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Decision No. 14,855

Appeals of T.M., SR., on behalf of his son T.M., JR., from action of the Board of Education of the City School District of the City of Tonawanda regarding student discipline.



(March 27, 2003)


Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel  

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Tonawanda regarding his son"s discipline.  The appeals must be dismissed.

In December 2000, respondent commenced an investigation into alleged misbehavior by several students, and its attorney interviewed students and staff.  On approximately January 16, 2001, respondent's attorney interviewed petitioner's son, who denied any involvement in the alleged incidents. Respondent's attorney prepared a February 26, 2001 report containing a summary of the interviews.  By letter dated April 2, 2001, the acting high school principal notified petitioner that his son would serve a four-day in-school suspension and advised him of his right to request an informal conference.  Petitioner's son served the suspension April 3 through 6, 2001.  By letter dated April 25, 2001, petitioner appealed the suspension to respondent's superintendent.

On May 1, 2001, petitioner commenced an appeal to the Commissioner requesting that respondent expunge his son's record, and that the Commissioner admonish respondent concerning its handling of the investigation. Petitioner's son died on June 12, 2001.  On or about June 14, 2001, respondent agreed to expunge the disciplinary action from his school record.

By letter dated July 20, 2001, petitioner's counsel  advised respondent and my Office of Counsel that petitioner was withdrawing his appeal because the requested relief had been granted by respondent. However, petitioner subsequently advised my Office of Counsel that he did not wish to withdraw the appeal and was no longer represented by the attorney who had sent the withdrawal notice.

On May 15, 2002, petitioner commenced a second appeal alleging, among other things, that his son's rights were violated during the January 16, 2001 interview.  Petitioner requests a decision on his May 2001 appeal, a state level investigation of respondent's handling of the matter, the removal of two members of respondent's board, the discharge of respondent"s attorneys, reimbursement for expenses, revision to state and local disciplinary investigation policies, and a public apology.

Respondent asserts that the second petition does not comply with the requirements concerning an application for the removal of school officers; that necessary parties were not joined; that the petition is untimely; that petitioner failed to exhaust his administrative remedies; that its investigation complied with its policy; that petitioner is litigating this matter in federal court; and that the Commissioner has no authority to order costs, an apology or termination of respondent"s attorney.

First, I will address petitioner's May 2001 appeal. While petitioner's attorney attempted to withdraw this appeal, petitioner promptly advised my Office of Counsel that he no longer was represented by the attorney and that he did not wish to withdraw his appeal.  Considering these circumstances, I cannot conclude that the petition was withdrawn. 

The May 2001 appeal, however, must be dismissed as moot. The Commissioner of Education 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 Schrader, 42 Ed Dept Rep ___, Decision No. 14,771; Appeal of E.F., 42 id. ___, Decision No. 14,762).  In the May 2001 appeal, petitioner requested that respondent expunge the disciplinary determination from his son's school record.  Respondent expunged the record on June 14, 2001.  Accordingly, the appeal is moot.

Petitioner's May 2002 appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced 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).  The petition complains of actions occurring more than a year before commencement of the appeal, and I do not find good cause for the substantial delay.  Moreover, the exchange of correspondence between attorneys for petitioner and respondent in April 2002, did not extend petitioner's time to commence an appeal to the Commissioner, since requests for reconsideration do not toll the limitation period (Appeal of Davila, 41 Ed Dept Rep ___, Decision No. 14,732; Appeal of Bratge, 40 id. 180, Decision No. 14,454; Appeal of Decker, 39 id. 62, Decision No. 14,173).

Even if the appeal were timely, petitioner's request for an investigation of respondent's actions could not be granted.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of S.T., 41 Ed Dept Rep ___, Decision No. 14,709; Appeal of J.W. and C.W., 41 id. ___, Decision No. 14,629; Appeal of B.B., 38 id. 666, Decision No. 14,113).  Rather, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of J.W. and C.W., supra; Appeal of B.B., supra).  

I also note that petitioner has commenced a federal court action against respondent.  Even if the appeal were timely, it would be contrary to the orderly administration of justice for me to decide issues that petitioner has elected to raise in another forum (Appeal of Coughlin 41 Ed Dept Rep ___, Decision No. 14,751; Appeal of Phillips, 38 id. 165, Decision No. 14,008; Appeal of Campbell, 33 id. 132, Decision No. 13,000).

I have considered the parties remaining contentions and find them to be without merit.  Respondent has already acknowledged the tragedy of petitioner's son's untimely death and expunged any reference to the discipline from his record.