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Decision No. 15,897

Appeal of F.W., on behalf of her son I.W., from action of the Board of Education of the Elba Central School District regarding student discipline.

Decision No. 15,897

(March 25, 2009)

E. Robert Fussell, Esq., attorney for petitioner

Harris Beach, PLLC, attorneys for respondent, David W. Oakes, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Elba Central School District (“respondent”) to suspend her son, I.W.  The appeal must be sustained in part.

On May 13, 2008, I.W. drove to school, parking in respondent’s high school parking lot.  That morning, a pre-arranged search of school grounds for narcotics and marijuana was conducted by a county deputy sheriff K-9 officer.  When the officer’s dog alerted him to the car registered to I.W.’s father, the principal asked that I.W. be brought to the school parking lot.  When the officer asked if he could search the car, I.W. agreed.  The search uncovered a small quantity of marijuana.  The principal informed petitioner of the incident and provided her with written notice on May 13, 2008 that I.W. was suspended for five days from May 13 to 19, 2008.  The notice advised petitioner of her right to request an informal conference with the principal to present I.W.’s position and to ask questions of witnesses.

By notice dated May 14, 2008, the superintendent informed petitioner that a hearing would be held on May 16, 2008.  Petitioner and I.W. attended the hearing.  By letter dated May 19, 2008, the superintendent notified petitioner that she concurred with the hearing officer’s recommendation that I.W. be suspended until the remainder of the 2007-2008 school year but allowed to attend graduation exercises.  Petitioner appealed the superintendent’s decision by letter dated June 10, 2008 and appeared before respondent with her counsel on August 11, 2008.  On August 13, 2008, petitioner received a letter from the district clerk advising her that respondent upheld the superintendent’s decision in all respects.  This appeal ensued.

Petitioner contends that she did not receive timely notice of her right to an informal conference before the five-day suspension or timely notice of the superintendent’s hearing.  Petitioner also asserts that the hearing officer should have adjourned the hearing at her request and allowed I.W. to remain in school until her counsel returned from vacation.  Petitioner contends further that respondent violated due process by appointing respondent’s attorney as the hearing officer.  Petitioner also challenges the finding of guilt and penalty imposed by respondent, requesting that the suspension be expunged from her son’s record.

Respondent maintains that petitioner received timely notice of both the short-term and long-term suspensions.  Respondent asserts that notice and an opportunity for an informal conference prior to a short-term suspension are not required where the pupil’s presence poses a continuous danger to persons or property or an ongoing threat of disruption to the academic process.  Respondent argues that petitioner never requested an informal conference and asserts that she agreed to proceed with the hearing on May 16, 2008 without her counsel present.  Respondent contends that its school attorney is not prohibited from acting as a hearing officer and argues that petitioner produced no evidence of bias.  Respondent denies that the search was improper and maintains that the finding of guilt was established by competent and substantial evidence.  Respondent further argues that the penalty of suspension for less than 25 school days was reasonable and not unduly harsh.

Preliminarily, I find that because the student has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of his record (Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]). 

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550). 

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

In this case, respondent does not dispute that the principal’s May 13, 2008 written notice was provided to petitioner on May 13, 2008 – the first day of the suspension.  In the letter, the principal informed petitioner that “I have out-of-school suspended your child ... for a period of 5 days: May 13-19 because his presence in school poses a threat of disruption to the educational process.  Your child may return to school on May 20.”  The letter described the “circumstances leading to the suspension” as “possession of marijuana in his car as found by Genesee County Sheriff” and advised petitioner of her right to request an informal conference with the principal to discuss the incident, to present her son’s position, and to question witnesses.  Respondent submitted no affidavits or other evidence of the standard, if any, applied by the principal to support the conclusory statement in his May 13, 2008 letter that I.W.’s presence in school posed a threat of disruption to the educational process.  On the contrary, the record reflects that I.W. cooperated with school authorities on May 13, 2008 and followed their directives before, during and after the search of his car.  The officer testified that I.W. “was obviously upset” during the search but not that I.W. was disruptive or posed a threat of disruption.  Accordingly, absent evidence supporting a reasoned determination that I.W. posed a threat of disruption to the academic process, notice was required prior to imposing the suspension on May 13, 2008.  Therefore, I find that timely notice was not provided and the five-day suspension imposed on May 13, 2008 through May 19, 2008 must be annulled and expunged from I.W.’s record (seeAppeal of R.A., 47 Ed Dept Rep 504, Decision No. 15,767; Appeal of C.C. and R.C., 47 id. 295, Decision No. 15,701; Appeal of R.N.T. and M.T., 47 id. 298, Decision No. 15, 702).

Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of V.C., 45 id. 571, Decision No. 15,419).  What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 46 Ed Dept Rep 385, Decision No. 15,540; Appeal of W.K., 46 id. 314, Decision No. 15,519).  One day’s notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).

Petitioner received notice of the May 16, 2008 hearing on the morning of May 14, 2008.  At the hearing, petitioner appeared without her attorney, who was on vacation.  She stated at the hearing that she felt pressured into going through with the hearing without her attorney present.  The hearing officer agreed to stop the hearing and resume at a later date but indicated that her son would have to stay out of school during the interim.  Petitioner declined to request an extension and the hearing went forward.  It is well settled that where a hearing is timely scheduled, but adjourned at the parent’s request, the student may remain out of school beyond five days (seeAppeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Appeal of Wehner, 22 id. 661, Decision No. 11,110).  Under the facts presented, I cannot conclude that the hearing officer erred in proceeding after petitioner declined the opportunity for an extension.

Education Law §3214(3)(c) provides that the superintendent shall personally hear and determine the suspension proceeding or may, in her discretion, designate a hearing officer to conduct the hearing.  In this case, the superintendent designated one of the school’s attorneys as the hearing officer.  Petitioner did not object on the record at the hearing but now claims respondent violated the fair hearing requirement of Education Law §3214(3)(c) and due process by having the school’s attorney act as the hearing officer.  

There is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Appeal of R.S., 38 Ed Dept Rep 419, Decision No. 14,065; Matter of Dwaileebe, 17 id. 304, Decision No. 9,614).  At the conclusion of the hearing, petitioner thanked the hearing officer, stating, “You handled this very professionally and in a difficult situation it went as well as I could hope” (Transcript at 19).  Neither party was represented by counsel at the hearing and only one witness gave sworn testimony.  The record indicates that the attorney appointed as the hearing officer acted solely in that capacity at the hearing, although he is employed by the same law firm that provides legal representation to respondent.  The performance of multiple functions by individuals or groups is not a violation of due process perse, and whether a violation occurs becomes a factual determination to be made in light of the circumstances surrounding the procedure (Application to Reopen the appeal of R.S., 38 Ed Dept Rep 419, Decision No. 14,065; Matter of Payne, 18 id. 280, Decision No. 9,840).  Petitioner has failed to establish that the hearing officer was made aware of any of the facts of the case prior to the hearing, or to establish the hearing officer’s alleged bias or personal involvement which affected the outcome of the hearing (Matter of Gioe v. Board of Education, 126 AD2d 723; DiMele v. Potter, et al., 177 AD2d 755, appeal dismissed 79 NY2d 914).

Petitioner does not dispute that the search revealed marijuana in the car her son drove to school.  Rather, petitioner argues that there was no proof that her son knew the marijuana was present in the car that was also driven by his father and brother.  Petitioner also challenges the search because permission was not obtained from the owner of the car, I.W.’s father.  The record reflects that petitioner’s son drove the car and explicitly consented to the search, producing the keys to unlock the car when requested.  Because respondent obtained permission from the individual with control over the vehicle at the time it was parked on school grounds, I cannot find that the search was improper based on lack of consent (seeAppeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666).

At the hearing, the officer who conducted the search testified in detail how his dog alerted him to the vehicle, and the sequence of events resulting in the seizure and testing of the marijuana recovered.  The officer testified that the search was conducted in the presence of petitioner’s son, the high school principal and the elementary school principal.  The officer testified that he administered a test kit in the principal’s office at 10:04 a.m. on May 13, 2008 and that the substance tested positive for marijuana.  Exhibits introduced at the hearing to support the officer’s testimony included an email message dated March 31, 2008 scheduling the search for May 13, 2008 at 8:30 a.m.; photographs of the marijuana taken from the car; and the officer’s police report dated May 13, 2008.  Also introduced as an exhibit was respondent’s student handbook that prohibits possessing marijuana on school property.  The record indicated that petitioner was given a full opportunity to question the witness but did not introduce evidence refuting the officer’s testimony or exhibits.  Thus, the evidence supports the hearing officer’s finding of guilt and I have no basis to disturb the suspension.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).

In Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666, a penalty of suspension from April until the end of the school year was upheld for a similar infraction.  Based on the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in imposing a penalty of suspension from school for the remainder of the school year while allowing petitioner’s son to participate in graduation exercises (Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666, Appeal of J.C., 46 id. 562, Decision No. 15,596). 


IT IS ORDERED that the initial five day suspension of petitioner’s son from May 13, 2008 through May 19, 2008 be expunged from his record.