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Decision No. 17,658

* Subsequent History: Matter of N.S. v New York State Educ. Dept.; Supreme Court, Albany County; Special Term (Zwack, J.); Decision and Order dismissed petition to review; February 18, 2019. *

Appeal of N.S., on behalf of his daughter T.S., from action of the Board of Education of the City School District of the City of Peekskill regarding student discipline.

Decision No. 17,658

(June 17, 2019)

Angel Antonio Castro, III, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

BERLIN., Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Peekskill (“respondent”) to suspend his daughter.  The appeal must be dismissed.

During the 2017-2018 school year, T.S. attended respondent’s high school.  On April 9, 2018, T.S. was involved in an incident in the high school cafeteria.  By letter dated April 10, 2018, the high school principal suspended T.S. for five days beginning on April 10, 2018.  The letter described the conduct for which the suspension was imposed to include:  engaging in disorderly conduct, engaging in violent conduct, and engaging in conduct which endangers the safety of others.  The notice further indicated that a superintendent’s hearing would be held to determine whether further discipline was warranted.  The hearing, originally scheduled for April 17, 2018, was postponed – apparently at petitioner’s request - to April 25, 2018.  The hearing was held before a hearing officer who made his recommendations to respondent’s superintendent.  The superintendent issued her findings via letter dated April 26, 2018:

I find [T.S.] guilty of violating the Peekskill Code of Conduct, as well as engaging in behavior which endanger [sic] the safety, morals, and health of herself and others.... [T.S.] was engaged in conduct that was disorderly and violent.

As a penalty, the superintendent extended T.S.’s suspension through May 8, 2018.

Petitioner appealed the superintendent’s decision to respondent and, by letter dated June 20, 2018, respondent upheld the superintendent’s decision.  This appeal ensued.

Petitioner challenges the five-day suspension imposed by the principal on procedural grounds, including, inter alia, adequacy of notice.  Petitioner also challenges the notice provided for the superintendent’s hearing.  Petitioner maintains that the record does not support the finding of guilt, that the superintendent improperly substituted her judgment for that of the hearing officer, and that the penalty is excessive.  Petitioner claims that the superintendent’s June 20, 2018 decision is arbitrary and capricious and requests that I overturn respondent’s decision and expunge the suspension from T.S.’s record.

Respondent asserts that the appeal must be dismissed for failure to effect proper service.  Respondent further argues that the district complied with the procedural requirements of Education Law §3214, that the decisions to suspend T.S. were based upon competent and substantial evidence, and that the penalty imposed is proportionate to the severity of the offense.

I must first address several procedural issues.  In its answer, respondent requested permission to submit a subsequent affidavit from its district clerk.  Thereafter, respondent submitted the affidavit, dated August 14, 2018, in support of its defense of lack of proper service of the petition.  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).

In requesting permission in its answer to submit the affidavit, respondent explained that the district clerk was on vacation at the time respondent submitted its verified answer.  I note that the affidavit does not present new factual or legal assertions that were not addressed in the pleadings.  For these reasons, I will accept the additional affidavit for consideration.

Next, petitioner submitted a reply memorandum of law via facsimile on September 19, 2018.  Pursuant to §276.4 of the Commissioner’s regulations, reply memoranda are permitted only with prior permission of the Commissioner.  Petitioner neither sought nor received such permission.  In addition, petitioner submitted no affidavit of service of the reply memorandum upon respondent.  For both of these reasons, such reply memorandum has not been 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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

The record indicates that petitioner failed to personally serve any individual authorized under 8 NYCRR §275.8(a) to accept service on behalf of the school district.  According to the district clerk’s affidavit, on July 20, 2018, petitioner served the petition initiating this appeal upon a custodian who was working at the district offices after regular business hours.  Although it appears that the custodian subsequently provided the petition to an assistant superintendent, when there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850; Appeal of Baker, 47 id. 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654).  Therefore, 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, and the appeal must be dismissed.

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