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Decision No. 17,560

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Alden Central School District regarding student discipline.

Decision No. 17,560

(December 21, 2018)

Snyder Law Firm, attorneys for petitioner, Thomas A. Nytral, Esq., of counsel

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Alden Central School District (“respondent”) to impose discipline upon his son (the “student”).  The appeal must be sustained in part.

The record indicates that, during the 2017-2018 school year, the student attended high school in respondent’s district and was a member of the district’s varsity rifle team.  At a meeting held on November 15, 2017, members of the rifle team informed the coach of certain allegations against the student.  According to the coach, there were about eight students at the meeting.  Student F.L., a member of the rifle team, served as the primary spokesman for the students’ concerns.  The concerns related to a series of troubling and/or threatening statements attributed to the student that were directed at or overheard by team members.  They included allegations that the student had told the team that he had injected fluids into food that would turn the mouth and jaw of the recipient numb, that the student threatened to put things in team members’ drinks if they “messed with” him, that the student threatened to put a bullet in F.L.’s head and that the student was overheard saying that he had pointed his rifle at another teammate’s head.   F.L. also informed the coach that the student had said that he “makes explosive bombs in the basement and [that] he orders supplies off the internet.”  The rifle team coach (“the coach”) prepared a written document summarizing the concerns.  This document, presented in narrative form, states in part that:

The next discussion that [F.L.] talked about was how [the student] had told both the soccer team and the rifle team that [h]e makes explosives, “bombs”, in his basement and that he orders the supplies off the internet.

Although the document indicates that the coach “ask[ed] the rifle team members to please place the events that they were present for into a statement as well as the things they heard and who they heard them from,” there is no indication in the record that this task was completed.

The coach informed the high school’s athletic directors of the allegations on the evening of November 15, 2017.  The athletic director indicated that they would bring the concerns “to the administration and to the guidance counselor.”

On the following day, the principal “received” the report from the coach and contacted the school resource officer (“SRO”) by telephone.  The SRO indicated that she “wanted to have a detective dispatched to the [student’s] home ... to search the residence for explosives.”  The principal informed the SRO that he “would identify where the student was at that time.”  The student was located in study hall.  During the phone conversation, the principal also informed the SRO “that [he] would do a search of [the student’s] locker and there would be information that was shared in the statement” [sic].

The record indicates that the principal proceeded to open the student’s locker and search the “front pouch” of the student’s backpack.  The principal discovered an electronic device, with an electronic circuit board, a timing device and “some kind of canister.”  There was also a nine-volt battery in the backpack; the principal testified at the hearing that he was not sure whether the battery was fully attached to the device.  The principal then entered the classroom of the coach, who is also a technology teacher at the high school.  The coach testified that the principal appeared on edge.  The principal asked the coach if the student was in his electricity class, what classes the student may have taken with the teacher, and whether “there would be any reason for [the student] to have a circuit board with him ....”  The coach responded that the student was not in the electricity class, that he could not recall which previous class the student took, and that he was not aware of any reason why the student would have a circuit board.  The principal then said he needed the coach to “come with [him].”  The coach complied.

The principal and coach then proceeded to the men’s faculty restroom.  The principal, who apparently had brought the student’s backpack with him, “opened up the ... pouch and showed [the coach] the circuit board ....”  The principal asked the coach if he knew what it was.  The coach indicated that he did not.  The principal then left and initiated a school lockdown and shelter-in-place drill.  The principal also contacted the local police department, and the bomb squad was called.  The record reflects that a police officer eventually arrived, approached the student in a classroom and took him into custody.  The student agreed to speak with the officer and indicated that “he had a CO/Smoke Detector that he had taken apart to see how it worked in his back pack.”  The student denied “having planted any explosives or anything else that could harm anyone.”  The officer also found a two-way radio in the student’s pocket. 

Separately, another officer proceeded to the student’s home to conduct a search for bombs or explosive material.  The police obtained consented to search the home.  The officer noted that “[n]umerous items appeared to be suspicious and a request was made for a bomb technician to evaluate the scene.”  However, “upon further investigation no bomb making materials were discovered.”  The student was “cleared criminally of any wrongdoing” but was cautioned “that bringing suspicious items to school would cause further alarm” and admonished to “cease such activities.”

In a letter dated November 17, 2017 signed by the principal and assistant principal, petitioner was informed that the student was suspended for five days because he “had (what appeared to be) an explosive device in his school locker.”

In a letter dated November 22, 2017, the superintendent indicated that a long-term suspension hearing would be convened to address ten charges against the student, including possession of what appeared to be an explosive device.[1]

The hearing, presided over by a hearing officer, was held over three days on December 13, 18, and 19, 2017.  At the hearing, the student pled guilty to charge three, “possession of a two-way radio in school,” but denied his guilt as to the remaining charges.[2]

In a written decision dated December 26, 2017, the hearing officer found the student guilty of all ten charges.  In a separate decision dated January 8, 2018, the hearing officer recommended that the student be suspended “until the beginning of the 4th marking period of the 2018-19 school year” with the possibility of return “at the beginning of the 3rd marking period” if the student satisfied four separate conditions.[3]  The superintendent adopted the hearing officer’s recommendations with respect to guilt and penalty on January 10, 2018.

Petitioner appealed the superintendent’s decision to respondent on January 25, 2018.[4]  The record indicates that respondent denied petitioner’s appeal, and this appeal ensued.[5]

Petitioner contends that the November 22, 2017 letter outlining the charges against the student was a “deficient ... instrument” in that it, among other things, failed to identify the charges against the student with specificity.  Petitioner additionally argues that the district failed to produce competent and substantial evidence of the student’s guilt as to charges 1, 2, and 4-10.  Petitioner contends that the hearing officer erred by accepting the testimony of students F.L. and L.G., whom he alleges were biased against the student.  Petitioner further objects to respondent’s use of hearsay evidence to prove its case.  Petitioner also argues, with respect to penalty, that certain comments made by the student were in a joking manner or were not serious.  Petitioner seeks an order “revers[ing]” the student’s suspension and expungement of charges 1, 2, and 4-10 from his record “or in the alternative, reduc[tion] [of the suspension] to a reasonable amount of time.”

Respondent contends that it produced competent and substantial evidence of the student’s guilt as to charges 1, 2, and 4-10.  Respondent argues that the student admitted his guilt to some of these charges and that, in other instances, the hearing officer weighed the student’s testimony against that of other witnesses and found the other witnesses more credible.  Respondent further argues that the penalty was appropriate given the multiple instances of misconduct which the student was found to have committed by competent and substantial evidence.

First, petitioner contends that the written notice of charges was “defective” in that it suggested that the charges “were already proven” and did not cite to particular portions of the Code of Conduct.[6]  Additionally, with respect to charges 4-10, petitioner contends that the notice of charges failed to identify the date, location, or time of the charged conduct.  The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

Here, I do not find that the written notice of charges deprived the student of his due process rights.  First, petitioner’s argument that the charges are presented as proven facts is not supported by the text of the notice.  The preface to the charges reads: “[t]his formal hearing is being held to consider the following charges against [the student].”  Second, I do not find that charges 4-10 are deficient for failure to identify the date, place, or time of the charged conduct.  Each charge identifies a date, although it is qualified by the phrase “[o]n or about ....”  Moreover, three of the seven charges identify a place where the conduct occurred.  While four of the seven charges did not identify the location where the conduct occurred or what time it occurred, I do not find that these omissions render the notice of charges defective (see Appeal of H.B., 46 Ed Dept Rep 369, Decision No. 15,536; Appeal of B.K. and R.K., 44 id. 195, Decision No. 15,146).  The hearing transcript demonstrates that petitioner understood the nature of each charge against him, cross-examined witnesses, and introduced evidence and testimony in support of his defense.  There is no evidence in the record suggesting that the student did not have an opportunity to defend himself over the three days of hearings.  I find the notice of charges to be sufficient under these circumstances.

Petitioner also claims that much of the evidence upon which respondent relied upon at the hearing was hearsay evidence.  However, it is well-settled that hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. 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.E., 57 Ed Dept Rep, Decision No. 17,267).  Therefore, to the extent some of the charges were supported by hearsay evidence, this, in and of itself, does not invalidate these findings.

 Turning to the heart of petitioner’s challenges on appeal, petitioner argues that the district failed to produce competent and substantial evidence of the student’s guilt regarding charges 1, 2, and 4-10.  These charges are addressed below in seriatim.

Charge 1. On or about November 16, 2017, [the student] engaged in conduct that was violent or physically aggressive.  More specifically, [the student] had (what appeared to be by the Principal) an explosive device in his school locker.

The hearing officer found the student guilty of charge 1, reasoning, essentially, that the parties agreed that the student “possessed the device in question ....”  The hearing officer then concluded that the principal’s “identif[ication] [of] this device as suspicious in the context of concerns that were recently voiced about [the student” was reasonable.  However, the hearing officer’s discussion does not analyze whether the evidence supported the specific charge against the student; namely, whether the student engaged in “violent or physically aggressive” conduct by possessing the device.  On this point, the evidence in the record does not support the hearing officer’s conclusion. 

It is first necessary to examine the factual background leading to discovery of the device in the student’s backpack.  The genesis of this incident was a comment made by student F.L. at the November 16, 2017 rifle team meeting that the student possessed bombs at his home.  At the hearing, F.L. testified that there were “a couple of occurrences” in which the student “said he built bombs in his basement,” including statements “on rifle team” and “2 years ago during soccer ....”  At the time, F.L. thought these statements were made in jest.[7]

This evidence supported the principal’s decision to contact the SRO and, arguably, the principal’s decision to search the student’s locker and the student’s backpack.  The principal explained that the student’s statements to the rifle team and soccer team that he “ma[de] explosives at home in his basement” constituted, in his view, “[r]easonable suspicion” which justified his search of the student’s locker.  However, in this appeal petitioner does not raise a constitutional challenge to this search and I issue no opinion thereon.

The student testified that the device was a portion of a carbon monoxide detector (the “carbon monoxide detector” or “device”) which he had taken apart and placed in his backpack “two [or] three months” before November 16, 2017.  The student explained that the carbon monoxide detector had been “constantly beeping” at home, and, with his parents’ permission, he took it apart to see how it worked.  The student further testified that he did not tell anyone that the device was in his bag and did not take it out at school at any time.  Respondent did not introduce any evidence to rebut this testimony.  The record also demonstrates that the device was, in fact, a carbon monoxide detector, and not a bomb or other device that could cause physical injury or death.  Therefore, it was not a “weapon” as defined in respondent’s code of conduct.

The allegations made by student F.L. were extremely serious, and respondent’s decision to investigate these charges was reasonable.  However, respondent has pointed to no evidence in the record suggesting that the student’s possession of the carbon monoxide detector was “violent or physically aggressive.”  Like the examples of “violent or physically aggressive” conduct contained in the code of conduct, the definition of a “[v]iolent student,” consistent with Education Law §3214(2-a)(a),  includes a student who possesses a weapon on school property or “[d]isplays, while on school property ... what appears to be a weapon.”  As noted above, the device was not a weapon as defined in the code of conduct, and there is no proof that the student displayed the device to anyone on school property.  Instead, the student offered unrebutted testimony that the carbon monoxide detector was in his backpack for two or three months prior to its discovery and that he neither showed it to anyone nor revealed its existence.  The only reason that the carbon monoxide detector was discovered was due to the principal’s decision to search the student’s locker. 

The hearing officer acknowledged that the alleged conduct did not fit neatly within the illustrative definitions of “violent or physically aggressive conduct” contained in respondent’s code of conduct.  As the hearing officer observed, the closest analogy was “[d]isplaying what appears to be a weapon,” and the student engaged in no such act.  Nevertheless, the hearing officer found the student guilty of the charge.  While reasoning that this analysis was “addressed more appropriately in Charge #2,” the hearing officer found that the student had “[e]ngag[ed] in [a] willful act which disrupt[ed] the normal operation of the school” and “interfere[ed] with the learning process.” The hearing officer further found that the student’s conduct was “disorderly” and “disruptive” conduct, words which are separately defined in respondent’s code of conduct.  I find that the hearing officer erred by borrowing definitions from separate portions of the code with which the student was not charged.  Charge 1 specifically charged the student with “violent or physically aggressive conduct” and the district must be held to the language of this charge (see Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,335; Appeal of A.F. and T.P., 56 id., Decision No. 16,997).

In reaching this finding, I do not suggest that the student’s conduct was appropriate or consistent with respondent’s code of conduct.  The record contains a photograph of the altered carbon monoxide detector, which resembles a circuit board and has a prominent, digital numerical display.  Respondent could have charged the student with disorderly conduct as it did in charge 2, but it instead chose to charge the student with “violent or physically aggressive” conduct, a charge which the evidence in the record does not support (see Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,335).  Accordingly, the finding of guilt on this charge must be reversed.

Charge 2. On or about November 16, 2017, [the student] engaged in conduct that was disorderly.  More specifically, by having (what appeared to be by the Principal) an explosive device in his school locker, lockdown procedures were implemented and this disrupted the normal operation of the school community.

The hearing officer concluded that the student’s possession of the device violated sections (1)(e) and (3)(b) of the section of respondent’s code of conduct entitled “Prohibited Student Conduct.”[8]  In this regard, I note that the hearing officer found that the student’s possession of the device constituted “disruptive” conduct in violation of section 3(b) of the code of conduct because it “[i]nterfere[ed] with the learning process.”  However, respondent charged the student with “disorderly” conduct, not “disruptive” conduct, and the two terms are defined separately in respondent’s code of conduct and describe different kinds of conduct.

However, any error in the hearing officer’s finding of “disruptive conduct” is of no consequence because the hearing officer properly determined that the student’s possession of the device constituted “disorderly” conduct in violation of section 1(e) at page 9 of the code of conduct.  The charge alleges that the student engaged in conduct that was “disorderly” by possessing the device because his possession of the device caused the initiation of “lockdown procedures.”  Section (1)(e) at page 9 of respondent’s code of conduct, in relevant part, cites “[e]ngaging in any willful act, which disrupts the normal operation of the school community” as an example of “disorderly conduct.” 

In its memorandum of law, respondent contends that the student’s possession of the carbon monoxide detector constituted a “willful act” within the meaning of section 1(e).  While “willful” is not defined in respondent’s code of conduct, the Merriam-Webster Online Dictionary defines “willful” as “done deliberately: intentional.”  Respondent’s interpretation of this term as used in section 1(e) is reasonable and consistent with that dictionary definition; petitioner has provided no evidence to contradict such interpretation (see Appeal of N.C. and M.C., 56 Ed Dept Rep, Decision No. 17,056; Appeal of R.C. and D.C., 54 id., Decision No. 16,674; Appeal of Barbara D. and James D., Jr., 34 id. 118, Decision No. 13,252).  Thus, respondent could properly conclude that, in accordance with the dictionary definition, the student committed a willful act by deliberately and intentionally placing the device in his locker.

I recognize that the Commissioner of Education has long held that the term “wilful,” as used in Education Law §306 in the context of the removal of school officers, means an intentional act committed with a wrongful purpose (Application of the Bd. of Educ. of the City School Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).  However, I decline to extend such interpretation of that statutory term to the interpretation of a local code of conduct in the context of student discipline.  Absent any proof that such term as used in respondent’s code of conduct was intended to have the same meaning as in Education Law §306, I have no basis for determining that respondent was required to prove that the student had a wrongful purpose in bringing the device to school.  Boards of education are authorized to suspend students who are “insubordinate or disorderly or violent or disruptive or whose conduct otherwise endangers the safety, morals, health or welfare of others” (Education Law §3214[3][a]).   Reading a strict interpretation of the phrase “willful act” into  local code of conduct language to require that the district prove that the student had a wrongful purpose in bringing the device to school would thwart the underlying purpose of Education Law §3214(3)(a), which is to authorize boards of education to suspend students so as to prevent disruption of the educational process and protect the health and safety of others.

Moreover, even assuming that the code of conduct’s definition of “willful” included the element of wrongful purpose, the record supports a finding that the student had a wrongful purpose in bringing the device to school.  The student’s testimony concerning the circumstances under which he brought the carbon monoxide detector to school is not entirely credible.  He testified that he brought the carbon monoxide detector to school for several months, and that his intent was to take it apart during free time in study hall or during rifle team practice and learn how it worked.  However, he provided no explanation of why he could not have done this at home, or why he believed that a supervising teacher or coach would permit him to dismantle such a device in a study hall or during team practice.  Additionally, neither the student nor his father testified that the student brought tools in his backpack for use in dismantling the device, and the principal makes no mention of finding tools in proximity to the device.  Furthermore, although the record indicates that the student took an electronics class in the prior school year, there is no evidence that dismantling the device was relevant to any course the student was currently taking.  In any case, the student, by his own admission, brought the device to school for the express purpose of dismantling it and did not seek permission to do so from any teacher or school administrator. 

The record further establishes that the device could easily be mistaken for a bomb.  The photograph of the device in the record portrays a timer, an electronic circuit board, and a metal canister with unknown contents.  The photograph also includes a battery with wires that could be attached to the device.  To a layperson, the device could reasonably be perceived as a bomb.  The record indicates that two police officers, while each acknowledged that they were not bomb technicians, testified that, in their professional opinions, the device had components which could be consistent with those of a bomb.  It is clear, in any case, that the device was treated as suspicious and that a bomb technician with the police department was deployed to investigate.

I find that the student should have known that bringing a device to school that had the appearance of a bomb without obtaining permission of school officials was impermissible.  While this is not a criminal proceeding and the student was not criminally charged for his conduct, I note that Penal Law §240.62 provides that a person is guilty of placing a false bomb or hazardous substance in the first degree, a class D felony, when that person:
places, or causes to be placed, in or  upon school grounds, a public building, or a public place any device  or  object  that  by  its  design,   construction, content or characteristics appears to be or to contain, a bomb, destructive  device,  explosive  or  hazardous  substance,  but  is,  in  fact,  an  inoperative facsimile or  imitation of such a bomb, destructive  device,  explosive  or  hazardous  substance and which he or she knows, intends or reasonably believes will appear to  be  a  bomb,  destructive  device, explosive  or  hazardous  substance under circumstances in which it  is  likely  to  cause  public  alarm  or  inconvenience.
Thus, while the student was not charged with such offense, this Penal Law provision clearly provides the student with notice that bringing a false bomb to school is a serious matter that, depending on the circumstances, could constitute a serious criminal offense.  
More importantly for purposes of this appeal, the stated intent of the student was to dismantle the device in a study hall or a rifle team practice room, which means that he brought the device to school with the intent to display it.  As noted above, displaying what appears to be a weapon, including a bomb, is explicitly prohibited by respondent’s code of conduct.  The student’s plan to dismantle the device in a public space where other students and staff members would be present constituted a contemplated “display” of the device, which is prohibited by respondent’s code of conduct.  Therefore, I find that the student was on notice that bringing a device to school that appears to be a bomb in order to display it was a violation of respondent’s code of conduct, even though there is no provision of the code that explicitly prohibits possession of what appears to be a weapon in school.  The key point is that the student brought the device to school, by his own admission, with the intent to display it and not to, for example, keep it concealed within his backpack.  Therefore, I find that the student acted with wrongful intent in bringing the carbon monoxide detector to school with intent to display it under the circumstances presented in this case.
I reject petitioner’s argument that respondent impermissibly charged the student with the consequences of his actions rather than a discrete action that could be proven at a hearing.  The student was charged with disorderly conduct and, under section 1(e) of respondent’s code of conduct, any willful act which disrupts the normal operation of the school community constitutes disorderly conduct.  Placing the device in the student’s locker is a discrete action, and respondent’s reference to the resulting disruption of the normal operation of respondent’s schools merely recited the language of the code provision upon which the charge was based.  
I also reject petitioner’s various arguments that the disruption of respondent’s schools was caused by the principal’s search of the student’s locker and not the student’s conduct.  A school lockdown or similar response to a bomb threat is a reasonably foreseeable consequence of bringing what appears to be a bomb to school and placing it in a locker.  As respondent’s code of conduct states at page 28, a student has no reasonable expectation of privacy with respect to his or her locker.  It was reasonably foreseeable that the student’s locker could be searched, that the device would be discovered, and a lockdown or other disruptive action would result to protect students and staff from harm until the bomb squad determined that the device was harmless.  The record clearly establishes that the student’s willful action of placing a device that appeared to be a bomb in his locker resulted in a substantial disruption of the operation of the school, and I find that the fact that the lockdown was triggered by the principal’s discovery of the device after searching the student’s locker does not exculpate the student.  Therefore, I find that there was competent and substantial evidence in the record to support respondent’s finding of guilt on charge 2, and petitioner has not proven that the hearing officer’s finding of guilty on this charge was arbitrary, capricious or in violation of law. 

Charge 4. On or about November 14, 2017, [the student] engaged in conduct that was violent or physically aggressive.  More specifically, during rifle team practice, [the student] was overheard stating that he has pointed his rifle directly at another student’s head.

A review of the record supports a finding of guilt as to charge 4.  It appears from the record that the student and students A.W., F.L., and L.G. were at rifle team practice on November 14, 2017.  Student F.L. testified that he heard the student make the statement described in the charge.  Student L.G. also testified that he overheard the student make this statement.  Both testified that the student to whom the student referred was student A.W.  However, the student denied making such a comment, and student A.W., to whom the comment was directed, testified that he did not hear, and was never told about, such a comment.

The hearing officer reasoned that there was “no evidence to support” the student’s claim that students F.L. and L.G. “were simply lying in order to get [the student] into trouble ....”  Respondent argues that this was a credibility determination to which, under the circumstances, I must defer.  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 T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of C.S., 48 id. 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Here, the hearing officer reasoned as follows:

Despite [the student’s] suggestion that these students [i.e., F.L. and L.G.] were simply lying in order to get him into trouble, I find no evidence to support such a claim in the record beyond unsubstantiated self-serving statements from witnesses for [the student].

In making this finding, the hearing officer did not fully address the testimony of A.W., the student to whom the comment was directed and who was present when the student allegedly made the comment.  By stating that the student and “witnesses” for the student (one of whom was A.W.) were less credible because their testimony was “self-serving,” the hearing officer appears to suggest that A.W. had an interest in offering testimony favorable to the student because he testified that he was a friend of the student.  However, the hearing officer provided no explanation of why the testimony of A.W. was deemed self-serving.  

Nevertheless, even accepting the testimony of A.W. on equal footing as the other witnesses, his testimony does not compel reversal of the hearing officer’s finding of guilt on this charge.  A.W. merely testified that he did not hear the comment and was not told about it until the hearing.  Although the record contains conflicting testimony concerning the noise level in the rifle range and whether A.W. would have been likely to hear such a comment if made, I find that there is insufficient evidence in the record to reverse the hearing officer’s finding that the student made the comment.

Moreover, the hearing officer’s finding that A.W.’s testimony was unsubstantiated is supported by the record. A.W. testified that it was his belief that L.G. did not wish to be involved in the hearing but felt obligated to testify and corroborate F.L.’s testimony because L.G.’s sister was dating F.L.  He admitted, however, that L.G. did not tell him he would lie and that he had no firsthand knowledge that L.G. would lie.  A.W. also testified that L.G. had been a good friend of the student in the past, and would like to be again, but that he “can’t since his sister is dating [F.L.].”  A.W. also asserted his belief that F.L. “is a massive influence” on L.G. but offered no evidence to support this assertion.

Thus, even though the hearing officer had no basis in the record for characterizing A.W.’s testimony as “self-serving,” the record supports the hearing officer’s finding that A.W.’s testimony about alleged bias on the part of F.L. and L.G. was unsubstantiated.  Thus, as respondent contends, the hearing officer made a determination that F.L. and L.G. were credible, and that the student and A.W. were biased and, therefore, not credible.  The hearing officer was in the best position to assess the credibility of the four students and petitioner has not met his burden of proving that there is clear and convincing evidence that the hearing officer’s determination of credibility is inconsistent with the facts.  Therefore, I find that respondent’s determination that the student was guilty of charge 4 is supported by competent and substantial evidence in the record.

Charge 5. On or about November 16, 2017, it was discovered that [the student] engaged in conduct that was violent or physically aggressive.  More specifically, [the student] used a punching bag at home that had a student’s picture taped on it.

Although the evidence in the hearing record supports a finding that the student engaged in this conduct, this charge cannot be sustained because the student’s conduct occurred off-campus and bore no nexus to in-school activity.  Prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).  Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citing Pollnow v. Glennon, 594 FSupp 220, 224, aff’d 757 F.2d 496; Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).

Here, the student admitted that he affixed a picture of a student’s face to a punching bag and had punched it “50 or 60” times.  However, the punching bag was only discovered during the police search of petitioner’s home which, in turn, only occurred because of the allegations made by the rifle team against the student.  In other words, the punching bag would never have been discovered if not for the police search of petitioner’s home.  There is no evidence in the record that the student informed anyone about the punching bag or that anyone at the school knew about its existence.  Thus, I find that the student’s conduct, which was unknown prior to its discovery by police and which did not cause any disruption to school operations or activities, occurred off campus and could not properly be the subject of a disciplinary charge (Appeal of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997).  The finding of guilt on this charge, then, must be reversed.

Charge 6. On or about November 16, 2017, [the student] engaged in conduct that endangered the safety, morals, health or welfare of others.  More specifically, [the student] asked a student to find out which students were talking to school administration about him.  [The student] wanted this information for future reference.  [The student] offered to pay this student $15.00 for this information.

The record supports a finding that the student admitted to the conduct which forms the basis of this charge.  At the hearing, the student admitted that he asked a student, B.F., to find out who was talking about him.  The student further testified that he offered money in exchange for this information.  The student explained that he had attempted to discover who made false allegations against him arising from an incident which occurred in February 2017[9] but had been unsuccessful.  As a result, according to the student, he engaged student B.F. because “most people [did not] know” him and “he might have better luck.”  The student further explained that it was his understanding that B.F. would only ask his “closer friends” and did not predict that B.F. would “start just asking everyone and going on about it ....”  The student testified that, in retrospect, he “would have given [B.F.] different instructions.” He also testified that he was not seeking this information for the purpose of retaliation, but simply to bring it to the principal’s attention.   Student L.G. corroborated the student’s admission, testifying that B.F. reported that the student had engaged him to find out which students were talking to school administrators about him.

On this record, I reject the hearing officer’s specific finding that the student’s conduct violated section 5(f) of respondent’s code of conduct.  Section 5(f) presents as an example of conduct that endangers the safety, morals, health or welfare of others,
“[i]ntimidation, which includes engaging in actions or statements that put an individual in fear of bodily harm.”  There is no evidence in this record that the student’s conduct actually resulted in intimidation or put any individual in fear of bodily harm.  Thus, the hearing officer’s findings with respect to section 5(f) are not supported by the hearing record.

However, the charge itself does not reference section 5(f), and, on its face, intimidation under section 5(f) is merely one example of conduct that endangers the safety, morals, health or welfare of others.  The student admitted that he engaged in the actions underlying the charge and I find that respondent properly determined that these actions “endangered the safety, morals, health or welfare of others.”  While the student disavowed any intent to retaliate against other students, respondent could properly conclude that the student’s conduct created a risk of future conflict between the student and the other students.  The student’s stated reason for seeking the information — i.e., to report it to the principal — makes little sense since the identity of the other students would be known to the administration and the record indicates that the student had already been suspended for that incident.  I therefore find that respondent’s finding of guilt on this charge, based on the student’s admission, was supported by competent and substantial evidence.   

Charge 7. On or about February 9, 2017, [the student] engaged in conduct that was disorderly.  More specifically, [the student] opened locked doors in the Middle School complex using a lock pick set that he was known by students to carry in his possession.

The record supports a finding of guilt as to charge 7.  F.L. testified that he saw the student picking locks in school.  Similarly, L.G. testified that he witnessed the student pick a lock and open a door.  The student admitted that he tried to pick a lock on a single occasion.  The student explained that he did so at the request of members of the wrestling team who had been locked out of a locker room.  Student A.W. similarly testified that the student, on one occasion, attempted to pick a lock but was unsuccessful.  On appeal, the only defense raised by petitioner is that the student’s alleged lockpicking “did not occur on February 9, 2017,” but on some other date.  I have already indicated above that the notice of charges was not so vague as to deprive the student of due process.  Thus, having disposed of this objection, I affirm respondent’s finding of guilt as to this charge, which is supported by competent and substantial evidence.

Charge 8. On or about February 9, 2017, [the student] engaged in conduct that was violent or physically aggressive.  More specifically, student(s) overheard [the student] tell other students on the rifle team that he was injecting fluid into other students’ food which would cause their mouth and jaw to go numb.

The record supports a finding of guilt as to this charge.  Both F.L and L.G. testified that they overheard the student make this statement; L.G. testified that he was “shocked” to hear it.  Moreover, the student admitted that he had made a “joke” to this effect with other students.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).  Even if the student intended the statement as a joke and did not intend to carry out the actions, that is irrelevant to determining whether he is guilty of engaging in conduct that was violent or physically aggressive (see e.g. Saad-El-Din v. Steiner, 101 AD3d 73; Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of R.T. and S.T., 53 id., Decision No. 16,581).  Petitioner’s sole argument is that, as with charge 7, this statement was not made on February 7, 2017.  As I have already discussed above, I do not find that this negates the student’s guilt as to this charge and I hereby uphold the finding of guilt as to charge 8 as supported by competent and substantial evidence.

Charge 9. On or about February 9, 2017, [the student] engaged in conduct that was violent or physically aggressive.  More specifically, [the student] told student(s) on the rifle team that he would put things into their drinks if they ever messed with him.

The record supports a finding of guilt as to this charge.  L.G. testified that he overheard the student make this statement.  The student denied making this comment.  Student F.L. testified that while he “caught little snippets of [the rifle team] discussing things like that about people [sic] drinks,” he “never actually heard [the student] say that ....”  The hearing officer credited L.G.’s testimony over the student’s, finding L.G. to be a more credible witness, and there is no evidence in the record which undermines this finding.  Unlike charge 3, it appears that only L.G. and the student were privy to this comment.  Accordingly, the hearing officer’s finding as to this charge is affirmed (see In re Watt, 85 AD3d 1357; Vieira-Suarez v. Syracuse City Sch. Dist., 58 Misc3d 1222(A), summarily aff’d, 158 AD3d 1055, lv to app denied, 160 A.D.3d 1507, and lv to app denied, 32 NY3d 903). Respondent’s determination that the student is guilty of charge 9 is supported by competent and substantial evidence in the record.

Charge 10. On or about February 9, 2017, [the student] engaged in conduct that was violent or physically aggressive.  More specifically, [the student] threatened to put a bullet into another student’s head.

The record supports a finding of guilt as to charge 10.  L.G. testified that he heard the student make this statement.  F.L. testified that he did not hear this comment, but that another student later told him that the student had made this threat against him.  The student denied making the statement.  As with charge 9, the hearing officer found the testimony of F.L. and L.G. to be more credible than the testimony of the student.  The hearing officer specifically reasoned that this comment had occurred during a “heated exchange” between the student and F.L., which made it more likely that the student “would have made a statement such as this ....”  Accordingly, there is no basis in the record to reverse the hearing officer’s determination of guilt as to this charge. Respondent’s determination that the student is guilty of charge 10 is supported by competent and substantial evidence in the record.

Therefore, the record supports a finding of guilt regarding charges 2 (possessing the device in his locker and causing disruption of the school); 3 (improper possession of a two-way radio), 4 (student’s statement that he pointed his rifle at another student’s head); 6 (paying another student to find out which students were talking to the administration about him); 7 (picking locked doors), 8 (injecting fluids into food comment), 9 (putting things in drinks comment), and 10 (threatening to put a bullet in another student’s head).  This conduct was entirely inappropriate and justified substantial discipline.  The student’s argument that the charges concerning comments involved jokes or did not present an actual risk of danger is unavailing (see Saad-El-Din v. Steiner, 101 AD3d 73; Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of M.B. and A.W., 57 id., Decision No. 17,378; Appeal of B.A. and S.A., 57 id., Decision No. 17,226; Appeal of R.T. and S.T., 53 id., Decision No. 16,581). 

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). 

Here, it is apparent that the approximately 14-15 month penalty[10] imposed was predicated, in substantial part, upon charges one and two regarding the carbon monoxide detector and the ensuing lockdown.  The hearing officer’s penalty recommendation indicated that it was based upon “the multitude of threatening behaviors/statements” and “the substantial disruption caused by [the student’s]                           ....”   As indicated above, the student was guilty of charge 2, which resulted in substantial disruption.  This was serious misconduct and warranted a serious penalty.  While I have considered the fact that the student never followed through on his intent to display the device as a mitigating factor, his misconduct nevertheless resulted in a substantial disruption in the operation of the school.

Moreover, as the hearing officer found, the student’s multiple statements about threatening or violent behavior, which the district proved through competent and substantial evidence, are extremely troubling.  Using lock picks to open doors in a school is also significant misconduct.  Therefore, I am not persuaded that a 14-15 month suspension for such conduct, in its totality, is so disproportionate to the underlying conduct that it warrants substitution of my judgment for that of respondent.[11]  Accordingly, I decline to disturb respondent’s judgment and hereby affirm the penalty which it imposed in this case.

Finally, while the record supports a finding of guilt as to charges 2, 4, and 6-10, respondent failed to meet its burden of proving the student’s guilt as to charges 1 and 5 for the reasons described above.  Petitioner has requested expungement of the student’s suspension from his record; therefore, to the extent the student’s record contains reference to the conduct described in charges 1 and 5, any such references must be expunged in accordance with this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge any reference to the student’s guilt concerning the conduct described above in charges 1 and 5.

END OF END

 

[1] The language of each of these charges is reproduced below in this decision.

 

[2] Charge 3 stated, in its entirety: “[o]n or about November 16, 2017, [the student] engaged in conduct that violated the Personal Use of Electronic Devices rules.  More specifically, [the student] was in possession of a two-way radio in school.  This is not an approved Personal Electronic Device that may be in school.”  Petitioner does not contest the student’s guilt as to this charge on appeal.

 

[3] The hearing officer also indicated that respondent’s Committee on Special Education had convened and determined that the student’s conduct was not a manifestation of his disability.

 

[4] Specifically, the record contains a “notice of appeal” dated January 25, 2018, and a substantive appeal dated March 25, 2018. 

 

[5] The record does not contain a written denial of petitioner’s appeal.

 

[6] Petitioner also alleges that “[s]everal of the alleged charges ... do not describe wrongdoing ... but describe events and consequences of misconceptions made by administrators at Alden Central High School.”  This allegation, which appears to concern charges 1 and 2, is directed at the nature of the charge instead of its facial invalidity.  Accordingly, it is addressed below.

 

[7] Student L.G. testified at the hearing that, on one occasion, he heard the student say something to the effect of: “I know all about science and all this and then he said that he just buys stuff like that on Amazon and kind of like messes with it in his basement.”  L.G. clarified that he did not actually hear the student saying that he “ma[de] a bomb.”

 

[8]  Respondent’s code of conduct is not clearly broken down into numbered articles or paragraphs.  Therefore, for purposes of this appeal, I will refer to sections (1)(e) and (3)(b) of the code as respondent’s attorney has done.  All such references, however, are to the provisions of the article entitled “Prohibited Student Conduct” on pages 9 and 10 of the code. 

 

[9] A substantial portion of the hearing was devoted to the circumstances of an incident that occurred in February 2017.  The student received a three-day suspension for his role in this incident.  The incident was not presented by respondent as part of respondent’s case.  Rather, it was first raised by petitioner’s attorney upon cross-examination of the high school principal.

 

[10] The record does not include the dates on which the third and fourth marking periods in the 2018-2019 school year began, nor is there a clear record of when the student’s suspension commenced.  In the petition, petitioner has not challenged any suspension of his son prior to the long-term suspension imposed by the superintendent, and it is not clear whether the student remained continuously suspended following commencement of the short-term suspension on November 20, 2018.  The superintendent’s letter imposing the suspension is dated January 10, 2018.  Assuming that the student’s suspension began on that date, the resulting suspension would last until the start of the fourth marking period, sometime in late April 2019, with a possibility that the student would be allowed to return to school in January 2019, at the start of the third marking period, if he met certain specified conditions. 

 

[11] In this respect, I note that if the student meets the conditions for an early return to school prescribed by the superintendent, he may end up serving only approximately 12 months of the suspension for his misconduct.