Decision No. 14,288

(January 11, 2000)

MILLS, Commissioner.--Petitioner challenges the decisions of the Board of Education of the Fayetteville-Manlius Central School District ("respondent" or "respondent board") and Richard Roy, Athletic Director, relating to discipline imposed on his daughter. The appeal must be dismissed.

On May 30, 1998, petitioner's daughter, Sharon, then a fifteen year old tenth-grade student at Fayetteville-Manlius High School ("F-M"), attended the school-sponsored Senior Ball. She, along with her date and two other couples who were all F-M students, arrived at the event in a rented limousine. On the ride to the event the limousine driver provided the students with a bottle of vodka. One student, Terry, became inebriated to the point of illness by the time they reached the dance. Upon arriving at the dance, Sharon and her date checked in with the teacher at the door and entered the building leaving Terry in the limousine. Sometime later, concerned about Terry's condition, Sharon asked Vice Principal Almonte for permission to leave the dance to check on her. Mr. Almonte accompanied Sharon and her date to the limousine where they found Terry. Subsequently, the police were called, the driver was arrested and the students, except Sharon, were tested by the police for alcohol consumption. The police used an "Alco-Sensor" device to measure the students' blood-alcohol content ("bac") level via breath analysis. Sharon was not immediately tested because Mr. Almonte did not think she was an F-M student. Mr. Almonte called Sharon's parents, as well as the parents of the other students, to inform them of the events.

At some point after the phone call, Sharon informed Principal Chupaila that she was also an F-M student. Mr. Almonte then administered the Alco-Sensor test to Sharon and the device registered a .03 bac. Mr. Almonte asked Sharon if she had consumed any alcohol and she stated that she had been chewing gum that had been chewed by another student who had been drinking. She then told Mr. Almonte that she had consumed some orange juice with vodka in it although she didn't realize at first that it contained alcohol. Mr. Almonte had Sharon call home again to update her parents on the situation.

The following day, respondent's administrators met to discuss the situation. Mr. Almonte called petitioner and informed him that Mr. Chupaila had suspended Sharon for five days for being under the influence of alcohol at a school event and that Mr. Chupaila would be recommending an additional 15-day suspension to the superintendent. He also informed petitioner that a superintendent's hearing would be held on Tuesday, June 2, 1998. After the hearing on June 2nd, Superintendent Martin found Sharon guilty of being under the influence of alcohol at a school event and suspended her for the remainder of the school year. That same day, respondent's athletic director also informed petitioner that Sharon was suspended from participation in athletics for 20 days, covering the end of the Girl's Varsity Lacrosse season and carrying into her next sports season during the 1998-1999 school year. The stated reason for the athletic suspension was a violation of the Athletic Code of Conduct for possession and consumption of alcohol at the dance on May 30, 1998.

Petitioner appealed the suspensions to respondent board at its June 15, 1998 meeting. Respondent board overturned the five-day suspension by the principal, upheld the superintendent's suspension, and declined to review the athletic suspension. The five-day suspension was overturned, in part, because of the principal's failure to comply with the Commissioner's regulations relating to notice of suspension (8 NYCRR "100.2[l][4]). This appeal was commenced on June 24, 1998. By letter dated June 29, 1998, respondent board explained in detail the reasoning for its decision.

Petitioner contends that respondent board's decision to suspend Sharon was arbitrary and capricious because it was based on an unreliable test that may not have been administered properly. Petitioner argues that a .03 bac level is so low that it is not considered "impairment" in other legal arenas and could have been caused by the failure to properly clear the Alco-Sensor or by Sharon's gum. Petitioner alleges that two other students who admitted drinking registered a 0.0 bac and were not suspended. Petitioner further contends that Sharon accidentally drank from a glass of what she thought was orange juice and that she stopped drinking it as soon as she realized it contained vodka.

Petitioner also alleges that Principal Chupaila failed to provide the opportunity for an informal conference to discuss the initial five-day suspension and that failure tainted the remainder of the disciplinary process. Petitioner argues that respondent board failed to consider Sharon's individual circumstances, that its drug and alcohol policy lacks a coherent standard for what constitutes a violation and that the policy was improperly enacted. Petitioner also argues that respondent board improperly relied on hearsay testimony in upholding the suspension. In addition, petitioner contends that the athletic suspension was flawed because there was no informal conference or hearing and alleges that respondent board improperly failed to review the athletic suspension. Petitioner requests that the suspensions be overturned and expunged from Christina's records.

Respondents argue that the appeal should be dismissed as moot because the superintendent's suspension has already been served and the disciplinary action will not appear on Sharon's permanent record. Respondents also allege that the appeal is premature because it was commenced before respondent board issued its final written decision. Respondents contend that the decision to suspend Sharon was neither arbitrary nor capricious and was based on competent and substantial evidence. Finally, respondents argue that the appeal of the athletic suspension should be dismissed because petitioner failed to exhaust administrative remedies.

Initially, I will address the procedural issues raised by respondents. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Douglas and Judy H., 36 Ed Dept Rep 224, Decision No. 13,707; Appeal of Lovelock, 36 id. 2, Decision No. 13,633). Respondents argue that the appeal is moot because the academic suspension has already been served and will not become part of Sharon's permanent record. However, as petitioner points out, the district's alcohol and drug policy and its athletic code contain provisions for progressive punishment for repeat offenses. It is obvious that in order for these policies to be effected some record has to be maintained in order to determine whether a student is a repeat offender. Petitioner has requested that all records be expunged, not just Sharon's permanent record. Therefore, I will not dismiss the appeal as moot.

Nor will I dismiss the appeal as premature because petitioner commenced the appeal before respondent board's letter of June 29, 1998. The board issued a verbal decision at its June 15, 1998 meeting. Petitioner contends, and respondent board does not dispute, that petitioner was not informed that a written decision would follow. Given those circumstances, it was reasonable for petitioner to assume that the decision rendered at the June 15, 1998 meeting was the board's final decision. Further, nothing in the letter modifies the penalties imposed at the June 15, 1998 meeting. Therefore, I will not dismiss the appeal as premature.

The athletic suspension, however, must be dismissed for failure to exhaust administrative remedies. Petitioner and respondents raise a number of issues regarding this suspension and the proper avenue of appeal. Respondent board declined to review this suspension in part because petitioner did not first appeal to the superintendent. However, nothing in the Athletic Code of Conduct requires such an appeal. The code, signed by each athlete, states that all appeals of disciplinary action taken under the code must be appealed to the athletic director. Respondent Roy included a copy of the code with his letter suspending Sharon. Petitioner never availed himself of the opportunity to appeal the suspension to Mr. Roy, but instead attempted to appeal directly to respondent board by combining it with the academic suspension appeal. Petitioner argues that since Mr. Roy imposed Sharon's suspension in the first place it was illogical to appeal to him. However, as respondents correctly note, in certain academic suspensions by principals, the first step of the appeal process is an informal conference with the principal. The fact that the first avenue of appeal is to the same person who initially imposed the suspension does not excuse petitioner from exhausting that avenue. Because petitioner did not first appeal the athletic suspension to the athletic director, as specified in the Athletic Code of Conduct, this portion of the appeal must be dismissed for failure to exhaust administrative remedies.

Turning to the merits, the 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 (Matter of Bd. of Educ., Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133; Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Bowen, 35 id. 136, Decision No. 13,491). Petitioner raises a number of issues relating to the accuracy of the Alco-Sensor and the possibility that the test may not have been administered properly. Petitioner submits cases where the Alco-Sensor evidence was discredited, while respondents offer documentation to show that the Alco-Sensor is on the United States Department of Transportation's "Conforming Products List of Evidential Breath Measurement Devices" and other cases where the Alco-Sensor evidence was upheld. I have reviewed these materials and conclude that, if properly administered, the Alco-Sensor test provides some evidence of alcohol consumption.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Petitioner alleges that the test may have been improperly administered, but offers no evidence in support of this argument. Mr. Almonte, in his testimony at the superintendent's hearing and his affidavit in this appeal, states that he borrowed the device from the Town of Manlius Police Department on the day of the dance; that he was trained in the use of the device; that he consulted with police officers before administering the test to Sharon to ensure that he was performing the test properly; and that when he returned the device to the police, its calibration was checked and found to be accurate. Therefore, petitioner has failed to meet his burden of proving the test was not administered properly.

Furthermore, there is additional evidence in the record to support respondent board's conclusion that Sharon had been drinking. Mr. Almonte testified that he smelled alcohol on Sharon's breath, that she admitted drinking alcohol, and that he interviewed the other students who also stated that Sharon had been drinking. More specifically, Mr. Almonte testified that Sharon told him that evening that she continued to drink from the glass even after discovering that it contained alcohol.

Petitioner argues that because Mr. Almonte could not remember the exact words that Sharon spoke, his testimony should be discredited. The record, however, indicates that respondent board considered Mr. Almonte's inability to remember the exact words spoken by Sharon on the night in question. Notwithstanding, respondent board judged that Mr. Almonte was firm in his recollection of the events and his memory that Sharon had told him that she continued to drink the orange juice after she discovered it contained alcohol. Respondent board chose to credit Mr. Almonte's testimony over Sharon's, which they deemed to be evasive and equivocal. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by the facts in the record (Appeal of Phyllis and Marc B., 38 Ed Dept Rep 301, Decision No. 14,039; Appeal of L.M., 36 id. 56, Decision No. 13,654; Appeal of Bowen, supra). On the record before me, I find no basis for substituting my judgment for that of respondent board.

Petitioner further argues that the principal's failure to comply with the notice requirements of 8 NYCRR "100.2(l)(4) tainted the testimony of Mr. Almonte. He argues that an immediate informal conference would have produced more accurate testimony that would have shown that Sharon only consumed the alcohol accidentally and stopped as soon as she realized her mistake.

While it is regrettable that the principal failed to comply with the Commissioner's regulations when imposing the initial five-day suspension, the record shows that petitioner was immediately notified by telephone of the decision to suspend Sharon and the superintendent's hearing was held promptly on the second school day after the dance. Respondent board took these factors into account when rendering its decision and annulled the five-day suspension because of the error. Under these circumstances, I do not find that Mr. Chupaila's error was so substantial as to "taint" the remainder of the disciplinary process. I do caution respondent board, however, to ensure that all future disciplinary actions are imposed in compliance with Education Law "3214 and "100.2(l)(4) of the Commissioner's regulations.

Petitioner's argument that respondent board improperly implemented its policy in violation of the Commissioner's regulations by not involving the community is unpersuasive. The regulation cited by petitioner required school districts to develop disciplinary policies in consultation with teachers, administrators and parents before January 1, 1986 (8 NYCRR 100.2[l][1]). The provision that relates to amendment of the policy states that districts should review the policy annually, but does not require community input (8 NYCRR 100.2[l][2]). In any event, respondent board states that its original disciplinary policy was implemented in 1979 and that the policy at issue is actually a regulation of the superintendent, enacted in accordance with the district's disciplinary policy. Furthermore, petitioner has failed to show how respondent's policy was incoherent or improperly applied in this instance.

I note that there is some dispute over whether respondent board had viewed a hearing transcript which contained some hearsay testimony that was objected to at the hearing. However, the transcript respondent board reviewed was provided by petitioner and did not contain the offending passage. The only hearsay testimony in that transcript, which petitioner objects to, is Mr. Almonte's statement that other students had told him that Sharon was "partaking". However, the use of hearsay is permissible in school disciplinary hearings (Bd. of Educ., Monticello CSD v. Commissioner of Education, et al., supra).

In sum, I find that respondent board's determination that Sharon was under the influence of alcohol was based on competent and substantial evidence after a thorough investigation. Thus, I find no basis to overturn its decision.

Finally, petitioner argues that respondent board failed to consider Sharon's individual circumstances, i.e., her academic achievements and lack of disciplinary record, before imposing the suspensions. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). 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 (Appeal of Cynthia and Robert W., supra; Appeal of Alexander, supra; Appeal of Forestiero, 34 id. 592, Decision No. 13,419). Where a penalty is excessive, the Commissioner will substitute his judgment for that of the board of education (Appeal of Tietje, 34 Ed Dept Rep 567, Decision No. 13,411; Appeal of Stewart, 34 id. 193, Decision No. 13,279). Respondent board contends that it considered Sharon's circumstances in making its decision. Furthermore, I do not find the suspensions imposed under these circumstances to be excessive considering the gravity of the offense. I have upheld longer suspensions where students merely possessed alcohol and there was no evidence of consumption (Appeal of Cynthia & Robert W., supra).

THE APPEAL IS DISMISSED.

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