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Decision No. 16,452

Appeal of P.J., on behalf of her son T.L., from action of the Board of Education of the Rush-Henrietta Central School District regarding student discipline.

Decision No. 16,452

(January 29, 2013)

DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Rush-Henrietta Central School District (“respondent”) affirming the suspension of her son, T.L.  The appeal must be dismissed.

During the 2010-2011 school year, T.L. was a student in respondent’s high school.  In accordance with a “stipulation as to plea and disposition” dated December 20, 2010, T.L. entered a plea of guilty to various violations of respondent’s Code of Conduct (“code”).

By letter dated March 11, 2011, petitioner was notified that T.L. was being suspended for subsequent violations of respondent’s code and that the superintendent’s hearing would be held on March 17, 2011.  Specifically, T.L. was charged with: sexual misconduct, for allegedly engaging in sexual activity during a bus ride home; continued and willful disobedience, for allegedly ignoring the bus driver’s request that he remain on the bus; and disruptive and disorderly behavior, for allegedly placing his hands on the bus driver and pushing her out of his way as he exited the bus.

By letter dated April 14, 2011, the superintendent informed petitioner that he had found T.L. guilty of all three charges, that T.L.’s suspension would be extended to the end of the 2011-2012 school year and that T.L. would not be provided with tutoring services.

By letter dated May 11, 2011, respondent affirmed the superintendent’s findings of guilt on the first two charges but found that the record did not support the finding that T.L. placed his hands on the bus driver.  Respondent also affirmed the penalty.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 16, 2011.

Petitioner alleges that her son is entitled to a free education based on constitutional law notwithstanding any alleged criminal act.  Petitioner maintains that T.L. only needs four credits to graduate.

Respondent argues that I lack jurisdiction to consider the appeal because petitioner failed to properly serve the notice of petition and petition.  Respondent maintains that petitioner fails to identify any basis in fact or law for the relief requested and that the finding of guilt and the penalty are supported by the record.

I must first address several procedural matters.  Respondent objects to petitioner’s reply, alleging that it was not properly served upon respondent.  Pursuant to §275.8(b) of the Commissioner’s regulations, petitioner was required to serve her reply upon respondent’s counsel.  Petitioner failed to do so.  Moreover, the record indicates that petitioner’s misguided attempt to serve the district clerk was unsuccessful.  Therefore, because respondent was not properly served with petitioner’s reply, I will not consider it.

Respondent also objects to the consideration of additional documents submitted by petitioner in June and July 2011 that relate to a prior disciplinary incident involving T.L.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Accordingly, petitioner’s submission will not be considered.

The appeal must be dismissed for improper 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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner submitted an affidavit of service of the petition, sworn to by Tymisha Williams, who states that on June 3, 2011, she served Karen Flanigan, district clerk.  However, Ms. Flanigan avers that she was not the person served and that she received the notice and petition via interoffice mail.  Both Ms. Flanigan and Kathy O’Connell, a receptionist in the district’s human resources department, aver that it was Ms. O’Connell who received service and that she is not one of the persons authorized by the Commissioner’s regulations to accept service, nor has she been designated by respondent to accept service for the district.  Because the notice and petition were never properly served on respondent in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed[1] (seee.g.Appeal of Villanueva, 49 Ed Dept Rep 54, Decision No. 15,956; Appeal of Peterson, 48 id. 530, Decision No. 15,939; Appeal of M.S., 47 id. 396, Decision No. 15,733).

In light of this determination, I need not consider the parties’ remaining contentions.



[1] By letter dated May 26, 2011, my Office of Counsel returned a petition previously served and filed due to lack of the required notice under §275.11 of the Commissioner’s regulations.  Petitioner was afforded two weeks to serve a corrected petition.  For the reasons set forth above, petitioner failed to properly serve a corrected petition within that time frame and, therefore, may not utilize the previously filed petition.