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Decision No. 16,098

Appeal of S.L. and B.L., on behalf of their son H.L., from action of the Board of Education of the Ossining Union Free School District regarding student discipline.

Decision No. 16,098

(July 27, 2010)

Ingerman, Smith, L.L.P., attorneys for respondent, Carolyn J. Przybylo, Esq., of counsel

STEINER, Commissioner,--Petitioners appeal the suspension of their son, H.L., by the Board of Education of the Ossining Union Free School District (“respondent”).  The appeal must be dismissed.

During the 2008-2009 school year, H.L. attended the 10th grade at respondent’s Ossining High School.  On May 11, 2009, H.L. was sent to detention for reportedly cutting a class.  When he cursed as he entered the room, the detention room supervisor (“supervisor”) asked him to calm down.  H.L. responded by allegedly accusing the supervisor of being sick in his head, and then left the room.  Upon finding H.L. in the hallway, the assistant principal informed the student that he was going to be suspended.  The principal then telephoned S.L. to inform her of the incident and proposed suspension.  The dean of students (“dean”) was called by a security staff member after H.L. removed his belongings from his locker but did not leave the building when asked.  While walking through the main lobby, H.L. allegedly threatened to harm the dean’s son and spit on the floor saying “have the custodians clean this up.” 

Petitioners were notified in writing by the principal on May 11, 2009 that H.L. was suspended for five days, through May 15, 2009.  The letter also invited petitioners to call the principal for an informal conference.  On May 12, 2009, petitioners were provided with a letter from the superintendent scheduling a hearing for May 15, 2009 on 11 charges arising from the incidents the preceding day.

At the hearing, H.L. admitted his guilt on six of the charges and the district withdrew two others.  Witnesses for the district included the supervisor, the dean, and the assistant principal, all of whom provided eye witness testimony describing H.L.’s behavior relating to the remaining charges.  By letter dated May 26, 2009, the superintendent notified petitioners of her decision accepting the hearing officer’s May 24, 2009 findings of fact and recommendation to suspend H.L. for the remainder of the 2008-2009 school year and the entire 2009-2010 school year with permission to apply for early re-admission after the first semester of the 2009-2010 school year.  Petitioners’ appeal of the decision was considered by respondent at its meeting on September 9, 2009.  By letter dated September 11, 2009, petitioners were notified of respondent’s decision to uphold the suspension as modified by reducing its length, ending after the first semester of the 2009-2010 school year with permission to apply for early re-admission after the first quarter of the 2009-2010 school year.  This appeal ensued.

Petitioners contend that H.L.’s admission of guilt to six of the charges was not informed and that he was not provided notice that his prior disciplinary record would be introduced as evidence.  Petitioners also contend that they were not given the opportunity for an informal conference with the principal prior to the suspension.  Petitioners assert that the charges lacked specificity and the penalty is excessive.

Respondent contends that the appeal must be dismissed as untimely and for lack of proper service.  Respondent also contends that petitioners failed to appeal the board’s modified suspension decision.  Respondent asserts that petitioners and H.L. were provided due process, including notice that H.L.’s disciplinary record would be introduced as evidence in the penalty phase.  Respondent defends the decision to suspend H.L. and the penalty.

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 notice of petition states that respondent’s September 11, 2009 determination was received September 20, 2009 and the affidavit of service states that the petition was mailed to respondent on November 4, 2009, more than 30 days later.  Petitioners offer no good cause for their delay.  Accordingly, the appeal is untimely and must be dismissed.

 The appeal must also be dismissed for lack of proper service.  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]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).

In this case, petitioners improperly mailed the petition on November 4, 2009 and did not at any time effect personal service upon respondent.  Since the petition was not personally served on the district clerk, a member of the board of education, the superintendent, or to a superintendent’s designee, there was no valid service of process and the Commissioner lacks jurisdiction over this appeal (Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).

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