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Decision No. 17,029

Appeal of S.P. and N.P., on behalf of their son C.P., from action of the Board of Education of the Jamesville-Dewitt Central School District regarding student discipline.

Decision No. 17,029

(January 20, 2017)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Jamesville-Dewitt Central School District to impose discipline on their son (“the student”).  The appeal must be dismissed.

On April 20, 2016, a school monitor observed three students, including petitioners’ son, inside the student’s car parked in the district’s high school parking lot with what appeared to be marijuana and drug paraphernalia.  The school monitor contacted the assistant principal who, in turn, contacted the police.

In a letter dated April 20, 2016, the principal asserted that the student violated the district’s code of conduct by possessing drugs and drug paraphernalia on the high school campus.  The principal imposed a five-day out-of-school suspension which would “begin immediately” and continue through April 21, April 22, May 2, May 3, and May 4, 2016.

In a letter dated April 21, 2016, the superintendent informed petitioners that the district would convene a superintendent’s hearing pursuant to Education Law §3214 on May 2, 2016.  The hearing convened as scheduled.

In a letter dated May 2, 2016, the superintendent determined that the student was guilty of the charged conduct.  The superintendent “extended” the student’s suspension through May 6, 2016, after which time he would be permitted to return to school.

Petitioners appealed the superintendent’s decision to respondent.  In a letter dated June 7, 2016, respondent’s president informed petitioners that respondent had upheld the superintendent’s determination at a June 6, 2016 board meeting.  This appeal ensued.

Petitioners contend that the evidence adduced at the superintendent’s hearing does not support a finding that the student engaged in the charged conduct.  Petitioners assert that no evidence at the superintendent’s hearing established that the items discovered within the car were, in fact, drugs or drug paraphernalia.  Petitioners further argue that another student in the car physically possessed the “alleged drug and drug paraphernalia,” and that this student’s guilt may not be imputed to the student.  Petitioners request that respondent’s determination be reversed, and that all details regarding the April 20, 2016 incident and accompanying suspension be expunged from the student’s record.

Respondent contends that the appeal is untimely and must be dismissed.  Respondent also denies petitioners’ allegations that the student did not commit the charged conduct, and argues that the students admitted that they had gone to the car to pack marijuana and that the substance involved was a “dabbing substance,” an illegal resin-type substance used to get high.  Respondent further alleges that the student’s presence in his vehicle and his knowledge that other students were inside with drugs and drug paraphernalia was sufficient to find him guilty of possession.

The appeal 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Here, as petitioners admit, the petition is untimely.  Respondent upheld the superintendent’s determination in a letter dated June 7, 2016.  The record does not reflect when petitioners received this letter; therefore, the letter is deemed to have been received on June 13, 2016 and petitioners were required to serve a petition on or before July 13, 2016.  Petitioners’ service of the petition on July 18, 2016, then, was untimely.

Petitioners argue that their late appeal should be excused because they only learned about the appeal process on or about July 11, 2016, having been
“out of town” prior to that date.  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 Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821). 

No such circumstances are present here.  The record reflects that on July 1, 2016, petitioners served a notice of intention to seek review of the decision of an impartial hearing officer, pursuant to the Individuals with Disabilities Education Act and Education Law §4404, on the district.  In a letter dated July 5, 2016, respondent’s counsel informed petitioners that this was an improper vehicle to seek review of respondent’s determination. Respondent’s counsel further informed petitioners of the availability of the Education Law §310 appeal process, directing petitioners to instructions regarding such process on the New York State Education Department’s website. 

Petitioners suggest that their untimely petition should be excused because they did not receive this letter until July 11, 2016.  However, respondent’s counsel was not obligated to inform petitioners of their appeal rights. Therefore, the July 5, 2016 letter did not relieve petitioners of their obligation to file a timely appeal.[1]  Under these circumstances, I decline to excuse petitioners’ late service of the petition and the appeal must be dismissed.[2]  

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

THE APPEAL IS DISMISSED.

END IF FILE

 

[1] In any event, petitioners still had two days to timely serve an appeal after the date they claim to have received the July 5, 2016 letter. 

 

[2] Subsequent to petitioners’ service of the petition on July 18, 2016, my Office of Counsel advised petitioners that the petition was defective for lack of verification but would be deemed served on the original date of service, July 18, 2016, if the notice and the petition were properly served within a specified time period.  Petitioners complied with this directive.