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Decision No. 17,402

Appeal of J.M. and J.M, on behalf of their son M.M., from action of the Board of Education of the Croton-Harmon Union Free School District regarding student discipline.

Decision No. 17,402

(June 4, 2018)

Keane & Beane PC, attorneys for respondent, Ronald A. Longo, Esq., of counsel

ELIA, Commissionr.--Petitioners appeal the decision of the Board of Education of the Croton-Harmon Union Free School District (“respondent”) to impose discipline upon their son, M.M. (“the student”).  The appeal must be dismissed.

According to respondent, on March 15, 2016, the student agreed with other students to smoke marijuana at a student’s house during the school day.  Respondent further contends that the student sold marijuana to student E.N. and later lied to school administrators by denying that he committed these acts.

In a written notice dated March 16, 2016, the principal of respondent’s high school suspended the student through and including March 22, 2016 for: (1) making plans to smoke marijuana at lunchtime; (2) selling marijuana to another student; and (3) lying to school personnel.

In a letter dated March 16, 2016, the superintendent indicated that he would convene a long-term suspension hearing on March 22, 2016.  The superintendent charged the student with the three charges outlined in the March 16, 2016 written notice.  The hearing convened as scheduled.

In a decision dated March 23, 2016, the superintendent found the student guilty of the charged conduct and suspended the student from March 23, 2016 through June 23, 2016.  The superintendent explained that he had found the testimony of student E.N. to be credible and found the testimony of the other witnesses “inconsistent and contradictory.”  Petitioners appealed this determination to respondent.

In a written decision dated May 5, 2016, respondent denied petitioners’ appeal and upheld the determination of the superintendent.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 16, 2016.

Petitioners contend that the district failed to establish the student’s guilt through competent and substantial evidence.  Specifically, petitioners contend that the determination of guilt was based on the testimony of student E.N., and that E.N. offered inconsistent testimony, was under the influence of marijuana when he implicated the student and was coerced by district officials into implicating the student.  Petitioners further argue that the district conducted an inadequate investigation into the incident and that the student’s punishment was excessive given his academic record and lack of prior discipline.  Finally, petitioners complain that alternative instruction was delivered 22 days after imposition of the student’s suspension and only in two academic subjects.

Respondent denies petitioners’ contentions and argues that the appeal must be dismissed for lack of proper service.  Respondent further contends that the superintendent reasonably determined that student E.N. was a credible witness and that the evidence in the record otherwise establishes the student’s guilt.  With respect to alternative instruction, respondent contends that it was provided two days after imposition of the short-term suspension; that initial attempts to deliver instruction were attributable to scheduling and staffing difficulties; and that, beginning on or about April 14, 2016, the student attended the Putnam Northern Westchester BOCES Regional Alternative High School where he received five and one-half hours of instruction per day.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Here, according to petitioners’ affidavit of service, the instant appeal was served upon the secretary to the superintendent.  Although the affidavit of service attests that the secretary was “duly authorized to accept service,” respondent avers that the secretary has not been designated by respondent to accept service on behalf of respondent or the superintendent.  Petitioners have not submitted a reply or otherwise responded to respondent’s contentions.  When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of C.C., 53 Ed Dept Rep, Decision No 16,526; Appeal of Willis, 50 id., Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117).  On this record, I cannot conclude that petitioners properly served a copy of the notice of petition and petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE