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Decision No. 16,000

Appeal of M.C. and G.C., on behalf of their son R.C., from action of the Board of Education of the Half Hollow Hills Central School District regarding student discipline.

Decision No. 16,000

(November 7, 2009)

Ivan E. Young, Esq., attorney for petitioners

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) to uphold the suspension of their son, R.C. The appeal must be dismissed.

On January 24, 2008, the principal of respondent’s Candlewood Middle School notified petitioners that R.C. was suspended for five days, from January 24 through January 30, 2008.  On January 25, 2008, the district’s counsel sent petitioners a Notice of Charges (“Notice”) detailing 22 disciplinary charges[1] against R.C. and scheduling a superintendent’s hearing for January 31, 2008 with a hearing officer appointed by the superintendent.  The hearing, at which petitioners were represented by counsel, transpired over 12 days between February 25 and July 18, 2008.  On July 21, 2008, the hearing officer issued his report in which he found R.C. guilty of all 20 charges and recommended that he be suspended through the end of the first marking period of the 2008-2009 school year (November 7, 2008).  Thereafter, the superintendent adopted the hearing officer’s findings of fact, credibility assessment and determination of guilt, and the recommended penalty.

Petitioners appealed the superintendent’s determination to respondent.  By letter dated September 24, 2008, respondent’s president notified petitioners that respondent had affirmed the superintendent’s determination with respect to the findings of guilt and concluded that the penalty imposed was appropriate.  The letter also informed petitioners that they could appeal respondent’s decision within 30 days to the Commissioner of Education.  This appeal ensued.

Petitioners contend that R.C.’s suspension was arbitrary and capricious and taken in retaliation for two Notices of Claim they had filed against the district.  They further contend that the superintendent’s hearing violated their right to a fair hearing, that the hearing officer committed several procedural violations limiting their ability to present witnesses, that the district failed to provide a complete copy of R.C.’s record and that the penalty is excessive.  Petitioners also allege that the district failed in its duty to intervene or evaluate R.C.’s past behavioral issues.  Petitioners seek revocation of the suspension and expungement of the suspension from R.C.’s record.  They also seek costs and attorneys’ fees.

Respondent contends that the petition is untimely, moot and fails to state a claim for which relief can be granted.  Respondent further maintains that petitioners’ reply is untimely and contains improper arguments.  Respondent denies petitioners’ claim of retaliation and asserts that petitioners and their son were afforded due process and that the determination of guilt and the penalty were appropriate.  Respondent further asserts that petitioners are not entitled to fees or costs.

First, I must address petitioners’ reply.  A reply shall be served within 10 days after service of the answer to which it responds unless an extension is granted (8 NYCRR §§275.14[a] and 276.3). Here, although the answer was served by mail on March 5, 2009, petitioners requested and were granted an extension until April 17, 2009, but did not serve their reply on respondent’s counsel until April 30, 2009.  Accordingly, I have not considered petitioners’ untimely reply.

Respondent contends that petitioners’ 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).  R.C. has already served his suspension.  However, to the extent petitioners have requested that R.C.’s suspension 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).

The appeal, however, must be dismissed as 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).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Delaney, 46 Ed Dept Rep 253, Decision No. 15,498; Appeal of Laurencon, 45 id. 514, Decision No. 15,399).  In this case, respondent issued its final determination upholding R.C.’s suspension on September 24, 2008.  Petitioners did not commence this appeal until February 13, 2009, more than four and a half months later, and offered no good cause for the delay in the petition.[2] Accordingly, the appeal must be dismissed as untimely.

In light of this disposition, I need not address the parties’ remaining contentions.  I note, however, that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

THE APPEAL IS DISMISSED.

END OF FILE

[1] Two charges were deleted prior to the hearing.

[2] Petitioners’ excuse that they needed time to secure new counsel was offered only in their untimely reply, which I have determined not to consider.  In any event, such excuse is unavailing, as it does not explain a delay of over four months in commencing the appeal (seee.g.Appeal of T.B., 35 Ed Dept Rep 408, Decision No. 13,586).