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Decision No. 13,451

Appeal of CANDY RIVENBURG, on behalf of her son, JEFFREY M. KLIMA, from action of the Board of Education of the Copake-Taconic Hill Central School District regarding a school investigation.

Decision No. 13,451

(July 13, 1995)

Edward E. Downey, Esq., attorney for respondent

SHELDON, Acting Commissioner.--Petitioner appeals the conduct and results of an investigation by school authorities of an incident that occurred on a school bus. The appeal must be dismissed.

On November 30, 1994, a school bus driver employed by the Board of Education of the Copake-Taconic Hills Central School District ("respondent") allegedly slapped petitioner's son, Jeffrey, and spoke profanely to him as he exited the bus. Respondent's elementary school principal investigated the incident. On December 1, 1994, the school principal met with the bus driver, a union representative and the transportation supervisor for the district. Petitioner and the parent of another student on the bus at the time of the incident were allowed to attend the meeting. The principal concluded that no disciplinary action against the driver was warranted.

On December 7, 1994, petitioner met with the superintendent and the parent of the other student involved. Petitioner sought the bus driver's dismissal or suspension based on her son's account of the incident and also complained about the principal's conduct. By letter dated December 8, 1994, the superintendent concluded that the principal's investigation was appropriate and that a meeting would be held with the driver to discuss his language and behavior.

Petitioner attended a December 21, 1994 board meeting to discuss the incident with the board. She was informed at that meeting that to discuss the matter further, she should request to be on the executive session agenda of the next board meeting. Consequently, the matter was placed on the board's agenda for the January 25, 1995 meeting. The appeal was commenced on January 21, 1995 and respondent, upon the advice of counsel, declined to discuss this matter with petitioner at the January 25th board meeting.

Petitioner alleges that respondent mishandled the entire episode and seeks an independent investigation, together with an apology from respondent. Respondent raises several procedural objections, including untimeliness, failure to exhaust administrative remedies and failure to state a claim upon which relief can be granted.

Before reaching the merits, I will address respondent's procedural objections. Prior to filing an appeal with the Commissioner of Education, petitioner must exhaust her administrative remedies by appealing the superintendent's decision to the board of education. While petitioner set a date to discuss the matter with respondent board, she filed this appeal prior to that meeting and thus never received a final determination from the board (Appeal of Savastano, 32 Ed Dept Rep 114; Matter of Luppino, et al., 19 id. 12). Because petitioner failed to first appeal to the board of education, the petition must be dismissed.

The petition must also be dismissed on the merits. Petitioner disagrees with respondent's conclusion that there was no definitive proof that the bus driver slapped her son. She seeks an independent investigation of the matter. However, a board of education has broad discretion to determine whether disciplinary action against employees is warranted (Appeal of Allert, 32 Ed Dept Rep 538; Appeal of Mitzner, 32 id. 15; Appeal of Magee, 30 id. 479) so long as it has a reasonable basis to support its conclusion (Appeal of Kantor, 31 Ed Dept Rep 319).

I find no basis in the record to conclude that respondent acted unreasonably in its handling of this matter. Respondent conducted a full investigation and concluded that there was no cause to fire or suspend the bus driver. In the December 8, 1994 letter to petitioner, however, the superintendent did indicate that he would meet with the driver to reinforce the importance of appropriate language and behavior toward students. Based on the record before me, I cannot conclude that respondent acted improperly or that a further investigation into this matter is necessary.

I have reviewed the parties' remaining contentions and find them without merit.