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Decision No. 14,457

Appeal of K.R., on behalf of his daughter, L.R., from action of the Board of Education of the Phoenix Central School District regarding student suspension.

Decision No. 14,457

(September 7, 2000)

Mitchell, Mitchell and Palmer, Esqs., attorneys for petitioner, Richard C. Mitchell, Jr., Esq., of counsel

Hancock & Estabrook, L.L.P., attorneys for respondent, Lindsey Helmer Hazelton, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Phoenix Central School District ("respondent") affirming his daughter's suspension for 180 school days. The appeal must be dismissed.

On April 5, 2000, petitioner's daughter, a third grade student in respondent's Elm Street Elementary School, was suspended pending a hearing pursuant to Education Law "3214(3)(c), for her alleged involvement in a bomb threat on March 31, 2000. The hearing was held on April 12, 2000. At the hearing, petitioner's daughter testified that on Friday, March 31, 2000, while on a school bus, at the request of another student ("R") and as part of an "April Fool's joke" to be played on a third student ("K"), she wrote a note stating "There's a bomb in Elm Street School". R then took the note from petitioner's daughter, placed it in the seat in front of him, and sat in the seat in which he had placed the note. K subsequently boarded the bus and sat with R. When R directed K's attention to the note, K picked it up and, after looking it over, brought it to the school bus driver, followed by R.

Petitioner's daughter testified that she "thought" and "hoped" that R would try to stop K from going to the bus driver. She further testified that K gave the note to the bus driver, who then called the bus garage. While petitioner's daughter later spoke with a policeman who was investigating the incident, she didn't tell him anything about the note because she was afraid of getting into trouble. She further testified that she didn’t tell K that the note was an April Fool's joke, that she didn’t talk about the incident with anyone else from school that day, that she didn’t discuss it with her parents over the weekend, and that she first discussed the incident with school staff the following Tuesday. According to an affidavit submitted by respondent's superintendent of schools, the note was treated as a legitimate threat and the school was evacuated in accordance with district policy.

On April 13, 2000, the hearing officer issued a written decision finding petitioner's daughter guilty of being insubordinate and disorderly in that on March 31, 2000 she was involved in a bomb threat and recommended her suspension for 180 school days. By letter dated April 14, 2000, the superintendent notified petitioner's parents that, after reviewing the hearing officer's finding of facts and recommendation, he decided to suspend petitioner's daughter for 180 school days, and to provide her with a minimum of five hours of home instruction per week. Petitioner then appealed the superintendent's determination to respondent. In a letter dated May 18, 2000, respondent informed petitioner of its decision to uphold the superintendent's finding that petitioner's daughter was involved in a bomb threat on March 31, 2000 and his recommendation that she be suspended for 180 school days.

Petitioner commenced this appeal by service of a copy of the petition upon the president of respondent board and respondent's superintendent on June 15, 2000. By letter dated July 6, 2000, petitioner's request for a stay, pending final determination in the appeal, was denied.

Petitioner contends that the charges are not supported by the evidence and that the penalty imposed is excessive. Petitioner also contends that the home instruction offered to his daughter is inadequate. Petitioner requests that respondent's determination be set aside and that a finding of "not guilty" be made, or in the alternative, that the penalty be reduced to time already suspended, and that his daughter be immediately reinstated in the Elm Street School.

Respondent denies petitioner's allegations and raises several affirmative defenses. Respondent contends that the petition is not verified as required by 8 NYCRR "275.5; that the petition was not personally served upon the named respondents as required by 8 NYCRR "275.8; that the penalty imposed is not excessive; and that its decision is based on competent and substantial evidence.

8 NYCRR "275.8(a) requires that the petition be personally served upon each named respondent. If a school district is named as a party respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

On June 6, 2000, petitioner attempted to serve a copy of his petition on respondent. However, my Office of Counsel notified petitioner's counsel that the petition failed to comply with 8 NYCRR "275.11, which requires that each petition contain a specified notice, and was not personally served on respondent pursuant to 8 NYCRR "275.8. On June 15, 2000, petitioner again attempted to serve a copy of his petition upon respondent, this time including the proper notice required by "275.11.

Respondent contends that this petition was not personally served pursuant to "275.8. The affidavit of service submitted by petitioner is ambiguous. The affiant states that on June 15, 2000 she served a copy of the petition and notice "by mailing to and leaving with [emphasis added]" the following: (1) "Commissioner of Education, Deputy Counsel"; (2) "Lindsey H. Hazelton, Esq., Legal Counsel for Phoenix School District; (3) "Mr. Martin A. Coleman, President Board of Education Phoenix Central School District"; and (4) Mr. Michel A. Maroun, Superintendent of Schools Phoenix Central School District". While the affidavit states that a copy was served "by mailing to and leaving with said Respondents and Commissioner at said time and place", a mailing address, including postal zip code, is included after each named individual and no time, other than the date, is specified in the affidavit as to when a copy was 'left with' each named individual. Accordingly, the affidavit suggests that service was made by mail only. The superintendent of schools states in an affidavit sworn to on June 23, 2000, that his affidavit is in response to "the letter [emphasis added] of Attorney Richard C. Mitchell, Jr., dated June 15, 2000, requesting a 'temporary stay’ pending the Commissioner's determination of [L.R.'s] appeal. . ." The affidavit of respondent's attorney, sworn to on June 21, 2000, states that on June 16, 2000 she received "in the mail" a copy of the petition, accompanied by a cover letter dated June 15, 2000 from petitioner's attorney. Furthermore, although personal service of the petition upon the Commissioner of Education is not required (see 8 NYCRR "275.9), my Office of Counsel has no record of personal service of a copy of the petition in this appeal being made upon the Commissioner, as suggested in the affidavit by the words "leaving with". To the contrary, Office of Counsel’s records indicate that the petition was served by mail on June 15, 2000, received by the Commissioner of Education on June 20, 2000 and received by the Office of Counsel on June 21, 2000.

Petitioner has failed to file a reply in this appeal pursuant to 8 NYCRR "275.14 responding to respondent's affirmative defenses and resolving the ambiguity presented by the affidavit of service. Therefore, on the record before me, I am constrained to dismiss the appeal for lack of personal service upon respondent pursuant to 8 NYCRR "275.8(a) (Appeal of Davis, 39 Ed Dept Rep 181, Decision No. 14,207; Appeal of Lee D., 38 id. 262, Decision No. 14,029; Appeal of Blake, 37 id. 250, Decision 13,852).

Although the appeal must be dismissed for the reasons set forth above, the penalty imposed by respondent, suspension for 180 school days, warrants comment. In particular, I am concerned over the fact that petitioner's daughter is an eight year old, third grade student and, as such, her ability to fully understand the nature and consequences of her action may be questioned. I also note the risk of disruption to the child's education that may occur if she is readmitted to attendance in the middle of 2000-2001 school year, after serving the remainder of the 180 day suspension. Respondent may wish to consider whether the penalty imposed against petitioner's daughter should be reduced to the time already served under suspension, and that the child be admitted to attendance at the beginning of the 2000-2001 school year.