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Decision No. 13,741

Appeal of DAVID DEROSA, on behalf of NICHOLAS DEROSA, from action of the Board of Education of the Rotterdam-Mohonasen Central School District regarding student suspension.

Decision No. 13,741

(February 26, 1997)

Buchyn & Buchyn, Esqs., attorneys for respondent, Steven A. Buchyn, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son, Nicholas, from school by the Board of Education of the Rotterdam-Mohonasen Central School District ("respondent"). The appeal must be dismissed.

On June 4, 1996, respondent's superintendent issued a notice that Nicholas would be subject to a student suspension hearing pursuant to Education Law '3214, on June 6, 1996, on charges that he violated the district's disciplinary code by possessing a knife on school grounds on June 3, 1996. The notice, dated June 4, 1996, indicates that it was hand delivered and includes a handwritten notation that it was "picked up on 6/5." The notice contains all applicable information concerning the student's rights under Education Law '3214, including the right to be represented by counsel and the right to question witnesses and present witnesses on the student's behalf.

Nicholas' disciplinary hearing was conducted on June 6, 1996, before a hearing officer. By letter dated June 11, 1996, the superintendent notified petitioner that she accepted the recommendation of the hearing officer that Nicholas be suspended from school until October 25, 1996 for possessing a knife on school grounds. Respondent voted to uphold the suspension on June 28, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on August 14, 1996.

Petitioner alleges that district officials provided him with insufficient notice of the hearing and that he was, therefore, unable to secure legal counsel. Respondent contends that its procedures were appropriate.

Education Law '3214(3)(c) provides:

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,....(Emphasis supplied)

The record indicates that the assistant principal initially informed petitioner of his son's suspension on June 3, 1996, at a meeting scheduled in connection with other charges. At that time, respondent's assistant principal advised petitioner that a referral to the superintendent would be made concerning Nicholas' possession of a knife and that a hearing would be held. The affidavit of the assistant principal, made part of the record, avers that he informed petitioner on June 3, 1996 of the general nature of the superintendent's hearing, including the right to obtain legal counsel.

At the hearing itself on June 6, 1996, the hearing officer asked both petitioner and Nicholas' mother whether they had read the notice. Petitioner indicated that he had an opportunity to review the notice. When Mrs. DeRosa indicated that she had not read the notice, the hearing officer took a break from the proceedings to allow her time to read the notice. When the hearing reconvened, the hearing officer asked whether petitioner and Mrs. DeRosa had any questions regarding the hearing notice, they stated that they did not. Presumably, if petitioner felt he needed counsel to proceed, he would have so indicated at the break, or at any other time during the hearing. My review of the tape recording of the hearing does not reveal that petitioner raised the issue of counsel.

While a single day's notice of a suspension hearing has been determined to be unreasonable (Carey v. Savino, 91 Misc.2d 50, 397 N.Y.S.2d 311; Appeal of Eisenhauer, 33 Ed Dept Rep 604), I find that petitioner was afforded more that one day's notice. While respondent's written notice was admittedly abbreviated, the record in this case indicates that petitioner was actually informed of the hearing at least three days prior to the hearing date by the assistant principal. There is no indication in the record of the hearing that petitioner wished to obtain counsel at the June 6th hearing.

Moreover, the suspension is well supported by the record. The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Homick, 34 id. 150; Appeal of Lewis, 33 id. 520). In this case, there is competent and substantial evidence that Nicholas possessed a knife on school grounds. Although petitioner argued at the hearing that Nicholas has never used the knife as a weapon, that he only used the knife as a tool, and that he had been accosted by several individuals off school property and was carrying the knife for his safety, the hearing officer properly found that Nicholas possessed a knife on school grounds in violation of respondent's policy. Accordingly, there is no basis in the record to overturn respondent's determination.