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Decision No. 17,238

Appeal of R.S., on behalf of his client T.M., from action of the City School District of the City of Elmira regarding student discipline.

Decision No. 17,238

(October 31, 2017)

Siglin Law Office, attorney for petitioner, Robert D. Siglin, Esq., of counsel

Sayles & Evans, attorneys for respondent, Conrad R. Wolan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the City School District of the City of Elmira (“respondent” or “respondent board”) to suspend his client, T.M., from school.   The appeal must be dismissed.

At all times relevant to this appeal, T.M. was an unemancipated sixteen-year-old minor who resided with his parents.  Petitioner is T.M.’s counsel.

On March 24, 2014, T.M. was suspended for five days for allegedly committing theft from school premises in violation of the district’s code of conduct.

A superintendent’s hearing was held on April 9. The hearing officer issued a decision and recommendation dated April 23.   By decision dated April 24, the superintendent found T.M. guilty of the charged conduct and recommended that T.M. be suspended for 13 days and not be permitted to participate in extracurricular activities for the remainder of the school year.  The superintendent found a number of procedural deficiencies with the initial five-day suspension imposed by the school principal on T.M. and therefore recommended that the principal’s five-day suspension be expunged from T.M.’s record.  Petitioner appealed the superintendent’s decision to respondent board.  Respondent board denied the appeal.  This appeal ensued.

Petitioner alleges a number of procedural deficiencies in the disciplinary process, which he maintains denied his client due process.  Petitioner further asserts that the school district failed to establish the identity of the suspect as T.M.  Petitioner requests that I reverse respondent’s decision and expunge the 13-day suspension from T.M.’s record.  Petitioner further requests that I order respondent to receive mandatory training regarding procedures for suspensions and superintendent hearings.  Petitioner requests that I award him attorney fees and costs associated with the defense.

Respondent maintains that the appeal should be dismissed for lack of standing and as moot.

Petitioner objects to respondent’s late answer.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

Here, the petition was personally served on July 14, and respondent’s answer was therefore required to be served by August 3, which was a Sunday.  When a time period ends on a Saturday, Sunday or a public holiday, a document may be served on the next succeeding business day, in this case, Monday, August 4 (General Construction Law §25-a[1]). However, respondent’s affidavit of service indicates that the answer was not served by mail until August 5, one day late.  Although respondent asserts in its memorandum of law that “petitioner did not suffer any prejudice,” respondent has proffered no reason for the delay in serving its answer.  Accordingly, I have not considered respondent’s late answer and the factual allegations set forth in the petition will be deemed to be true statements.  Likewise, I need not consider petitioner’s reply to respondent’s answer.

Nevertheless, the appeal must be dismissed for lack of standing.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]). Here, T.M. is an unemancipated minor and the appeal has been brought by his attorney rather than his parents or a person in parental relation to him (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,182).[1]  Indeed, petitioner admits that he is T.M.’s attorney and that he was retained by T.M.’s parents.  Therefore, under these circumstances, T.M.’s parents would have standing to pursue a petition under Education Law §310 challenging their son’s suspension.  This did not occur. Thus, petitioner does not have standing to pursue the instant appeal and the appeal must be dismissed.

To the extent petitioner requests attorney fees and costs, the Commissioner has no authority to award monetary damages, attorney fees, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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




[1] As respondent points out in its memorandum of law, even if the student was a proper petitioner, the verification of the petition by his attorney, as occurred here, would be improper, requiring dismissal (Appeal of D.T., 46 Ed Dept Rep 576, Decision No. 15,580).