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Decision No. 15,754

Appeal of J.U., on behalf of his son A.U., from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 15,754

(June 4, 2008)

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Three Village Central School District (“respondent”) to suspend his son, A.U.  The appeal must be dismissed.

On September 28, 2007, A.U., a senior at respondent’s Ward Melville High School, was involved in an altercation with a teacher in the hall outside the teacher’s classroom.  A.U. had stopped to wave to a female student in the teacher’s classroom and did not move along when the teacher gestured to him to do so.  When the teacher attempted to open the classroom door, the door made contact with A.U.  A.U. claimed that the door hit him in the face, after which he got angry, tried to prevent the teacher from opening the door, and words were exchanged including A.U.’s use of obscene language towards the teacher.  Petitioner denies that A.U. saw the teacher gesture to him and threatened the teacher.  On October 1, 2007, A.U. was suspended from school for five days.  By notice dated October 2, 2007, the principal informed petitioner of this suspension.

By a second letter dated October 2, 2007, the superintendent scheduled a hearing for October 9, 2007 pursuant to Education Law §3214 to consider three charges: that A.U. had endangered the health, safety, and welfare of himself and others in violation of the district’s code of conduct, when on September 28, 2007, while on the grounds of Ward Melville High School he: 1) was insubordinate by failing to comply with a teacher’s instruction to cease attempts to communicate with a student in the teacher’s class; 2) used abusive language toward the teacher and then threatened the teacher; and 3) caused a disruption of the educational process in a classroom.

During the hearing on October 9, 2007, the hearing officer determined that the principal had not notified petitioner of the initial suspension in a timely manner and that the suspension had exceeded the five-day limit allowed by Education Law §3214.  Accordingly, he ordered that the initial suspension be expunged and that A.U. be permitted to return to school pending the hearing officer’s final decision after the resumption of the hearing.  By letter dated October 10, 2007, the superintendent so informed petitioner’s wife, the initial suspension was expunged and A.U. was permitted to return to school.

The hearing resumed on November 1 and 19, 2007, and petitioner and A.U. were represented by counsel.  The teacher involved in the incident, another teacher, two deans, and four students testified.  On November 19, 2007, the hearing officer determined that A.U. had admitted charge three, and the language portion of charge two.  The hearing officer also found A.U. guilty of charge one and all of charge two, and recommended that the A.U. be suspended for the remainder of the school year.  On November 21, 2007, the superintendent upheld the hearing officer’s determination and recommendation.  By letter dated December 7, 2007, a new counsel for petitioner appealed to respondent.  By letter dated December 13, 2007, the district clerk informed petitioner that respondent had upheld the superintendent’s determination on December 11, 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 13, 2008.

Petitioner contends that his son did not threaten the teacher and there was no finding that he committed any act of violence.  He asserts that the punishment is excessive, violates the code of conduct, and is arbitrary and capricious.  Petitioner seeks a determination that A.U.’s educational right’s were violated and seeks expungement of A.U.’s record.

Respondent contends that the petition fails to state a claim upon which relief can be granted, fails to set forth a clear and concise statement of petitioner’s claim, fails to join a necessary party and is untimely.  It asserts that the district complied with its code of conduct, the determination of guilt was based on competent and substantial evidence, the hearing record supports the hearing officer’s determination, A.U.’s disciplinary history supports the penalty and the penalty was appropriate.

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 any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

In this case, the district clerk informed petitioner of respondent’s decision by letter dated Thursday, December 13, 2007.  Assuming the usual five days for mailing, the date of receipt is presumed to be December 20, 2007.  In his petition, petitioner claims he submitted his original appeal to the Commissioner with a letter from A.U.’s social worker on or about December 24, 2007.  By letter to the Commissioner dated January 28, 2008, petitioner inquired about the status of his alleged “appeal.”  By letter dated February 6, 2008, my Counsel’s office informed petitioner that it had no record of any such appeal.

By letter to the Commissioner dated February 22, 2008, petitioner’s original counsel, who had appeared at the superintendent’s hearing, submitted a copy of petitioner’s January 28, 2008 letter, a narrative from petitioner, a letter from A.U.’s therapist, and copies of the superintendent’s and respondent’s determinations.  However, this letter did not comply with the regulations of the Commissioner governing the commencement of an appeal pursuant to Education Law §310, and was returned.  Petitioner did not serve a petition until March 4, 2008, more than 30 days later after the presumed receipt of respondent’s determination on December 20, 2007.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  I find no such circumstances here.  Accordingly, the appeal must be dismissed as untimely.