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Decision No. 15,929

Appeal of C.S. from action of the Board of Education of the West Seneca Central School District regarding student discipline.

Decision No. 15,929

(June 23, 2009)

Michael W. Rickard II, Esq., attorney for petitioner

Harris Beach, PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the West Seneca Central School District (“respondent”) to suspend him through the end of the first semester of the 2008-2009 school year.  The appeal must be dismissed.

During the 2007-2008 school year, petitioner was a senior at respondent’s West Seneca East Senior High School (“high school”).  On April 2, 2008, a member of the high school’s library staff, using computer monitoring software, noticed that someone was logged into a computer named “Emma” as an administrator during Block 1.  This was reported to the high school principal, who investigated and determined that petitioner was responsible.  Petitioner was suspended for five days.

A Superintendent’s hearing was held before a hearing officer on May 1, 2008.  Several individuals testified against petitioner, including the library staff member who noticed the administrative login and three students.  All of these witnesses saw petitioner at, near or on “Emma” during Block 1, and one student testified that petitioner logged into “Emma” with the same username witnessed by the library staff member, and that he (petitioner) indicated that he was looking for the assistant principal’s account.  In addition, at least two students testified to hearing petitioner talk about administrative passwords and/or accounts that day, and all three students testified that petitioner, after logging-off of “Emma,” expressed a concern that he might get in trouble for what he did.  Although petitioner denied being on the computer, the hearing officer found him guilty of attempting to gain access to unauthorized computer resources, and recommended a suspension through the end of the first semester of the 2008-2009 school year.

By letter dated May 5, 2008, respondent’s superintendent adopted the hearing officer’s findings and recommendation and suspended petitioner through the end of the first semester of the 2008-2009 school year.  On appeal, respondent affirmed the superintendent’s decision.  Petitioner subsequently graduated from respondent’s district.  This appeal ensued.

Petitioner, argues that the evidence presented at the hearing consisted of conflicting testimony and failed to prove the charges.  Specifically, petitioner argues that no technical evidence was presented to show that he had logged into the school’s computer system, and that with the exception of one “self-interested party,” respondent “failed to present any eyewitness testimony that petitioner used the school’s computer.”  In addition, petitioner argues that his punishment was excessive, and that it was disproportionate to the punishment received by one of the students who testified against him, who himself admitted to improperly using another student’s username and password.  Petitioner requests that the suspension decision be reversed and removed from his disciplinary record.

Respondent denies petitioner’s allegations and maintains that all students found to have violated its rules were disciplined appropriately.  Respondent also argues that it acted in good faith and that its actions were rational.  Respondent further contends that petitioner’s appeal is, among other things, moot and untimely.

In reply, petitioner accuses respondent of bad faith for allegedly not complying with a subpoena requiring the production of certain records including computer login information from April 1 and 2, 2008.  Petitioner claims that respondent initially indicated that no such records were available, but after his disciplinary hearing produced a login list that, according to petitioner, indicates that he did not use “Emma” on April 2, 2008.

First, I must address several procedural issues.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Here, petitioner’s reply contests specific statements in respondent’s answer and supporting affidavits.  In addition, petitioner’s reply raises new allegations not contained in his petition.  However, since it appears that petitioner’s new allegations are based on information not known by petitioner at the time of his petition, I have considered his reply.  I have also considered respondent’s sur-reply to the extent it addresses these new allegations.

Respondent contends that petitioner’s appeal is 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioner has graduated from respondent’s district and is no longer serving his suspension.  However, to the extent petitioner has requested that his suspensions be expunged from his record, I decline to dismiss the appeal as moot (seeAppeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330).

Respondent contends that the appeal is untimely.  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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  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 Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Respondent made and announced its decision in public session on June 16, 2008.  Petitioner, however, was not present at that session and received respondent’s determination by letter dated June 19, 2008.  Accordingly, I find that petitioner’s appeal, which was commenced on July 18, 2008, is timely.

Turning to 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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535). 

Here, a library staff member testified that someone was logged into “Emma” as an administrator during Block 1, and she and several students testified to seeing petitioner at, near or on “Emma” at the time.  In addition, one student testified that he saw petitioner, who indicated that he was looking for the assistant principal’s account, log in with the user name identified by the library staff member.  Moreover, at least two students testified to hearing petitioner talk about administrative passwords and/or accounts, and three students testified to hearing petitioner express concern for what he did.  The hearing officer found the testimony of the student witnesses to be credible despite petitioner’s denials.  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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  I find there is sufficient evidence in the record from which to conclude that petitioner used “Emma” in an attempt to log into respondent’s computer system as an administrator.  Thus, I find no basis to overturn the hearing officer’s findings or determination of guilt.

Petitioner argues that his suspension (approximately 10 months in length) is excessive in light of his conduct and disciplinary record.  Since the district’s determination of guilt stands and since the suspension has been served, I need not address this issue.

As to petitioner’s allegations that respondent did not provide certain evidence, I have reviewed the login information list to which petitioner refers and am unable to make any determination based upon what was submitted.  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  I find that, petitioner has failed to meet this burden.

In light of the foregoing, I need not consider respondent’s remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE