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Decision No. 13,863

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her law guardian, from action of the Board of Education of the Cairo-Durham Central School District regarding student suspension.

Decision No. 13,863

(February 13, 1998)

Marilyn T. Carreras, Esq., attorney for petitioner

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

MILLS, Commissioner.--Petitioner, as law guardian, appeals the suspension of her ward by the Board of Education of the Cairo-Durham Central School District ("respondent"). The appeal must be dismissed.

Petitioner's ward was suspended for five days by the principal of her school on February 8, 1996. On February 12, 1996, respondent's superintendent of schools delivered a statement of charges to the foster parents of the student, then fifteen years of age, on whose behalf this appeal is brought. The charges relate to incidents of inappropriate sexual conduct involving a male student that allegedly occurred on December 15 and 18, 1995 and February 5, 1996 in the high school basketball team school bus. The charges state that she acted "inappropriately and/or has acted in a way to otherwise endanger the safety, morals, health or welfare of others" when she allegedly had sexual intercourse on December 15 and 18, 1995, and engaged in other "sexual conduct" on February 5, 1996, in the presence of other students while in the bus returning from high school basketball games. The charges further indicate that these incidents were "a violation of the district's student conduct policy."

A hearing was convened on February 16, 1996 and adjourned at petitioner's request with the agreement that the suspension would continue and the student would receive home tutoring. The hearing was completed on March 5, 1996 and the hearing officer issued his decision on March 14, 1996, recommending that the student be found guilty of engaging in inappropriate sexual conduct and suspended from school for one month. By written decision dated March 22, 1996, the superintendent adopted the hearing officer's decision as to guilt but imposed a greater penalty, suspending the student for the remainder of the 1995-96 school year. By letter dated April 4, 1996, petitioner asked respondent to review the superintendent's determination. At its meeting on May 2, 1996, respondent heard the appeal and voted to uphold the superintendent's determination. Petitioner was informed in writing of respondent's decision by the superintendent and the board president in letters dated May 3 and May 9, 1996, respectively.

By letter dated May 9, 1996, petitioner objected to respondent's decision, asked the principal to provide "appropriate services" to her ward under Section 504 of the Rehabilitation Act of 1973 ("Section 504") as "a child perceived with disabilities due to her family history being a victim of abuse and the resultant need for continued counseling," and requested copies of the district's policies regarding student discipline and Section 504. The superintendent responded on May 20, 1996 but did not take steps to evaluate the student until petitioner made a written referral to the district's committee on special education (CSE) on June 13, 1996.

Petitioner commenced this appeal on June 26, 1996, claiming the suspension violated Section 504. The petition requests no relief but an accompanying affidavit asks that I sanction the superintendent, reverse respondent's suspension determination, and expunge references to the suspension from the student's record. Respondent contends that the appeal must be dismissed as untimely, for failing to state a claim, and for failing to join a necessary party.

With regard to the procedural issue of timeliness, respondent contends that it was served with the petition on June 27, 1996, more than thirty days after its May 3, 1996 determination, and that the petition failed to state any reasons constituting good cause for the delay. Petitioner contends in her reply that she served respondent's attorney with her petition within the thirty day period. Respondent denies that service was made on the school district until June 27, 1997, after the thirty-day period.

An appeal to the Commissioner of Education must be commenced within 30 days of the decision or performance of the act complained of, except for good cause shown (8 NYCRR 275.16). Service of the petition on a school district named as party respondent is governed by 8 NYCRR "275.8 and must be:

… made personally by delivering a copy of the petition to the district clerk, to 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.

Because there is nothing in the record indicating that respondent's attorney has been designated by the board of education to accept service and because petitioner failed to provide an affidavit of service, required by 8 NYCRR "275.9, showing that service was perfected within the thirty-day period, the petition must be dismissed as untimely (Appeal of A.B., 36 Ed Dept Rep 155). Moreover, the petition must be dismissed because it contains no reasons that may constitute good cause for the delay under 8 NYCRR "275.16.

Respondent argues 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."

The petition itself does not contain a demand for relief. Neither does it indicate whether petitioner is appealing 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. Because of these deficiencies, the petition must be dismissed for failure to comply with 8 NYCRR "275.10.

Respondent contends further that the petition should be dismissed for failure to join the superintendent as a necessary party while apparently seeking sanctions against him. Petitioner argues that she should be permitted to amend her complaint because the superintendent was personally served and no prejudice occurred. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of a Student with a Disability, 36 Ed Dept Rep 181; Appeal of Bussfield, 34 id. 383; Appeal of McCall, 34 id. 29; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290). Because ruling in petitioner's favor on the sanctions requested would adversely affect the superintendent, petitioner's failure to join him requires dismissal of the claims against him (Appeal of a Student with a Disability, supra).

The appeal must therefore be dismissed. Since I am dismissing the appeal on the foregoing procedural grounds, I will not address the remaining issues raised by the parties.