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Decision No. 13,119

Application of JANET GIELOWSKI for the removal of Albert Thompson, Superintendent, Mary E. Dougherty, Associate Superintendent, and Johnnie M. Mayo, Assistant Superintendent, of the City School District of the City of Buffalo for neglect of duty.

Decision No. 13,119

(February 28, 1994)

Hon. Laurence K. Rubin, Corporation Counsel, attorney for respondents, David F. Mix, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks the removal of the superintendent, associate superintendent, assistant superintendent and principal of School 57 of the Buffalo City School District. She also requests an order expunging from her son's record any reference to disciplinary action taken in response to actions committed by him on or about March 24, 1993. The application must be denied.

Neither the petition nor the answer provides a clear picture of the events which are the basis of this appeal. It appears, however, that on Tuesday, March 23, 1993, petitioner's son, who was nine years old at the time, was suspended for being disruptive in class. The record is very confusing at this point, but seems to indicate that a hearing was scheduled, adjourned twice at petitioner's request and eventually held on April 26, 1993. Petitioner alleges that she requested that the hearing be adjourned a third time because of a medical problem, and that her request was denied. Respondents deny that petitioner requested a third adjournment. In any event, petitioner and her son did not appear at the hearing.

In a decision dated April 27, 1993, the hearing officer found that on or about March 24, 1993, petitioner's son had refused to do his assignments, overturned a six foot table, thrown papers around the classroom and had refused to follow directions. In light of the fact that the student had exhibited disruptive behavior on numerous prior instances, the hearing officer recommended that petitioner's son be transferred to P.S. #6, an "academic challenge center." The findings and recommendation of the hearing officer were adopted by respondent Thompson on that same day.

Petitioner contends that the hearing was improperly conducted since she and her son were not able to attend. Petitioner also denies that her son was disruptive on the day in question. Petitioner further maintains that respondents should be removed from their positions because they did not respond to petitioner's telephone calls. Respondent denies each of petitioner's contentions.

Before addressing the merits of this appeal, it is necessary to review several procedural issues. An appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The last act that petitioner complains of is the April 27, 1993 decision of respondent Thompson. However, petitioner did not commence this appeal until September 16, 1993, almost five months later. In light of the fact that petitioner offers no excuse for her delay, the appeal must be dismissed as untimely.

Petitioner's request that any reference to the disciplinary action against her son be expunged from his record must also be denied because of failure to exhaust administrative remedies. Education Law '3214 provides that a superintendent's decision regarding disciplinary action against a student is appealable to the board of education That administrative remedy must be exhausted before an appeal to the Commissioner may be commenced (Matter of Berkman, 21 Ed Dept Rep 590; Matter of Luppino, et al., 19 id. 12; Matter of Decker, 12 id. 261; Matter of Crumpler, 11 id. 75; Matter of Anderson, et al., 10 id. 149). Since petitioner has not appealed the superintendent's decision to the board of education, petitioner's claims concerning expungement and her son's transfer must be dismissed.

With respect to the removal of respondents, I note that while petitioner requests the removal of the School 57 principal, petitioner has failed to join that individual as a party in this appeal. This omission necessitates dismissal of the appeal as to the principal (Appeal of Kellogg, 33 Ed Dept Rep 187; Matter of Weiss, 19 id. 308).

Regarding petitioner's application for removal of the remaining respondents, Education Law '306 authorizes the Commissioner of Education to remove a school officer for wilful violation or neglect of duty under the law (Education Law '306(1); Application of Steenrod, 32 Ed Dept Rep 490; Application of Sabuda, 31 id. 461). In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Application of Steenrod, supra; Appeal of Garnett, 32 Ed Dept Rep 91). Section 277.1 of the Regulations of the Commissioner of Education requires that an application seeking removal of a school officer, set forth

the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established ... [which] must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet; ...

Petitioner maintains that respondents Thompson, Dougherty and Mayo should be removed because they refused to return her telephone calls. Respondents deny receiving any such calls. In the absence of any countervailing proof, I find that petitioner has failed to sustain her burden of proof on this issue. In any event, although administrators should endeavor to be responsive to parental concerns, they are under no legal obligation to do so. Accordingly, respondents' alleged failure to return petitioner's phone calls violates no law and thus does not support petitioner's claim for removal under Education Law '306.

I have reviewed petitioner's other contentions and find them without merit.