Decision No. 17,044
Appeal of M.B. and M.B., on behalf of their son M.B. III, from action of the Board of Education of the Bedford Central School District regarding the investigation of allegations of child abuse in an educational setting and bullying or harassment.
Decision No. 17,044
(February 14, 2017)
Bond, Schoeneck & King PLLC, attorneys for respondent, E. Katherine Hajjar, Esq., of counsel
ELIA, Commissioner.--Petitioners challenge the determination of the Board of Education of the Bedford Central School District (“respondent board”) that their son, M.B. III (“M.B.” or “the student”), was not subjected to child abuse in an educational setting or bullying or harassment in violation of the Dignity for All Students Act (“DASA”), in an incident on October 11, 2014 in which the student was pushed by the coach of the district’s high school (“Fox Lane High School”) varsity football team. The appeal must be dismissed.
During the 2014-2015 school year, petitioners’ son was a junior at Fox Lane High School and a member of the varsity football team. Mr. Steven Quinn (“Coach Quinn”) was, at the time of the petition, the head coach of the varsity football team.
On October 11, 2014, during Fox Lane High School’s annual homecoming football game, M.B. incurred a penalty and a short confrontation between M.B. and Coach Quinn ensued. Coach Quinn went on the field and yelled at M.B. and pushed or shoved him toward the sideline from behind on his left shoulder. Petitioners allege that the push or shove caused M.B. to take several steps forward.
As a result of the incident, respondent school district initiated an investigation into the alleged events. As part of the investigation, the district reviewed various videotapes of the incident, witness statements and spoke with both Coach Quinn and petitioners. The district’s investigation found that, while Coach Quinn did push the student’s shoulder, the push did not reach the severity claimed by petitioners, that it was not a strike nor did it cause the student to lunge forward as petitioners claim and did not constitute child abuse as alleged by petitioners.
As part of its investigation, the district also notified the Bedford Police Department and the New York State Education Department’s Office of School Personnel Review and Accountability (“OSPRA”) regarding petitioners’ allegations. It appears from the record that the Bedford Police Department determined that there was no criminal conduct involved and closed the case on October 28, 2014. On January 22, 2015, OSPRA determined there was no basis for action against Coach Quinn’s teaching certificate pursuant to Part 83 of the Regulations of the Commissioner.
Respondent’s Assistant Superintendent of Human Resources informed petitioners of the district’s findings that no child abuse or DASA violations had occurred during the incident, in an undated letter postmarked December 19, 2014. This appeal ensued.
Petitioners allege that Coach Quinn’s actions constituted child abuse in an educational setting and request that he and other school personnel involved in the investigation of and the decision regarding the incident be disciplined and have letters placed in their personnel files. Petitioners allege that the district’s investigation into the incident, including that of the school resource officer assigned to the school, were inadequate and that school personnel engaged in a cover-up. Petitioners further allege that M.B. suffered a shoulder injury as the result of the incident and request that I conduct a separate independent investigation into this matter. Finally, petitioners allege that Coach Quinn acted in retaliation for petitioners’ complaint to the district’s athletic director relating to alleged safety issues in the conduct of the football program.
Respondent board denies petitioners’ allegations and contends that petitioners failed to bring their appeal in a timely manner. Respondent board, while admitting that physical contact occurred between Coach Quinn and M.B. in the game described above, deny petitioners’ characterization of that interaction as “child abuse” or bullying or harassment. Respondent denies that the incident caused any injury to M.B. as alleged by petitioners. Respondent cites to the fact that M.B. continued to play in the game and that injury to M.B.’s shoulder, if any, likely would have occurred as a result of contact with players during the game.
Respondent further contends that petitioners have failed to demonstrate that the district’s investigation into this incident was in any way inadequate or that respondent’s determination lacked a rational basis. Respondent asserts that its determination was sound and consistent with the evidence.
I will first address respondent's objection to the timeliness of the appeal. 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). Petitioners admit receiving the district’s investigatory determination on December 22, 2014. Petitioners served a copy of the petition on respondent on March 16, 2015 and filed the petition with my Office of Counsel on March 17, 2015, well beyond the prescribed 30-day period. Petitioners have not submitted a reply and offer no viable excuse for their late filing. Moreover, 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). I find no unusual circumstances in this case and, therefore, the petition is dismissed as untimely.
To the extent petitioners request that I conduct a further investigation into this matter, I note that such investigations fall outside the scope and nature of an appeal commenced pursuant to Education Law §310. An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). Therefore, petitioners’ request that I conduct an independent investigation into the incident must be denied.
To the extent petitioners request that I discipline tenured school employees, the appeal must be dismissed for failure to state a claim. To dismiss or discipline a tenured employee, charges must be instituted by the board of education pursuant to Education Law §3020-a. I have no authority to order the suspension or termination of tenured employees for the reasons alleged absent a §3020-a hearing. A board of education has broad discretion to determine whether to bring disciplinary proceedings against tenured employees (Appeal of Lamont, 49 Ed Dept Rep 374, Decision No. 16,054; Appeal of Carney, 33 id. 430, Decision No. 13,103). To the extent petitioners request that other school employees be disciplined or dismissed, I have previously held that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (see e.g., Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773).
In addition, to the extent petitioners ask that I reprimand school district personnel, including the school resource officer, I lack the authority to do so. There is no provision in the Education Law authorizing a reprimand of district staff by the Commissioner of Education (see e.g., Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Appeal of Tillett, 52 id., Decision No. 16,473).
With respect to petitioners’ request for the removal of the superintendent of schools or any other school officer subject to removal under Education Law §306, dismissal of such claim is warranted for failing to provide the notice required under 8 NYCRR §277.1. A removal application that fails to contain the required notice is fatally defective (see Application of Wolpin, 50 Ed Dept Rep, Decision No. 14,489; Application of Kroniser, 50 id., Decision No. 16,469; Appeal of Rees and Argus, 50 id., Decision No. 16,335). The petition does not include proper notice for such removal as required under 8 NYCRR §277.1.
In addition, petitioners failed to join the several school personnel and the school resource officer who they seek to have disciplined and/or reprimanded. 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 individuals whom petitioners seek to have disciplined and/or reprimanded would clearly be adversely affected by such a determination and are necessary parties. Therefore, to the extent petitioners seek discipline or reprimand of those personnel, the appeal must be dismissed for non-joinder of necessary parties.
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.
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). The record before me does not support a finding that child abuse in an educational setting occurred in this incident. Education Law §1125(1) defines child abuse to include the following acts committed in an educational setting by an employee or volunteer against a child:
(a)Intentionally or recklessly inflicting physical injury, serious physical injury or death, or
(b)Intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death....
Petitioners have not proven that the alleged misconduct resulted in physical injury or created a substantial risk of injury (Appeal of S.S., 42 Ed Dept Rep 273, Decision No. 14,852). While it was inappropriate for the coach to shove a player, respondent board rationally determined that the physical contact was not of such severity as to create a risk of injury. Petitioners have failed to demonstrate that M.B. suffered an injury to his shoulder as a result of the push. As respondent observes, Coach Quinn pushed M.B. on the shoulder pads and the videotape does not support a finding that there was any significant risk of injury involved.
In addition, I find no basis on the record to conclude that respondent acted unreasonably in its handling of the investigation into this incident. While petitioners claim that district personnel failed to interview additional witnesses that petitioners assert would support their case, respondent reviewed video tapes that clearly showed the incident. In addition, the assistant superintendent who conducted the investigation reviewed the various complaints and eye witness accounts submitted by petitioners.
On the record, I find no basis for concluding that respondent’s conduct of the investigation was unreasonable or that respondent’s determination denying petitioners’ complaints was arbitrary and capricious.
Moreover, the record does not support a finding of a violation of the Dignity for All Students Act (“DASA”). Education Law §11(7) defines “harassment and bullying” in relevant part, as:
the creation of a hostile environment by conduct or by threats, intimidation or abuse including cyberbullying, that (a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits or mental, emotional or physical well-being or (b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety or (c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student, or (d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment....
The videotape of the incident and the student’s and petitioners’ own accounts of the incident belie their accusations that DASA violations occurred in this matter. In the incident report filed with the Bedford Police, the student states that Coach Quinn grabbed him by the jersey, told him a play like that could cost the team the game, and slapped him on the back. The student’s mother, one of the petitioners, states in the report that she did see Coach Quinn grab her son’s jersey and throw him to the side, while his father, the other petitioner, indicates in an affidavit that he observed Coach Quinn hit or push or shove his son in the left shoulder. At no point do any of the statements assert or support a finding that the student was subject to “harassment and bullying” as defined in Education Law §11(7). For example, there is no indication that the student’s physical safety was reasonably or potentially in jeopardy or that the student feared for his physical safety, nor do the videotaped accounts reveal such circumstances. Petitioners have failed to prove that the conduct reasonably caused or would reasonably be expected to cause physical injury or emotional harm to the student or that his educational performance or well-being was substantially interfered with as a result of the incident.
Finally, petitioners also failed to meet their burden of proof with regard to their claims that Coach Quinn’s actions were in retaliation for their criticism of the football program. Petitioners make only conclusory allegations of retaliation and have provided no evidence to support such claims.
THE APPEAL IS DISMISSED.
END OF FILE
 It appears form the record that Coach Quinn subsequently resigned as head football coach, but remained employed by respondent as a guidance counselor.
 Petitioners’ argument that a school resource officer is a district employee because the district reimburses the town for his salary is without merit. Respondent has alleged that supervisory responsibility for the school resource officer is with the town and petitioners have offered no evidence to the contrary.