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Decision No. 17,623

Appeal of A.M., on behalf of her daughter A.M.-P., from action of the Board of Education of the City School District of the City of Peekskill regarding student discipline.

Decision No. 17,623

(April 23, 2019)

McCabe & Mack LLP, attorneys for petitioner, Andrea L. Gellen, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Jeffrey J. Cravens, Esq., of counsel

Petitioner appeals the decision of the Board of Education of the City School District of Peekskill (“respondent”) to impose discipline on her daughter (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended high school in respondent’s district.  According to the record, on May 1, 2018[1] the student showed inappropriate images of another student on her cell phone to two fellow students.  Respondent alleges that this incident took place during the school day in the high school cafeteria.  Based upon the student’s conduct on May 1, 2018, the high school principal imposed a short-term suspension from May 2 through May 8, 2018.

In a letter dated May 3, 2018, respondent’s superintendent indicated that the district would convene a long-term suspension hearing based upon the student’s conduct.  The hearing, presided over by a hearing officer, convened on May 8, 2018 following a request for a one-day adjournment by counsel for petitioner.

In a report and recommendation dated May 11, 2018, the hearing officer recommended that the student be found guilty of the charges against her and recommended a suspension of 20 days.  In a letter dated May 15, 2018, the superintendent adopted the hearing officer’s recommendations concerning guilt and penalty.  Petitioner appealed this determination to respondent.  By letter dated June 22, 2018, the district clerk notified petitioner that respondent had considered and denied her appeal at a meeting held on June 21, 2018.  This appeal ensued.

Petitioner argues that the May 3, 2018 notice of charges regarding the long-term suspension was impermissibly vague and that the student was denied an opportunity to “confront witnesses” at the long-term suspension hearing.  Petitioner requests that the long-term suspension be expunged from the student’s record.

Respondent contends that the appeal must be dismissed for lack of personal service.[2]  Respondent denies petitioner’s contentions, argues that it afforded petitioner and the student due process and asserts that the short and long-term suspensions were imposed in accordance with Education Law §3214.

The appeal must be dismissed for lack of personal 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, petitioner’s affidavit of service indicates that the petition was sent on July 23, 2018 via U.S. mail to respondent’s district clerk as well as an attorney associated with the law firm that represents respondent.  Respondent asserts that the district clerk was not personally served with a copy of the petition.  Petitioner submits no reply or other evidence to refute respondent’s claim of improper service (Appeal of R.S. and D.S., 58 Ed Dept Rep, Decision No. 17,594; Appeal of J.C. and J.C., 57 id., Decision No. 17,407).  Service by U.S. mail does not constitute valid service of a petition pursuant to Education Law §§306 or 310 (see e.g. Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670; Applications of Balen, 40 id. 250, Decision No. 14,474; Appeal of K.R., 40 id. 189, Decision No. 14,457). On this record, then, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256).

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

THE APPEAL IS DISMISSED.

END OF FILE


[1] Although the student’s suspension notice is dated May 2, 2018, the evidence in the record, including video footage of the cafeteria on the day in question, reveals that the incident in question occurred on May 1, 2018.

 

[2] Respondent further asserts that, because personal service of the petition was not effectuated, any appeal at this juncture would be untimely.