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Decision No. 14,614

Appeal of M.G., on behalf of H.G., from action of the Board of Education of the Westhampton Beach Union Free School District regarding student discipline.


Decision No. 14,614

(August 3, 2001)


Donald J. Noonan, P.C., attorney for petitioner


Kevin A. Seaman, Esq., attorney for respondent


MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Westhampton Beach Union Free School District ("respondent") to suspend her daughter for one year, effective November 16, 2000. The appeal must be dismissed.

Petitioner"s daughter attended ninth grade in respondent"s high school at the time of the events leading to this appeal. On the morning of November 15, 2000, she was called to the principal"s office and was asked if she had a knife. She answered in the affirmative, went into her backpack and turned the knife over to the assistant principal. The assistant principal telephoned the student's father, who came to the school and took her home. The assistant principal also called the police who came to the school and confiscated the knife.

By letter dated November 15, 2000, the principal advised petitioner that her daughter would be suspended for five days, from November 16 through November 27, 2000, for possession of a knife. Respondent"s assistant superintendent notified petitioner in a second letter, also dated November 15, 2000, that a hearing would be held on November 21, 2000 to consider the suspension of her daughter for more than five days for possession of a knife in violation of respondent"s weapons policy. The assistant superintendent"s letter informed petitioner of the right to cross-examine respondent"s witnesses, call witnesses on her daughter"s behalf and to be represented by counsel at the hearing. The student and her parents were present at the hearing. Petitioner"s daughter pled guilty to the charge and testified at the hearing that she had the knife in school on November 15, 2000.

By letter dated November 21, 2000, the superintendent notified petitioner of his decision to adopt the hearing officer"s findings of fact and recommendation that her daughter be suspended for one year, effective November 16, 2000. The superintendent"s determination was appealed on January 16, 2001 and upheld by respondent on January 29, 2001. This appeal ensued on March 27, 2001.

Petitioner contends that her daughter"s plea of guilty to possession of a knife and the penalty of a one-year suspension should be vacated because she did not knowingly and voluntarily waive her due process rights, especially her right to counsel. Petitioner also contends that the presentation of hearsay evidence at the hearing pertaining to her daughter"s allegedly threatening behavior and possession of the knife on school grounds on the previous day, November 14, 2000, a charge not contained in the notice of the hearing, deprived her of the ability to prepare a defense and affected the voluntary waiver of her rights. Petitioner requests that her petition be accepted as timely because she attempted to commence the appeal on February 27, 2001, albeit improperly, arguing that respondent was aware of her attempt to appeal and her legal position within 30 days from its January 29, 2001 determination.

Respondent contends that the suspension was imposed in compliance with the requirements of Education Law "3214, specifically, that petitioner and her daughter waived their right to counsel after being advised of this right by the superintendent in the November 15, 2000 letter and by the hearing officer at the hearing. Respondent also contends that the appeal should be dismissed as untimely because it was not commenced within 30 days of the January 29, 2001 determination. Respondent further contends that the one-year suspension imposed is consistent with respondent"s Dangerous Weapons Policy contained in the district"s Code of Conduct.

An appeal to the Commissioner of Education pursuant to Education Law "310 must be initiated within 30 days of the action or decision complained of, pursuant to 8 NYCRR "275.16, by personal service of the petition upon each named respondent, in accordance with 8 NYCRR "275.8(a). Section 275.8(a) provides in pertinent part:

A copy of the petition, together with all of petitioner"s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent" If a school district is named as a party respondent, service upon such 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 of such school district, 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". (emphasis added)

Initially, petitioner attempted to commence this appeal by providing a document to respondent"s counsel on February 27, 2001. Respondent"s counsel forwarded a copy of the document to my Office of Counsel, advising that it was not properly served on respondent and did not conform to many requirements of 8 NYCRR "275. By letter dated March 26, 2001, my Office of Counsel returned the document to petitioner"s counsel, informing him that it did not comply with the Commissioner"s regulations concerning format (8 NYCRR "275), verification (8 NYCRR ""275.5 and 275.6), personal service (8 NYCRR "275.8), notice (8 NYCRR "275.ll) and filing fee (8 NYCRR "275.9). Petitioner personally served a verified petition with notice on March 27, 2001 upon the secretary to the assistant superintendent, who acknowledged that she was authorized to accept service on behalf of respondent.

The record contains no affidavit of service showing that the document delivered to respondent"s counsel on February 27, 2001, was properly served upon respondent. As a result, I must conclude that no appeal was commenced on that date, and the time for instituting an appeal under 8 NYCRR "275.16 continued to run while petitioner prepared to serve her petition on March 27, 2001. Since there was no service upon the proper parties within 30 days of the January 29, 2001 determination, service cannot be deemed to have commenced on the original date as petitioner contends. Accordingly, the appeal commenced on March 27, 2001, must be dismissed as untimely (Appeal of Timothy R., 37 Ed Dept Rep 250, Decision No. 13,852).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The record reflects that petitioner and her daughter were advised properly of their right to representation by counsel through the hearing notice dated November 15, 2000 and by the hearing officer at the hearing and, nevertheless, proceeded without counsel on November 21, 2000. Likewise, the record shows that petitioner and her daughter received adequate notice of the charge and possible penalty.

What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ., Monticello Central School District v. Commissioner of Education, 91 NY2d 133). The charges need only be sufficiently specific to advise the student and counsel of the activities or incidents which have given rise to the proceedings and which will form the basis of the hearing (Application of R.S., 38 Ed Dept Rep 419, Decision No. 14,065; Appeal of Pinckney, 37 id. 284, Decision No. 13,860). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ., Monticello Central School District, supra).

The November 15, 2000 hearing notice advised petitioner that a hearing would be conducted to "consider a suspension of greater than five days" on the charge of "misconduct for violation of the district"s weapons policy by being in possession of a knife on November 15, 2000, at approximately 8:30 a.m. while on the property of the Westhampton Beach High School in the principal"s office." Moreover, the record indicates that respondent"s code of student conduct includes a "policy regarding dangerous weapons in school" defining "weapon" to include a knife and warning that "any student who is determined to have brought a weapon" on school premises" shall be excluded from school for a period not less than one year"." Therefore, petitioner and her daughter were apprised of the nature of the charge and the possible penalty that could be imposed so as to enable them to prepare an adequate defense and present their side of the story (see, Appeal of Pinckney, supra; Application of R.S., supra).

With regard to the finding of guilt, petitioner does not contest that her daughter possessed the knife at school. At the time the knife was confiscated and at the hearing, petitioner"s daughter admitted that she did so. Absent evidence that respondent erred as a matter of law in its conclusion, my review is limited to whether respondent"s determination is reasonable based on the record. Upon review of the facts presented, I find no basis to substitute my judgment for that of respondent.

The one-year suspension imposed by respondent was authorized by respondent"s student discipline policy and petitioner offers no evidence that her daughter was unaware of the student code of conduct setting forth the possible penalty for her misconduct. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved, and the test to be applied in revising 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., et al., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Alexander, 36 id. 160, Decision No. 13,689). I find that the penalty imposed on petitioner"s daughter is not so clearly excessive as to warrant my substitution of a lesser penalty.