Appeal of D.M., on behalf of her son I.M., from action of the Board of Education of the Ramapo Central School District, Superintendent Dr. Robert MacNaughton, and Patrick Laherty, Principal, regarding student discipline.

Decision No. 15,745

(April 25, 2008)

Ralph O. Heavner, Esq., attorney for petitioner

Greenberg, Wanderman & Fromson, attorneys for respondents, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ramapo Central School District (“respondent board” or “board”) to suspend her son, I.M.  The appeal must be dismissed.

By letter dated October 18, 2007, the principal of Suffern High School informed petitioner’s husband that I.M. was suspended for five days for “violating the following rule(s): Potential bias incident; made and displayed a hangman’s noose in the boys P.E. locker area.”

By letter dated October 22, 2007, the assistant superintendent for Human Resources informed I.M.’s parents that the superintendent had designated him as the hearing officer to conduct a hearing on October 26, 2007.  The charge attached to that letter read:

THAT ON OR ABOUT OCTOBER 17, 2007, YOU ENGAGED IN CONDUCT WHICH ENDANGERED THE SAFETY, MORALS, HEALTH AND WELFARE OF OTHERS BY AN ACT IN VIOLATION OF CODE OF CONDUCT [sic] OF THE RAMAPO CENTRAL SCHOOL DISTRICT. 

Specification:  That while in Suffern High School you took a shoelace which you used to make a hangman’s noose which you placed on the railing outside of the locker room which you placed in such a way so that it could be seen over the stairs leading to the gym.

After an adjournment requested by petitioner, the hearing took place on November 1, 2007.  The high school’s private supervisor of security, assistant principal, and police resource officer appeared as witnesses for the district.  The district introduced a statement by I.M., in which he admitted that he had fashioned a noose out of a short piece of string and hung it on the stair railing leading down to the gym, and a copy of a video from a surveillance camera showing I.M. tying and hanging the string.  I.M. did not testify or present witnesses, but his uncle read a character statement into the record.

By letter dated November 2, 2007, the superintendent notified I.M.’s parents that he was adopting the hearing officer’s recommendation to suspend I.M. for the rest of the first semester through January 25, 2008, and to place I.M. on probation upon his return to school, meaning that any extracurricular activities would have to be approved by the principal.  By letter the same day, petitioner’s attorney appealed the superintendent’s determination to the board.  By letter dated November 21, 2007, the board president notified I.M.’s parents and their attorney that the board had upheld the superintendent’s decision.  This appeal ensued.

Petitioner contends that respondents’ actions were arbitrary, unfair and excessive, and that the charges were not supported by substantial evidence.  Specifically, petitioner asserts that the district failed to produce key evidence, namely the shoelace and the Code of Conduct (“Code”), and failed to present any evidence to support the charge of a bias incident.  Petitioner further contends that I.M.’s due process rights were violated at the hearing because he was denied the right to confront key witnesses, specifically school officials who interviewed him and took his statement after the incident but did not testify.  Petitioner also alleges that the district failed to provide a Code to parents as required by Education Law, failed to specify what section of the Code I.M. violated, and failed to follow the procedures for progressive disciplinary action under the Code.  She further alleges that the hearing officer improperly testified on the record.  Petitioner seeks reversal of the board’s decision, expungement of I.M.’s record and a determination that he be allowed to return to school and resume participation in all extracurricular activities without restriction.

Respondents maintain that the petition fails to state a claim upon which relief can be granted, that I.M. was afforded due process, that the hearing was properly conducted, that the determination of guilt was based on competent and substantial evidence and that the penalty was appropriate.  They also assert that the petition is untimely and that the claims against the superintendent and principal must be dismissed for lack of personal service.

I must first address several procedural issues.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Petitioner’s counsel declares in his affirmation of service that when he informed the receptionist at the district offices that he wished to serve legal papers, the receptionist summoned the superintendent’s secretary, Teresa Ivey, to receive the papers.  Counsel states that Ms. Ivey informed him that she was authorized to accept legal papers on behalf of the superintendent and the board.  In addition, upon informing Ms. Ivey that he was going to the high school to serve the principal, Ms. Ivey further stated that she was authorized to accept service for the principal.  Respondents do not deny these statements or provide a contrary affidavit from Ms. Ivey (compareAppeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555).  Accordingly, under the circumstances of this case, I am constrained to find that petitioner effected service upon the superintendent and principal.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

In this case, the board’s letter upholding the superintendent’s determination was dated November 21, 2007.  Petitioner submits a copy of the envelope sent to petitioner’s counsel showing that it was incorrectly addressed and not postmarked until November 30, 2007, a Friday.  Even allotting five business days for mailing, the latest date of receipt would be presumed to be December 7, 2007.  However, the petition was not served until January 22, 2008, more than 30 days later.  Accordingly, the appeal must be dismissed as untimely.

In a separate affirmation, petitioner’s counsel provides an excuse for the delay stating that he had surgery on December 4, 2007 and his office, where he is a sole practitioner, was closed until January 3, 2008, and he needed extra time to prepare the petition.  While I am sensitive to counsel’s situation, I note that the board’s letter was also addressed to petitioner.  Nothing in the record indicates that petitioner did not receive the letter and could not have timely commenced the appeal, and the Commissioner’s regulations do not require that counsel also receive a copy of the decision to trigger the 30-day statute of time limitations (see 8 NYCRR Parts 275 and 276; Appeal of R.A. and D.A., 43 Ed Dept Rep 281, Decision No. 14,995).  I have consistently held that neither illness nor ignorance of the appeal process is a valid excuse for late commencement of an appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).  The record contains I.M.’s statement in which he admitted to the charged conduct.  In addition, contrary to petitioner’s assertion in the reply, review of the hearing transcript reveals that a video of the incident from the school’s surveillance system was shown during the hearing.  Based on my review of the record, including the video, I cannot conclude that respondents’ determination was unreasonable or arbitrary.

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

THE APPEAL IS DISMISSED.

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