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Decision No. 15,130


Appeal of E.M., on behalf of his son P.M., from action of the Board of Education of the Penfield Central School District regarding an athletic suspension.


Decision No. 15,130


(November 5, 2004)


Joyce B. Berkowitz, Esq., attorney for petitioner


Harris Beach LLP, attorneys for respondent, Alfred Streppa, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Penfield Central School District (�respondent�) suspending his son from interscholastic sports.  The appeal must be dismissed.

Petitioner�s son, P.M., was enrolled as a senior in respondent�s high school during the 2003-2004 school year.  At the high school homecoming dance on September 20, 2003, two deputy sheriffs detected the odor of alcohol on P.M. and referred him to the high school associate principal, who also detected the odor.  As a result of this incident, P.M. received a three-day suspension.  In addition, pursuant to the district�s athletic code of conduct, P.M. was suspended for 20 days from extra-curricular activities and directed to attend three counseling sessions.  After failing to attend the counseling sessions, P.M. was suspended from interscholastic athletics for the entire hockey season.  Thereafter, P.M.�s mother attempted to appeal P.M.�s athletic suspension to respondent�s superintendent.  In an email response dated November 19, 2003, the superintendent informed P.M.�s mother that she supported the athletic director�s decision to suspend her son from hockey.  Petitioner commenced this appeal on December 30, 2003.  Petitioner�s request for interim relief was denied on January 13, 2004.

Petitioner contends that the district�s athletic code of conduct is vague, that there was insufficient evidence that her son was under the influence of alcohol and that the district failed to advise him of his right to appeal the athletic suspension to the Commissioner of Education.  Petitioner requests that P.M. be permitted to play hockey during the 2003-2004 season and that I require respondent to revise its athletic code of conduct.

Respondent contends, among other things, that P.M. was properly suspended from interscholastic sports pursuant to the district�s athletic code of conduct, that the appeal is moot and untimely, and that it had no obligation to advise petitioner of his right to appeal his son�s suspension.

The appeal must be dismissed as untimely.  An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16).  It is unclear when P.M. was notified of his suspension from hockey for the 2003-2004 season.  However, P.M.�s mother attempted to appeal the suspension to the superintendent, who responded by email dated November 19, 2003, that she supported the athletic director�s decision.  Petitioner, however, did not commence his appeal until December 30, 2003, more than 30 days after the athletic director�s decision and the superintendent�s November 19, 2003 email.  The only excuse for the delay offered by petitioner is that respondent did not inform P.M.�s parents of their right to appeal to the Commissioner.  Except in unusual circumstances, ignorance of the appeal process does not excuse a delay in commencing an appeal (Appeal of R.A. and D.A., 43 Ed Dept Rep    , Decision No. 14,995; Appeal of Biggins, 35 id. 357, Decision No. 13,569; Appeal of Pitney Bowes, Inc., 31 id. 290, Decision No. 12,646).  In this case, I find no unusual circumstances to excuse the delay, and the appeal, therefore, must be dismissed as untimely (Appeal of Biggins, supra).

The appeal must also be dismissed as moot to the extent that petitioner seeks to have his son participate in the 2003-2004 hockey season.   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 exist or which subsequent events have laid to rest (Appeal of P.F. and M.F., 42 Ed Dept Rep 390, Decision No. 14,890; Appeal of Lascala, 38 id. 16, Decision No. 13,974).  Petitioner�s stay request was denied and the 2003-2004 hockey season has ended, leaving no possibility of any meaningful relief.

In light of this disposition, I need not address the parties� remaining contentions.