Appeal of L.F. and J.F., on behalf of their son J.S., from action of the Board of Education of the Ten Broeck Academy and Franklinville Central School District regarding student discipline.

Decision No. 15,550

(March 30, 2007)

DiFilippo & Flaherty, P.C., attorneys for petitioner, Anthony DiFilippo, III, Esq., of counsel

Moriarty & Swanz, attorneys for respondent, James I. McAuley, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Ten Broeck Academy and Franklinville Central School District (“respondent”) affirming the suspension of their son, J.S.  The appeal must be sustained in part.

Petitioners’ son, J.S., attended ninth grade in respondent’s district during the 2005-2006 school year.  On February 10, 2006, J.S. was suspended for five days for allegedly activating a fire alarm on February 9, 2006.  Petitioners were provided with a “Discipline Referral and Notice to Parents/Guardians” dated February 10, 2006 which outlined the charges against their son.  On the same date, petitioners and their son met with the school principal and the school resource officer.

By notice dated February 13, 2006, the superintendent scheduled a hearing for February 17, 2006.  The notice charged J.S. with endangering the safety, morals, health and welfare of both students and staff in violation of the district’s code of conduct.

By letter dated February 22, 2006, the superintendent notified petitioners that he accepted the hearing officer’s finding and recommendation that J.S. engaged in disorderly conduct when he activated a fire alarm resulting in the evacuation of the high school and that he should be suspended for the remainder of the 2005-2006 school year.

By letter dated March 20, 2006, petitioners appealed the superintendent’s decision to respondent.  By letter dated April 12, 2006, the superintendent acknowledged petitioners appeal and scheduled an appearance before respondent on April 24, 2006.  By letter dated April 19, 2006, petitioners’ attorney notified the superintendent that he was unable to attend the April 24 meeting and argued that the hearing officer’s decision was not supported by the evidence.

By letter dated May 3, 2006, respondent’s president notified petitioners that their appeal was denied.  This appeal ensued.

Petitioners allege that J.S. did not activate the fire alarm and that the hearing officer’s decision was not supported by substantial evidence.  Petitioners contend that the hearing officer was not properly designated by the superintendent in accordance with Education Law §3214, and that she was not provided with proof that respondent approved its code of conduct.  Petitioners contend that they were not notified of the right to an informal conference and that one was not held.  Finally, petitioners contend that the hearing officer considered J.S.’s anecdotal record prior to making a determination of guilt.  Petitioners request that the suspensions be expunged.

Respondent alleges that the hearing officer’s decision was based on competent and substantial evidence.  Respondent contends that the hearing officer was properly designated and that it approved the code of conduct.  Respondent alleges that petitioners were notified of their right to, and were provided with, an informal conference and that petitioners never requested a second informal conference.  Respondent argues that the hearing officer was not required to bifurcate the hearing and that she was not improperly influenced by the introduction of J.S.’s anecdotal record prior to making a determination of guilt.

Petitioners’ contend that they were not notified of their right to an informal conference, and did not receive one when requested.  Respondent maintains that the February 10 Discipline Referral and Notice to Parents/Guardians contained notice of the right to an informal conference, that petitioners’ February 10 meeting with the principal and school resource officer constituted an informal conference, and that petitioners did not request another informal conference.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972). The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) 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 or her original decision to suspend was correct or should be modified (Appeal of R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.S., 43 id. 174, Decision No. 14,960).

I find the notice in this case to be inadequate.  The Discipline Referral and Notice to Parents/Guardians states, “Parent – given a copy of this referral to take home as written notice to parent regarding the assignment of In-school or Out-of-School Suspension and their right to an informal conference if requested.”  The notice failed to inform petitioners that they could request an opportunity to question complaining witnesses (Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236).  Accordingly, the five-day suspension from February 10 to February 16, 2006 must be annulled and expunged from J.S.’s record.

Furthermore, petitioners’ meeting with the principal and school resource officer failed to constitute an informal conference.  Petitioners did not have an opportunity to question complaining witnesses.  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 witnesses without the principal present (Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of B.C. and A.C., 42 id. 395, Decision No. 14,891; Appeal of a Student Suspected of Having a Disability, 40 id. 542, Decision No. 14,552).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  With respect to the long-term suspension, petitioners have failed to meet their burden.

A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678; Appeal of Ezard, 29 id. 135, Decision No. 12,245).  Here, the petitioners argue that the hearing officer considered J.S.’s anecdotal record prior to making a finding of guilt.  Respondent alleges that the hearing officer listened to both parties’ arguments and then stated that she was reviewing anecdotal evidence, not for the purpose of determining J.S.’s guilt but for the sole purpose of determining the penalty.  Petitioners present no evidence that the hearing officer considered the record or was otherwise influenced by its introduction in reaching her determination of guilt or innocence.

Similarly, petitioners have failed to demonstrate that the hearing officer was not properly designated or that the code of conduct was not properly approved.

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  In her decision, the hearing officer states that she found the testimony of the eyewitnesses to the incident to be credible.  The record reflects that at least one of the eyewitnesses observed J.S. activating the fire alarm.  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).  Upon my review of the record, I find no basis to overturn the findings of the hearing officer.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents expunge from the student’s record any reference to a suspension from February 10, 2006 to February 16, 2006.

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