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Decision No. 14,212

Appeal of DALE MAYER, on behalf of NICOLE and MELISSA MAYER, from action of the Board of Education of the North Colonie Central School District regarding extra-curricular activities.

Decision No. 14,212

(September 15, 1999)

Law Offices of E. Stewart Jones, attorneys for petitioner, Peter J. Moschetti, Jr., Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Colonie Central School District ("respondent") to bar him from attending extracurricular athletic activities held on district property. The appeal must be dismissed.

Petitioner is the father of Nicole and Melissa Mayer, who were students at respondent's high school when this appeal was commenced. Both students participated in respondent's extracurricular athletic programs, specifically tennis and basketball. Apparently, petitioner and his wife regularly attended their daughters' athletic competitions. On June 16, 1997, respondent's athletic director and superintendent met with petitioner and his wife to discuss complaints they had received regarding petitioner's conduct at practices and competitions. The athletic director also wrote to petitioner on September 4, 1997 as a follow-up to a phone conversation he had with petitioner on the same subject. That letter explained that any inappropriate behavior at district games would result in his exclusion from future athletic contests. On September 25, 1998, petitioner confronted the district's tennis coach. By letter dated September 29, 1998, respondent's superintendent notified petitioner that respondent had decided to bar petitioner from attending any future athletic events or practices due to his threatening and aggressive behavior. This appeal ensued. Petitioner's request for interim relief was denied on March 3, 1999.

Petitioner contends that the allegations against him are untrue and that he was denied due process because he was not provided with adequate notice or a hearing before respondent barred him from attending his daughters' athletic events. Petitioner asks that respondent's decision be reversed. In the alternative, he asks for a hearing, with an opportunity to present witnesses and confront respondent's witnesses.

Respondent argues that the appeal should be dismissed as untimely. Respondent contends petitioner is not entitled to a hearing, and that he never requested one. Respondent further contends that petitioner was afforded adequate due process prior to its determination.

Initially, I must address several procedural issues. Petitioner did not file either a reply or a memorandum of law. However, petitioner's attorney submitted a letter in opposition to respondent's memorandum of law. This letter was not served on respondent in accordance with part 275 of the Regulations of the Commissioner of Education (8 NYCRR "275.8[b]). Therefore, I will not consider it in deciding this appeal.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be instituted within 30 days from 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 was notified of respondent's decision by letter dated September 29, 1998. This appeal was not commenced until January 12, 1999. Petitioner asks that the delay be excused because he was unaware of the appeal process. However, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Prentice, 38 Ed Dept Rep 736, Decision No. 14,130; Appeal of Saeger, 31 id. 528, Decision No. 12,723). I find no unusual circumstances to excuse the delay especially where it appears that petitioner was represented by counsel as early as October 5, 1998. Thus, the appeal must be dismissed as untimely (Appeal of Prentice, supra).

The appeal must also be dismissed on the merits. It is petitioner’s burden to demonstrate a clear legal right to the relief requested (8 NYCRR "275.10) and to establish the facts upon which he seeks such relief (Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994; Appeal of Oyibo, 37 id. 356, Decision No. 13,878; Appeal of Lupiani, 36 id. 355, Decision No. 13,747). Although petitioner claims that he can produce many witnesses to testify that he did not threaten or swear at coaches and student athletes, he does not submit a single affidavit from these alleged witnesses in support of his petition. In contrast, respondent submits copies of complaint letters from parents of other student athletes describing petitioner's egregious conduct, and also submits protective orders that two of its coaches obtained because of petitioner's threatening behavior.

As for petitioner's due process claim, he provides no legal authority in support of his contention that he was entitled to a full hearing before being barred from district athletic events. Moreover, there is no evidence that petitioner enjoyed any right of access to school property (Hone v. Cortland City School District, 985 F. Supp. 262 [N.D.N.Y. 1997]). Respondent contends, and petitioner does not dispute, that petitioner met at various times with respondent's athletic director, high school principal and superintendent to discuss petitioner's conduct at district athletic events. He was also warned in writing that a continuation of his inappropriate conduct would result in his exclusion from future athletic events. Further, there is no evidence that he ever requested a hearing before respondent. Accordingly, petitioner's due process claim must be dismissed.