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Decision No. 14,139

Appeal of C.H. and M.H., on behalf of C.J.H., from action of the Board of Education of the West Genesee Central School District regarding student discipline.

Decision No. 14,139

(June 2, 1999)

Helein & Associates, P.C., attorneys for petitioner, Charles H. Helein, Esq., of counsel

Bond, Schoeneck & King, LLP, attorneys for respondent, David M. Pellow, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the West Genesee Central School District ("respondent") to suspend their son C.J. for ten days. The appeal must be dismissed.

In September 1996 petitioners" son was a freshman at respondent"s West Genesee High School. On September 26, 1996 the high school principal received an anonymous phone call stating that a student had been hospitalized as a result of taking drugs. On September 27, 1996 an administrative intern was told that a student, R.D., passed out drugs at school. The intern interviewed R.D., who admitted bringing prescription drugs to school, and admitted that he gave the drugs to petitioners" son and at least one other student. R.D."s father was contacted and from R.D.'s description, he stated that the drug distributed by R.D. was morphine.

On September 27, 1996 the principal called petitioner, M.H., and asked her to come to school with her son. During the course of this meeting C.J. stated that he"d taken a pill from R.D., ingested the pill, and later felt sick. He spent the next two days at home, feeling ill. Based on this statement, the principal told petitioner that her son would be suspended for five days, from September 30 until October 4. She further informed them that a superintendent"s hearing would be scheduled to determine any additional penalty.

By letter dated September 30, 1996, the principal provided petitioners with written notice of the charges and advised petitioners that a superintendent's hearing would be held on October 3, 1996, that the hearing would be recorded, and that they had the right to be represented by counsel. The hearing was held on October 3, with Assistant Superintendent Suzanne Connelly serving as the hearing officer. Petitioners appeared with their son, and the principal and administrative intern appeared on behalf of the district. Respondent"s attorney had been present at a disciplinary hearing for R.D. held earlier in the day, but did not stay for C.J."s hearing, apparently because petitioners were not represented by counsel.

At the hearing, the hearing officer read the charges and then asked C.J., "how do you plead?" to which he responded, "guilty." The principal then briefly described her investigation, including C.J.'s September 27, 1996 admission. When the hearing officer asked C.J. if he had anything to say for himself he responded, "I actually want to say that I am sorry. I realize what I did now. I just learned my lesson." The hearing officer recommended that C.J. be suspended until October 15, 1996 (ten school days), and placed on probation until the end of the school year. The superintendent adopted this recommendation and notified petitioners by letter dated October 3, 1996.

On or about October 7, 1996, petitioners obtained counsel. Correspondence regarding the superintendent's determination was exchanged between petitioner's counsel and respondent's counsel over the ensuing six months. Petitioners appealed the superintendent's decision to respondent on April 25, 1997. Respondent considered petitioners appeal at its July 2, 1997 board meeting. In a letter to petitioners dated July 7, 1997, respondent indicated that it had upheld the superintendent"s decision. This appeal ensued.

Petitioners contend that they were not given sufficient advance notice of the superintendent's hearing. They further claim that the "hearing", which basically consisted of the acceptance of a guilty plea, was inadequate. They argue that there was no real proof that the substance ingested by C.J. was morphine and that the proof introduced at the hearing was legally insufficient. Petitioners also allege that their son pled guilty because he was told by the hearing officer prior to the hearing that if he did so it would end quickly. Petitioners request that I overturn respondent's decision and direct respondent to expunge the determination.

Respondent maintains that C.J. was given adequate notice of the hearing. Respondent further alleges that C.J."s admission of misconduct provided a competent and sufficient basis for a finding of guilt by the hearing officer. Respondent denies that C.J."s admission of guilt was coerced. Respondent also maintains that the ten day suspension was not arbitrary or excessive. Finally, respondent objects to petitioners' memorandum of law.

I will first address the procedural issue. Respondent objects to petitioners" memorandum of law since it was submitted by Charles H. Helein, an attorney allegedly not admitted to practice law in New York State. A school district or corporation must be represented by an attorney (8 NYCRR "275.15). However, there is no requirement that a petitioner be represented by an attorney. Since petitioner could have submitted the memorandum of law without an attorney, I will not reject petitioners' memorandum of law.

Education Law "3214 provides for a fair hearing, upon reasonable notice. Petitioners assert that they were not given sufficient notice of the October 3, 1996 superintendent"s hearing. However, at the informal conference on September 27, 1996 the principal told petitioner, M.H. and C.J. that a superintendent"s hearing would be scheduled for the following week. They were also informed at this meeting that additional penalties could be assessed against C.J. The actual written notice of the October 3 superintendent"s hearing was sent to petitioners on September 30, 1996. The notice listed the charge against C.J., "insubordination " possession of a controlled substance, specifically morphine tablets," the time and place of the hearing, that they had a right to be represented by legal counsel, and that the hearing would be recorded.

I find that the notice of the hearing was reasonable. "The requirements of adequate notice vary in proportion to the circumstances of the event," (Appeal of Alexander, 36 Ed Dept Rep 160, citing Carey v. Savino, 91 Misc.2d 50, 52). I have previously found three days notice of a hearing to be adequate, (Appeal of Lago, 38 Ed Dept Rep ___, Decision No. 14126, dated May 5, 1999; Appeal of DeRosa, 36 Ed Dept Rep 336; Appeal of Alexander, supra). I therefore find that the notice in this matter was adequate.

Petitioners also challenge the finding of guilt based solely on C.J."s admission of the misconduct. C.J. was accused of possessing morphine and he admitted doing so at both the informal conference and the superintendent's hearing. Respondent claims that C.J. made a similar admission to the Town of Camillus Police Department on September 29, 1996. Petitioners claim that their son was coerced into pleading guilty at the superintendent"s hearing because he was told that the process would be smoother if he just pled guilty. However, the hearing officer denies this allegation. Thus, on this record, I cannot find sufficient proof of duress or intimidation to warrant a different result.

If a suspension is based on the admission of the student, there is no practical reason to require respondent to explain the charges against the student or supply the facts necessary to support them, (Appeal of Pronti, 31 Ed Dept Rep 259). Thus, such proof has been found sufficient (Appeal of Lago, supra; Appeal of Ponti, supra). Accordingly, I find no basis to overturn respondent's determination.