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Decision No. 16,073

* Subsequent History: Matter of Binder v Cold Spring Harbor Cent. School Dist.;  Supreme Court, Albany County; Judgment dismissed petition to review; March 23, 2011. *

Appeal of H.B., on behalf of his son S.B., from action of the Board of Education of the Cold Spring Harbor Central School District regarding student discipline.

Decision No. 16,073

(June 11, 2010)

John Ray and Associates, attorneys for petitioner, John Ray, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the suspension of his son, S.B., by the Board of Education of the Cold Spring Harbor Central School District (“respondent”).  The appeal must be dismissed.

During the 2008-2009 school year, S.B. attended Cold Spring Harbor High School.  On March 26, 2009, S.B. was questioned by the assistant principal regarding teacher reports that he smelled of marijuana.  S.B. was asked to empty his pockets and did so, and his backpack was searched.  By letter dated March 27, 2009, the superintendent notified S.B.’s parents that S.B. was charged with “having engaged in conduct which is insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of others...”  The charge specified that on March 26, 2009 S.B. was in possession of marijuana, drug paraphernalia and a cigarette while on high school premises, in violation of the high school student handbook and district code of conduct.

On April 1, 2009 a superintendent’s hearing was held before a hearing officer.  That same day the hearing officer issued a report finding S.B. guilty of the charges and recommending continued suspension through January 2010.  On April 10, 2009, the superintendent issued her decision in which she accepted the hearing officer’s findings and recommendation in its entirety.  Petitioner appealed the suspension to respondent and, by letter dated July 22, 2009, respondent upheld the determination of guilt and the suspension.  This appeal ensued.

Petitioner requests that the findings and determination of guilt be reversed and the suspension be revoked and annulled.  Petitioner sets forth no specific allegations in the petition with respect to respondent’s July 22, 2009 determination, but incorporates by reference the arguments set forth in his prior appeal to respondent from the superintendent’s decision.  In that appeal, petitioner contended, among other things, that the disciplinary action was the result of an impermissible search.

Respondent asserts that this appeal is untimely, that petitioner fails to state a cause of action and that S.B.’s suspension was in all respects proper.

I will first address respondent’s procedural claim.  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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  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 Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Respondent’s decision was dated July 22, 2009 and post-marked July 24, 2009.  Petitioner asserts that he received the decision on July 27, 2009 and respondent offers no evidence to the contrary.  Accordingly, I find the appeal, which was served on August 26, 2009, to be timely. 

However, the appeal must be dismissed as moot.  The Commissioner will only decide 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Because S.B. has served the suspension that ended on February 1, 2010 and petitioner does not request expungement of S.B.’s record, the appeal is moot (Appeal of B.J.F., 49 Ed Dept Rep __, Decision No. 16,026; Appeal of V.F., Sr., 49 id. 155, Decision No. 15,984; Appeal of R.S., 48 id. 215, Decision No. 15,841).

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