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Decision No. 17,407

Appeal of J.C. and J.C., on behalf of their son A.C., from action of the Haldane Central School District and Dr. Diana Bowers as Superintendent regarding student discipline.

Decision No. 17,407

(June 11, 2018)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondents, Michael K. Lambert, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal from action of the Haldane Central School District (“respondent district”) and superintendent Dr. Diana Bowers (“respondent superintendent”) (“collectively respondents”) in connection with discipline imposed upon their son, A.C.[1]  The appeal must be dismissed.

According to the record, A.C. was found to have had a knife in his possession on middle school property on March 24, 2015.  On March 24, 2015, the principal of the middle school issued a letter to petitioners stating that A.C. was being suspended for five days for possessing a dangerous weapon, i.e. the knife.  The principal stated that the suspension was to begin on March 25, 2015 and, given the seriousness of the charge, the matter was being referred to the superintendent for a hearing.  The principal stated that A.C. could not enter school grounds until the hearing.

On April 7, 2015, respondent superintendent conducted a hearing to determine whether A.C. should be suspended for a period in excess of five days.  At the hearing, A.C. admitted his guilt of the charge.

On April 8, 2015, respondent superintendent issued a letter to petitioners ordering that A.C. be suspended for an additional eight days to run from April 8, 2015 through April 17, 2015.  Respondent superintendent also stated that A.C. had the option of doing 30 hours of community service in lieu of serving five days of the suspension.

On April 7, 2015, petitioners sent an email to the district clerk, with copies to the respondent superintendent and principal, stating that they were appealing respondent superintendent’s decision to the board of education.  On April 9, 2015, the district clerk issued a letter to petitioners stating that the board would conduct the hearing on April 21, 2015 in executive session, and that the board would make its determination based solely upon the documents on the record, i.e. no witnesses, no testimony, and no new information.  Petitioners submitted a written statement arguing that the additional suspension had an adverse effect on A.C. emotionally and academically, and that the additional suspension was a penalty that did little to reach the code of conduct’s objective that penalties are designed to implement positive change in student behavior.

On April 21, 2015, the board met in executive session to consider petitioners’ appeal.  On April 23, 2015, the board issued a written decision reducing respondent superintendent’s imposition of an eight-day suspension to a five-day suspension.  The board also stated that A.C. had the option of performing 30 hours of community service in lieu of the five-day suspension.  The board stated that if petitioners wished to elect the community service option, they must inform respondent superintendent in writing by 5:00 p.m. on April 27, 2015.  The board also stated that if petitioners did not wish to elect the community service option, that A.C. would serve his suspension from April 28, 2015 to May 4, 2015.

On April 27, 2015, respondent superintendent wrote to petitioners stating that she received their correspondence indicating that they opted for community service.  Respondent superintendent also requested that petitioners sign and return an enclosed re-entry contract (“contract”) by 5:00 p.m. that day.  The record indicates that between the period of April 27th and April 30th, a verbal agreement was reached where petitioners were given additional time within which to sign the contract.

On April 30, 2017, respondent superintendent wrote to petitioners confirming that petitioners were going to inform respondent superintendent, by no later than the close of work on May 1, 2015, as to whether A.C. opted for community service or would serve the five-day suspension from May 4, 2015 through May 8, 2015. 

On May 1, 2015, petitioners sent an email to respondent superintendent explaining that they had a problem with signing the contract as it contained a provision whereby petitioners must agree to waive their right to appeal the suspension to the Commissioner or the courts.  Petitioners further inquired as to whether the board would change that provision. 

On May 2, 2015, respondent superintendent sent an email to petitioners stating that the contract was not going to be modified, and that, based upon their failure to execute the re-entry contract, A.C. would serve his suspension from May 4, 2015 through May 8, 2015.  This appeal ensued.

Petitioners allege that the long-term suspension has negatively affected A.C.’s grades, and that if respondents had removed the waiver clause, or had allowed the board to review the contract, then petitioners could have signed the contract and A.C. could have completed the community service as he intended to do instead of serving the five-day suspension.

As relief, petitioners request “confirmation” that respondent district improperly deprived A.C. the option to stay in school while participating in community service.  Petitioners also demand expungement of the long-term suspension from A.C.’s records and that steps are taken to ensure that there are no residual negative impacts on A.C.’s grades resulting from his suspension.

Respondents contend that the superintendent was never personally served and therefore, petitioners have not established jurisdiction over her.  Respondents further argue that the superintendent and the board of education have the discretion to impose the waiver conditions in the contract and that petitioners’ argument that imposing such additional requirements in the contract have no legal or factual support.  Respondents also argue that providing petitioners with the option of community service is a discretionary act that does not implicate Education Law §3214, which concerns suspensions from instruction.

I must first address the procedural matters.  On June 25, 2015, petitioners served a reply upon respondent district.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondents served their verified answer upon petitioners by mail on June 10, 2015.  Therefore, the deadline for petitioners’ reply was June 24, 2015.  Since petitioners served their reply on June 25, 2015, their submission is not timely (Appeal of D.S. and D.S., 45 Ed Dept Rep 289, Decision No. 15,327).  I note that the petitioners did not ask for an extension of time to serve their reply.  As a result, I have not considered the reply.

With respect to respondents’ procedural argument that petitioners failed to establish jurisdiction over the superintendent, I agree.  To establish jurisdiction, 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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Here, while the superintendent was named as a respondent, and petitioners failed to personally serve her with the petition.  Petitioners have provided no evidence to support a finding that the person named in the affidavit of service is an authorized agent for service of process and was authorized to accept service upon respondent superintendent.  Instead, the affidavit of service indicates that service was made upon the district, not respondent superintendent.  As a result, the appeal must be dismissed to the extent that it pertains to respondent superintendent.

The appeal must be dismissed for failure to properly join the board of education as a necessary party.  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 caption of the petition indicates that it is an appeal “[f]rom a Superintendent’s Decision in a hearing held pursuant to Section 3214(3) of the New York State Education Law”, even though an appeal had been taken to the board of education.  Because Education Law §3214(3)(c)(1) provides that an appeal lies to the board of education from a determination of the superintendent of schools following a student disciplinary hearing, the board is a necessary party (Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,205).  However, while the caption in the petition and notice of petition names the superintendent, it does not name either the board or the district as a respondent Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,205).  Where, as here, the board is not clearly named in the caption and joined by service of a copy of the petition, the appeal must be dismissed (Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,205).

To the extent petitioners challenge respondents’ actions in requiring petitioners to waive their right to challenge the disciplinary decision as a condition of early return to school upon completion of community service, the appeal must be dismissed as 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  The student has served his full suspension and did not make an early return to school based upon community service.  Petitioners are not seeking to have references to community service expunged from the student’s record (cf. Appeal of S.A., 36 Ed Dept Rep 160, Decision No. 13,689; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899).  Accordingly, no meaningful relief can be granted in this regard and petitioners’ claim is moot.

To the extent petitioners request “confirmation” that, by requiring petitioners to sign the contract, respondent district improperly deprived A.C. of the option to stay in school while participating in community service, they seek a declaratory ruling or an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Even if I did not dismiss this appeal on procedural grounds, I would dismiss this appeal on the merits.

Petitioners request that I expunge the long-term suspension from A.C.’s records and ensure that steps are taken to ensure that there are no residual negative impacts on A.C.’s grades resulting from his suspension.  Expungement of records is appropriate relief under certain circumstances, including where the finding of guilt is not supported by competent and substantial evidence, the penalty is excessive, or there has been procedural error.  Petitioners make no argument that respondents failed to follow proper procedure in conducting the hearing, e.g. lack of notice.  Petitioners’ son has admitted his guilt of the charges and petitioners make no argument that the penalty imposed was excessive.

Finally, for the benefit of the parties, I remind respondents that the Commissioner has ruled that a board of education has no authority to impose a community service requirement as a penalty under Education Law §3214 (Appeal of L.H., 43 Ed Dept 315, Decision No. 15,005; Appeal of R.M. and L.M., 43 id. 155, Decision No. 14,951; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899).  While Education Law §3214(3)(e) has been amended to authorize a district to condition a student’s early return to school on the student’s voluntary participation in counseling or specialized classes, the statute makes no reference to community service.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Neither the board of education nor the school district are named in the caption of the notice of petition or petition.  Petitioner’s affidavit of service indicates that service was made upon the district.