Appeal of D.S.C., on behalf of her son C.C., from action of the Board of Education of the Gates-Chili Central School District regarding student discipline.

Decision No. 15,565

(April 12, 2007)

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Gates-Chili Central School District (“respondent”) to suspend her son, C.C., from the Gates-Chili Middle School.  The appeal must be dismissed.

On October 4, 2006, C.C. was allegedly involved in an altercation with another student on a school bus.  On October 10, 2006, petitioner received a phone call stating that C.C. would be suspended for three days beginning the next morning.  On October 12, 2006, the second day of C.C.’s suspension, petitioner received, by regular mail, written notice of the suspension.

On October 27, 2006, petitioner met with Assistant Principals Roy P. Dolce, Jr., and Stephen Kenny as well as Principal Gerard Iuppa.  Among other things discussed at that meeting, petitioner pointed out that C.C. was not suspended in accordance with statutory and regulatory requirements.  As a result of that meeting, on October 30, 2006, Principal Iuppa called petitioner and stated that respondent agreed to expunge C.C.’s suspension from his record.  However, on November 2, 2006, Principal Iuppa called petitioner again and stated that respondent’s attorney needed time to review the request for expungement before it was issued.  This appeal ensued.  On November 14, 2006, respondent sent a letter to petitioner expunging C.C.’s three-day suspension because petitioner did not receive a written notice of proposed suspension outlining her right to an informal conference.

Petitioner requests that I direct respondent to expunge C.C.’s three-day suspension, that I remove Principal Gerard Iuppa and Superintendent Richard Stein from their positions, and that I order respondent to conform its suspension policies to applicable law and regulations. 

Respondent argues that the petition fails to state a claim and is moot.  Respondent also argues that petitioner failed to exhaust her administrative remedies and that she failed to join Principal Iuppa and Superintendent Stein as parties.  Finally, respondent argues that petitioner fails to meet her burden of proof in establishing facts that Principal Iuppa and Superintendent Stein willfully violated or neglected their duty under the law.

I will first address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner seeks to remove Principal Iuppa and Superintendent Stein.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Neither Principal Iuppa nor Superintendent Stein was named as a respondent in the caption of the petition or in the notice of petition.  Additionally, neither was served with a copy of the notice of petition or the petition sufficient to give them notice that they were parties to the appeal and were required to submit an answer.  Therefore, the appeal is dismissed as to both Principal Iuppa and Superintendent Stein.  

     Additionally, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  By letter dated November 14, 2006, Principal Iuppa notified petitioner that the suspension would be expunged from C.C.’s record.  Since petitioner has received the requested expungement, her appeal of the suspension is moot. 

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

THE APPEAL IS DISMISSED.

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