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Decision No. 12,909

Appeal of DAWN M. ALLERT, on behalf of her son, Anthony E. Allert, from action of the Board of Education of the City School District of the City of Rensselaer, relating to a school investigation.

Decision No. 12,909

(April 12, 1993)

Ruberti, Girvin & Ferlazzo, P.C., Esqs., attorneys for respondent

SOBOL, Commissioner.--Petitioner appeals from the conduct and results of an investigation by school authorities of an incident that occurred during a school field trip. The appeal must be dismissed.

On November 6, 1991, thirty-four students from respondent's high school, including petitioner's son, together with two guidance counselors and a teacher's aide acting as chaperones, went on a field trip sponsored by respondent. The students were transported by a school district bus to the Convention Center at the Empire State Plaza in Albany, New York, to participate in a College Fair Day. When it came time to leave the Plaza, at approximately 10:30 a.m., nine students including petitioner's son, failed to board the bus. After waiting for approximately ten to fifteen minutes, the chaperones directed the bus to leave for respondent's high school. The bus left, leaving the nine students at the Plaza. The bus arrived at the high school at approximately 11 a.m. The students left behind used other means to return to the high school, and all had returned by noon.

Upon being informed of the incident by the chaperones shortly after their return to the high school, the principal directed that the chaperones contact the parents of the students left behind to explain the situation to them. The principal further directed the chaperones to provide him with a written report of the incident.

In their report, the chaperones indicated that the permission slip for the field trip that was provided to the students expressly set the departure time at 10:30 a.m.; that the chaperones specifically told the students during the trip to the event that the bus would depart from the designated pick-up site at 10:30 a.m.; and that the sponsors of the College Fair were asked to announce the departure at approximately 10:25 a.m. The chaperones indicated that most of the students boarded the bus at approximately 10:30 a.m., but that several students either purposefully disobeyed their directive to board the bus or irresponsibly failed to return to the bus on time. One chaperone indicated that three students, including one he identified as petitioner's son, ran away when he attempted to get them to board the bus. The chaperones indicated that they directed the driver to return to the high school because the bus was needed for other purposes at 11:00 a.m. and because there were several other buses from other school districts that were becoming backed up behind respondent's bus while waiting to pick-up or discharge their students.

The principal determined that, notwithstanding the chaperones' explanation, they had acted inappropriately in leaving the students behind. The principal indicates that he counseled all of the staff members involved with the bus trip and reported the incident to the superintendent of schools.

After being notified of the incident by students who had returned on the bus, petitioner arrived at the high school at approximately noon and spoke with her son, who stated that he was in the Convention Center and was nowhere near the vicinity of the bus when the other students were boarding and that he arrived at the departure site just in time to see the bus pulling away. Petitioner indicates that her son's statements were supported by several other students present at the time. Petitioner further indicates that at least six students who were present when she spoke to her son admitted that they were the students who had run from the chaperone. Petitioner then proceeded to meet with the principal who indicated that her son would be disciplined for his failure to return to the bus on time, that he would be treated as if he had reported late for class, and that he would be disciplined based on his personal record. Petitioner told the principal that she would appeal his decision to the superintendent of schools. Petitioner states that she "directed" the principal not to take any disciplinary action against her son until the appeal process was complete. Petitioner subsequently delivered a letter to the superintendent of schools requesting an appeal.

The principal met individually at approximately 2:00 p.m. on November 6, 1991 with the three students, including petitioner's son, whom he suspected, based upon the chaperones' report, of running away from the chaperone when he attempted to have them board the bus. The principal believed this to be the most egregious student misconduct that occurred that day. One of the three students admitted that he had disobeyed the chaperone and had run away. Petitioner's son and the other student denied that they had been part of the group that had disobeyed the chaperone and fled. The principal indicated that he arranged to have the chaperone present in a conference with the principal and the two students who denied involvement. The chaperone adamantly maintained that the two students were part of the group that had disobeyed and run from him.

Based upon his inquiry into the matter, the principal credited the chaperone's allegations and determined that petitioner's son and the other student had been insubordinate in not following the chaperone's directions. The principal states that the other student, who had initially denied involvement, later admitted that he was part of the group that had run away from the chaperone. The principal said to the students that he would impose detentions for their insubordination.

Petitioner subsequently met with the superintendent of schools and requested that her letter of appeal be presented to the board of education at its November 12, 1991 meeting. The superintendent agreed to her request and also assured petitioner that her son would not be punished until the appeal process was completed.

Petitioner then arranged for an "informational meeting" to be held at 2:45 p.m. on November 8, 1991 in the high school library and invited interested parties to attend. In attendance at the meeting were petitioner, the principal, the two guidance counselor-chaperones, the assistant principal, petitioner's son and the other two accused students, a parent of one of the other accused students, and eight other students. All students indicated that petitioner's son was nowhere near the bus at the time of departure. However, the chaperone adamantly maintained that petitioner's son was one of the students who disobeyed his directive to return to the bus and ran away from him. At the conclusion of the meeting, the principal refused to change his previous decision and he indicated that he

intended to follow through with the assigned detention of petitioner's son.

At the November 12, 1991 meeting of the board of education, the superintendent of schools informed the board of petitioner's appeal and her request that any discipline against her son be postponed until resolution of the appeal. The matter was then scheduled for a meeting of the board on November 26, 1991. Despite petitioner's request, and the superintendent's agreement to postpone any discipline against her son, the principal required the student to serve two detention periods on November 14 and 15. The principal indicates that he assumed that the petitioner had resolved any issues that she had concerning the incident at the board meeting on November 12; that the discipline he had proposed to impose on petitioner's son was discussed and found to be appropriate; and that the punishment could therefore be carried out.

On November 26, 1991, petitioner presented her complaints to the board of education and was told that the case would be reviewed by the board and school attorney. It was scheduled for the December 10, 1991 meeting of the board. The matter was subsequently rescheduled for January 27, 1992.

In the meantime, the superintendent of schools had initiated his own investigation of the November 6, 1991 incident. On December 10 and 11, 1991, the superintendent and school attorney interviewed all of the staff members who were involved in the trip, including the bus driver, and several of the students who participated in the field trip, including petitioner's son. The results of the investigation were incorporated into a report prepared by the school attorney and presented to the board of education on January 27, 1992.

On January 27, 1992, petitioner attended a meeting of the board of education held in executive session. The report of the school attorney found that the superintendent's investigation was appropriate and within his legal authority; that the discipline adjudged by the principal was appropriate; that while the guidance counselors were frustrated and provoked by the actions of some students, this fact, while mitigating, did not excuse their decision to leave students behind; and that the oral counseling provided by the principal to the chaperones was appropriate. After discussing the findings in the school attorney's report, the board found that neither the students nor staff involved in the field trip had acted in an appropriate manner. The board adopted the following recommendations from the report:

a) None of the students involved should receive further discipline.

b) Staff is to be told that, in future, they must not leave any students behind, regardless of how immature the students' actions are and regardless of the age of the students. If a similar situation arises, the chaperones must ensure that one chaperone remains at the field trip site to protect the safety and security of the students. The District should consider sending a memo to all staff advising them of this and/or making this a formal district policy.

c) The superintendent should meet with the chaperones individually to counsel them about their errors in judgment in leaving the students behind.

d) Formal discipline of the chaperones would be excessive in light of all the facts of this case.

e) Students must be advised that similar conduct will not be tolerated. Actions such as intentionally missing a bus and/or flagrantly disobeying the directives of a teacher may subject the students to discipline, including the possible forfeiture of participation in any future extra-curricular activities.

In addition to accepting the recommendations of the school attorney, the board also decided to amend its policy regarding field trips to establish specific parameters concerning where students can go when they participate in field trips and to amend its policy to require that students be specifically advised that it would be inappropriate for them to leave the site of the activity and go to any other place unrelated to the field trip site. The board also advised the petitioner that any reference to the two-day suspension assigned to her son would be expunged from her son's records.

Petitioner requested that the board direct the principal to apologize to her son for having him serve the two detentions. The superintendent told petitioner that the principal was wrong to require her son to serve two detentions while the appeal was pending, and that he, as superintendent, was responsible for the actions of his staff and would personally apologize to her son for the detentions. Petitioner insisted that the principal personally apologize. Petitioner also requested that the board restrict the superintendent's investigative procedures to exclude any "future illegal `Inquisitions' such as the one he conducted on December 10, 1991." After respondent board refused to provide petitioner with the specific relief she requested, petitioner commenced this appeal pursuant to Education Law '310.

Petitioner contends that school authorities acted with "gross negligence" in leaving her son and the other eight students at the College Fair site. Petitioner also contends that her son was disciplined in an "arbitrary and capricious" manner and that his "Constitutional rights" were violated. Petitioner requests that I direct respondent to send a letter of reprimand to each chaperone and to all school administrators involved, with a copy to be placed in their permanent record; that I issue a fair and impartial decision based upon the facts presented; that I direct respondent to revise the current discipline and appeal system to include a more immediate, accessible and impartial recourse for students; that I direct respondent to impose certain specified disciplinary measures upon the principal; that the Education Department investigate the school superintendent's conduct of the questioning of the students on December 10 and 11, 1991 and that the Education Department discipline the superintendent for his allegedly improper conduct regarding such questioning.

Respondent contends that the superintendent's investigation was properly conducted and that petitioner is otherwise not entitled to the relief she seeks. Respondent also contends that the appeal should be dismissed for failure to set forth a clear and concise statement of petitioner's claim; that the petition fails to state a claim upon which relief may be granted; that the instant matter is not an appropriate matter for resolution pursuant to Education Law '310; that the appeal should be dismissed as academic; that petitioner lacks standing to raise issues concerning those students involved in the incident with whom she has no parental of guardian relationship; and that petitioner lacks standing to request that certain staff be disciplined.

Respondent's contention that I lack jurisdiction to determine this appeal is without merit. Education Law '310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including matters relating to the discipline of school personnel and students.

Respondent's contention that petitioner lacks standing to raise issues concerning students other than her son is correct. To maintain an appeal to the Commissioner of Education pursuant to Education Law '310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his or her civil, personal or property rights. While petitioner may thus bring an appeal on behalf of her son, her status as a resident of respondent's district is insufficient for her to assert the rights of the other students (Appeal of DePasquale, 30 Ed Dept Rep 361). Therefore, I will consider petitioner's claims only to the extent they concern her son.

Respondent also contends that the petition fails to set forth a clear and concise statement of petitioner's claim and that the petition fails to set forth a claim upon which relief may be granted. Although 8 NYCRR '275.10 requires that a petition contain a clear and concise statement of claim showing entitlement to relief, a liberal interpretation of that rule is appropriate where the petitioner is not represented by counsel and where there is no indication that the opposing parties have been prejudiced. Since the petition adequately states petitioner's contentions and claims for relief and the respondent has adequately addressed petitioner's allegations, I decline to dismiss the appeal on the grounds requested by respondent (Appeal of Savastano, 32 Ed Dept Rep 114).

To the extent that petitioner seeks review of respondent's determination regarding her son's involvement in the incident underlying this appeal, such claim must be dismissed as moot. The school attorney's findings and recommendations, which were adopted by respondent board, are inconclusive as to whether the student was among the individuals who ran from the chaperone. The superintendent told petitioner that he acknowledged that the principal was in error in having her son serve the two detentions while the appeal was pending, and that he would personally apologize to her son for the detentions. In any event, the student has since graduated and the record indicates that all references to the detentions he served with regard to this incident have been expunged from his school records. The Commissioner of Education will only decide matters in controversy and will not render a decision upon a state of facts that subsequent events have laid to rest (Appeal of Allert, 32 Ed Dept Rep 242).

Petitioner requests that I take certain disciplinary action against the superintendent of schools, the high school principal, and the chaperones as well as "all school administrators involved." Respondent contends that petitioner lacks standing to request that these individuals be disciplined, because she has failed to properly name and personally serve each of them with a copy of the petition. 8 NYCRR '275.8 requires that a copy of the petition be personally served upon each named respondent. The record indicates that petitioner properly served the board of education pursuant to 8 NYCRR '275.8(a) by personally serving the district clerk. Nevertheless, the failure of petitioner to properly join the superintendent, the high school principal, the chaperones, and "all school administrators involved" does not require that the appeal be dismissed because, despite petitioner's request that I discipline such individuals, the real issue before me is whether respondent board of education abused its discretion in determining whether disciplinary action against these individuals is warranted (Appeal of Mitzner, 32 Ed Dept Rep 15; Appeal of Young, 26 id. 152).

A board of education has broad discretion in determining whether disciplinary action against employees is warranted (Appeal of Mitzner, supra; Appeal of Magee, 30 Ed Dept Rep 479; Appeal of Young, supra). However, there must be a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Kantor, 31 Ed Dept Rep 319). I find no basis in the record to conclude that respondent acted unreasonably in determining that no cause existed to further pursue the matter. While the actions of the chaperones in leaving the students behind is inexcusable and must never occur again, there are several mitigating circumstances from which I conclude that further disciplinary action is unwarranted. The chaperones delayed departure of the bus for ten to fifteen minutes and directed that the bus leave only after several students ran away from one of the chaperones when he attempted to have them board the bus. The chaperones also were concerned because the delayed departure of the bus was, in turn, delaying other buses from picking-up or discharging their passengers. In addition, there was concern that the bus was needed for other school purposes at 11:00 a.m. The chaperones were also concerned that students would leave the bus if they waited any longer. I also find as mitigating the short distance, approximately 1.5 to 2 miles, between the Convention Center and the high school, the relatively mature ages of the students, and the fact that all of the students left behind had managed to return safely to the school by 12:00 noon. The chaperones were counseled as to their inappropriate actions by both the principal and the superintendent. In view of all these factors, I find there was a reasonable basis for respondent's refusal to take further disciplinary measures against the chaperones.

With regard to the principal, it appears from the record that his decision to require petitioner's son to serve detention, despite the superintendent's assurance to petitioner that no discipline would be imposed until the appeal was resolved, was not intentionally done in contravention of the school superintendent's assurance to petitioner, but was the result of the principal's mistaken belief that the appeal had been resolved. Furthermore, petitioner is mistaken in her belief that the principal was under any obligation to refrain from disciplining her son by reason of her directive to him. As building principal, he had the authority to impose discipline upon her son as he judged appropriate, consistent with school policy and subject to the school superintendent's direction. In any event, since the record does not establish that the principal acted intentionally, there is no reasonable basis for any disciplinary action against him.

I also do not find unreasonable respondent's determination that the school superintendent's investigation was appropriate and within his legal authority. Education Law '1711(5)(b) confers upon the superintendent of schools the power and duty to:

"...enforce all provisions of law and rules and regulations relating to the management of the schools and other educational, social and recreational activities under the direction of the board of education."

The actions of the superintendent in conducting an investigation of the incident that occurred during the field trip and reporting the results to the board are consistent with the power and duty conferred upon him under this statute. Aside from petitioner's unsubstantiated allegation that the superintendent stated to the board that he was trying to scare the students when he conducted his investigation, which allegation respondent denies, there is nothing in the record which suggests that the superintendent or the school attorney engaged in coercive or otherwise inappropriate behavior. Accordingly, I find no basis for any disciplinary measure against the school superintendent.

I also find that petitioner has failed to establish that "any school administrator involved" should be disciplined. The petitioner bears the burden of establishing a clear legal right to the relief requested (Appeal of Keller, 32 Ed Dept Rep 47). Petitioner does not name such individuals or indicate the nature of their misconduct and therefore has not met her burden of proof.

I note that all parties agree that students on field trips should not be left behind without supervision, even if they engage in the type of behavior exhibited here. The record indicates that respondent has determined to follow certain recommendations in the school attorney's report as well as additional measures, as indicated above. I do not find respondent's decision to implement such recommendations and measures to be unreasonable. To the contrary, it appears that their implementation will prevent any similar incidents from occurring in the future.