed Dept Rep 304). The performance of multiple functions by individuals or groups is not a violation of due process perse, and whether a violation occurs becomes a factual determination to be made in light of the circumstances surrounding the procedure (Matter of Payne, 18 Ed Dept Rep 280). Petitioner has failed to establish that the hearing officer was made aware of any of the facts of the case prior to the hearing, or to establish the hearing officer's alleged bias or personal involvement which affected the outcome of the hearing (Matter of Gioev. Board of Education, 126 AD2d 723; DiMele v. Potter, et al., 177 AD2d 755).

Petitioner contends that respondent's failure to disclose all anticipated witnesses and a brief summary of their anticipated testimony prevented her from fully questioning witnesses and fully presenting witnesses and evidence on her behalf. However, petitioner has failed to cite any specific statutory authority to establish a right to this information. In the absence of any express statutory mandate, the preparation of a list of prospective witnesses is not an indispensable element of due process of law within the context of an administrative proceeding pursuant to Education Law "3214(3) (Matter of Seward, 12 Ed Dept Rep 100; Appeal of Spink, 25 Ed Dept Rep 129).

Petitioner contends that her daughter's right to a fair hearing was violated because the hearing officer conducted a separate hearing with respect to another student involved in the same incident, prior to the commencement of her daughter's hearing. Petitioner argues that the testimony of witnesses at the first hearing affected the hearing officer's ability to reach a fair decision with respect to her daughter. The determination on whether to hold separate hearings pursuant to Education Law "3214(3) is within the discretion of the hearing officer (Matter of Klug, 20 Ed Dept Rep 134). Petitioner makes no more than conclusory allegations and has failed to establish that the holding of separate hearings affected the hearing officer's ability to make a fair decision.

Petitioner's remaining contentions concern the nature of and the findings made with regard to the charges against her daughter. Specifically, petitioner argues that the mere possession of a handgun in school is not a violation of the Gun-Free Schools Act of 1994 (20 USC "8921), or Board policy Number 7471, which was adopted in response to the Act; that neither the superintendent nor the hearing officer alleged or concluded that the student knowingly possessed a handgun, as provided for in the district's Student Code; and that the superintendent and the hearing officer failed to make and disclose required findings of fact supporting the legal conclusion that petitioner's daughter possessed a handgun in school.

Education Law "3214(3)(c) provides that no pupil may be suspended for a period in excess of five days unless the pupil is given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ., Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133). The charges need only be sufficiently specific to advise the student and the student's counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing (Appeal of Pinckney, 37 Ed Dept Rep 284; Matter of Rose, 10 Ed Dept Rep 4). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ., Monticello Central School District, supra).

Upon my examination of the record, I find that petitioner's daughter was provided sufficiently specific notice to enable the student to prepare and present an adequate defense. The Notice, dated June 14, 1998, and provided to petitioner and her daughter states that a hearing pursuant to Education Law "3214(3) will be conducted on a specified date to consider disciplinary actions against the student, and that the student is charged with "[p]ossession of a 32 cal. handgun in school. This is in violation of the Gun-Free Schools Act of 1994." Respondent contends that the charges against the student are not limited to a violation of the Gun-Free Schools Act, but also include the general provisions of Education Law "3214(3)(a)(1), which authorizes suspension of a pupil "whose conduct otherwise endangers the safety, morals, health or welfare of others"; Board policy Number 7470, which was adopted prior to the Gun-Free Schools Act; and Board policy Number 7471. Respondent's contention is supported by the hearing transcript, which indicates that the board policies were introduced into evidence, and which includes statements by respondent's attorney that the charge against the student is not limited to a violation of the Gun Free Schools Act but is "a multiple charge of school district violations", including Education Law "3214(3) and the board policies, and relate to "having a gun on school property." Upon the record before me, I find that petitioner's daughter was fairly apprised of the nature of the charges against her so as to enable her to prepare an adequate defense (Matter of Seward, supra).

Petitioner contends that the superintendent and the hearing officer failed to make and disclose required findings of fact supporting the legal conclusion that her daughter possessed a handgun in school. Education Law section 3214(3)(c) provides that "[t]he hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent." The findings of fact in such a decision need not be elaborate, but they should include a finding that the student engaged in the objectionable conduct and should address the principal defense raised by the student (Matter of Snowberger, 24 Ed Dept Rep 256). I find that the superintendent's decision is deficient in that it merely states the charge that the student "possessed a .32 caliber handgun in school has been established" and fails to address petitioner's contention that the handgun was placed in her locker by another student, without her knowledge, and therefore she could not be found to be in possession of the handgun.

However, reversal of respondent's determination on this ground is not required since I find that this irregularity did not prejudice the student or deprive her of a fair hearing (Matter of Snowberger, supra). At the hearing, evidence was produced in support of two versions of the facts underlying the charge. In one version, petitioner's daughter was given the handgun at her request by another student at her home on the preceding Friday, and on the following Monday, after the last class period, petitioner's daughter took the handgun from her locker and handed it back to that student. In support of the alternative version, petitioner's daughter denied that she was given the handgun to keep for the weekend and testified that she was unaware of the presence of the handgun in her locker until, after being told by another student at the end of her last class that he had placed the gun in her locker, she returned to her locker with the student, opened it and saw the handgun. She further testified that she then handed the weapon to the student. She took no steps to alert school authorities after the student told her he had placed the gun in the locker, or after she discovered the handgun in her locker. Even if the version of the facts presented by petitioner's daughter is accepted, her handing of the weapon to the student is sufficient to establish her possession in violation of school policy.

Respondent's penalty of external suspension from all school academic and extracurricular activity for the period of one year is within its authority pursuant to Education Law "3214(3). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved and the test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Cynthia and Robert W., et al., 37 Ed Dept Rep 437). I find that the penalty imposed on petitioner's daughter is not so clearly excessive as to warrant my substitution of a lesser penalty. The possession of weapons in school cannot be tolerated and a rule prohibiting their possession may be strictly enforced (Appeal of John T., 30 Ed Dept Rep 1).

THE APPLICATION TO REOPEN IS GRANTED AND THE APPEAL IS

DISMISSED.

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