Appeal of M.P. and T.P., on behalf of their child T.P., from action of the Schenectady City School District; John Foley as board president; Aaron Bochniak as superintendent; Patricia Paser as assistant to the superintendent and hearing officer; Jeffrey Bennett as Mount Pleasant Middle School principal; and “John Doe,” representing all faculty, staff and other agents or employees of the Schenectady City School District, regarding student discipline.

Decision No. 17,937

(November 4, 2020)

Mann Law Firm, P.C., attorneys for petitioner, Matthew J. Mann, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt and Andrew R. Mark, Esqs., of counsel

ROSA., Interim Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Schenectady[1] (“respondent board”); John Foley as board president; Aaron Bochniak as superintendent (“respondent Bochniak”); Patricia Paser as assistant to the superintendent and hearing officer (“respondent hearing officer”); Jeffrey Bennett as Mount Pleasant Middle School principal (“respondent principal”); and “John Doe,” representing all faculty, staff and other agents or employees of the Schenectady City School District, to impose discipline on their child (“the student”).  The appeal must be sustained.[2]

At all times relevant to this appeal, the student attended eighth grade in respondent board’s district.  On June 5, 2018, during first period, a science teacher overheard a girl (“student A”) “talking to some friends about ... someone who claimed to be threatening to shoot up the school.”  The teacher also overheard student A reveal this individual’s first name, “T,”[3] and describe him as “[a] boy who sits by himself, or ... who sits alone.”  The science teacher testified that, after student A’s conversation concluded, she told student A something to the effect of “[w]e probably shouldn’t discuss that right now.”

Two periods later, the science teacher participated in a “team meeting” with two other teachers (the “team”).  During this meeting, she reported the substance of student A’s comments to the team.  The team members agreed that the conversation should be brought to the attention of administration.  The science teacher then relayed the substance of student A’s remarks to the assistant principal.  The science teacher further indicated to the assistant principal that, according to student A, the student who made the comment had the first name “T.”  Upon search of a school database, the assistant principal determined that there were three middle school students with the first name “T,” including the student who is the subject of this appeal.

Later that day during sixth period, the team met with student A.  When asked to elaborate as to what she had overheard, student A stated, according to the science teacher:

that [T] had said that he could have access to guns because his dad had something to do with law enforcement, or something to do with – that he wanted to shoot sixth graders because he didn't know them and he wanted to shoot people that he didn’t know, and that he was going to do that at the end of the year or towards the end of the year.

Student A also indicated, per the science teacher, that T intended to harm himself.  Student A further explained that T had made these comments over the course of multiple conversations with her.  The assistant principal then entered the room and spoke with student A, who provided a similar account to him.

During this meeting, student A was presented with one or two[4] photographs of students with the first name T.  Upon presentation of a photograph of the student, student A identified him as the “T” with whom she had spoken.  The science teacher also testified that, prior to presentation of the photographs, student A provided a physical description of T that was consistent with the student.

Around 2:35 p.m. that afternoon, the assistant principal contacted petitioner M.P. by telephone to inform him of the allegations against the student.  Petitioner M.P. proceeded to the high school to accompany the student to a meeting with respondent principal and the assistant principal.  Petitioner T.P. also participated in this meeting via speakerphone.  The parties present divergent accounts of what transpired during this meeting.  According to respondent principal, the student “admitted” to making the statements “that [he] w[as] going to come in and shoot up the school” and that he had “access to guns.”  According to petitioners, the student denied making the comments attributed to him by student A.

In an undated “Official Suspension Notice,” respondent principal suspended the student for five days, starting “[t]omorrow.”  The notice alleged that, on June 6, 2019, the student had “[t]hreaten[ed] to be a school shooter.”  The notice further alleged that the student had “[t]hreatened to ‘shoot up the school and then kill [him]self.’”  Petitioners indicate that they were “served” with this notice “[o]n June 6, 2019.”

In a “Notice of Hearing & Charges” dated June 6, 2019, respondent’s then-superintendent (“superintendent”) informed petitioners that the district would convene a long-term suspension hearing on June 12, 2019 with respect to the following charges:

Charge 1:  On June 5, 2019 at approximately 12:00 p.m., [the student] threatened to be a school shooter.

Charge 2:  One [sic] June 5, 2019 at approximately 12:00 p.m., [the student] threatened to “shoot up the school and kill himself.”

Sometime thereafter, the parties agreed to postpone the hearing.

In an “Amended Notice of Rescheduled Hearing & Charges” dated July 3, 2019, the district rescheduled the long-term suspension hearing for July 10, 2019 and changed the date of the charged misconduct from June 5, 2019 to “[o]n or about May 29, 2019.”[5]

The long-term suspension hearing, presided over by respondent hearing officer, convened on the rescheduled date of July 10, 2019.  The student pleaded not guilty to both charges against him.  During the hearing, petitioners requested that respondent hearing officer issue multiple subpoenas to secure the attendance of, inter alia, the Chief of Police of the Schenectady Police Department and the classroom teacher of “Social Inquiry,” the class in which the student allegedly made the objectionable comments.  Respondent hearing officer refused to issue the subpoenas.  After accepting witness testimony and evidence from the district and petitioners, respondent hearing officer found the student guilty of the charges against him.

In a decision dated July 15, 2019, the superintendent[6] found the student guilty of the charges outlined in the July 3, 2019 amended notice and imposed a 10-week out-of-school suspension to be served from June 13, 2019 through October 31, 2019.  As relevant here, the superintendent advised petitioners of their right to appeal his decision to respondent board.

Petitioner thereafter appealed the superintendent’s decision to respondent board and, roughly contemporaneously, to the Commissioner of Education under Education Law §310.  In a decision dated March 4, 2020, the Commissioner remanded the appeal to respondent board and ordered respondent board to issue a written decision granting or denying petitioners’ appeal within 30 days of the Commissioner’s decision and order (Appeal of M.P. and T.P., 59 Ed Dept Rep, Decision No. 17,819).

In a letter dated April 20, 2020, respondent board indicated that it had considered petitioners’ appeal on April 8 and 15, 2020 and upheld the superintendent’s decision in its entirety.  This appeal ensued.

Petitioners reiterate the contentions raised in their previous Education Law §310 appeal including, inter alia, that respondent hearing officer erred by failing to issue certain subpoenas during the hearing.  Petitioners further complain that counsel for respondents improperly served both as counsel for the district at the hearing and counsel to respondent board on appeal.  Petitioners additionally assert that respondent board failed to render its determination within 30 days of the Commissioner’s decision, as ordered.  Petitioners request that the student’s suspension be vacated and that “all records of discipline” be expunged from his record, “including any suspensions preceding [the superintendent’s] decision.”

Respondents contend that the appeal must be dismissed for improper service and for failure to join respondent board by naming it in the caption of the appeal.  Respondents further contend that the appeal is moot to the extent that the student has served the suspension at issue in this appeal.  On the merits, respondents contend that petitioners have not met their burden of proving that they are entitled to the relief requested.

First, I must address the procedural issues.  Respondents initially argue that 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).  Additionally, effective April 7, 2020, during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis, a petitioner may effectuate alternative service on a school district in the following manner:

(1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to the attention of the district clerk and superintendent of schools ... ; and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to both the district clerk and superintendent of schools ....  Service shall be deemed complete upon the completion of both steps identified above.

Respondents contend that petitioners failed to comply with 8 NYCRR §275.8(f) insofar as they only served the petition – by email and first-class mail – upon the district clerk.  Petitioners, however, have submitted correspondence revealing that, in response to petitioners’ inquiry about how to serve the petition, respondent board’s district clerk advised petitioners to serve the petition by emailing it to her and affirmed that she could accept service “on behalf of all school district defendants [sic].”  Indeed, petitioners’ affidavit of service reflects that they effectuated service “upon all of the named [r]espondents by email to [the district clerk] on consent.”  Because the district clerk expressly represented that she was authorized to accept service on behalf of all respondents in this matter, including the superintendent, I find that petitioners complied with the requirements of 8 NYCRR §275.8(f), and I decline to dismiss the appeal for improper service (cf. Application of Lyons-Birsner and Birsner, 57 Ed Dept Rep, Decision No. 17,160 [improper service where there was “no evidence that the district clerk was authorized to accept service on behalf of the individual respondents”]; Appeal of Budich and MacDonald, 54 id., Decision No. 16,774 [same]; see generally Greenpoint Bank v. Schiffer, 266 AD2d 262, 262 [2d Dept 1999] [noting that the defense of lack of personal jurisdiction based on improper service may be waived], appeal dismissed 94 NY2d 890 [2000], cert denied 531 US 896 [2000]).

Respondents also contend that petitioners failed to name respondent board, a necessary party, in the caption of the appeal.  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).

Here, petitioners identified the “Schenectady City School District” as a respondent in the caption of the appeal.  Petitioners also, as described above, effectuated service on the district clerk, who is authorized to accept service on behalf of a school district (see 8 NYCRR §275.8[a]).  Although petitioners appeal from a decision of respondent board, such decision represents a final decision of the school district; as such, there is no functional difference between respondent board and the school district for purposes of this appeal (see Appeal of Doe, 58 Ed Dept Rep, Decision No. 17,627 [board and district considered as single entity under circumstances of appeal]).  Prior decisions of the Commissioner dismissing challenges to long-term suspensions based upon deficiencies with the captions are distinguishable (cf. Appeal of J.C. and J.C., 57 Ed Dept Rep, Decision No. 17,407 [caption named superintendent but did “not name either the board or the district as a respondent”]; Appeal of R.M., 57 id., Decision No. 17,205 [caption failed to name any respondent, and “neither the school district nor the board of education (were) named as a party (elsewhere) in the notice of petition or petition”]).  Notably, these prior decisions specifically signaled that naming either the board of education or the school district would have been sufficient to secure jurisdiction over the board.  Accordingly, I decline to dismiss the instant appeal for failure to name respondent board in the caption.

Petitioners complain that respondent board “is represented by and receives counsel from the very same law firm which prosecuted the disciplinary hearing.”  In particular, petitioners allege that the district “present[ed] the appeal to [respondent] [b]oard through its counsel who then rendered advi[c]e and counsel to the [respondent] [b]oard with respect to the ultimate decision.”  The Commissioner held in Appeal of Chapman (28 Ed Dept Rep 272, Decision No. 12,105) that a student’s due process rights were not violated where:

The attorney who advised the board had no prior connection with the case, advised only on legal issues, took no part in the board’s deliberations and made no recommendations to the board.

Here, respondents expressly deny petitioners’ allegation that the district’s counsel advised respondent board, and respondents affirmatively assert that such claim “is based on speculation and conjecture.”  Moreover, respondent board indicates that its decision was based upon the record before it, and there is no evidence that any attorney with respondents’ law firm acted improperly.  Under these facts, I cannot find that petitioners have carried their burden of proof regarding their claim that the student’s due process rights were violated as a result of respondents’ legal representation (Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,205; Appeal of Chapman, 28 id. 272, Decision No. 12,105; see Appeal of Goldberg and Goldberg, 36 Ed Dept Rep 470, Decision No. 13,778; Matter of Payne, 18 id. 280, Decision No. 9,840).  I remind respondent board, however, that it should take steps to ensure the separation of the district’s prosecutorial function and the board’s appellate capacity in connection with long-term suspension hearings.

Turning to the merits of the short-term suspension, in the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, the record reflects that respondents verbally suspended the student prior to providing him with written notice of his rights to an informal conference and to question complaining witnesses.  The record contains an undated notice of short-term suspension indicating that the student would be suspended beginning “tomorrow” for an incident that allegedly occurred on June 6, 2019.  The record further reflects that petitioners received this notice on June 6, 2019.  Accordingly, the written notice appears to reflect that the student would be suspended effective June 7, 2019.  However, all other evidence in the record – including testimony by respondent principal, the June 6, 2019 notice of hearing and charges, the June 26, 2019 notice of rescheduled hearing and charges, and the July 3, 2019 amended notice of rescheduled hearing and charges – reflects that the student was, in fact, suspended beginning on June 6, 2019. 

The record further reflects that the assistant principal orally informed petitioner M.P. that the student was suspended at the June 5, 2019 meeting.  Thus, I find that respondent principal reached a decision to suspend the student before offering petitioners the opportunity for an informal conference, at which they could question complaining witnesses (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,553).  The June 5, 2019 meeting cannot be considered the informal conference, as the Commissioner has consistently held that an immediate meeting between parents and the principal does not excuse the requirement for prior written notification to students and their parents explaining their rights to the conference and to question complaining witnesses prior to the suspension (see e.g. Appeal of D.K., 58 Ed Dept Rep, Decision No. 17,539).  Additionally, as indicated above, oral communication with a parent regarding a suspension is not a substitute for the required written notification (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).[7]

Additionally, while respondents do not explicitly make such an argument, I note that respondents are foreclosed from arguing on appeal that the student could be immediately suspended on the ground that he posed a continuing danger or ongoing threat of disruption, as respondent principal did not so indicate in the notice of suspension (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of G.B. and B.B., 52 id., Decision. No. 16,383).  Therefore, I find that respondents failed to provide legally sufficient written notice of the student’s proposed suspension prior to its imposition.  As a result, the student’s short-term suspension must be expunged from his record.

Turning to the long-term suspension, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).

Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence so long as “such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” (Agudio v. State Univ. of New York, 164 AD3d 986; Hill v. State Univ. of New York at Buffalo, 163 AD3d 1454; McGillicuddy’s Tap House, Ltd. v. New York State Liquor Auth., 57 AD3d 1052; see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133).

With respect to a student’s due process rights at a long-term suspension hearing, Education Law §3214(c)(1) provides that:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his or her behalf.

The superintendent may personally preside over the long-term suspension hearing or may designate a hearing officer to do so (Education Law §3214[c][1]).  Education Law §3214(c)(1) further provides that, at a long-term suspension hearing, “[t]he hearing officer shall be authorized to administer oaths and to issue subpoenas in conjunction with the proceeding before him or her.”

Upon review of the record, I find that respondent hearing officer improperly denied petitioners’ request to subpoena certain witnesses and that such error violated the student’s right to a fair hearing under Education Law §3214.  On July 9, 2019, one day prior to the hearing, counsel for petitioners drafted subpoenas for the appearance of several witnesses.  That same day, counsel for petitioners contacted counsel for the district, who indicated that only the hearing officer could sign and issue subpoenas.  Also, on July 9, 2019, counsel for petitioners asked respondent hearing officer about her preferred procedure for considering or issuing subpoenas.  The record does not reflect that respondent hearing officer responded to this email.

At the hearing, counsel for petitioners renewed his request for respondent hearing officer to issue subpoenas for the following individuals:  (1) student A; (2) an individual whom the student believed to be student A; (3) Eric Clifford, Chief of Police of the Schenectady Police Department (“Chief of Police”); (4) the teacher of the “Social Inquiry” class where the student allegedly made the threatening comments to student A (“Social Inquiry teacher”); and (5) the superintendent.  With respect to the Social Inquiry teacher, petitioners sought her testimony because

she [wa]s the teacher in whose classroom [the student] was in [at the time of the charged misconduct] and ... if such statements were made in her class, she would have been privy to them and so her testimony is necessary.

With respect to the Chief of Police, counsel for petitioners asserted that the Schenectady Police Department had investigated the student’s alleged conduct and “made a determination that no ... threats were made.”  Counsel for petitioners further requested, in the subpoena, that the Chief of Police produce and bring the following items:

All records, documents[,] evidence, or indicia of contact by any Schenectady City School District personnel with the Schenectady City Police Department relating to any acts or omissions alleged to have been committed by [the student] on June 5, 2019, June 6, 2019 and May 29, 2019 and all records of contact by the Schenectady Police Department with the Schenectady School District, [petitioners] or [the student] in connection with any alleged acts or omissions of [the student] on June 5, 2019, June 6, 2019 and May 29, 2019.

Counsel for petitioners requested an “adjournment to both have the subpoenas served and to fully prepare [the student’s] defense.”

In response, counsel for the district asserted that long-term suspension hearings “require timely adjudication” and that counsel for petitioners “had more than sufficient time to get witnesses here.”  With specific respect to the Social Inquiry teacher, counsel for the district indicated that, had counsel for petitioners requested her presence at an earlier time, he “would have” had her appear.  Counsel for the district further stated that he could not secure the Social Inquiry teacher’s attendance “at this time.”  With specific respect to the Chief of Police, counsel for the district indicated that such testimony or documentation would be “totally irrelevant” because “[t]his is not a criminal matter.”  Respondent hearing officer declined to issue the subpoenas or adjourn the hearing.

On this record, I find that petitioners have met their burden of proving that both the Social Inquiry teacher and the Chief of Police could have provided relevant testimonial or documentary evidence concerning the student’s guilt.  With respect to the Social Inquiry teacher, the amended notice of rescheduled hearing and charges alleged that the student made the objectionable comments at a time when he would have been attending his Social Inquiry class.  Accordingly, the Social Inquiry teacher’s testimony as to whether student A and the student sat together or whether she heard the student make such comments to student A would tend to prove or disprove the student’s guilt.  With respect to the Chief of Police, the record reflects that the Schenectady Police Department had investigated the incident in question prior to the long-term suspension hearing, and any evidence uncovered during such investigation as to whether the student did or did not make the alleged comments would tend to prove or disprove the student’s guilt.  As such, I find that petitioners sufficiently demonstrated that the subpoenas would reasonably lead to the discovery of probative evidence.

In denying the subpoenas, respondent hearing officer appeared to assume that a long-term suspension hearing must be completed in a single day.  Education Law §3214(3)(c) mandates that a student may not be suspended for more than five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the student’s interests has been made (Ross v. Disare, 500 FSupp 928; MacDonald v. Tompkins, 67 Misc2d 338; Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419).  Thus, at the end of the fifth day of suspension, a student must be readmitted to school unless a long-term suspension hearing is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Matter of Wehner, 22 id. 661, Decision No. 11,110).  Here, this requirement did not compel respondent hearing officer to complete the long-term suspension hearing within any particular timeframe, as the matter had already been adjourned for approximately a month upon consent of the parties.  Thus, I find no merit in respondent hearing officer’s suggestion that a need to expedite the hearing justified her denial of petitioners’ subpoenas (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

I also reject the arguments of the district’s counsel concerning the relevancy of petitioners’ proposed witnesses.  Initially, I disagree that testimony or evidence from the Chief of Police would have been “totally irrelevant” because the long-term suspension hearing was “not a criminal matter.”  While the nature or extent of the police investigation is unclear from the record, testimony from the Chief of Police concerning the scope or outcome of the police investigation could have revealed evidence that tended to prove or disprove the student’s guilt.  As for the Social Inquiry teacher, counsel for the district argued that counsel for petitioners should have requested her attendance at some date prior to the hearing.  While I agree that it would have been more efficient to secure the attendance of witnesses in advance of the hearing date, counsel for petitioners reasonably explained that he had only deemed it necessary to issue subpoenas for the Social Inquiry teacher after the district amended the charges against the student on July 3, 2019 to alter the time at which the misconduct allegedly occurred.  Counsel for petitioners further indicated that he was unable to request such subpoenas immediately thereafter due to the July 4 holiday weekend.  Therefore, it does not appear that petitioners sought to delay the hearing in bad faith by requesting the issuance of subpoenas the day before the hearing. 

I further find that respondent hearing officer’s failure to adjourn the hearing and issue the subpoenas for the Chief of Police and the Social Inquiry teacher was highly prejudicial.  Petitioners consistently denied the student’s guilt throughout the hearing; thus, it was incumbent upon the district to establish the student’s guilt by competent and substantial evidence.  For the reasons explained above, both the Chief of Police and the Social Inquiry teacher were likely to offer testimony and/or evidence directly relevant to the student’s guilt.  If sufficiently probative, such evidence and testimony could have led a reasonable factfinder to find the student not guilty of the charges against him.  Thus, the instant appeal is distinguishable from prior decisions of the Commissioner that have held that the failure to issue subpoenas in connection with a long-term suspension hearing was harmless error where the proposed witnesses would only have testified as to penalty (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of R.T. and S.T., 53 id., Decision No. 16,581). 

Finally, I note that the record reflects that respondent board did not comply with the Commissioner’s order in Appeal of M.P. and T.P. (59 Ed Dept Rep, Decision No. 17,819) insofar as it failed to issue a decision within 30 days of that decision, as ordered.  However, I recognize that respondent board deliberated and rendered its decision in this matter during the mandatory school closures ordered by the Governor due to the COVID-19 pandemic.  Further, there is no evidence that respondent board willfully intended to disobey the Commissioner’s order.  Therefore, I cannot conclude that respondent board acted improperly or that any remedial action is warranted.

For all of the above reasons, I find that petitioners have established their entitlement to the relief requested – namely, expungement of the student’s short-term and long-term suspensions from his record.  In light of this determination, I need not address the parties’ remaining arguments.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge from the student’s record all references to the student’s short-term and long-term suspensions described herein.

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