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Decision No. 13,962

Appeal of K.D., on behalf of her son, B., from action of the Board of Education of the Hoosic Valley Central School District regarding student discipline.

Decision No. 13,962

(June 16, 1998)

Martin, Shudt, Wallace, DiLorenzo & Johnson, Esqs., attorneys for petitioner, Jaime B. Thomas, Esq., of counsel

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Beth A. Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son from March 31, 1997, to the end of the 1996-1997 school year. The appeal must be sustained.

On March 27, 1997, B.D. was a special education student at Hoosic Valley High School in respondent's district. A Saab automobile was registered in his name on the school's records, and the vehicle was parked in the school parking lot that day. At the request of the school district, and after prior notice had been given in a publication mailed to district residents, a Rensselaer County Deputy Sheriff, Sandra O'Brien, conducted a search for drugs in and around the school using a dog specially trained to detect drugs.

Deputy O'Brien and her dog first scrutinized the lockers within the school building, in the company of Ned Alaskey, a district employee who held the position of Student Management Assistant and Attendance Officer. After finishing the inside of the building, Deputy O'Brien and Mr. Alaskey proceeded to the adjoining parking lot, where O'Brien's dog "alerted" on a car. Mr. Alaskey, who kept the school's vehicle registration records, returned to the school, located the student registrant, and brought him out to the parking lot. After the student unlocked the car, Deputy O'Brien determined that the drug contained in the car was a prescription drug. Deputy O'Brien and Mr. Alaskey then proceeded to a second car, registered to B., where the dog again alerted. Mr. Alaskey returned to the school, found B., and brought him out to the parking lot. According to Deputy O'Brien's testimony, B. unlocked the car, she searched the car, and found a small amount of marijuana, which she did not preserve, and a gravity knife, which she confiscated.

Shortly thereafter, the high school principal suspended B. for five days, March 31, 1997, through April 4, 1997 (March 28 was a school holiday). On April 4, respondent's Superintendent, James A. Seeley, conducted a hearing pursuant to Education Law "3214, and found B. guilty of possessing marijuana and a knife. The superintendent then referred the matter to the Committee on Special Education which met on April 9, and by a memo dated April 11, informed the superintendent that it found no connection between B.'s disabling condition and the infraction of which he was found guilty (there is no issue raised with respect to this hearing).

On April 14, the superintendent resumed the hearing, took further testimony, and decided that suspension to the end of the 1996-1997 school year was the appropriate penalty. That same day, petitioner appealed to the board of education. The board met on May 20, at which time petitioner's attorney made an oral presentation; the board met again on June 3, 1997, and by letter dated June 4, 1997, the president of the board of education informed petitioner that the board affirmed the superintendent's decision. This appeal ensued.

Petitioner raises numerous substantive and procedural issues, not all of which need be considered here. Petitioner raises questions as to the sufficiency of notice of the hearing, as well as objections to the manner in which the hearing was conducted. Petitioner also claims that the superintendent improperly acted as both investigator and hearing officer, and failed to produce findings of fact before making a decision as to guilt. Petitioner also raises objections as to the manner in which the appeal was handled before the board of education.

Respondent generally denies any wrongdoing in the manner of conducting the hearing and the appeal.

Petitioner's son was charged with violating two separate school rules: 5312.1 with respect to drug and alcohol abuse, and 5312.2 with respect to dangerous weapons. Rule 5312.1, as applicable to this matter, provides in pertinent part:

  1. No student may use, possess . . . alcohol or other substances . . . on school grounds . . . The term "alcohol or other substances" shall be construed throughout this policy to refer to all of the following substances, but not to be restricted to them alone: alcohol, inhalants, marijuana . . .
  2. Rule 5312.2 provides, in pertinent part:

    1. The Board of Education establishes that, except where prior written permission has been given to the student by the Superintendent, it shall be strictly forbidden for students knowingly to possess . . . dangerous weapons at any time on the property or facility of the Hoosic Valley Central School District or at any educational or extracurricular activity sponsored by or held under the auspices of the District.

  3. The term "dangerous weapon" as used herein shall include, but shall not be limited to, any knife . . . that is not necessary for a school activity and that could be used as a dangerous weapon.

The original notice of hearing, in a letter dated March 28, 1997, advised petitioner that the reason for the suspension was:

. . . that on March 27, 1997, during a random search of vehicles on school property, [B.'s] vehicle was found to carry a controlled substance (marijuana) and a dangerous weapon.

Despite petitioner's objection to this notice I find that it was sufficient to apprise petitioner of the charges against her son (Board of Education, Monticello CSD v. Commissioner of Education, 91 NY2d 133).

Petitioner's objections as to the manner in which the hearing was conducted require more serious consideration. Board of Education Rule 5311.1 contains provisions with respect to suspensions of more than five days:

If a suspension of a student for more than five days is being considered, the principal shall recommend that a formal hearing be held. The student and his/her parent(s) or guardian(s) shall be notified of the time and place of the hearing. The hearing shall be conducted by the Superintendent of Schools or his/her designee.

The student shall have the following rights at the hearing: 1) to examine evidence and question witnesses; 2) to present evidence and witnesses; and 3) to be represented by counsel.

According to the affidavit of the superintendent, shortly before the start of the hearing on April 4, 1997, the school district's attorney learned that her primary witness, Deputy O'Brien, would not be able to testify in person for the district, because she had a late morning appointment and prior to that appointment she was required to perform desk duty in the Sheriff's Office. Apparently petitioner's counsel was then informed of the situation immediately before the opening of the hearing. Upon the opening of the hearing record, he promptly objected to allowing any witness to participate in the hearing by telephone. The district's attorney then made the following proposal:

With respect to the testimony of Officer O'Brien being conducted by phone, while this is a formal proceeding in the sense that it is required by Education Law Section 3214 and the consequences for B., certainly are potentially serious. Without in any way diminishing that the technical rules of evidence certainly do not apply. I would offer one or two alternatives. One we can go ahead today and have Officer O'Brien testify by speakerphone and you are certainly free to cross-examine her by speakerphone. In the alternative, if you are willing to agree to [B.'s] continued suspension in the interim, we can reschedule the hearing for as early as possible next week.

Petitioner's counsel refused to accept either of these alternatives, and restated his objection to any testimony by telephone. He advised that his client would consider the school district's suggestion of an adjournment, but only if B. could return to school in the meantime. With the attorneys unable to agree, the hearing officer decided to proceed despite the objection by petitioner's counsel, which was not withdrawn but continued.

Deputy O'Brien then testified by telephone, followed by Mr. Alaskey. Because Mr. Alaskey was not present during the search of B.'s car or most of his conversation with Deputy O'Brien, the school district's case depended entirely on Deputy O'Brien's telephone testimony about the search and B.'s purported admissions. No physical evidence was introduced. The substance alleged to be marijuana was apparently discarded by Deputy O'Brien in the school parking lot, and was never tested. Nor was the knife produced at the hearing.

The conduct of the hearing in this manner seriously violated the rights guaranteed to B. as a student under Rule 5311.1. The taking of testimony by telephone in an administrative proceeding can be proper under certain circumstances. For example, the rules of the New York State Division of Human Rights allow a hearing officer, in his discretion, to take testimony by telephone, provided the witness's voice can be identified by someone in the hearing room, all persons in the hearing room can hear all questions and answers, and the witness is placed under oath and testifies that he or she is not being coached by any other person (9 NYCRR "465.12[e][11]). Similarly, New York State Department of Labor rules 12 NYCRR ""461.7(c)(2) and 463.3(f) allow testimony by telephone in unemployment insurance hearings.

However, the receipt of testimony by telephone is contrary to the normal practice of taking testimony in person. It is permissible only if it is duly authorized in advance by the rules of the agency conducting the hearing and does not offend notions of due process (see, e.g., Matter of Hoffman, 138 AD2d 785, 77 NY2d 987). Here, no party has suggested that the board of education had adopted any rule allowing the taking of testimony by telephone. Instead, it appears that the superintendent, acting as hearing officer, simply acquiesced to the ultimatum put forward by the district's attorney and allowed Deputy O'Brien to testify by telephone. The district has not cited any legal authority that would justify his taking such a step, which was clearly contrary to Rule 5311.1, on his own, and I know of no such authority.

The school district had the burden of putting forth a primafacie case, its rule provided for the presence and examination by the accused student of both witnesses and evidence, and the hearing officer had no authority to permit testimony by telephone. If the district was not ready to proceed with its affirmative case, the matter might have been adjourned at the school district's request, with B. returning to school in the meantime, or should have been dismissed. The "choice" offered by the district was not authorized. The district's attempt to attribute any adjournment to petitioner was improper, because it was the district that was not prepared to go forward. Since petitioner did not request an adjournment, the district had no legal basis for attempting to keep B. out of school beyond the original five-day suspension, which would have been a clear violation of Education Law "3214(3)(b).

Given these facts, I am constrained to sustain this appeal. While B. might have knowingly possessed both marijuana and a weapon on school property, the manner in which the hearing was conducted prevents me from reaching the merits. Whether or not the hearing officer's actions rose to the level of a true due process violation, they clearly violated the district's own rules. If school districts are to demand adherence to their rules, they must also comply with those rules.

Moreover, while I need not determine whether telephone testimony is permissible under "3214 for purposes of this appeal, such practice raises serious questions, given a student's statutory right to a fair hearing and the opportunity to question witnesses against him. Nevertheless, in view of this disposition, I need not discuss the other contentions of the parties.


IT IS ORDERED that all reference to this suspension, hearing, and penalty be expunged from the records of B.