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Decision No. 14,179

Appeal of LYNN I., on behalf of JASON I., from action of the Board of Education of the City School District of the City of Lackawanna and Board of Education member Mark L. Balen regarding student discipline.

Decision No. 14,179

(July 28, 1999)

Brown & Kelly, LLP, attorneys for petitioner, Rodney O. Personius and Brian M. Melber, Esqs., of counsel

Carl W. Morgan, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Lackawanna ("respondent board") to remove her son, Jason, from a labor-management program conducted by the United Auto Workers and General Motors ("UAW/GM") offered through respondent board. Petitioner also seeks the removal of board member Mark L. Balen for his actions relating to Jason's removal. The appeal must be dismissed.

In September 1997, respondent board passed a resolution to allow Lackawanna High School students to attend a labor-management program conducted by Cornell University and sponsored by UAW/GM at a location in Cheektowaga. Respondent Balen was instrumental in making the program available to district students, having previously been involved with the program. The course consisted of five full-day seminars and was apparently offered at least twice during the fall 1997 school term. Students who attended the course were required to write a term paper and, upon successful completion of the program would receive 1" college credits. Two other Lackawanna Senior High School students were the first to complete the program. Jason was one of two students selected for the December 15-19, 1997 offering of the program. Ms. Angela Szuflita, a district teacher, was assigned to attend the program to supervise Jason and the other student, John.

On the first morning of the program, Monday, December 15, 1997, Jason and John reported to high school principal William Bilowus' office at 7:35 a.m. despite the fact that the program was scheduled to begin at 7:30 a.m. and it would take approximately one-half hour to drive to Cheektowaga. Jason and John stated that they were waiting for Ms. Szuflita to drive them to the program. Teacher/advisors for the previous offering had been instructed to drive the students to the school. Principal Bilowus' secretary telephoned Ms. Szuflita and found her at home. Ms. Szuflita told Jason and John that she would meet them at the program location. Jason then drove John in petitioner's family car to the program. A conflict arose later that day when the students were told that they would not earn college credits for the program. The accounts of what transpired vary, but it is obvious that there was a lot of discussion and, possibly, some anger regarding this topic. Jason also drove the next two days, arriving late again on Wednesday due to a automobile accident which slowed traffic en route.

On the evening of Wednesday, December 17, 1997, Principal Bilowus called petitioner's home and left a telephone message indicating that Jason should not report to the program the next day and should instead return to his regular classes. On December 18, 1997, petitioner met separately with Principal Bilowus and Superintendent Nellie King to discuss why Jason was withdrawn from the program. Petitioner was informed that both Jason and John had been withdrawn because of disciplinary problems and that respondent Balen, Principal Bilowus and Superintendent King had made that decision. On December 22, 1997, petitioner met with these three school officials in an unsuccessful effort to resolve the issue. While accounts of that meeting differ, it is apparent that the exchange between petitioner and respondent Balen was unpleasant.

On January 6, 1998, petitioner wrote to District Superintendent Donald Ogilvie complaining about respondent Balen's conduct. A copy of the letter was forwarded to me and a member of my staff responded to petitioner on January 28, 1998, informing her that an appeal to the Commissioner of Education could only be filed after she had received a final written decision from respondent board. On January 21, 1998, petitioner appealed to respondent board. In response, respondent board directed its attorney to investigate petitioner's allegations. On February 5, 1998, petitioner wrote to board of education president Diane Kozak requesting a written response. Ms. Kozak responded by letter dated February 9, 1998 stating that petitioner would be notified when the attorney's report was complete and she would have an opportunity to meet with respondent board. The attorney's report was submitted to respondent board on February 18, 1998 and it voted to receive and file the report. Petitioner commenced this appeal on May 21, 1998.

Petitioner contends that on December 18, 1997 she spoke with two co-directors of the program, Mr. Baug and Mr. Donohue, and was told that there was no disciplinary problem with Jason. She further contends that respondent Balen raised his voice when speaking to her at the December 22, 1997 meeting, that he called Jason a "punk", accused him of plagiarizing and made angry references to petitioner's brother, also a member of respondent board. Petitioner requests a finding that Jason was removed from the program without a due process hearing, and that respondent Balen acted unlawfully and inappropriately. Petitioner further requests that respondent Balen be removed from the board and that Jason be allowed to complete the program.

Respondents maintain that the petition must be dismissed because of defects in form, notice and service. Respondents also maintain that the appeal is untimely. Respondents further contend that Jason was not "disciplined" as he was merely returned to his regular classes and, therefore, was not entitled to a due process hearing.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be brought within 30 days after the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner argues that she never received a written response from respondent board and that the report drafted by the board's attorney still left major issues for resolution. However, a close reading of the report reveals that it clearly states conclusions which respondent board voted to receive and file. The report states that "...there was certainly ample justification for Principal Bilowus to conclude that the appropriate course of action would be to withdraw the students from the course. There is no evidence to indicate that this action was done at the direction of respondent Balen. Any 'recommendations' made by respondent Balen were neither binding on administrative personnel nor illegal." Petitioner points to a statement in the report that allegedly indicates that there were further issues to be resolved. However, the sentence she refers to only leaves it to respondent board to determine whether petitioner's allegations were based on an honest misunderstanding or whether petitioner deliberately attempted to retaliate against respondent Balen because of her brother. That determination is unrelated to the issues in this appeal. Petitioner did not commence this appeal until May 21, 1998, more than three months from the date the report was accepted by respondent. Therefore, the petition must be dismissed as untimely.

Even if it were not untimely, all portions of the appeal relating to respondent Balen must be dismissed. 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,. . . shall be personally served upon each named respondent . . . (emphasis added).

The record shows that petitioner served respondent Balen by delivering his copy of the petition to the district clerk and respondent Balen was never served personally. Therefore, the claims against respondent Balen are dismissed.

Additionally, the appeal is moot as to petitioner's request that Jason be reinstated to the program. The Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915; Appeal of Lawson, 36 id. 450, Decision No. 13,774). According to the affidavit of respondent Balen, which is not refuted by petitioner, the UAW/GM administrators have terminated all student participation in the program. Therefore, it is no longer possible to reinstate Jason to the program.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner argues that Jason was not afforded due process protections because a hearing was not held. However, in-school suspensions or other similar disciplinary steps taken by school administrators do not require the full panoply of protections that are accorded for a suspension from school, as set forth in Education Law "3214 (Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049; Appeal of Gaslow, 34 id. 293, Decision No. 13,315; Appeal of Danison, 31 id. 169, Decision No. 12,608). All that is required is that the suspension of privileges or administrative discipline be imposed in accordance with a procedure that is basically fair and which grants the student and parent an opportunity to appear informally before the person or body authorized to impose such discipline, to discuss the conduct being reviewed (Appeal of Gaslow, supra; Appeal of Danison, supra; Matter of Watts, 23 Ed Dept Rep 459, Decision No. 11,282).

It is unclear whether a suspension from the program was an academic suspension, an extra-curricular activity suspension, or even a suspension at all. As respondent points out, Jason was merely returned to his regular classes. In any event, the record before me indicates that petitioner had discussed Jason's removal from the program with the principal, superintendent and respondent Balen, and also presented her case to the entire board. Under these circumstances, I find that petitioner was afforded sufficient due process.

In regard to petitioner's claims against respondent Balen, Education Law authorizes the Commissioner of Education to remove a member of the board of education for a wilful violation or neglect of duty or wilful disobedience of any decision, rule, or regulation of the Board of Regents or the Commissioner of Education (Education Law "306[1]). An application seeking the removal of a school officer must set forth the wilful violation of law, neglect of duty, or wilful disobedience of a decision, order or regulation of the Commissioner charged against the officer and the facts by which it is established (8 NYCRR "277.1[a]). To be considered wilful, respondent's actions must have been done intentionally and with a wrongful purpose (Application of Cobler, 35 Ed Dept Rep 176, Decision No. 13,506; Application of Sabuda, 31 id. 461, Decision No. 12,700). In an appeal before the Commissioner of Education, petitioner has the burden to establish the facts upon which he or she seeks relief (8 NYCRR "275.10; Application of Sabuda, supra; Application of Verity, 31 Ed Dept Rep 485, Decision No. 12,709).

Petitioner has failed to establish that respondent Balen's actions constitute a wilful violation or neglect of duty under the law. An error in judgment or an instance of inappropriate or unbecoming speech by a board member is not grounds for his removal (Application of O'Mara, 37 Ed Dept Rep 122, Decision No. 13,819). In any event, affidavits submitted by the two witnesses to the confrontation between petitioner and respondent Balen refute petitioner's allegations as to respondent Balen's behavior. Further, board president Kozak submitted an affidavit stating that respondent Balen had been given an advisory role by the board because of his experience with the program. She further states that any "recommendations" made by respondent Balen regarding this incident were done with the knowledge and approval of the entire board. Petitioner has not established that respondents acted improperly or beyond their authority.

In light of this determination, I need not address respondents' remaining contentions.