Decision No. 13,351

(January 31, 1995)

Kathie E. Davidson, Esq., attorney for petitioner

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Suzanne Johnston, Esq., of counsel

SOBOL, Commissioner.--Petitioner Florence Parker is the maternal grandmother and legal guardian of Hasan Freeman, a student at respondent's Lincoln High School. Petitioner challenges respondent's suspension of Hasan based upon certain acts of misconduct. Petitioner requests that the determination be annulled, and that all records of the incident and the suspension be expunged from Hasan's records. The appeal must be dismissed.

On January 8, 1993, Hasan was allegedly truant and improperly riding a bus transporting students to Roosevelt High School, another school in the district. A Roosevelt student alleged that Hasan sexually assaulted her on the bus. Hasan was suspended from school for five days based upon this allegation.

On January 15, 1993, petitioner was notified by mail that a suspension hearing would be held on January 27, 1993. According to respondent, the complaining witness refused to testify at the suspension hearing, stating that she was frightened and uncomfortable in the presence of Hasan. The complaining witness did, however, agree to meet privately with the hearing officer on January 27 to testify about the events which led to her complaint. Respondent alleges that petitioner's attorney was allowed to be present and to ask questions of the witness but was advised that Hasan could not be present during the complainant's testimony. Both petitioner and petitioner's attorney dispute this, contending that they were not given notice of an opportunity for petitioner's attorney to question the complaining witness with or without Hasan present.

The witness appeared at the hearing, and in the presence of her mother, grandmother and respondent's attorney, testified before the hearing officer. Her testimony was tape recorded. Neither petitioner, Hasan, nor Hasan's counsel were present for the testimony. The hearing was continued on February 4, 1993. Petitioner, petitioner's counsel and Hasan were present on that date. However, the complaining witness did not appear. In lieu of her live testimony, the hearing officer permitted the tape recording of her earlier testimony to be played back. At the conclusion of the taped testimony, Hasan was given an opportunity to respond. He declined to do so. No other evidence or testimony was introduced at the hearing.

In her testimony, the complaining witness states that two students physically restrained her while a student named Hasan, whose last name she could not recall, molested her. Specifically, the witness stated that Hasan reached into her blouse and touched her breast. Based upon this testimony, the hearing officer recommended that Hasan be found guilty of the charge. The hearing officer also recommended that Hasan be transferred to an alternative education program at the Radford Street Academy. The superintendent accepted this recommendation, and on April 21, 1993, the board of education affirmed the superintendent's decision. Petitioner originally attempted to initiate an appeal under Education Law '310 by letter dated May 19, 1993. This appeal was deficient because it was not verified, contained no affidavit of personal service or notice and failed to include the necessary filing fee. The verified petition was eventually served upon respondent on June 14, 1993.

Petitioner contends that respondent denied Hasan the due process rights guaranteed him by Education Law '3214 in that he was never given an opportunity to confront and ask questions of the complaining witness. Petitioner further argues that the hearing officer's decision was based, in part, on statements of persons who allegedly witnessed the incident but were not produced at the hearing and, therefore, did not testify. Petitioner alleges that this also violates Education Law '3214.

Respondent contends that petitioner's counsel was notified that the complaining witness's testimony would be tape recorded and that counsel would be permitted, without Hasan present, to listen to that testimony as it was being recorded and to ask questions of the witness at that time. Respondent further contends that having been granted this opportunity as well as the chance to introduce testimony in his own defense, Education Law '3214 has been satisfied, and Hasan's due process rights have not been violated.

As a threshold matter, respondent claims that this appeal is untimely and must be dismissed. Section 275.16 of the Regulations of the Commissioner of Education requires that appeals challenging actions of a board of education be commenced within thirty days of the action complained of. In this case, the action complained of occurred on April 21, 1993 when respondent affirmed the superintendent's recommendation and found Hasan guilty. Therefore, the petition served on June 14, 1993 -- almost two months later -- is untimely. Petitioner offers no excuse for this delay, arguing instead in her reply that the attempt to file an appeal on May 19, 1993, as well as statements made by counsel during the pendency of the hearing, provided respondent with ample notice that an appeal was contemplated. Consequently, petitioner contends, respondent was not prejudiced by the late filing. Since no excuse for the delay is proffered and any such excuse must be set forth in the petition in order to be considered (Appeal of David, 30 Ed Dept Rep 399), I will not excuse the delay in this case. Therefore, the appeal is dismissed as untimely.

While the petition is dismissed on procedural grounds, I must comment upon the procedures respondent used in this case. It is not possible to tell from the record before me whether the suspension report dated January 14, 1993 was supplied to petitioner when she was given notice of the hearing. Without the inclusion of that report, however, the description of the basis for the disciplinary proceeding contained in the notice, i.e., "sexual assault," was insufficient to permit petitioner and her counsel to prepare a defense to the charges. Additionally, the hearing itself was conducted in such a loose and informal manner as to render its integrity questionable. There is no indication in the hearing transcripts of either January 27, 1993 or February 4, 1993, that any witnesses to this incident were ever required to take an oath or otherwise informed that the statements they were about to provide must be truthful. While Education Law '3214 does not specifically require witnesses to be sworn, for a board of education to suspend a student from school, testimony and other evidence must be at least minimally competent (See, e.g., Manual for Hearing Officers and Administrative Adjudication, New York State Civil Service Commission, 1972, pages 110 and 126).

Moreover, if it was, indeed, true that Hasan's attorney was not given the chance to cross examine the complaining witness when her testimony was recorded, then Hasan was denied due process. Section 3214(3)(c) requires that the student, or his counsel if he is represented by counsel, be granted the right to question witnesses against him. (Matter of Montero, 10 Ed Dept Rep 49, 51; Matter of Currie, 7 Ed Dept Rep 60). Playing back the tape recording of the complaining witnesses' testimony is not sufficient compliance with the statute since neither Hasan nor his attorney can cross-examine a tape. Finally, the serious nature of the allegations against Hasan could easily have led to criminal charges against him (the allegations if substantiated would constitute sexual abuse in the first degree; Penal Law '130.65; a class "D" felony), and could have been reported to the police. Under such circumstances, respondent should have exercised considerably more care in the selection and application of the procedures it used to investigate this matter, especially in view of the complaining witness's obvious fear of Hasan and reluctance to testify against him.

Respondent should review its disciplinary hearing procedures and implement changes necessary to make them effective and meaningful.

THE APPEAL IS DISMISSED.

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