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Decision No. 15,819

Appeal of M.H., on behalf of her daughter R.H., from action of the Board of Education of the Deer Park Union Free School District regarding student discipline.

Decision No. 15,819

(August 12, 2008)

The Margiotta Law Firm, P.C., attorneys for petitioner, Paul J. Margiotta, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter, R.H., by the Board of Education of the Deer Park Union Free School District (“respondent”).  The appeal must be dismissed.

On October 17, 2007, R.H., along with other students, was seen on school grounds drinking a liquid that was later confirmed to be alcohol.  R.H. admitted drinking the liquid, but denied that she knew what it was at the time.  By letter dated October 17, 2007, the high school principal notified petitioner that R.H. had violated the district’s code of conduct and would be suspended for five days beginning on October 18, 2007.

By letter dated October 19, 2007, the assistant superintendent for pupil personnel services informed petitioner that a superintendent’s hearing would be held on October 24, 2007.  Following the hearing, the superintendent notified petitioner by letter the same day that based on her review of the record, she found R.H. guilty of possessing and consuming alcohol.  However, because the hearing officer did not find R.H. guilty of “being under the influence” R.H. could return to school on October 25, 2007.  On November 1, 2007, petitioner appealed the superintendent’s decision to respondent, which upheld the superintendent’s determination by letter dated November 16, 2007.  This appeal ensued.

Petitioner denies that R.H. willfully violated the code of conduct.  She contends that respondent’s determination is arbitrary and capricious and against the weight of the evidence and requests that the suspension be expunged from R.H.’s record.

Respondent contends that the appeal is untimely and that petitioner failed to exhaust her administrative remedies after the initial five-day suspension as required in the district’s code of conduct.  Respondent requests that I disregard petitioner’s reply because it is unverified and includes assertions that should have been included in the petition.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a 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 (8 NYCRR §275.8[a]).  In this case, petitioner improperly served the petition by mail on December 15, 2007.  Petitioner subsequently effected personal service upon respondent on January 11, 2008, more than 30 days after respondent’s determination of November 16, 2007, and offers no good excuse for her delay.  Accordingly, the appeal must be dismissed as untimely.

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