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Decision No. 17,579

Appeal of R.J., on behalf of her child P.G., from action of the Board of Education of the City School District of the City of Cohoes regarding student discipline.

Decision No. 17,579

(January 30, 2019)

Girvin & Ferlazzo, P.C., attorneys for respondent, Erin M. Rose-Morris, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Cohoes (“respondent”) to discipline her child (“the student”).  The appeal must be dismissed.

During the 2017-2018 school year, the student was enrolled in respondent’s high school.  According to the record, on November 30, 2017, while attending a school function, the student was involved in an incident in which a seventh-grade student performed oral sex on him in the presence of a third student.  The following day, an assistant principal assigned to respondent’s middle school interviewed the seventh-grade student, who confirmed that she performed oral sex on the student after he made repeated requests for her to do so.  The assistant principal referred the matter to the police and was present when the police interviewed the seventh-grade student.  According to the assistant principal, the seventh-grade student told the police that the student forcefully held her head during the encounter.  The assistant principal was also present when the police interviewed the third student who stated that he witnessed the incident.  As a result of the police investigation, the student was charged with three sex crimes.

By letter dated December 4, 2017, the principal informed petitioner that the student was suspended for five days, beginning December 5, 2017.  The letter advised petitioner that the matter may be referred to respondent’s superintendent to determine whether an additional period of suspension was warranted, and that petitioner had a right to appeal the five-day suspension to the superintendent.

By letter dated December 6, 2017, which was hand-delivered to petitioner’s home, the superintendent advised petitioner and the student that a superintendent’s hearing was scheduled for December 12, 2017.  The letter charged the student with the following conduct:

1. On or about November 30, 2017, while at school attending a school function, [the student] engaged in sexual contact constituting a sexual offense with a minor female student while on school property.  Given the nature of this act, which may violate state and federal laws, in addition to the District’s Code of Conduct and other policies, a referral to law enforcement was made.

2. By engaging in the conduct described above, [the student] violated provisions of the Cohoes City School District Code of Conduct which prohibit sexual harassment, sexual assault, unwanted physical contact, intimidation, bullying and other behavior which endanger[s] the safety, morals and health or welfare of the student or others.

On December 12, 2017, prior to the commencement of the hearing, representatives of respondent met with petitioner and the student to discuss a proposed disciplinary settlement in lieu of proceeding with the formal disciplinary hearing.  According to respondent’s attorney, petitioner became upset at the meeting, indicated that she would not settle, and threatened to leave.  Respondent’s attorney advised petitioner that, if she left, the disciplinary hearing would proceed in her absence.  Petitioner and the student left the premises.

Petitioner and the student did not attend the ensuing hearing.  At the hearing, respondent offered the testimony of one witness, the assistant principal.  No proof was offered on behalf of the student.

At the close of the hearing, the hearing officer recommended that the student be found guilty of the charged conduct.  Specifically, the hearing officer explained that “[t]he credible evidence in this case demonstrates that on the evening of November 30, 2017, the [s]tudent . . . coerced a . . . minor female seventh grade student to perform oral sex on him while on [s]chool [d]istrict property.”  As to the penalty, the hearing officer recommended that the student be suspended for one calendar year.

By letter dated December 14, 2017, the superintendent imposed a one-year suspension beginning December 5, 2017, which would permit the student to return to school on December 5, 2018.  The letter advised petitioner of her right to appeal to respondent within 30 days of the date of the letter.

Upon petitioner’s ensuing appeal to respondent, respondent upheld the student’s suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 8, 2018.

Petitioner argues, without elaboration, that respondent did not inform the student of the suspension in a timely manner, that the student was “suspended for hearsay,” and that the student is innocent of all charges.

Respondent asserts that the petition must be dismissed because it was not properly served or verified.  Alternatively, respondent contends that the petition should be dismissed on the merits and fails to state a claim.

The appeal must 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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Here, the record indicates that petitioner failed to personally serve any individuals who were properly authorized to accept service on behalf of the district, the board, any individual board members, or the superintendent.  Petitioner’s affidavit of service indicates that service was made upon an unnamed “[s]ecretary” employed by the district.  In its answer, respondent explains that the petition was served on a communications specialist who happened to be in the office when the petition was delivered.  Respondent asserts that the communications specialist is not designated to accept service on behalf of the district.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No, 16,211; Appeal of Terry et al., 50 id., Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).  On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner's regulations.  Accordingly, the appeal must be dismissed.

Moreover, even if the petition were properly served, it would be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Because the student’s suspension has been served and petitioner has not requested expungement of the student’s record, the appeal is therefore moot (Appeal of a Student Suspected of Having a Disability, 57 Ed Dept Rep, Decision No. 17,237; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

In a statement attached to the petition, petitioner makes a conclusory allegation that respondent “did not inform child of Suspension in a timely manner.”  No explanation is provided, and petitioner has provided no proof that the written notice of the five-day suspension or the notice of the superintendent’s determination to impose the long-term suspension were not provided in a timely manner.  Thus, petitioner failed to meet her burden of proof on this issue.

With respect to petitioner’s complaint that the student is being suspended based on hearsay, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.E., 57 Ed Dept Rep, Decision No. 17,267).  Therefore, to the extent that petitioner argues the student was punished based upon hearsay evidence, a reliance upon hearsay evidence does not provide a basis to sustain the appeal.

Finally, petitioner has not provided any evidence to support her contention that the student is innocent of the charges and has not established that respondent’s finding of guilt was not based on competent and substantial evidence.

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