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Decision No. 16,780

Appeal of A STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the East Aurora Union Free School District and the Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services regarding bullying.

Decision No. 16,780

(June 23, 2015)

Harris Beach PLLC, attorneys for respondents, Jeffrey J. Weiss and Shannon K. Buffum, Esqs., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the actions of the Board of Education of the East Aurora Union Free School District (“board”) and the Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services (“BOCES”) (collectively “respondents”) regarding their handling of allegations of bullying of their son (the “student”).  The appeal must be dismissed.

Petitioners and the student are residents of the Orchard Park Central School District (“Orchard Park”).  BOCES operates satellite classrooms (“BOCES classroom”) for students with disabilities within component school districts, including the East Aurora Union Free School District (“district”).  During the 2012-2013 school year, the student attended a BOCES special education program located at a school within the district, pursuant to his individualized education program (“IEP”) developed and approved by Orchard Park. 

According to petitioners, on May 28, 2013, the student reported that he had been sexually assaulted by a classmate in his BOCES classroom and did not feel safe reporting the incident to his classroom teacher or returning to his BOCES classroom.  According to petitioners, the student’s mother “immediately” reported the incident and filed a criminal complaint with the police department.  A police officer advised her that the district’s school resource officer (“SRO”), who also serves as the SRO for BOCES, would handle the incident.  That same day, the student’s mother also reported the incident to Orchard Park’s assistant director of special education. 

According to respondents, the police department forwarded the complaint to the SRO, who then contacted the individual who serves as the BOCES Dignity for All Students Act (“DASA”) coordinator and special education supervisor (“DASA coordinator”).  The DASA coordinator began an investigation pursuant to BOCES’ DASA Policy, which calls for an investigation into “all complaints of harassment and discrimination, either formal or informal.”  According to respondents, the DASA coordinator serves the BOCES satellite classrooms located within the district.

As part of the investigation, on May 29, 2013, the DASA coordinator and the SRO met with the student and his mother to discuss their complaint.  In addition, the DASA coordinator and the SRO interviewed “numerous witnesses, including all students and [the three] staff” who were present at the time of the alleged incident, and collected witness statements from the three staff members.  The DASA coordinator and the SRO also examined the classroom where the alleged incident took place.

BOCES completed its investigation and prepared a written incident report.  As a result of the investigation, according to respondents, the accused student was suspended for three school days for making an “inappropriate verbal remark.”  However, petitioners’ allegations of a “lewd and vulgar act” were determined to be unfounded and inconsistent with the other witnesses’ statements and observations.  On May 29, 2013, the DASA coordinator contacted the student’s mother to advise her of the determination that her claims that her son was sexually assaulted were not substantiated by the investigation, that the case was closed, and that the student was to return to his educational placement.  Petitioners subsequently removed the student from the BOCES classroom.  This appeal ensued.

Petitioners assert that respondents violated DASA by, among other things, failing to conduct an appropriate investigation into the student’s report of sexual assault.  Petitioners seek a determination that respondents failed to comply with DASA in investigating their report of a sexual assault by a classmate.  Petitioners also request copies of all records generated as part of respondents’ investigation, including the “final report” of the investigation.  Finally, petitioners request that specific training be provided to all students with developmental disabilities in the district and the BOCES regarding bullying and harassment and sexual assaults, and to all staff of the district and BOCES, by a “skilled professional” from the Child Advocacy Center.

Respondents assert that the petition should be dismissed as to respondent BOCES for lack of proper service; that DASA does not create a cause of action for students or parents and the Commissioner lacks jurisdiction over the matter; and that the petition fails to state a claim upon which relief may be granted.  Respondents maintain that BOCES conducted a thorough and appropriate investigation involving both a police officer and an experienced school administrator with specific expertise in working with children with disabilities.  Respondents further assert that the district’s sole role in the matter as the lessor of classroom space to BOCES does not require it to conduct a parallel investigation. 

I must first address the procedural issues.  Respondents object to petitioners’ verified reply, arguing that it contains new factual and legal assertions and exhibits which were not 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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. 

Respondents also object to petitioners’ submission of an affidavit, together with their verified reply, from Donna Roberts, the Executive Director at AGAPE Parents Fellowship, Inc., a Medicaid Service Coordination provider. 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).  I have reviewed the affidavit from the executive director and it appears to buttress the arguments in the petition and to belatedly add assertions that should have been included with the petition.  Indeed, the affidavit from the executive director describes her understanding of the BOCES investigation into petitioners’ allegations, but does not appear to respond to any specific assertion(s) or affirmative defense(s) raised in the answer.  Petitioners did not submit a request pursuant to 8 NYCRR §276.5 to submit such affidavit, nor did they explain why it was not submitted with the petition.  Therefore, I have not considered it.

I note that, attached to the reply and incorporated therein by reference, is an affidavit from petitioners’ attorney and process server on the issue of service, which was raised in respondents’ answer.  The affidavit does not raise new issues or introduce new exhibits; rather, its scope is limited to respondents’ affirmative defense of lack of proper service and it attempts to explain the alleged deficiencies in service.  Therefore, I have considered the affidavit as part of petitioners’ reply (see e.g. Appeal of Zayas, 53 Ed Dept Rep, Decision No. 16,546).

Petitioners object to respondents’ memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed respondents’ memorandum of law, I have not considered those portions containing new allegations or claims that were not part of the pleadings. 

By letter dated September 9, 2013, respondents requested, pursuant to 8 NYCRR §276.5, that I consider a supplemental affidavit from the DASA coordinator in response to allegations contained in petitioners’ reply.  Petitioners object to the submission of this additional affidavit.  As noted above, I have not considered any new factual or legal assertions contained in petitioners’ reply.  Therefore, I will not consider the DASA coordinator’s supplemental affidavit. 

I find no merit to respondents’ contention that I lack jurisdiction over this matter.  The gravamen of petitioners’ appeal is their claim that respondents’ alleged acts and omissions constitute violations of DASA (Education Law, Article 2).  Education Law §310 specifically provides, in pertinent part, as follows:

Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action:

          * * *

(7) By any other official act or decision of any officer, school authorities or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.

Accordingly, I have jurisdiction over the issues raised in this appeal.

Respondents assert that the appeal should be dismissed for lack of proper service on respondent BOCES.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.   If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services (8 NYCRR §275.8[a]). 

Respondents maintain that petitioners failed to personally serve an individual authorized to accept service on behalf of respondent BOCES in accordance with §275.8(a).  Petitioners submit an affidavit of service indicating that the petition was delivered to Wendy Henel, a BOCES employee, who stated that she is duly “authorized to accept service.”  Respondents confirm that petitioners attempted to serve Ms. Henel, a receptionist, on behalf of BOCES.  However, respondents assert that the receptionist is not authorized to accept service on behalf of BOCES.  Together with their answer, respondents submit an affidavit from Ms. Henel in which she indicates that she is a receptionist employed at BOCES and that, on June 27, 2013, she was working at the BOCES reception kiosk when a woman approached the kiosk, asked for her name, and handed her an envelope.  According to Ms. Henel, the woman never advised that she was serving a legal document; nor did she ask about the availability of any employees designated by BOCES to accept service. 

Petitioners submit an affidavit from their attorney and process server, which indicates that she specifically advised the receptionist that she “needed to deliver a document” to “a person authorized to accept service” and asked the receptionist whether she was authorized to accept service on behalf of BOCES.  According to petitioners’ process server, she “could not have been any more clear in [her] request,” and the receptionist “stated that yes; she was authorized to accept service.”  As such, the process server claims that she “relied on [the receptionist]’s verbal representation that she was authorized to accept service on behalf of the BOCES Board of Education.”  

The affidavit of a process server attesting to delivery of a paper ordinarily constitutes prima facie evidence of proper service (Dunn v. Pallett, 42 AD3d 807, appeal after remand 66 AD3d 1179; Bankers Trust Co. of California, N.A., v. Tsoukas, 303 AD2d 343; Application of Kelty, 49 Ed Dept Rep 12, Decision No. 15,946).  Where there is a sworn denial by respondent of receipt of proper service of the petition and notice of petition, however, the affidavit of service is rebutted and jurisdiction must be established by further evidence (Application of Kelty, 49 Ed Dept Rep 12, Decision No. 15,946; Application of the Bd. of Educ. of the Ardsley Union Free School Dist., 38 Ed Dept Rep 221, Decision No. 14,019; see also Bankers Trust Co. of California, N.A., v. Tsoukas, 303 AD2d 343).  The burden of proving service and the resulting existence of jurisdiction is always on the party asserting it (Skyline Agency, Inc., v. Coppotelli, Inc., 117 AD2d 135; Bernardo v. Barrett, 87 AD2d 832, aff’d 57 NY2d 1006; Application of Kelty, 49 Ed Dept Rep 12, Decision No. 15,946).

On this record, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on BOCES is in equipoise and petitioners have not met their burden of proving that proper service was made on BOCES (see Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623; Appeal of Zapas, 45 id. 140, Decision No. 15,284).  Therefore, because petitioners failed to effect proper service upon respondent BOCES, the appeal must be dismissed as to respondent BOCES (see Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623; Appeal of Zapas, 45 id. 140, Decision No. 15,284).

I note that, in their memorandum of law, respondents argue that, even assuming arguendo that the receptionist did state that she was authorized to accept service on behalf of BOCES, service on BOCES is still deficient.  They argue that the receptionist “could not simply self-designate as a person who is authorized to accept service” and that “only the BOCES can make such a designation, and even then, the designee must be in the Office of the District Superintendent.”  However, I note that, although not relevant to the outcome here, an individual’s affirmative representation to a process server that he or she is authorized to accept service on behalf of a school district is sufficient to overcome a conclusory assertion that the individual was not so authorized (see Appeal of J.H., 54 Ed Dept Rep, Decision No. 16,688; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613; Appeal of B.B., 38 id. 666, Decision No. 14,113).

Turning to the merits as against respondent board, I note as an initial matter that, effective July 1, 2012, boards of education must comply with the provisions of Article 2 of the Education Law (DASA) and, effective July 1, 2013, the amendments thereto (Chapter 102 of the Laws of 2012).  According to the allegations in the petition, all events and actions alleged occurred prior to July 1, 2013, the effective date of the DASA amendments, which impose additional duties and obligations on districts regarding the reporting and investigation of alleged incidents of harassment, bullying, and discrimination.  Therefore, the pre-amendment DASA provisions and regulations apply to instant appeal.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners have failed to carry their burden of establishing a clear legal right to relief as to respondent board.  According to respondents, the district had no obligation under DASA to conduct an independent or parallel investigation because the student is not a district resident and does not attend a district program.  Thus, according to respondents, the “lone connection with the District is that the BOCES leases space within the District’s facilities to operate the BOCES’ independent educational program.”  In response, petitioners argue that, pursuant to the student’s IEP, district employees teach the student in mainstreamed classes and the student eats in the district cafeteria and attends district assemblies.  Therefore, according to petitioners, “it was [their] understanding” that the student would be “fully integrated” into the district and “there is no question” that the district and BOCES have a “shared responsibility toward the education and safety of [their] son.” 

In this regard, I note that DASA prohibits, among other things, “harassment or bullying [of students] by employees or students on school property or at a school function...” (Education Law §12[1]).  According to the statute, “school property” means, in relevant part, “in or within any building, structure, athletic playing field, playground, parking lot, or land contained within the real property boundary line of a public elementary or secondary school; or in or on a school bus...” (Education Law §11[1]).  The record in this case indicates that the alleged incident took place within a district classroom leased by BOCES, staffed exclusively by BOCES personnel, and serving students in a BOCES program, and that the incident was investigated by the BOCES DASA coordinator in accordance with the applicable BOCES policy and code of conduct.  According to respondents, students attending BOCES classrooms are required to comply with the BOCES code of conduct, which contains “an extensive explanation of [DASA] as well as procedures for informing the BOCES of a complaint.”  Respondents also assert that the BOCES code of conduct is provided to all students at the beginning of each school year and is posted on the BOCES’ website.  Aside from their conclusory assertions, petitioners have not articulated any legal basis that would require the district to conduct its own, separate DASA investigation under these circumstances.  On this record, therefore, I find that petitioners have failed to carry their burden of establishing that respondent board acted arbitrarily or capriciously or in violation of law.

Similarly, as to respondent BOCES, even if the appeal against it were not dismissed on procedural grounds, the appeal would also be dismissed on the merits.  BOCES’ DASA policy requires the investigation of “all complaints of harassment and discrimination, either formal or informal.”  The record indicates that the BOCES DASA coordinator commenced his investigation promptly after petitioners filed a criminal complaint with the police department on the evening of May 28, 2013.  Petitioners never filed a complaint with BOCES or notified BOCES of their criminal complaint.  Nonetheless, the DASA coordinator interviewed the student in the presence of the student’s mother and the SRO the next morning.  He and the SRO subsequently interviewed eight student witnesses and three staff witnesses.  The student’s claim was not corroborated by any of the student or staff witnesses present in the classroom at the time the alleged conduct occurred.  In addition, the DASA coordinator and the SRO observed the classroom where the alleged incident occurred, and found that the student’s claim appeared to be physically impossible due to the layout of the classroom.  At the conclusion of the investigation, the DASA coordinator concluded that, although the accused student did make an inappropriate verbal remark, the evidence did not support petitioners’ allegations of a lewd act.  On this record, petitioners have failed to establish that respondent BOCES acted improperly in conducting its investigation (see e.g. Appeal of C.B., 54 Ed Dept Rep, Decision No. 16,666; Appeal of Kosack, 53 id., Decision No. 16,611; Appeal of Kantor, 31 id. 319, Decision No. 12,652).

Petitioners also assert that they were not provided with the necessary information to file an official complaint of bullying/harassment under DASA.  According to respondents, all students were provided with the BOCES 2012-2013 code of conduct as well as the 2012-2013 student handbook, which contain procedures related to DASA complaints.  Petitioners have failed to meet their burden with respect to this claim.

Accordingly, petitioners have failed to carry their burden of demonstrating that either respondent violated DASA in the investigation and handling of the student’s complaint. 

As to petitioners’ request for records, petitioners may seek such information from respondents pursuant to the Freedom of Information Law (“FOIL”) (Public Officers Law, Article 89) and, if necessary, may challenge respondents’ compliance with FOIL in the Supreme Court of the State of New York (Appeal of Vendel, 50 Ed Dept Rep, Decision No. 16,134; Appeal of Berman, 46 id. 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; Appel of Hubbard, 45 id. 451, Decision No. 15,379).

In light of this disposition, I need not address the parties’ remaining contentions.  However, I note that nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by intimidation, harassment, and bullying in public schools.