Appeal of R.F. and D.F., on behalf of their son R.F., from action of the Board of Education of the East Meadow Union Free School District regarding student discipline and application for the removal of Superintendent Louis DeAngelo and board President Brian O’Flaherty.

Decision No. 16,369

(July 18, 2012)

Jaspan Schlesinger LLP, attorneys for respondents, Carol A. Melnick, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education (“respondent board” or “board”) of the East Meadow Union Free School District (“district”) upholding the suspension of their son, R.F., and seek the removal of Superintendent Louis DeAngelo and board President Brian O’Flaherty (collectively “respondents”).  The appeal must be sustained in part and the application denied.

R.F. was an 8th grade student at the district’s Woodland Middle School (“school”) during the 2009-2010 school year.  On June 9, 2010, the school’s principal contacted petitioners and requested that they take R.F. home from school because he was being suspended for “[c]reating a [d]angerous [s]ituation.”  After their arrival at school, petitioners were informed by the principal that R.F. had admitted possessing a knife on the school bus the previous day after other students had reported to school administrators that they had seen him with the knife.  The principal suspended R.F. for five days commencing June 10, 2010.

By letter dated June 15, 2010, the superintendent notified petitioners of a superintendent’s hearing scheduled for June 17, 2010.  R.F. was charged with violating Education Law §3214 and the district’s Code of Conduct by engaging in:

A hearing was held on July 28, 2010,[1] after which the superintendent, who served as the hearing officer, found R.F. guilty of the charges and imposed a suspension through November 12, 2010.  The superintendent issued a written report on August 4, 2010.  Petitioners appealed to respondent board, which upheld the superintendent’s determination.  This appeal ensued.

Although the petition is not entirely clear,[2] petitioners appear to contend that R.F. was denied his right to due process, that the principal and superintendent violated the Education Law, that the suspension was unsupported by competent and substantial evidence, and that the penalty was excessive.  Petitioners seek an order vacating and expunging R.F.’s short and long-term suspensions.  They also seek removal of the superintendent for his failure to enforce and abide by the Education Law in conducting the hearing, and the board president for his failure to enforce and abide by the Education Law by upholding the superintendent’s decision.

Respondents contend that the appeal must be dismissed because the petition fails to state a claim upon which relief may be granted, fails to join necessary parties and is not verified.  They contend that R.F. was afforded due process with regard to the superintendent’s hearing and that both the short and long-term suspensions were appropriate.

I must first address several procedural issues.  Respondents object to petitioners’ November 30, 2010 submission of a response to their memorandum of law.  Although labeled “Reply,” it is unclear whether petitioners intend this document to be a reply or reply memorandum of law.  Respondents served their answer on October 19, 2010.  Thus, to the extent petitioners’ submission is intended as a reply, it is untimely, because petitioners failed to serve it within 10 days after service of the answer in accordance with §275.14(a) of the Commissioner’s regulations.  In addition, to the extent such document is intended as a reply memorandum of law, a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of Muench, 38 id. 649, Decision No. 14,110) and may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Dunshee, 44 id. 414, Decision No. 15,216).  Although petitioners apparently contacted my Office of Counsel prior to their submission, it fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers.  Accordingly, I have not considered it.

Respondents contend that the appeal must be dismissed because the petition is not verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition that was filed with my Office of Counsel included the required verification.  Therefore, dismissal on that basis is not warranted (seeAppeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,214; Appeal of Hall, 46 id. 394, Decision No. 15,543).

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  R.F. has served the suspensions and returned to school.  Therefore, except to the extent that petitioners seek expungement of R.F.’s record, the appeal must be dismissed as moot.

To the extent petitioners seek to remove the superintendent and the board president, the application must be denied for failure to join necessary parties.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The record indicates that petitioners served only the district by personally serving the superintendent’s secretary and Walter Skinner, a member of the board.  Neither the superintendent nor the board president was personally served with a copy of the notice of petition and petition.  Accordingly, petitioners’ removal application must be denied.

In addition, petitioners’ application for removal must also be denied because the notice of petition is defective.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioners failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).

Turning now to the merits, 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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).  Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

The principal issued two letters to petitioners dated June 9, 2010.  In the first, he suspended R.F. for five days commencing June 10, 2010, for “[c]reating a [d]angerous [s]ituation.”  The letter notified petitioners of their right to an informal conference and to question witnesses, but required them to contact the principal’s office by 4:00 p.m. on June 9, 2010 to arrange a conference or else the suspension would go into effect.  In the second letter, the principal thanked petitioners for attending an informal conference that day and informed them that the suspension commencing June 10, 2010 would proceed.

While the record is clear that petitioners were somehow notified to come to school and that they met with the principal on June 9, 2010, there is no evidence in the record that petitioners received prior written notice of the suspension.  Indeed, petitioners assert that they received the principal’s first letter by regular mail on June 11, 2010.  While respondents generally deny petitioners’ assertion, they submit no evidence to the contrary and the record contains no evidence that the June 9 letter was personally delivered or sent by express mail or equivalent means to provide petitioners timely written notice in accordance with the Commissioner’s regulation (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).  Furthermore, even if petitioners were orally notified to appear at school on June 9, prior to the suspension, oral communication is not a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Moreover, the mere statement in the principal’s letter that R.F. was being suspended for “[c]reating a [d]angerous [s]ituation” is insufficient to demonstrate that his presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process such that written notice and a conference prior to the suspension were not required.  Indeed, the record reveals that the dean of students (“dean”) searched R.F.’s locker and gym locker on June 9, but did not find a knife.  Accordingly, the suspension from June 10 through June 16, 2010 must be expunged from R.F.’s record.  In light of this disposition, I need not address petitioners’ contentions that the principal denied their request for the identity of student witnesses and that the dean falsified the disciplinary referral form.

Although the initial five-day suspension must be expunged, that does not entirely resolve the matter, because a subsequent superintendent’s hearing was held.

As to the long-term suspension, 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners contend that R.F. only admitted guilt after he initially denied possessing the knife five times, and after the assistant principal promised him a less severe penalty if he did so.  They assert that this quid pro quo for cooperation violates the Education Law and invalidates R.F.’s admission.  Petitioner R.F. contends that his son privately admitted to him that he had brought on the bus a divot tool used for golf, not a knife, and therefore, respondents failed to prove the charges by competent and substantial evidence.  Petitioners contend further that they were denied the opportunity to question witnesses, including the principal, and that hearsay evidence alone is insufficient evidence.  They assert that the penalty is excessive and disproportionate to the severity of the offense and that the superintendent’s failure to enforce and abide by the Education Law governing the proceedings evinces wilful and intentional wrongdoing.

Petitioners claim that the hearing officer’s decision was not based on competent or substantial evidence because the evidence presented at the hearing was entirely hearsay.  However, hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

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 C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

At the July 28, 2010 hearing, the dean and assistant principal testified for the district.  The dean testified that on June 9, 2010, a student reported to him that on June 8, 2010, he had seen R.F. on the school bus with a knife.  The dean asked that student for names of other students who had also been on the bus at that time.  The dean testified that, of the three additional students whose names he had been given, one stated that on June 8, 2010, R.F. had a knife on the bus, another stated that R.F. told him he had a knife on the bus, and a third stated that R.F. had shown him the knife while riding on the bus and again when they disembarked.  The dean stated that he found the students’ statements credible because he met with each one individually, they had described the knife as having a dark handle with a silver blade, and their stories were consistent.  In addition, the dean testified that, after he showed them a photocopy of a divot tool that petitioner R.F. brought into school on June 10, 2010, the students confirmed that they had seen R.F. on the bus with a knife, not a divot tool.

The dean testified further that when he interviewed R.F., R.F. initially denied possessing a knife.  However, when questioned in his presence by the assistant principal, with whom R.F. had a close daily working relationship because she had been assisting him all year with his academic issues, R.F. admitted that he had brought a knife to school, that his uncle had given it to him, that he carried it for protection, and that he did not have it on the day of the interview.  The assistant principal also testified that R.F. initially denied having the knife on the bus when questioned by the dean, but that when she questioned him, R.F. admitted having the knife.

Petitioners had the opportunity to cross examine both witnesses and to call their own witnesses.  The record indicates that petitioners only called D.F., the student’s mother, to testify at the hearing, and presented no evidence that R.F. did not possess a weapon.  Nor does the record contain evidence of coercion or of any promises made to R.F. to extract an admission.

Based on the record before me, I find that petitioners have failed to meet their burden of proof regarding their allegations of a coerced admission.  I further find no reason to substitute my judgment for that of the hearing officer regarding the credibility of witnesses, and that there is competent and substantial evidence to sustain the charges against R.F.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  In light of R.F.’s admission and the serious nature of the charges, I do not find the suspension imposed to be excessive.

Education Law §3214(3)(c) provides, in pertinent part:

An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.  The board may adopt in whole or in part the decision of the superintendent of schools. [Emphasis added]

Petitioners appear to argue that they were improperly excluded from attending respondent board’s executive session at which their appeal of the superintendent’s determination was considered.  Although statutory provisions do not preclude the presentation of arguments to a board of education on appeal of a suspension determination, there is no requirement that respondent board permit petitioners to present arguments in person before it considered R.F.’s appeal in executive session; nor is there any requirement that petitioners be allowed to attend such executive session.  To the extent petitioners appear to complain that the board failed to contact them, I note that by letter dated September 3, 2010, the superintendent notified petitioners that the board had “engaged in a comprehensive review of the record and determination of the Superintendent’s hearing.  Based upon that review, the Board adopted the Superintendent’s decision.”  Accordingly, I find that the record indicates that the board properly based its determination on the record before it.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND THE APPLICATION IS DENIED.

IT IS ORDERED that respondents expunge from R.F.’s record any reference to a suspension from June 10 to June 16, 2010.

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