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Decision No. 13,852

Appeal of TIMOTHY R. and JANICE A. BLAKE on behalf of THOMAS R. BLAKE from action of the Board of Education of the Panama Central School District and Robert E. Zimmerman, superintendent

Decision No. 13,852

(December 29, 1997)

Charles Edward Fagan, Esq., counsel for petitioners

Hodgson, Russ, Andrew, Woods & Goodyear, LLP, counsel for respondents, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Panama Central School District ("respondent board") affirming their son Thomas’ suspension. The appeal must be dismissed.

On Friday evening, March 1, 1996, the district held a family swim night at a school swimming pool. Petitioners’ son Thomas and several other boys were in the locker room when Thomas allegedly took out a BB-pellet gun, pointed it at the forehead of one of the boys and threatened to shoot him. After an investigation, the superintendent, Robert E. Zimmerman, scheduled a disciplinary hearing for March 19, 1997. Petitioners and their son attended and participated in the hearing. The hearing officer issued a report on March 22, 1996, in which he recommended that Thomas be found guilty of possessing a weapon and menacing, and that Thomas be suspended from school from April 15, 1996 through January 31, 1997. The superintendent adopted the hearing officer’s recommendations and notified petitioners of his determination on March 28, 1996. Petitioners appealed the superintendent’s decision to respondent board, which heard arguments on the appeal on April 24, 1996. On May 7, 1997, respondent board upheld the superintendent’s decision.

In the interim, on April 29, 1997, prior to respondent board’s final decision, counsel for petitioners filed a petition in the Supreme Court of Chautauqua County alleging procedural and due process improprieties with the conduct of the March 19 hearing. By Decision and Order dated May 21, 1997, Justice Gerace remanded the matter to the superintendent for a new hearing. However, Justice Gerace continued Thomas’s suspension.

On June 5, Superintendent Zimmerman notified petitioners that a new hearing with a different hearing officer was scheduled for June 14, 1996. The written notice charged Thomas with three offenses: 1) possessing a weapon in the form of a pellet and/or BB gun on the school grounds of the district, in violation of the School Discipline Procedures contained in the district’s Parent Handbook; 2) pointing the gun at, toward or in the direction of anther student, in violation of the School Discipline Procedures; and 3) stating "if you don’t shut up, I’ll shoot you," or words to that effect, while pointing the gun at the other student, in violation of the School Discipline Procedures. The hearing took place over two days, June 14 and August 19, 1996. On September 9, 1996, the hearing officer recommended that Thomas be found guilty of the misconduct charged and suspended for 75 school days, beginning April 15, 1996 and ending October 11, 1996. Superintendent Zimmerman reviewed the hearing officer’s recommendations and on September 16, 1996, adopted his findings of fact and determination of guilt. However, the superintendent determined that a longer suspension was warranted and continued the suspension through November 8, 1996, which was the end of the first marking period.

Petitioners appealed the September 16 decision to respondent board by letter dated October 10, 1996. Respondent board heard petitioners’ arguments on November 18, and on December 2, 1996, rendered its decision affirming the superintendent’s decision. This appeal ensued on February 6, 1997.

Respondents argue that the appeal must be dismissed because the petition was not properly served, it is untimely and it fails to state a claim for relief. Respondents contend that the evidence supports their determinations and that the penalty is appropriate. Furthermore, respondents argue that those portions of the petition which concern the events surrounding the first hearing on March 19, 1996 are irrelevant pursuant to the Order of the Supreme Court of Chautauqua County, which ordered a new hearing.

Initially, I will address several procedural issues. First, petitioners filed a reply memorandum of law on June 13, 1997. Pursuant to 8 NYCRR 276.4, petitioner’s memorandum of law should have been filed within 20 days of receipt of respondent’s answer, which was mailed on March 11, 1997. Even allowing five extra days for receipt of a mailed answer, the June 13 memorandum is clearly untimely. Further, petitioners term their document a "reply memorandum." Section 276.4 clearly states that "reply memoranda will be accepted only with the prior approval of the commissioner." Although petitioners requested that I "accept and consider" their reply memorandum, that request was made in the cover letter. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeals of Lindauer and McKee, 34 id. 596). Although it is clearly untimely, I have nonetheless reviewed petitioner’s reply memorandum. However, I will not consider those portions of petitioner’s reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

An appeal before the Commissioner must be initiated by personal service of the petition upon each named respondent, in accordance with 8 NYCRR "275.8(a) of the Commissioner’s regulations. That section provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent . . . . If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, any trustee or any member of the board of education of such school district, 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 . . . (emphasis added).

Initially, the petition in this case was served by mail on respondents’ counsel on January 10, 1997. By letter dated January 23, 1997, my Office of Counsel returned that petition and informed petitioners’ counsel that the petition did not comply with the Commissioner’s regulations concerning verification (8 NYCRR ""275.5 and 275.6), personal service (8 NYCRR "275.8), notice (8 NYCRR "275.11) and filing fee (8 NYCRR "275.9). Although petitioners were specifically informed of the requirement for personal service in 8 NYCRR "275.8(a), another petition, which appears to be identical to the first, was served by mail on respondent’s counsel almost a month later on February 6, 1997. Neither the superintendent, the district clerk nor any member of the Board of Education was personally served with the petition. Since the petition was neither personally served nor served on the proper parties, the appeal must be dismissed.

Petitioners argue in their reply memorandum that respondents waived personal service in this case because on October 21, 1996, their counsel requested petitioners’ counsel to "refrain from contacting the school district directly since they are represented by counsel in this matter." Petitioners’ argument is disingenuous and wholly without merit. This so-called directive has nothing whatsoever to do with waiver of the service requirement in 8 NYCRR 275.8. Moreover, even if petitioners genuinely believed respondents had waived service, they still failed to personally serve the petition.

The appeal must also be dismissed as untimely. Pursuant to 8 NYCRR "275.16:

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The Commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition.

Respondent board upheld the superintendent’s determination on December 2, 1996. Respondents contend that at the November 18 board meeting, their counsel informed petitioners that a decision would be rendered at the next board meeting on December 2, 1996. Furthermore, they contend that they notified petitioners’ counsel and petitioners directly by letter dated December 2, 1996, and mailed that letter ‘return receipt requested’ on December 3. Respondents submit a copy of a return receipt signed by petitioner Timothy Blake on December 5 and evidence that petitioner’s counsel failed to respond to postal notices to pick up his copy of the certified letter. Respondents argue that the petition is clearly untimely since it was not served by mail until February 6, 1997, more than thirty days from respondent board’s determination.

Petitioners argue that petitioners' counsel was unaware that there was a certified letter waiting for him at the post office and consequently he did not receive respondent board’s determination until January 7, 1997, after he telephoned respondents’ counsel inquiring about the decision. Since counsel did not receive notice of respondent board’s decision until January 7, 1997, petitioners contend that the January 10 petition is merely nine days late and the Commissioner should excuse a late appeal for good cause shown. In addition, petitioners argue that the January 10 date, not the subsequent February 6 filing, should prevail because the January petition merely contained a procedural defect.

As determined supra, the first petition was improperly served on January 10, 1997. Since that petition was not properly served, no appeal was commenced on that date, and the time for instituting an appeal under 8 NYCRR 275.16 continued to run while petitioners attempted to perfect their petition. In other words, since there was no service, service cannot be deemed to have commenced on the original date as petitioner contends. Even if the first petition had been properly served, January 10 is more than thirty days from respondent board’s December 2, 1996 determination. Moreover, since petitioners themselves had receipt of the December 2 determination by December 5, when their attorney received the letter is irrelevant. Accordingly, since the petition was filed more than thirty days after respondent board’s determination, the appeal must be dismissed as untimely (see, e.g., Appeal of A.B., 36 Ed Dept Rep 155).

Respondents argue that the appeal must also be dismissed because the petition fails to state a claim for relief. Section 275.10 of the Commissioner’s regulations requires in pertinent part that a petition "contain a clear and concise statement of petitioner’s claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which petitioner deems himself entitled." Almost three-fourths of the petition dwells on the events surrounding the first hearing on March 19, 1996: procedural irregularities, the definition of "firearm," the superintendent’s adherence to the school’s disciplinary rules, and the imposition of a ten-month suspension. However, the Supreme Court’s Order effectively nullified that hearing when it ordered respondent to hold a new hearing. Accordingly, I agree with respondents that those portions of the petition concerning the first hearing and any allegedly irregularities that occurred therein have been disposed of or are irrelevant.

Regarding the second hearing and respondent board’s December 2, 1996 determination, the petition merely states the chronology of events following the Supreme Court Order. The petition does not contain a demand for any relief. It fails to indicate whether petitioners are appealing any alleged procedural irregularities, the determination of guilt or the penalty. There is no demand that the suspension be overturned because it was not based on competent and substantial evidence. Nor is there any demand that the penalty be reduced because it is excessive. Petitioners argue in their reply memorandum that the petition contains an implied demand that Thomas be exonerated and his record expunged. However, I am unable to determine with specificity the nature of the relief sought or the basis for petitioners’ claim that they are entitled to any relief (Appeal of George, 33 Ed Dept Rep 495). Accordingly, the petition must also be dismissed for failure to comply with 8 NYCRR "275.10.

Even if the appeal were not dismissed for procedural reasons, it would be dismissed on the merits. Pursuant to 8 NYCRR "275.10, petitioners have the burden of demonstrating a clear legal right to any relief requested and the burden of establishing the facts upon which they seek relief (Appeal of Catherine B., supra; Appeals of Lindauer and McKee, 34 supra 596). 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 Catherine B., supra; Appeal of A.B., 36 Ed Dept Rep 155; Appeal of Derosa, 36 id. 336; Appeal of Homick, 34 id. 150). There is nothing in the petition alleging that the hearing officer’s determination was not based on competent and substantial evidence. To the contrary, review of the hearing officer’s report, submitted by respondents, indicates that Thomas admitted having the gun on school property.

Petitioners argue in their reply memorandum that the witness testimony was contradictory on the issue of the threat to the other student. They contend that the inconsistent testimony was attributable to the witnesses’ dislike for Thomas and revenge. Thomas denied that he pointed the gun and shouted at the other student, and he called two witnesses in support of his statement. However, the hearing officer found that one witness said he was not paying attention and the other was not present at the moment the gun was pulled. The hearing officer’s report indicates further that three witnesses testified that Thomas had pointed the gun at another student and shouted at him. The hearing officer weighed the credibility and demeanor of the witnesses. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of the hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Hamet, 36 Ed Dept Rep 174; Appeal of McCreery 34 id. 426). The hearing officer’s findings appear reasonable and constitute sufficient and competent evidence that the student participated in the charged conduct. I find no reason to substitute my judgment for that of the hearing officer as to the credibility of the witnesses. Consequently, there is no basis to overrule respondent board’s decision upholding the determination of guilt.

Furthermore, even if petitioners had requested that the penalty be set aside as excessive, they have failed to show that the sanction imposed is disproportionate to the severity of the offenses involved (Appeal of Hamet, supra; Appeal of Durkee, 20 Ed Dept Rep 94). Although the record does not indicate any previous disciplinary actions against Thomas, I do not find the penalty excessive in light of the seriousness of the charges of possessing a weapon and pointing it at and threatening another student.

I have reviewed petitioners’ remaining contentions and find them without merit.