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Decision No. 17,294

Appeal of J.N., on behalf of her son A.N., from action of the Board of Education of the Baldwin Union Free School District regarding student discipline.

Decision No. 17,294

(December 21, 2017)

John J. McGrath, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Kerrin A. Bowers, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the Baldwin Union Free School District (“respondent” or “board”) to impose discipline on her son, A.N. (“the student”).  The appeal must be dismissed.

According to the record, on May 8, 2015, the principal of respondent’s high school learned that the student might have been involved in the theft of approximately 200 calculators which were district property.  The student subsequently admitted to respondent’s dean of students that he advertised and sold multiple calculators.

In a letter dated May 13, 2015, the principal suspended the student for five days based upon his possession, advertising and sale of calculators which were district property.  In a second letter dated May 13, 2015, respondent’s superintendent informed petitioner and the student’s father that the district would convene a long-term suspension hearing on May 20, 2015.  The letter charged the student with violating the school’s code of behavior; possession of a stolen calculator; advertising and selling calculators that were the property of the school district online for profit; and contributing to the disruption of instruction for fellow students.  According to respondent, petitioner met with the principal on May 15, 2015 to discuss the five-day suspension, but “[a]t no time during the discussion did [petitioner] ask for the opportunity to question or speak to complaining witnesses.”  Both letters dates May 13, 2015 were hand-delivered to the student’s home on May 14, 2015.  Petitioner claims that she was notified of the five-day suspension by phone on or about May 14, 2015.

The hearing, presided over by a hearing officer, convened as scheduled.  At the hearing, the student admitted his guilt to the four charges identified in the superintendent’s May 13, 2015 letter, and the hearing officer found the student guilty of all four charges.  After rendering a finding of guilt, the hearing officer considered the student’s anecdotal record and recommended suspension of one calendar year.  The hearing officer further recommended that the student be permitted to return to school “after the first semester of the 2015-2016 school year” if he complied with certain conditions.

In a letter dated May 26, 2015, the superintendent indicated that she had reviewed the proceedings and the hearing officer’s report and decided to impose a penalty of suspension for the remainder of the 2014-2015 school year and the 2015-2016 school year.  However, the superintendent indicated that she would permit the student to return to school on February 1, 2016 if he, among other conditions, completed 10 hours per week of community service, paid restitution for the calculators he stole and attended the “homebound center” on a regular basis.  Petitioner thereafter appealed to respondent.  In a letter dated June 11, 2015, respondent indicated that it had considered and denied petitioner’s appeal on June 10, 2015.  This appeal ensued.

Petitioner contends that respondent did not provide the student with adequate and timely notice of the five-day suspension.  Petitioner further argues that the hearing officer did not afford her or the student adequate notice prior to the hearing that the student’s anecdotal record would be considered.  Petitioner further argues that the student’s long-term suspension was excessive[1] and that the hearing officer considered improper factors in reaching his recommendation as to penalty.  Petitioner contends that the superintendent impermissibly recommended a greater suspension than that recommended by the hearing officer.  Petitioner requests expungement of the short-term and long-term suspensions from the student’s record.

Respondent contends that the appeal must be dismissed as untimely.  Respondent also submits that it gave the student legally sufficient notice of the five-day suspension.  Respondent further argues that the student admitted his guilt to the charged conduct, which constitutes competent and substantial evidence of the student’s guilt.  Respondent asserts that the penalty imposed by the superintendent was appropriate and within her discretion.

The appeal must be dismissed as untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Respondent denied petitioner’s appeal in a letter dated June 11, 2015.  The record does not indicate when this letter was received by petitioner.  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  Therefore, the appeal was required to be served on or before July 17, 2015.

Petitioner originally served the petition on a board member on July 10, 2015.  However, by letter dated July 20, 2015, my Office of Counsel returned this petition to petitioner as it lacked the notice required by 8 NYCRR §275.11.  My Office of Counsel informed counsel for petitioner that if he served and filed a corrected petition within two weeks of the date of the July 20, 2015 letter, the appeal would be deemed served on the date which it was personally served; i.e., July 10, 2015.  Thus, petitioner was required to serve a corrected petition by August 3, 2015. 

Petitioner’s affidavit of service indicates that her counsel served a copy of the petition with the correct notice on a person of suitable age and discretion at the home of a board member on August 4, 2015, and that he personally served the district clerk on August 5, 2015.  This corrected version of the petition was filed with my Office of Counsel on August 10, 2015.  Therefore, petitioner did not effectuate personal service of the petition within the timeframe prescribed by my Office of Counsel.  Consequently, the date of service does not relate back to the original date upon which the defective petition was served.  The appeal was thus served on August 4, 2015, 19 days after expiration of the 30-day period.  Petitioner does not set forth good cause for this delay in her petition (see 8 NYCRR §275.16).  Accordingly, the appeal must be dismissed as untimely (see e.g. Appeal of S.P. and N.P., 56 Ed Dept Rep, Decision No. 17,029; Appeal of M.E. and J.G.E., 45 id. 387, Decision No. 15,359).

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




[1] I note that, in a letter dated February 2, 2016, respondent’s counsel informed my Office of Counsel that the district shortened the student’s suspension and allowed him to return to school on February 1, 2016.