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Decision No. 14,113

Appeal of B.B. from action of the Central Square Central School District regarding a student suspension.

Decision No. 14,113

(April 28, 1999)

Mark David Blum, Esq., attorney for petitioner

Ferrara Fiorenza Larrison Barrett & Reitz, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel

MILLS, Commissioner--Petitioner appeals her suspension from the Central Square Central School District ("respondent" or "district") for the remainder of the 1998-99 school year. The appeal must be dismissed.

On October 28, 1998, respondent's superintendent held a hearing pursuant to Education Law "3214(3)(c) to determine whether petitioner was guilty of the disciplinary charge of disruption of the education process, for allegedly sending an e-mail message containing a bomb threat to the district's web site on October 18, 1998. At the hearing, petitioner admitted that on October 17, 1998 she and another student prepared the e-mail message addressed to the district's web site and that petitioner typed the part of the e-mail message containing the bomb threat. However, petitioner further stated that she didn't intend to send the message but that the message was inadvertently sent the next day, October 18, 1998, when she logged-on to the computer. At the conclusion of the hearing, the superintendent found petitioner guilty of the charge and directed that she be suspended and placed on home instruction for the remainder of the 1998-99 school year. Respondent indicates that its board of education upheld the penalty imposed by its superintendent in a letter dated November 24, 1998.

Petitioner commenced this appeal through service of a copy of her petition on respondent on December 23, 1998. By letter dated February 5, 1999, petitioner's request for a stay of the suspension was denied.

Petitioner contends that the hearing provided to her was unfair and denied her due process, and that the punishment was unfair, unduly harsh and disproportionate to her role in the incident. Petitioner requests a new hearing before an unbiased fact finder and the imposition of a more appropriate penalty.

Respondent denies petitioner's allegations and contends that petitioner has failed to properly serve the petition.

Section 275.8(a) of the Regulations of the Commissioner of Education requires that a copy of the petition shall be personally served upon respondent. Where, as here, a school district is named as party respondent, personal service shall be made by delivering a copy of the petition to the district clerk, to any trustee or member of the board of education, to the superintendent of schools, or to a person in the superintendent's office who has been designated by the board to accept service.

The affidavit of service indicates that the petition was served on a "Shirley Pardee" on December 23, 1998 at 1:49 p.m. Respondent alleges that it has no record of being served and could not locate any copy of the petition in its possession. Respondent provides the affidavit of Shirley Pardee, the district clerk, in which she states that she does not recall being served with the petition and that she believes she was out of the office attending a Christmas party and had not returned at the time the petition was allegedly served. She also states that she was unable to locate any copy of the petition after searching her office records.

Petitioner submits an affidavit of the process server who executed the affidavit of service. The affidavit states that on December 23, 1998 the process server picked up the papers for service from the office of petitioner's attorney and proceeded to the district's offices and the superintendent's office; that he was told by a woman sitting in the reception area that she was authorized to accept the legal papers he was attempting to serve on the district; that the woman told the process server her name was Shirley Pardee; that she stamped the petition as "received"; and that in his presence she wrote upon the petition: "Hand delivery 12-23-98 1:49 Shirley Pardee District Clerk". The process server attaches as an exhibit to his affidavit a copy of the first page of the petition, which is stamped as received on December 23, 1998 and which contains the hand written acknowledgement of delivery as set forth above. Upon the record before me, I find that petitioner has properly served the petition upon respondent.

Petitioner requests that I conduct an investigation of the district clerk's affidavit on the alleged ground that such affidavit is "perjured". However, an appeal to the Commissioner of Education is appellate in nature and does not provide for investigations (Appeal of DiStefano, 36 Ed Dept Rep 217; Appeal of Vitek, 26 id. 345). Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Catherine B., 37 Ed Dept Rep 34). Accordingly, I decline to undertake an investigation as requested by petitioner. In any event, I note that the district clerk in her affidavit merely states that she does not recall having been served with the petition and that she does not believe the district was served. Such statements suggest a potentially mistaken belief by the district clerk rather than willful perjury as petitioner alleges.

I will now address the merits of the appeal. Education Law "3214(3)(c) provides that no pupil may be suspended for a period in excess of five days unless the pupil is given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd of Educ of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133). The charges need only be sufficiently specific to advise the student of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing (Appeal of Pinckney, 37 Ed Dept Rep 284; Matter of Rose, 10 id. 4). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings; as long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd of Educ of Monticello Central School District, supra).

While petitioner contends in a general manner that the hearing was unfair, and denied her due process, she fails to allege any specific instances in which the hearing was conducted in an unfair manner or violated her due process. There is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Matter of Dwaileebe, 17 Ed Dept Rep 304). I find that petitioner has failed to meet this burden.

The record indicates that petitioner appeared at the hearing with her parents; that the procedures for the hearing were sufficiently explained to petitioner; that petitioner was provided with and reviewed a list of the charges; and that she knowingly and voluntarily waived her right to be represented by an attorney. The record further establishes that petitioner admitted to the charge in general and admitted specifically to typing that part of the message about the bomb threat and that the message was addressed to the guest book page of the district's web site.

Petitioner further testified at the hearing that after she and another student prepared the message on October 17, 1998, there was an interruption to the computer log-on connection which led her to believe that the message was never sent. Petitioner alleges her belief that the computer placed her message in an e-mail folder and that when she logged-on the next day, the message was inadvertently sent to the school. In addition, petitioner's attorney alleges in an affidavit that "[f]urther investigation has revealed that...the email which contained the bomb threat could not possibly have come from Petitioner's computer" and that "there is clear and substantial evidence that the Petitioner's will was overborne by coercive and irresponsible police interrogation tactics." However, petitioner provides no evidence to support these bare, conclusory statements.

Since the hearing officer is in the best position to determine matters concerning witness credibility, the Commissioner will not substitute his judgment for that of the hearing officer unless the findings are not supported by facts on the record (Appeal of Pinckney, supra; Appeal of Bowen, 35 id. 136; Appeal of Kittell, 31 id. 419). Upon the record before me, I find no basis to substitute my judgment for that of the hearing officer with respect to the credibility of petitioner's testimony. Furthermore, even if one were to believe petitioner's explanation that she inadvertently sent the message, the record shows that petitioner was aware two days prior to the date on which the bomb purportedly would be placed that the message containing the bomb threat had been sent to the district's web site. Despite this knowledge, petitioner failed to take any action to notify the district. As a result of petitioner's actions and omission, the school day was seriously disrupted on October 20, 1999 when respondent was forced to cancel classes.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437; Appeal of Bowen, supra; Appeal of Homick, 34 id. 150; Appeal of Lewis, 33 id. 520). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Durkee, 20 id. 94); the test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Alexander, supra; Appeal of Forestiero, 34 id. 592). In addition, a board of education has very broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and the board's determination will be upheld unless it is shown that the board has abused its discretion (Appeal of Catherine B., supra; Appeal of Douglas and Judy H., et al., 36 id. 224). Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding petitioner guilty of the offense charged and imposing a penalty of suspension from school and school activities for the remainder of the school year.